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Tanner v. McMurray

United States District Court, D. New Mexico

November 19, 2018

SHAWNA TANNER, individually and as personal representative of JAY HINTON, JR., Plaintiffs,
v.
TIMOTHY I. MCMURRAY, M.D.; ADRIANA LUNA, R.N.; AUDREY LEBER, R.N.; TAILEIGH SANCHEZ, R.N.; ELISA MANQUERO, R.N.; CORRECT CARE SOLUTIONS, LLC; BOARD OF COUNTY COMMISSIONERS OF BERNALILLO COUNTY, NEW MEXICO; THOMAS J. RUIZ; JOHN AND JANE DOES 1-10; CHRISTOPHER MERCER; ED KOSSMAN; CLAUDIA RODRIGUEZ-NUNEZ; MARTINA SANCHEZ-FILFRED, and TINA M. MUNOZ, Defendants.

          Nicole Moss The Law Office of Nicole W. Moss Albuquerque, New Mexico and Paul J. Kennedy Jessica M. Hernandez Arne Leonard Elizabeth Harrison Kennedy, Hernandez & Associates, P.C. Albuquerque, New Mexico Attorneys for the Plaintiff

          Alfred A. Park Geoffrey D. White Park & Associates, L.L.C. Albuquerque, New Mexico Attorneys for Defendants Timothy I. McMurray, Adriana Luna, Audrey Leber, Taileigh Sanchez, Elisa Manquero, Correct Care Solutions, LLC, Christopher Mercer, Ed Kossman

          Jonlyn M. Martinez Law Firm of Jonlyn M. Martinez Albuquerque, New Mexico Attorney for Defendants Board of County Commissioners of Bernalillo County, Thomas J. Ruiz, Claudia Rodriguez-Nuñez, Martina Sanchez-Filfred, Tina M. Muñoz

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendant Claudia Rodriguez-Nuñez' Motion to Dismiss and Brief in Support, filed July 9, 2018 (Doc. 63)(“Rodriguez-Nuñez Motion”); and (ii) Defendant Tina Muñoz' Motion to Dismiss and Brief in Support, filed July 30, 2018 (Doc. 70)(“Muñoz Motion”). The Court held a hearing on October 3, 2018. The primary issues are: (i) whether the § 41-4-6 immunity waiver in the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 through 41-4-27 (“NMTCA”), applies to Defendant Claudia Rodriguez-Nuñez when her alleged delay in responding to Plaintiff Shawna Tanner's request for medical attention affected only Tanner; (ii) whether the NMTCA § 41-4-9 immunity waiver applies to Rodriguez- Nuñez when she was not present in the medical unit during the time in question; (iii) whether the NMTCA § 41-4-6 immunity waiver applies to Defendant Tina Muñoz when her alleged delay in responding to Tanner's requests for medical attention and refusal to provide Tanner with a blanket and drinking cup affected only Tanner; and (iv) whether the NMTCA § 41-4-9 immunity waiver applies to Muñoz when she was not involved in clinical decision-making or supervision of the medical unit. For the reasons explained below, the Court concludes that neither immunity waiver applies to either Defendant, and the Court will grant both Motions.

         FACTUAL BACKGROUND

         Plaintiff Shawna Tanner, on behalf of herself and as personal representative of her deceased minor child, Jay Hinton Jr., (collectively, “Plaintiffs”) filed the First Amended Complaint for Civil Rights Violations, Tort Claims, Wrongful Death, Statutory Violations, Damages, and Injunctive Relief, filed May 23, 2018 (Doc. 50)(“Amended Complaint”). The Amended Complaint states that the Court “has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343, with supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.” Amended Complaint ¶ 1, at 1. Plaintiff Shawna Tanner was at all relevant times a New Mexico resident. See Amended Complaint ¶ 3, at 2. All the known Defendants are individuals who resided in the State of New Mexico at all relevant times or are entities who are incorporated or are authorized to do business in New Mexico. See Amended Complaint ¶ 2, at 1 (stating that venue is proper “in this District as Defendants are residents of New Mexico under 28 U.S.C. § 1391 and all of the acts complained of occurred in New Mexico.”). See also Amended Complaint ¶¶ 5-12, at 2-4 (describing the Defendants' residences).

         Tanner first brought the Complaint for Civil Rights Violations, Tort Claims, Statutory Violations, Damages, and Injunctive Relief, filed August 25, 2017 (Doc. 1)(“Complaint”) in federal district court against the following Defendants: (i) Timothy I. McMurray, M.D., the Metropolitan Detention Center in the County of Bernalillo, New Mexico (“MDC”)'s Site Medical Director; (ii) Adriana Luna, R.N., an MDC Registered Nurse; (iii) Audrey Leber, R.N., an MDC Registered Nurse; (iv) Taleigh Sanchez, R.N., an MDC Registered Nurse; (v) Elisa Manquero, R.N., an MDC Registered Nurse; (vi) Correct Care Solutions LLC (“CCS”), a Kansas Limited Liability Company with a site office at the MDC, which “employed, contracted with, and exercised direct supervisory control” over McMurray, Luna, Leber, Sanchez, and Manquero, see Complaint ¶ 6, at 2; (vii) Thomas J. Ruiz, the MDC's Administrator; (viii) Board of County Commissioners (“BCC”) of Bernalillo County, which contracted with CCS to provide health-care services to MDC inmates; (viv) additional health-care personnel, identified as Does 1-5; and (x) additional corrections personnel, including corrections officers, employed at the MDC and identified as Does 6-10. Complaint ¶¶ 4-9, at 2-3. In the Amended Complaint, Tanner withdrew the Complaint against Leber, and added the following Defendants: (i) Christopher Mercer, P.A., an MDC Physician Assistant; (ii) Ed Kossman, an MDC Health Services Administrator (“HSA”); (iii) Claudia Rodriguez-Nuñez, an MDC corrections officer; (iv) Martina Sanchez-Filfred, an MDC corrections officer; and (v) Tina M. Muñoz, an MDC corrections officer. See Amended Complaint ¶¶ 6-8 and 12, at 2-4.

         According to the Amended Complaint, Tanner began a term of incarceration at the MDC on October 4, 2016, while in the last month of her pregnancy. See Amended Complaint ¶ 34, at 10. Upon intake, Tanner disclosed her pregnancy “as well as her desire and intent to give birth and keep the child” to the MDC and medical personnel. Amended Complaint ¶ 35, at 10. Tanner also disclosed her medical history relevant to diagnosing possible risks associated with her pregnancy, including “prior pregnancies, past substance abuse, and her age (33 years old).” Amended Complaint ¶ 36, at 10-11.

         Tanner remained in the MDC's custody from on or about October 4, 2016, until on or about October 20, 2016, aside from a brief emergency visit to Lovelace Women's Hospital in Albuquerque, New Mexico, on or about October 17, 2016. See Amended Complaint ¶ 34, at 10. The Amended Complaint alleges that, while at the MDC:

[Tanner] was dependent on MDC personnel and CCS personnel for access to timely and appropriate prenatal care, medical examinations by a clinician qualified to provide such care, appropriate prenatal laboratory and diagnostic tests, specialized obstetrical services and resources for her pregnancy, transport to an appropriate community facility for delivery and peripartum care, and all emergency medical care.

         Amended Complaint ¶ 34, at 10. According to the Amended Complaint, Rodriguez-Nuñez and Muñoz were corrections officers at the MDC during the time that the Amended Complaint addresses, and at all relevant times “were acting under the color of law and within the scope of their duties and employment as corrections officers at MDC.” Amended Complaint ¶ 12, at 4.

         Tanner alleges that:

On or about December 9, 2014, Defendant BCC selected, approved, and entered into a written contract between Bernalillo County, New Mexico and Defendant CCS entitled “Medical, Dental, Mental Health, Psychiatric and Methodone Services Agreement” (hereinafter “Medical Services Agreement”). That agreement remains in effect, as amended, for a four-year term.

         Amended Complaint ¶ 13, at 4. Tanner alleges that, under the Medical Services Agreement, BCC and CCS represented that healthcare for the MDC inmates would comply with all current and future standards issued by the National Commission on Correctional Health Care (“NCCHC”) and the American Correctional Association (“ACA”). See Amended Complaint ¶ 14, at 4. Tanner alleges that, under the Medical Services Agreement, CCS agreed to train the MDC staff on NCCHC and ACA standards, “including training on recognizing emergencies and procedures for referring inmates for care.” Amended Complaint ¶ 14, at 4. Tanner alleges that the NCCHC standards in effect when CCS and BCC entered into the Medical Services Agreement contain a standard entitled “Counseling and Care of the Pregnant Inmate, ” which requires that: “Pregnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care. Pregnant inmates are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy.” Amended Complaint ¶ 15, at 4-5. Tanner alleges that CCS and BCC contracted to add a provision for “bi-weekly onsite OB/GYN clinics at 4 hours per clinic” to the Medical Services Agreement. Amended Complaint ¶ 20, at 6. Tanner alleges that, in addition to the provision for bi-weekly onsite OB/GYN clinics, the Medical Services Agreement

required a staffing pattern with at least two physicians, two physician assistants or other mid-level providers, as well as the site medical director, such that a physician was on-call and available for site visits twenty-four hours, seven days per week, and daily rounds of the facility's Sheltered Housing Unit (SHU) were conducted by a physician, physician assistant, or other mid-level provider seven days a week.

         Amended Complaint ¶ 21, at 6. Tanner alleges that the ACA standards in effect when CCS and BCC entered into the Medical Services Agreement require that “[p]regnant inmates have access to obstetrical services by a qualified provider, including prenatal, peripartum, and postpartum care.” Amended Complaint ¶ 18, at 5. Tanner alleges that the Medical Services Agreement contained specific provisions regarding referral of pregnant inmates for prenatal care, identification of patients in need of hospitalization or other off-site services, and other such responsibilities. See Amended Complaint ¶ 22, at 6. Tanner alleges that McMurray's responsibilities under the Medical Services Agreement include “develop[ing] special medical programs for inmates who require close medical supervision, special accommodations, and/or chronic and convalescent care, including a plan of treatment with directions for health care staff and correctional staff regarding their roles in the care and supervision of such inmates.” Amended Complaint ¶ 23, at 6-7. Tanner alleges that Kossman's responsibility under the Medical Services Agreement “is to monitor the performance of all health care personnel rendering patient care and advise the Chief of Corrections, Defendant Tom Ruiz, on specific clinical issues as appropriate.” Amended Complaint ¶ 24, at 7. Tanner alleges that, under the Medical Services Agreement, Ruiz

retained final authority . . . to decide the assignment and utilization of staff to maximize the efficiency of health care delivery at MDC, and to approve hiring of Defendant CCS's Health Services Administrator, as well as physicians and mid-level providers at MDC. (Section 4.1.25.6). Defendant Ruiz was also kept informed of contract compliance and health care issues at MDC through a number of monthly reports, matrices, logs, corrective action plans, and committee meetings required under the Medical Services Agreement. (Sections 4.1.16.5, 4.1.20.1, 4.1.25.27, 4.1.26.7, 4.1.27.4, 4.2.1, 4.2.2.) The Medical Services Agreement specifically provided Defendants BCC and Ruiz with access for inspection of detailed records indicating the date, time and nature of services provided under the agreement. (Section 4.3.2.1.)

Amended Complaint ¶ 25, at 7.

         Tanner alleges that CCS stated it recently acquired Correctional Health Companies, and that CCS “truly understands the complexities of McClendon [v. City of Albuquerque, No. CIV 95-24 JAP/KBM (Doc. 50, ¶¶ 26-30)(“McClendon”)], ” a class-action lawsuit involving conditions of inmate medical care and mental health care at the MDC and its predecessor facilities. Amended Complaint ¶ 26, at 7. Tanner alleges that, on March 22, 2016, the Honorable James A. Parker, United States District Judge for the District of New Mexico, entered a Memorandum Opinion and Order preliminarily approving the McClendon settlement agreement and requiring that notice of the agreement and its terms be posted in both English and Spanish in every MDC housing unit, the medical services unit, the reception, discharge, and transfer unit, and the law library. See Amended Complaint ¶¶ 27-28, at 7-8. Tanner alleges that Judge Parker also required that the MDC allow inmates to review the settlement agreement in full upon request or through a kiosk system. See Amended Complaint ¶ 28, at 8. Tanner alleges that, after allowing sixty days for notice, comment, and objections, Judge Parker gave final approval for the settlement agreement in a Memorandum Opinion and Order dated June 27, 2016. See Amended Complaint ¶ 29, at 8. Tanner asserts that Judge Parker concluded that the settlement agreement “does not bar inmates with individual claims from pursuing damages in separate lawsuits.” Amended Complaint ¶ 29, at 8.

         Tanner alleges that the Medical Services Agreement requires BCC to demonstrate compliance with three “Check-Out Audit Agreements corresponding to areas evaluated by court-appointed experts: (1) provision of medical services; (2) provision of mental health services; and (3) general conditions of confinement, including population management.” Amended Complaint ¶ 30, at 8. Check-Out Audit Agreement No. 1 (“CAA No. 1”), pertaining to the MDC's provision of medical services to inmates, specifically references compliance with NCCHC and ACA standards, and requires the court-appointed medical expert to monitor and address “[w]hether MDC inmates who complain orally or in writing of serious acute illness or serious injury are given immediate medical attention, ” and “[w]hether all inmate requests for medical care are timely communicated to medical personnel for appropriate treatment.” Amended Complaint ¶ 30, at 8-9. Tanner alleges that, by June 2016, the MDC staff had not yet achieved compliance with CAA No. 1. See ¶¶ 31-32, at 9. Tanner alleges that the MDC supervisory personnel, including McMurray, Kossman, and Ruiz, received notice and were aware of the facility's non-compliance with the McClendon settlement agreement and the Check-Out Audit Agreements. See Amended Complaint ¶ 33, at 9. Tanner alleges that the Medical Services Agreement, the McClendon settlement agreement, and CAA No. 1 were all in effect when she began her term of incarceration at MDC in the last month of gestation of her pregnancy. See Amended Complaint ¶ 34, at 10.

         Tanner alleges that, during her time in the MDC's custody, she and her fetus, Jay Hinton, Jr., were dependent on the MDC and CCS personnel for “access to timely and appropriate prenatal care, medical examinations by a clinician qualified to provide such care, appropriate prenatal laboratory and diagnostic tests, specialized obstetrical services and resources for her pregnancy, transport to an appropriate community facility for delivery and peripartum care, and all emergency medical care.” Amended Complaint ¶ 34, at 10. Tanner alleges that she could feel Jay Hinton, Jr. “kicking, moving, and exhibiting other signs of life within her.” Amended Complaint ¶ 35, at 10. Tanner alleges that the records she provided to the MDC of her prenatal care pre-incarceration also disclosed the relevant aspects of her medical history. See Amended Complaint ¶ 36, at 10-11.

         Tanner alleges that she completed a healthcare request form, countersigned by Manqero two days later, upon her arrival to the MDC on October 4, 2016, stating: “I'm pregnant need meds.” Amended Complaint ¶ 37, at 11. Tanner alleges that Emergency Medical Technician Roger Boydston completed a “Receiving Screening” form for Tanner upon her arrival to the MDC, indicating that she had been treated for her pregnancy before her incarceration, and checking a box for “RN Review/Plan, ” which stated: “CCC pregnancy entered Prenatals ordered; Pregnancy labs ordered per protocol, Off-site coordinator notified via e-mail, pregnancy diet started.” Amended Complaint ¶ 38, at 11. Tanner alleges that Spencer and Mercer electronically signed the Receiving Screening form. See Amended Complaint ¶ 38, at 11. Tanner alleges that Boydston and Mercer signed another form regarding Tanner and referring to her pregnancy and her substance abuse. See Amended Complaint ¶ 39, at 11. Tanner alleges that Spencer and McMurray signed orders for medication, and for a medical diet for Tanner. See Amended Complaint ¶ 40, at 11. Tanner alleges, accordingly, that McMurray, Manquero, and Mercer, all knew of her “serious medical needs as a pregnant inmate in the last trimester who was incarcerated at MDC and in their care as of October 4, 2016.” Amended Complaint ¶ 41, at 12.

         Tanner alleges that the MDC personnel never referred her to an OB/GYN clinic or appropriate prenatal care, and that the MDC personnel never attempted to obtain her medical records for her pre-incarceration treatment, despite the mandates in the NCCHC and ACA standards to do so. See Amended Complaint ¶ 42, at 12. Tanner alleges that, upon intake, she was assigned to a housing unit in the MDC (a “pod”) and was required to participate in strenuous physical activities “without due regard to her pregnancy or the risks associated with it. Such activities included gathering her belongings and moving them from one tier of the pod to another.” Amended Complaint ¶ 43, at 12. Tanner alleges that none of the Defendants “provided or followed advice on levels of activity and safety precautions appropriate” for her pregnancy and its associated risks. Amended Complaint ¶ 43, at 12. Tanner alleges that, on October 14, 2016, Manquero saw her and completed a “Medical History and Physical Assessment with Mental Health” form, and that Tanner reported her pregnancy to Manquero and requested prenatal care. Amended Complaint ¶ 44, at 12. Tanner alleges that, on October 15, 2016, McMurray signed the form Manquero had prepared the day before, but that neither McMurray, Manquero, nor any other CCS personnel conducted appropriate follow-up with Tanner regarding her pregnancy and a plan for medical care. See Amended Complaint ¶ 44, at 12-13.

         Tanner alleges that she again requested medical attention early on October 16, 2016, while Rodriguez-Nuñez was on duty in Pod F7, a housing unit at the MDC. See Amended Complaint ¶ 45, at 13. Upon information and belief, Tanner alleges that Rodriguez-Nuñez “lacked adequate training or supervision with regard to pregnant inmates such as Plaintiff Tanner, and the facility was understaffed at the time.” Amended Complaint ¶ 45, at 13. Tanner alleges that Rodriguez-Nuñez “declined and delayed responding to Plaintiff Tanner's initial request for medical attention on October 16, 2016.” Amended Complaint ¶ 46, at 13. Tanner alleges that, after Rodriguez Nuñez' delay, she “encountered a roving corrections officer, Rebecca Macias, who escorted her to the medical unit, where she was eventually seen by Defendant Luna.” Amended Complaint ¶ 46, at 13.

         Tanner next contends that, after Luna saw her, Rodriguez-Nuñez, along with Luna and Sanchez-Filfred, “sent Plaintiff Tanner back to Pod F7 on Sunday morning, October 16, 2016, without providing timely or adequate medical care.” Amended Complaint ¶ 47, at 13-14. Tanner then avers that, according to records produced to her as of the date she filed the Amended Complaint, “corrections officer Rebecca Macias relieved Defendant Rodriguez-Nuñez of her duties in Pod F7 for a 30-minute break at approximately 9:40 a.m.” on the same day. Amended Complaint ¶ 48, at 14. The records, Tanner asserts, “indicate that Officer Macias had just finished escorting Plaintiff Tanner from the medical unit back to the general housing pod and was aware that she was pregnant.” Amended Complaint ¶ 48, at 14.

         During the escort, Macias noticed that Tanner needed “immediate medical attention.” Amended Complaint ¶ 48, at 14. After unsuccessfully calling the MDC's medical unit to “report her observations, ” Macias called a “Code 43” signifying an “immediate medical emergency” and then escorted Tanner to the “front waiting area of the medical unit” where she waited “in the presence of Defendant Sanchez-Filfred . . . .” Amended Complaint ¶ 49, at 14. Tanner contends that Luna “summoned corrections officers to place and hold Plaintiff Tanner in a locked, solitary segregation cell within the medical unit contrary to the NCCHC Standards on Restraint and Seclusion, ” and that Muñoz, “who was posted to the back area of the infirmary, actively participated in placing and holding Plaintiff Tanner in the segregation cell under these circumstances.” Amended Complaint ¶ 50, at 14-15.

         Tanner avers that, “in concert with Defendant Luna” and Sanchez-Filfred, Muñoz “caused Plaintiff Tanner to be held in the segregation cell within MDC's medical unit for the rest of the day on October 16, 2016, and into the following day on October 17, 2016, without adequate or timely medical care for her serious medical needs.” Amended Complaint ¶ 52, at 15.

         Tanner contends that, when Muñoz, Luna, and Sanchez-Filfred placed Tanner in the “locked, isolated segregation cell, ” they did not provide her with a blanket or drinking cup, despite her requests for those items, and “disregarded her requests for timely and appropriate medical care, as well as several clear and obvious symptoms of her serious medical needs and those of Jay Hinton, Jr., who was a viable fetus in the last month of gestation.” Amended Complaint ¶ 53, at 15. Tanner alleges that:

[w]hile isolated in the segregation cell, [she] continued to experience vaginal discharge, cramping, and pressure, and she observed a strong odor coming from the discharge, which indicated an infection. The discharge soaked through numerous sanitary pads while Plaintiff Tanner was in such extreme discomfort that she was unable to sit down or sit on the toilet.

Amended Complaint ¶ 53, at 15.

         Tanner alleges that, throughout the day on October 16, 2016, and continuing through the night and early morning hours of October 17, 2016, she “continued to experience and report her acute emotional and physical distress, as well as her urgent concerns about the life of her fetus, to medical and corrections personnel, ” including to Muñoz. Amended Complaint ¶ 57, at 17. Tanner asserts that, during this period, she “repeatedly complained of abdominal pain (cramping), vaginal discharge, and a strong feeling of pressure in her lower abdomen/vaginal area, which interfered with her urination and defecation, and caused great discomfort, fear, and anxiety.” Amended Complaint ¶ 57, at 17. Tanner asserts that she repeatedly informed medical and corrections personnel -- including Muñoz -- that “she believed she was in labor and requested transport to a hospital for delivery of her child.” Amended Complaint ¶ 57, at 17.

         Tanner alleges that the personnel -- the named Defendants -- who she informed, including Muñoz, “refused or ignored” her repeated requests both for hospital transport, and “for referral to a clinician qualified to provide appropriate prenatal or peripartum care or obstetric services in accordance with her expressed desires and intent to give birth and to keep the child.” Amended Complaint ¶ 58, at 17. Muñoz, along with other Defendants, “repeatedly declined to provide [her] with appropriate prenatal care in accordance with NCCHC and ACA standards.” Amended Complaint ¶ 58, at 17. Instead, Tanner contends that:

[T]hey responded to her increasingly serious and life-threatening medical needs by cruelly and maliciously isolating her in a locked solitary segregation cell in MDC's Sheltered Housing Unit or (SHU), which had the effect of preventing other corrections officers and inmates in the general housing units from recognizing, witnessing, and seeking further attention for her serious medical needs and those of her fetus.

         Amended Complaint ¶ 58, at 17. Tanner contends that, according to medical records produced to her as of May 23, 2018, her fetus, “Jay Hinton, Jr. was a viable fetus whose heart was still beating on October 16, 2016, and proper medical intervention on that date could have saved his life.” Amended Complaint ¶ 59, at 17-18.

         Tanner alleges that, BCC, by and through its employees, including Rodriguez-Nuñez and Muñoz, was “aware that she had a serious medical condition which rendered her unable to care for herself or her fetus, and that she was in severe pain . . . [and that BCC, by and through its employees, ] acted negligently and recklessly with respect” to Tanner's and her fetus' serious medical needs, “failed to require Defendant CCS to comply with its contractual obligations under the Medical Services Agreement, and failed to comply with BCC's own obligations under the McClendon[1] settlement agreement under conditions that were certain to result in constitutional violations and tort claims.” Amended Complaint ¶ 70, at 21.

         Regarding her state law claims for “Negligent Operation of Public Medical Facilities, Buildings, Equipment, and Furnishings Against All Defendants, ”[2] Amended Complaint at 26, Tanner also requests compensatory damages against Rodriguez-Nuñez and Muñoz, for their alleged negligence, which, Tanner contends, “proximately caused damages and injuries as set forth above, including pain and suffering, psychological and emotional distress, health-care expenses, serious physical injuries, and the death of her fetus, ” Amended Complaint ¶ 102, at 27. Regarding her state law claims for “Negligent Operation of Public Medical Facilities, Buildings, Equipment, and Furnishings Resulting in the Wrongful Death of Jay Hinton, Jr. Against All Defendants, ”[3]Amended Complaint at 32, Tanner also requests compensatory damages against Rodriguez-Nuñez and Muñoz, for their alleged negligence which, Tanner contends, “proximately caused the wrongful death of Jay Hinton, Jr., during the period when he was a viable fetus as described above, ” Amended Complaint ¶ 126, at 33.

         PROCEDURAL BACKGROUND

         The Amended Complaint raises claims against the Defendants under the Constitution of the United States of America -- specifically the Eighth and Fourteenth Amendments to the United States Constitution -- New Mexico state law, and the New Mexico Inspection of Public Records Act, N.M. Stat. Ann. §§ 14-2-1 to 14-2-12 (“IPRA”). See Amended Complaint at 1. The Amended Complaint raises two counts against Rodriguez-Nuñez and against Muñoz. See Amended Complaint at 26, 32. Count IV raises state law claims for negligent operation of public medical facilities, buildings, equipment, and furnishings against all Defendants, including against Rodriguez-Nuñez and Muñoz. See Amended Complaint at 26. Count VII raises state law claims for negligent operation of public medical facilities, buildings, equipment, and furnishings resulting in the wrongful death of Jay Hinton, Jr. against all the Defendants, including against Rodriguez-Nuñez and Muñoz. See Amended Complaint at 32. Both Rodriguez-Nuñez and Muñoz filed separate Motions to Dismiss. See Rodriguez-Nuñez Motion; Muñoz Motion. Tanner filed a Response to each Motion. See Plaintiffs' Response in Opposition to Defendant Rodriguez-Nunez's Motion to Dismiss and Brief in Support, filed July 31, 2018 (Doc. 71)(“Response to Rodriguez-Nuñez Motion”); Plaintiffs' Response in Opposition to Defendant Munoz's Motion to Dismiss and Brief in Support, filed July 31, 2018 (Doc. 72)(“Response to Muñoz Motion”). Both Defendants filed Replies. See Defendant Rodriguez-Nunez' Reply Memorandum in Support of her Motion to Dismiss, filed August 7, 2018 (Doc. 76)(“Rodriguez-Nuñez Reply”); Defendant Muñoz' Reply Memorandum in Support of her Motion to Dismiss, filed August 15, 2018 (Doc. 78)(“Muñoz Reply”).

         1. The Rodriguez-Nuñez Motion.

         On July 9, 2018, Rodriguez-Nuñez filed her Motion to Dismiss. See Rodriguez-Nuñez Motion at 1. In her Motion, Rodriguez-Nuñez recites the relevant facts from the Amended Complaint against her. See Rodriguez-Nuñez Motion at 1-2. Rodriguez-Nuñez asserts that the only factual allegations pled against her are as follows:

[T]hat she was a corrections officer at MDC, that on the morning of Sunday, October 16, 2017[4], the Plaintiff requested medical attention while being housed in Pod F7 which Defendant Rodriguez-Nuñez allegedly delayed or denied until later that morning. The Plaintiff was then seen by medical and returned to Pod F7 around 9:40 a.m., at which time Defendant Rodriguez-Nuñez took her break.

         Rodriguez-Nuñez Motion at 2. Rodriguez-Nuñez asserts that there is no allegation, “nor could there be, ” that, as a corrections officer, Rodriguez-Nuñez was “made aware of the Plaintiff's medical condition and refused to provide her with medical care.” Rodriguez-Nuñez Motion at 2-3. Rodriguez-Nuñez further asserts that there is no factual allegation that she was ever working in the medical unit at any time relevant to the allegations, nor that any delay “purportedly caused” by her caused either Tanner's or her fetus' alleged injuries or damages. Rodriguez-Nuñez Motion at 2-3. Rodriguez-Nuñez argues that, pursuant to the sufficient pleading standard required to overcome a rule 12(b)(6) of the Federal Rules of Civil Procedure motion to dismiss a complaint, the Court should dismiss Tanner's Amended Complaint against Rodriguez-Nuñez, because Tanner has presented “no factual allegations which would establish her claims against Defendant Rodriguez-Nuñez.” Rodriguez-Nuñez Motion at 4-5.

         First, Rodriguez-Nuñez asserts that the New Mexico Legislature has declared that, because of New Mexico public policy, state governmental entities and public employees may not be sued unless it is within the limitations, and according to the principles of the NMTCA. See Rodriguez-Nuñez Motion at 5. Rodriguez-Nuñez cites to Begay v. State, 1985-NMCA-117 ¶ 8, 723 P.2d 252, 255, for the proposition that a plaintiff may sue a governmental entity or public employee of the state of New Mexico only if the plaintiff's “cause of action fits within one of the exceptions listed in the NMTCA.” Rodriguez-Nuñez Motion at 5. Rodriguez-Nuñez avers that § 41-4-6 exempts from immunity “liability damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.” Rodriguez-Nuñez Motion at 6 (quoting Begay v. State, 1985-NMCA-117 ¶ 8, 723 P.2d at 255 (citing N.M. Stat. Ann. § 41-4-6)). Rodriguez-Nuñez asserts that New Mexico courts have concluded that the § 41-4-6 immunity waiver does not extend to negligent supervision. See Rodriguez-Nuñez Motion at 6 (citing Rivera v. King, 1988-NMCA-093 ¶¶ 33-35, 765 P.2d 1187, 1194; Martinez v. Kaune Corp., 1987-NMCA-131 ¶ 9, 745 P.2d 714, 716-17; and Pemberton v. Cordova, 1987-NMCA-020 ¶ 5, 734 P.2d 254, 256). For the waiver to apply, Rodriguez-Nuñez contends, “the negligent operation of maintenance must create a dangerous condition that threatens the general public or a class of building users and must not just be a claim of negligent supervision . . . .” Rodriguez-Nuñez Motion at 6 (citing Espinoza v. Town of Taos, 1995-NMSC-070 ¶¶ 11-12, 905 P.2d 718, 721).

         Here, Rodriguez-Nuñez argues that she “did not engage in any negligent conduct with regard to the Plaintiff or her unborn child.” Rodriguez-Nuñez Motion at 7. Rodriguez-Nuñez notes that Tanner alleges that Rodriguez-Nuñez “delayed sending her to the medical unit on the morning of October 16, [2016].” Rodriguez-Nuñez Motion at 8. Rodriguez-Nuñez then notes that Tanner admits that medical personnel saw her before 9:40 a.m. on October 16, 2016, and that Tanner has not alleged “this delay, of possibly an hour, cause [sic] her alleged injury or damages.” Rodriguez-Nuñez Motion at 8. Rodriguez-Nuñez argues that, while Tanner asked for medical attention, she did not inform Rodriguez-Nuñez that she was “suffering from a medical emergency that required immediate medical attention.” Rodriguez-Nuñez Motion at 8.

         Finally, Rodriguez-Nuñez argues that, while Tanner's claims against Rodriguez-Nuñez “appear to include a claim for the negligent operation of a medical facility, ” there is no factual allegation that Rodriguez-Nuñez either operated the medical unit in the MDC or that she was present in the medical unit at any relevant time. Rodriguez-Nuñez Motion at 8. Rodriguez-Nuñez argues that Tanner fails to state a claim for which relief can be granted against Rodriguez-Nuñez, and Rodriguez-Nuñez asks the Court to dismiss the claims against her with prejudice. See Rodriguez-Nuñez Motion at 8-9.

         2. The Response to the Rodriguez-Nuñez Motion.

         Tanner notes that, in Rodriguez-Nuñez' Motion, Rodriguez-Nuñez “seeks to dismiss the claims that she was negligent under New Mexico state law as alleged in Counts IV and VII of Plaintiffs' First Amended Complaint.” Response to Rodriguez-Nuñez Motion at 1. Tanner asserts that Rodriguez-Nuñez does not challenge that New Mexico tort law “recognizes a wrongful-death claim on behalf of an unborn but viable fetus.” Response to Rodriguez-Nuñez Motion at 1. Nor does Rodriguez-Nuñez challenge -- Tanner asserts -- Tanner's allegations that she suffered bodily injury and that her fetus suffered a wrongful death “as those terms are used in the New Mexico Tort Claims Act (NMTCA), NMSA 1978, §§ 41-1-4 to -30.” Response to Rodriguez-Nuñez Motion at 2.

         Tanner contends that the crux of Rodriguez-Nuñez' argument is that Tanner's pleadings do not allege a “sufficient causal nexus” between Tanner's alleged bodily injury and her fetus' alleged wrongful death, and Rodriguez-Nuñez' negligence. Response to Rodriguez-Nuñez Motion at 2. Tanner notes that Rodriguez-Nuñez also “questions whether Plaintiffs' pleading alleges a sufficient nexus between her negligence and the operation of a medical facility, or the operation or maintenance of a building, machinery, equipment, or furnishings for the purposes of invoking a waiver of immunity under the NMTCA.” Response to Rodriguez-Nuñez Motion at 2. Accordingly, Tanner notes that her Response will focus on “showing why the First Amended Complaint adequately pleads into a statutory waiver of immunity under the NMTCA and supports a reasonable inference that the negligent acts or omissions attributed to Defendant Rodriguez-Nuñez were a cause of Plaintiff Tanner's bodily injuries and the subsequent wrongful death of her unborn baby.” Response to Rodriguez-Nuñez Motion at 2.

         First, Tanner argues that she need not meet a heightened pleading standard and that she may plead her claims in the alternative. See Response to Rodriguez-Nuñez Motion at 2. Tanner argues that, because Tanner's Amended Complaint does not allege federal civil-rights claims against Rodriguez-Nuñez in her individual capacity, only the rule 12(b)(6) “federal plausibility standard” for a pleading applies, and not the “added burden of disproving a qualified-immunity defense for an individual Defendant or showing that Defendant Rodriguez-Nuñez' negligence rose to the level of a constitutional violation.” Response to Rodriguez-Nuñez Motion at 2.

         Tanner asserts that, under New Mexico law, she is required to plead only “enough facts to support a reasonable inference that [her] claims are plausible or sufficient when those facts are reviewed in the light most favorable to [her].” Response to Rodriguez-Nuñez Motion at 3 (quoting Rave v. Bd. of Comm'rs for the Cty. of Bernalillo, No. CIV 17-0636 RB/LF, 2017 WL 3600452, at *3 (D.N.M. Aug. 18, 2017)(Brack, J.)). Tanner further asserts that the Federal Rules of Civil Procedure allow her to plead her claims in the alternative and that the NMTCA statutory waivers of immunity are not mutually exclusive. See Response to Rodriguez-Nuñez Motion at 3 (citing Fed.R.Civ.P. 8(d); Archibeque v. Moya, 1993-NMSC-079 ¶ 13, 866 P.2d 344; Silva v. State, 1987-NMSC-107 ¶ 17, 745 P.2d 380. Tanner argues that, therefore, “there is no requirement that Plaintiffs pick only one of the grounds for waiving immunity in the NMTCA to the exclusion of all others.” Response to Rodriguez-Nuñez Motion at 3.

         Tanner argues that § 41-4-6 waives Rodriguez-Nuñez' immunity, because a jail is a building for the section's purposes, and because, pursuant to recent Supreme Court of New Mexico decisions, the negligent acts or omissions combined to “create a condition that is dangerous to a particular class of people that use the building or facility in question . . . .” Response to Rodriguez-Nuñez Motion at 5. Tanner cites to the class of inmates at the MDC with medical issues identified in McClendon, and asserts that, with respect to that class, the court-appointed expert in the McClendon litigation already found that the MDC patients were at risk of serious harm during the time period when Tanner was incarcerated at the MDC. See Response to Rodriguez-Nuñez Motion at 5.

         Tanner contends that there is a nexus between the risk to the MDC inmates, and the building's operation and maintenance, because:

[I]nmates and medical personnel cannot physically move from one part of the building to another, to obtain transport to an outside medical facility such as a hospital, without a public employee's operation and maintenance of specialized machinery, equipment, or furnishings such as the door locks, security systems, and communication devices which control ingress and egress from each part of the facility.

         Response to Rodriguez-Nuñez Motion at 6. Tanner also contends that her pleadings detail “a whole chain of events leading to the injuries and wrongful death alleged, ” and not merely a single negligent act or omission. Response to Rodriguez-Nuñez Motion at 6. Tanner alleges that, including well before October 16, 2016, she repeatedly told the Defendants that she was pregnant, that she was required to perform strenuous physical activities as part of her housing unit, that the Defendants did not provide or follow advice on the appropriate level of activity or safety precautions required by Tanner's pregnancy and the risks associated with it, and that, on the morning of October 16, 2016, Tanner “was required to walk to and from the MDC infirmary while ‘in such pain that she had to stop a few times to lean against a wall,' as a trail of clear liquid soaked through her pants and flowed down along the floor on which she walked.” Response to Rodriguez-Nuñez Motion at 7 (quoting Amended Complaint ¶ 48, at 14).

         Tanner contrasts Rodriguez-Nuñez' actions in response to Tanner's requests for attention and visible distress, with Macias' actions, noting that Macias is not named as a Defendant in the Amended Complaint. See Response to Rodriguez-Nuñez Motion at 7. Tanner contends that it is reasonable to infer that Rodriguez-Nuñez would have observed the same conditions that Macias observed “if she had taken the time to look.” Response to Rodriguez-Nuñez Motion at 7-8. Tanner analogizes her situation to that of a special-needs student in Upton v. Clovis Municipal School District, 2006-NMSC-040, 141 P.3d 1259, who was “left in acute medical distress in a school hallway for about 15 minutes before anyone called 911.” Response to Rodriguez-Nuñez Motion at 8 (citing Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040 ¶ 11, 141 P.3d at 1262). Like in Upton v. Clovis Municipal School District, Tanner contends that the delay in summoning medical attention was the cause of her injuries and her fetus' wrongful death, and that she need not disprove all other potential causes of injury or death. See Rodriguez-Nuñez Motion at 8-9.

         Tanner also analogizes her case to Rave v. Board of Commissioners for the County of Bernalillo, in which an inmate also incarcerated at the MDC during the same year as Tanner suffered bodily injury because of the MDC personnel's delays in responding to his requests for medical attention. See Response to Rodriguez-Nuñez Motion at 9 (citing Rave v. Bd. of Comm'rs for the Cty. of Bernalillo, 2017 WL 3600452, at *10). Tanner contends that, according to Rave v. Board of Commissioners for the County of Bernalillo, the fact that “an inmate eventually was transported to a hospital after her baby died does not defeat the reasonable inference that the inmate suffered bodily injury which worsened her condition, gave rise to severe pain and suffering, and caused her baby's death during the period of unreasonable delay preceding those events.” Response to Rodriguez-Nuñez Motion at 10 (citing Rave v. Bd. of Comm'rs for the Cty. of Bernalillo, 2017 WL 3600452, at *10).

         Tanner notes that the Amended Complaint details a set of requirements involving the MDC personnel in “access to and provision of medical care for pregnant inmates and their unborn babies while incarcerated at MDC, as well as training and supervision of those personnel on those topics.” Response to Rodriguez-Nuñez Motion at 10-11 (citing Amended Complaint ¶¶ 13-33, at 4-9). Tanner alleges that

it is reasonable to infer these extensive requirements give rise to a relationship with persons detained at MDC (including Plaintiff Tanner and her unborn baby) that has a sufficient nexus with the operation or maintenance of a building, machinery, equipment, or furnishings to trigger the waiver provided in Section 41-4-6 of the NMTCA.

         Response to Rodriguez-Nuñez Motion at 11.

         Tanner next argues that immunity is waived under § 41-4-9, the NMTCA's medical-facility waiver section. See Response to Rodriguez-Nuñez Motion at 11. First, Tanner notes that Rodriguez-Nuñez cited to no authority to support her argument that there is no waiver under § 41-4-9 and that the Court should reject her argument for that reason. See Response to Rodriguez-Nuñez Motion at 11-12. Nevertheless, Tanner acknowledges that some courts have rejected application of § 41-4-9's waiver to “tort claims against the County or its corrections officers on the grounds that the County contracts with a private company to assist in operating the medical facility within MDC.” Response to Rodriguez-Nuñez Motion at 12. Tanner asserts that the leading case “cited for this conclusion” is Lessen v. City of Albuquerque, 2008-NMCA-085 ¶ 13, 187 P.3d 179, but contends that Lessen v. City of Albuquerque is “factually, procedurally, and legally distinct” from the present case. Response to Rodriguez-Nuñez Motion at 12-13.

         Tanner asserts that the Amended Complaint “contains specific allegations about the County Defendants' involvement in, and failure to adequately supervise, the day-to-day decision-making for the medical facility they operated with the assistance of their contractor.” Response to Rodriguez-Nuñez Motion at 13. In addition to the allegations against the MDC supervisory personnel, the Amended Complaint, Tanner notes, also alleges that “lower-level County employees -- not just contractors -- were actually involved in staffing and operating the medical facility at MDC.” Response to Rodriguez-Nuñez Motion at 13. Because corrections officers are “present in the MDC infirmary, control access to it, and play a significant role in how inmates are handled there, ” Tanner asserts that there is no legally distinct separation of contractor personnel from Bernalillo County employees for the purposes of waiving immunity under § 41-4-9. Response to Rodriguez-Nuñez Motion at 14. Tanner contends that “actively participating in placing and holding Plaintiff Tanner in the segregation cell, ” “dispensing medical advice to the effect that Plaintiff Tanner was not in labor, ” and “denying access to basic necessities such as a drinking cup” all constitute “acts and omissions by correctional officers . . . involv[ing] day-today decision-making that falls within the plain meaning of ‘operating' that medical facility under Section 41-4-9.” Response to Rodriguez-Nuñez Motion at 15 (quoting Amended Complaint ¶¶ 46, 49-51, 55, at 13-16). Tanner argues that the New Mexico Legislature intends § 41-4-9's waiver to apply to more than licensed healthcare providers. See Response to Rodriguez-Nuñez Motion at 15.

         Tanner acknowledges that Rodriguez-Nuñez was outside of the MDC infirmary during the events that transpired in the infirmary on October 16, 2016, and October 17, 2016, but Tanner contends that, despite Rodriguez-Nuñez' physical location outside of the infirmary, she was still acting within her duties' scope in the infirmary's operation. See Response to Rodriguez-Nuñez Motion at 16. Tanner contends that her allegations concerning Rodriguez-Nuñez involve events that occurred before she received a “medical diagnosis of her worsening condition.” Response to Rodriguez-Nuñez Motion at 16-17. Tanner argues:

Such a denial or delay in accessing the level of care required for a qualified medical diagnosis not only causes unnecessary pain and suffering, worsening of the patient's condition, and the death of her baby, it also deprives a qualified medical provider of evidence or data that otherwise could have been collected during that period, and which may be needed for an accurate and timely medical diagnosis.

         Response to Rodriguez-Nuñez Motion at 17. Tanner alleges, for instance, that the Amended Complaint supports a reasonable inference that “none of [Tanner's] blood or fluid . . . was collected for sampling or analysis during the period of delay occasioned by Defendant Rodriguez-Nuñez's negligence, and no medical monitoring of her fetus occurred during that critical period.” Response to Rodriguez-Nuñez Motion at 17. Tanner suggests that the evidence or data thereby lost could have contributed to errors in diagnosis that other infirmary personnel perhaps later made. See Response to Rodriguez-Nuñez Motion at 17.

         While Tanner acknowledges that Rodriguez-Nuñez presents a closer case for the application of the medical-facility waiver in § 41-4-9 than Muñoz, she argues that any difficulties with applying § 41-4-9 “only strengthen the case for applying the building waiver in Section 41-4-6.” Response to Rodriguez-Nuñez Motion at 17-18. Tanner asserts that “Rodriguez-Nuñez had to operate or maintain the MDC building, machinery, equipment, or furnishings to allow Plaintiff Tanner to move from her pod to the infirmary, prevent her from going there on her own, or summon medical personnel from the infirmary and allow them into her pod.” Response to Rodriguez-Nuñez Motion at 18.

         Next, Tanner turns to the argument that her pleadings do not support a reasonable inference of causation. See Response to Rodriguez-Nuñez Motion at 18. Tanner discusses successive tortfeasor liability and comparative fault among concurrent tortfeasors under New Mexico law. See Response to Rodriguez-Nuñez Motion at 19. Tanner clarifies that her Amended Complaint “alleges a concurrent tortfeasor theory against Defendant Rodriguez-Nuñez.” Response to Rodriguez-Nuñez Motion at 21. In other words, Tanner alleges that other Defendants' additional negligent acts and omissions preceded Rodriguez-Nuñez' alleged negligence. See Response to Rodriguez-Nuñez Motion at 21. Tanner argues that the first tortfeasors' negligent acts obscured the next tortfeasors' understanding of Tanner's worsening condition, and deprived them of evidence, data, and records that would have helped them to understand her condition. See Response to Rodriguez-Nuñez Motion at 22. Tanner argues that the negligent acts or omissions of the next tortfeasors, operating with an obscured view, then affected the tortfeasors after them, and so on and so forth. See Response to Rodriguez-Nuñez Motion at 22. Accordingly, Tanner argues, she need not prove that Rodriguez-Nuñez' negligence “constituted a separate and divisible harm, ” but merely that it contributed to her single, indivisible injury as part of a chain of causation. Response to Rodriguez-Nuñez Motion at 23. Tanner argues that, if Rodriguez-Nuñez wishes to assert that the “Plaintiffs' negligence claims against her are not viable because of some other Defendant's negligence, wrongdoing, or intervention, ” she must do so through an affirmative defense she raises in an answer and not in a motion to dismiss. Response to Rodriguez-Nuñez Motion at 23.

         Finally, Tanner asserts that, if the Court finds any defect in her Amended Complaint, it should provide her with an opportunity to amend her pleading and cure any deficiency. See Response to Rodriguez-Nuñez Motion at 24.

         3. The Rodriguez-Nuñez Reply.

         Rodriguez-Nuñez begins her Reply by objecting to Tanner's assertion in the Response to Rodriguez-Nuñez Motion that the NMTCA immunity waivers are applicable. See Rodriguez-Nuñez Reply at 1. Rodriguez-Nuñez avers that “[t]here is not an applicable waiver in the present case.” Rodriguez-Nuñez Reply at 1. Rodriguez-Nuñez contends that neither the waiver in § 41-4-6 nor in § 41-4-9 applies to her alleged actions, because, as a corrections officer, Rodriguez-Nuñez has “nothing whatsoever to do with the medical unit, which indisputably had been contracted out to another entity which is also a Defendant herein.” Rodriguez-Nuñez Reply at 3.

         Regarding the application of the immunity waiver in § 41-4-6, Rodriguez-Nuñez contends that the factual allegations pled against her do not indicate any negligent conduct on her part, because Tanner admits Rodriguez-Nuñez “lacked adequate training or supervision with regard to pregnant inmates such as Plaintiff Tanner and the facility was understaffed at the time, ” and also admits that medical personnel saw Tanner before 9:40 a.m., when Rodriguez-Nuñez took her break. Rodriguez-Nuñez Reply at 3 (citing Amended Complaint ¶ 45-48, at 13-14). Rodriguez-Nuñez contends that the Supreme Court of New Mexico in Upton v. Clovis Municipal School District, to which Tanner cites, held that the NMTCA “does not waive immunity for a single, discrete administrative decision affecting only a single person, as opposed to a dangerous condition affecting the general public.” Rodriguez-Nuñez Reply at 3 (quoting Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040 ¶ 17, 141 P.3d at 1263). Rodriguez-Nuñez argues that Tanner complains of a singular discrete act which necessarily affects only her. See Rodriguez-Nuñez Reply at 3.

         Rodriguez-Nuñez contends that § 41-4-9's waiver is not applicable to a “detention facility where a third party contractor provides the medical services.” Rodriguez-Nuñez Reply at 4 (citing Lessen v. City of Albuquerque, 2008-NMCA-085 ¶ 3, 187 P.3d at 180). Rodriguez-Nuñez notes that Tanner acknowledges in the Amended Complaint that CCS, with whom Bernalillo County contracts, runs the MDC's medical facilities. See Rodriguez-Nuñez Reply at 4 (citing Amended Complaint ¶ 11, at 3). Rodriguez-Nuñez contends that Tanner's attempts to factually distinguish Lessen v. City of Albuquerque do not make a difference, considering similar conclusions in Rave v. Board of Commissioners for the County of Bernalillo and Kellum v. Bernalillo County, No. CIV 14-0163 RB/CG, 2015 WL 12859577, at *10 (D.N.M. June 9, 2015)(Brack, J.). See Rodriguez-Nuñez Reply at 5.

         Rodriguez-Nuñez argues that she need not assert an affirmative defense, because the United States Court of Appeals for the Seventh Circuit case, to which Tanner cites, only holds that “[c]omplaints need not anticipate defenses and attempt to defeat them.” Rodriguez-Nuñez Reply at 5 (quoting Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012)).

         Rodriguez-Nuñez then addresses Tanner's request that, if the Court concludes that the Amended Complaint is deficient, it allow her to amend. See Rodriguez-Nuñez Reply at 6. Rodriguez-Nuñez argues that the cases Tanner cites in support of her request to amend if necessary, do not discuss Ashcroft v. Iqbal, 556 U.S. 662 (2009) or its progeny. See Rodriguez-Nuñez Reply at 5 (citing Response to Rodriguez-Nuñez Motion at 23-24). Rodriguez-Nuñez addresses Tanner's assertion that an additional amendment would not be futile, because:

Specifically, Plaintiffs could allege a waiver under Section 41-4-12 of the kind found in Kellum, supra, 2015 WL 12859577, at 11. Or they could lengthen their 34-page complaint (Doc. 50) by pleading more evidence as it is slowly gleaned from discovery. Or they could spell out additional reasonable inferences that can be drawn in their favor from the facts already alleged.

         Rodriguez-Nuñez Reply at 6 (quoting Response to Rodriguez-Nuñez Motion at 24). Rodriguez-Nuñez contends that what Tanner could allege is speculative and “expressly not grounds for amending a complaint in federal court.” Rodriguez-Nuñez Reply at 6. Rodriguez-Nuñez asserts that, unlike in Kellum v. Bernalillo County, there is no constitutional claim nor any tort claim relating to any negligence on Rodriguez-Nuñez' part. See Rodriguez-Nuñez Reply at 6. Rodriguez-Nuñez states: “It is well established that there is no waiver of immunity when law enforcement officers are merely negligent, unless that negligence is the cause of one of the enumerated intentional torts by a third party.” Rodriguez-Nuñez Reply at 7 (citing Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021 ¶ 25, 916 P.2d 1313, 1320). Rodriguez-Nuñez concludes that Tanner has asserted only state law claims under the NMTCA against Rodriguez-Nuñez and there is no applicable NMTCA immunity waiver, so the Court should dismiss her from this case with prejudice. See Rodriguez-Nuñez Reply at 7.

         4. The Muñoz Motion.

         On July 30, 2018, Muñoz filed her Motion to Dismiss. See Muñoz Motion at 1. The Muñoz Motion states the same legal arguments as the Rodriguez-Nuñez Motion.[5] See Muñoz Motion at 3-8, supra at 15-18. In her Motion, Muñoz recites the relevant facts from the Amended Complaint against her. See Muñoz Motion at 1-2. Muñoz asserts that the only factual allegations pled against her are that she was a corrections officer at the MDC posted to the infirmary's back area. See Muñoz Motion at 8. Muñoz argues that, pursuant to the sufficient-pleading standard required to overcome a rule 12(b)(6) of the Federal Rules of Civil Procedure motion to dismiss a complaint, the Court should dismiss Tanner's complaint against Muñoz, because Tanner has presented “no factual allegations which would establish her claims against Defendant Muñoz.” Muñoz Motion at 4-5.

         First, Muñoz argues she “did not engage in any negligent conduct with regard to the Plaintiff or her unborn child.” Muñoz Motion at 8. Muñoz notes that, under the definitions of “negligence” and “ordinary care” in the New Mexico Uniform Civil Jury Instructions, 1601 and 1603, N.M.R.A. U.J.I. Civ. 13-1601 and 13-1603, “the responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances.” Muñoz Motion at 8. Muñoz argues that Tanner's allegation that Muñoz actively participated in placing and holding Tanner in the MDC's medical unit segregation cell without adequate or timely medical care, see Amended Complaint ¶ 58, at 17, is meritless, because “all cells within the medical unit are for one inmate with medical issue [sic] only, ” Muñoz Motion at 8.

         Muñoz argues that Tanner fails to allege how Muñoz, as a corrections officer, could have directed Tanner's medical care. See Muñoz Motion at 8-9. Muñoz states: “Further, the Plaintiff fails to allege any facts that establish that Ms. Tanner had any contact with Defendant Muñoz on October 17, 2015[6] [sic], the date of the birth of his [sic] child.” Muñoz Motion at 9. Muñoz contends, therefore, that Tanner's state-law claims against her are meritless and that the Court should dismiss them. See Muñoz Motion at 9.

         Finally, Muñoz asserts that the Complaint contains no factual allegation that Muñoz operated the MDC medical unit or that she directed Tanner's treatment, and therefore, that the Court should dismiss Tanner's state-law claim against Muñoz for negligent operation of a medical facility. See Muñoz Motion at 9. Muñoz asserts that Tanner's claims against Muñoz in this regard “fail to state a claim for which relief can be granted.” Muñoz Motion at 9. Muñoz asks the Court to dismiss Tanner's state-law claims against her with prejudice. See Muñoz Motion at 9.

         5. The Response to the Muñoz Motion.

         On July 31, 2018, Tanner filed a Response to the Muñoz Motion.[7] See Response to Muñoz Motion at 1. Tanner asserts, first, that the Amended Complaint “does not rely on a single negligent act or omission on the part of Defendant Munoz as the sole basis for Plaintiffs' claims against her. Rather, Plaintiffs' pleading details a whole chain of events leading to the injuries and wrongful death alleged therein.” Response to Muñoz Motion at 6-7.

         Tanner alleges that, when Muñoz placed and held Tanner in the MDC infirmary's segregation cell on October 16, 2016, she

failed to provide Plaintiff Tanner with a blanket or a drinking cup, declined Plaintiff Tanner's requests for these items, and disregarded her requests for timely and appropriate medical care, as well as several clear and obvious symptoms of her serious medical needs and those of Jay Hinton, Jr., who was a viable fetus in the last month of gestation. While isolated in the segregation cell, Plaintiff Tanner continued to experience vaginal discharge, cramping, and pressure, and she observed a strong odor coming from the discharge, which indicated an infection. The discharge soaked through numerous sanitary pads while Plaintiff Tanner was in such extreme discomfort that she was unable to sit down or sit on the toilet.

         Response to Muñoz Motion at 7 (quoting Amended Complaint ¶ 53, at 15). Tanner argues that Muñoz' only argument in response to these allegations is that, because there were other people in the MDC infirmary at the time who could have responded to Tanner's needs, Muñoz cannot be held responsible. See Response to Muñoz Motion at 7. Tanner asserts that Muñoz' argument “does not make sense.” Response to Muñoz Motion at 7.

         Tanner asserts that the only defensible reason for holding her in the MDC infirmary segregation cell, instead of in a pod outside of the infirmary, is so that she could receive “more monitoring and medical attention, not less.” Response to Muñoz Motion at 7-8 (emphasis in original). Tanner contends that it is “reasonable to infer” that Muñoz, because of her position as a corrections officer stationed in the back of the infirmary, was “responsible for alerting medical and/or supervisory personnel” to Tanner's worsening medical condition and for requesting medical attention while she was in the infirmary's segregation cell. See Response to Muñoz Motion at 8. Tanner further asserts that Muñoz had a duty to respond appropriately, that she did not respond appropriately, and that, accordingly, Tanner's condition “worsened under her watch.” Response to Muñoz Motion at 8.

         Tanner also argues that, even if other staff members could have responded to her needs, “that fact alone does not necessarily defeat the inference that Defendant Muñoz may also be negligent.” Response to Muñoz Motion at 8. Tanner compares Muñoz' actions to those of Macias, not named as a Defendant in the Amended Complaint. See Response to Muñoz Motion at 8. While Macias called a “Code 43” to advise personnel of Tanner's condition, Muñoz “essentially did nothing to monitor Plaintiff Tanner's condition [while in the MDC infirmary's segregation cell] and made it worse by denying such basic necessities as a blanket and a drinking cup.” Response to Muñoz Motion at 8-9. Tanner analogizes to Upton v. Clovis Municipal School District, and argues that, similar to the delay at issue in Upton v. Clovis Municipal School District, “the delay in summoning appropriate medical attention -- including the delay while Defendant Munoz was on duty in the back of the MDC infirmary -- was a cause of her injuries and the wrongful death of her unborn baby.” Response to Muñoz Motion at 9 (citing Amended Complaint ¶¶ 68, 70, 73, 74, 102, 126, at 18, 21-22, 27, 33). Tanner contends that Muñoz “refused and ignored” her requests for medical attention. Response to Muñoz Motion at 9 (citing Amended Complaint ¶ 58, at 17).

         Tanner asserts that Muñoz does not dispute “that she was stationed in the MDC infirmary or that the segregation cell where Plaintiffs were held is part of that medical facility. She also does not dispute that her alleged acts and omissions occurred before the stillbirth occurred on October 17, 2016.” Response to Muñoz Motion at 17. Tanner argues that, because Muñoz was stationed inside the infirmary, the Court need not, in deciding Muñoz' Motion, “reach the issue” whether § 41-4-9's medical-facility waiver applies to corrections officers stationed outside the infirmary. Response to Muñoz Motion at 17. Tanner contends that, unlike in Lessen v. City of Albuquerque, 2008-NMCA-085 at ¶ 4, 187 P.3d at 180, Tanner was not outside the facility when Muñoz' alleged negligence occurred, but rather in the MDC infirmary's segregation cell. See Response to Muñoz Motion at 17.

         Tanner asserts that

Defendant Munoz' role in denying or delaying access to the level of care required for qualified medical diagnosis and treatment not only caused unnecessary pain and suffering, worsening of Plaintiffs' condition, and the death of the baby, it also deprives a qualified medical provider of evidence or data that otherwise could have been collected during that period, and which may be needed for an accurate and timely medical diagnosis.

         Response to Muñoz Motion at 17. Tanner argues that the Amended Complaint supports a reasonable inference that, during important periods on October 16, 2016, “when Defendant Munoz was operating and maintaining the back area of the MDC infirmary, ” medical personnel collected no medical data from Tanner and did not monitor Tanner's fetus. Response to Muñoz Motion at 18. Tanner argues that it is reasonable to infer this loss of data could have contributed to diagnostic errors made later by other personnel. See Response to Muñoz Motion at 18.

         Tanner argues that, because Muñoz was positioned in the MDC infirmary on October 16, 2016, during Tanner's period of confinement in the infirmary's segregation cell, § 41-4-9's medical facility waiver “should present a simpler question with respect to Defendant Munoz” than it does for Rodriguez-Nuñez. Response to Muñoz Motion at 18. Tanner also asserts that the case for applying § 41-4-6's building waiver is strong, where

Munoz had to operate or maintain the MDC building, machinery, equipment, or furnishings in order to allow Plaintiff Tanner to enter or exit the segregation cell, summon medical personnel, or even obtain basic necessities such as a blanket or a drinking cup, which qualify as equipment or furnishings under Section 41-4-6.

         Response to Muñoz Motion at 18 (internal quotations omitted)(quoting N.M. Stat. Ann. § 41-4-6).

         Tanner next addresses Muñoz' argument that, because Tanner did not deliver her stillborn baby until October 17, 2016, any delay or denial of care which occurred on October 16, 2016, could not have caused Tanner's bodily injuries or her fetus' wrongful death. See Response to Muñoz Motion at 19. Tanner clarifies that her Amended Complaint “alleges a concurrent tortfeasor theory against Defendant Munoz.” Response to Muñoz Motion at 21. Tanner alleges that other Defendants' negligent acts or omission preceded any “divisible or distinct pain and suffering they experienced during the period of delay or denial occasioned by Defendant Munoz's negligence.” Response to Muñoz Motion at 21. Tanner notes, for instance, the alleged failure to provide her with any “significant prenatal care” between the time she arrived at the MDC and the time personnel placed her in the infirmary's segregation cell on October 16, 2016. Response to Muñoz Motion at 21. Tanner further alleges that “the negligent acts and omissions occurring while Plaintiffs[8] were placed in the segregation cell on October 16, 2016, involved concurrent negligence by both Defendant Munoz and other Defendants.” Response to Muñoz Motion at 21 (citing Amended Complaint ¶ 46, at 13).

         Tanner asserts that the defects which Muñoz allegedly identifies in Tanner's pleading, that it “does not contain enough details about her alleged negligence or does not allege the right waiver provision under the NMTCA, ” are curable without undue prejudice or delay, and that the Court should therefore allow Tanner leave to amend should the Court find any defect in Tanner's pleading. Response to Muñoz Motion at 24. Finally, as with the Rodriguez-Nuñez Motion, Tanner asks the Court to deny Muñoz' Motion in its entirety, or to grant Tanner leave to amend and to cure any deficiency in her pleading identified in ruling on the Muñoz Motion. See Response to Muñoz Motion at 24.

         6. The Muñoz Reply.

         Muñoz filed a Reply.[9] See Muñoz Reply at 1. Muñoz contends that whether Tanner received adequate medical attention while being housed in the infirmary's segregation cell is “obviously not something for which this Defendant could be deemed negligent, given that there is no allegation, nor could there be, that she has any training to make such an assessment.” Muñoz Reply at 3 (internal citations omitted). Muñoz notes that she is a corrections officer and is not medical personnel, and, therefore, that she was not making medical determinations. See Muñoz Reply at 3. Muñoz reiterates all the arguments the Rodriguez-Nuñez Reply raises, see supra at 20-22, asserts that there is no applicable waiver of immunity for her, and asks the Court to dismiss her with prejudice, see Muñoz Reply at 8.

         7. The Hearing.

         The Court held a hearing on both Motions on October 3, 2018. See Draft Transcript of Motion Proceedings at 1 (taken October 3, 2018)(Court)(“Tr.”).[10] The Court began by asking about the Rodriguez-Nuñez Motion. See Tr. at 1:2-3 (Court). Rodriguez-Nuñez asserted that, on October 16, 2016, Tanner asked Rodriguez-Nuñez if she could go to medical, and that Rodriguez-Nuñez then contacted medical “and was informed that they would let her know when they could see Ms. Tanner.” Tr. at 2:10-12 (Martinez). Rodriguez-Nuñez asserted that an officer took Tanner to medical and then that Rodriguez-Nuñez took a break. See Tr. at 2:12-18 (Martinez). Tanner asserted that, while Rodriguez-Nuñez was on her break, about twenty minutes after Tanner returned from her initial visit to medical, Tanner and her cellmate informed Macias that Tanner needed additional medical screenings. See Tr. at 2:19-22 (Martinez). Rodriguez asserted that, when Tanner and her cellmate explained to Macias that Tanner was experiencing pain and that they could see her baby crowning, Macias attempted to reach medical and, failing, then made an emergency call, after which personnel brought Tanner back to medical. See Tr. at 2:23-3:3 (Martinez). Rodriguez-Nuñez asserted that two other Bernalillo County employees were working in medical that day and that the medical unit is “sort of isolated from the rest of the facility. It is sort of self-contained” and there is one detention officer working in the front of the unit, and another one working at the back of the unit. See Tr. at 3:6-11 (Martinez). Muñoz was the officer stationed in the back of the infirmary unit. See Tr. at 3:11-12 (Martinez).

         Once medical personnel evaluated Tanner, at approximately 10:00 a.m. on October 16, 2016, they determined that she should be housed in the medical unit, and so she was kept in their “special housing unit” for the remainder of October 16, 2016, and into the morning of October 17, 2016. Tr. at 3:15-19 (Martinez). Rodriguez-Nuñez concedes that Tanner correctly alleges that she is a corrections officer. See Tr. at 3:24-25 (Martinez). Rodriguez-Nuñez asserts that, as a corrections officer, she is not tasked with providing medical care to inmates, does not have training in that regard, and is tasked only with providing security and safety to inmates. See Tr. at 4:1-4 (Martinez). Rodriguez-Nuñez argues that, after she received Tanner's request for medical attention in the morning of October 16, 2016, she contacted medical personnel, and they evaluated Tanner and returned her to the unit within an hour and a half of Rodriguez-Nuñez making that request. See Tr. at 4:5-8 (Martinez). The Court clarified that Tanner alleges that she spoke with Rodriguez-Nuñez only once on October 16, 2016. See Tr. at 4:13-21 (Court, Martinez). The Court asked Rodriguez-Nuñez whether the Complaint alleges how much time transpired between Tanner's conversation with Rodriguez-Nuñez and her transport to medical, but Rodriguez-Nuñez informed the Court that the Amended Complaint contains no specific timeframes. See Tr. at 4:22-5:1 (Court, Martinez). Rodriguez-Nuñez asserted that, because shift changes occur at 7:00 a.m., the earliest that Tanner could have requested medical assistance of Rodriguez-Nuñez would have been seven a.m., and then, based on the Complaint, she was returned to the unit from medical by 9:40 a.m., within two hours and forty minutes, although Rodriguez-Nuñez could not say how long the medical examination would have been. See Tr. at 5:2-12 (Martinez).

         The Court asked whether Rodriguez-Nuñez is alleging that, upon receiving Tanner's request for attention, she immediately contacted medical and had Tanner sent there. See Tr. at 5:13-16 (Court). Rodriguez-Nuñez responded that, when an officer receives an inmate request for medical attention which is not an emergency, the officer contacts medical, and medical sends someone for the inmate “when they can fit them into their schedule, ” which Rodriguez-Nuñez alleges happened here. Tr. at 5:17-23 (Martinez). Rodriguez-Nuñez asserted that no facts alleged in the Amended Complaint would have alerted Rodriguez-Nuñez that Tanner was suffering from a medical emergency; Rodriguez-Nuñez asserts that Tanner indicated that she wanted to go to medical and that she was spotting, but that there was no visible blood or discharge which Rodriguez-Nuñez could have seen. See Tr. at 6:2-11 (Martinez). The Court asked whether, in the Amended Complaint, Tanner alleges that Rodriguez-Nuñez characterized her situation as a non-emergency as opposed to an emergency. See Tr. at 6:12-15 (Court).

         Rodriguez-Nuñez clarified that she is referring to Tanner's Response to Rodriguez-Nuñez Motion, in which she compares Rodriguez-Nuñez to Macias, and alleges that Rodriguez-Nuñez could have observed the same factors which Macias observed. See Tr. at 6:16-21 (Martinez). Rodriguez-Nuñez avers that this allegation is false. See Tr. at 6:21-22 (Martinez).

         Rodriguez-Nuñez read the factual allegations from the Amended Complaint concerning Rodriguez-Nuñez, and argued that “there [are] no well pled factual allegations in the complaint that the plaintiff ever had contact with Rodriguez-Nuñez again following that initial interaction in the early morning . . . .” Tr. at 7:25-8:4 (Martinez). Rodriguez-Nuñez asserted that the only claims against her in this case are for negligent operation of a medical facility and for wrongful death arising out of the negligent operation of a medical facility. See Tr. at 8:5-10 (Martinez). As a corrections officer, Rodriguez-Nuñez asserts, she does not operate or maintain any part of the medical facility, and there is no factual allegation that she was ever in the medical facility at any relevant time. See Tr. at 8:10-14 (Martinez). Rodriguez-Nuñez argues, accordingly, that Tanner fails to state a claim under the NMTCA against Rodriguez-Nuñez. See Tr. at 8:14-17 (Martinez).

         The Court asked whether Tanner also attempted to fit a claim against Rodriguez-Nuñez under § 41-4-6, and Rodriguez-Nuñez responded that, in Tanner's Response to Rodriguez-Nuñez Motion, she attempts to squeeze her claim into that exception. See Tr. at 8:18-22 (Court, Martinez). Rodriguez-Nuñez asserts that Tanner alleges that she does not have to specify only one NMTCA waiver applies. See Tr. at 8:22-24 (Martinez).

         The Court expressed that it appears to the Court that Tanner's primary ground for her claims against Rodriguez-Nuñez is negligent operation of a building under § 41-4-6 and that the secondary ground is the negligent operation of a medical facility under § 41-4-9. See Tr. at 8:25-9:4 (Court). Rodriguez-Nuñez responded that, to the extent that Tanner's primary ground is the negligent operation of a building under § 41-4-6, Rodriguez-Nuñez refers the Court to Upton v. Clovis Municipal School District. See Tr. at 9:5-7 (Martinez). Rodriguez-Nuñez asserted that, for the waiver in § 41-4-6 to apply, the negligence must create a dangerous condition that threatens the general population, whereas here, there is no allegation that Rodriguez-Nuñez' alleged negligence was widespread throughout the county or that it was Rodriguez-Nuñez' regular conduct. See Tr. at 9:7-18 (Martinez). Rodriguez-Nuñez avers, there is no allegation that Tanner experienced harm, because of Rodriguez-Nuñez' conduct; medical personnel evaluated Tanner immediately after her contact with Rodriguez-Nuñez. See Tr. at 9:20-23 (Martinez). Rodriguez- Nuñez argues that, because there is no showing that Rodriguez-Nuñez' alleged negligent conduct created a dangerous condition for the MDC's general population, it does not fall within § 41-4-6's waiver. See Tr. at 9:25-10:4 (Martinez).

         Turning next to Tanner's alleged application of § 41-4-9's waiver, Rodriguez-Nuñez contended that § 41-4-9 does not apply to Bernalillo County specifically when the allegation is negligence and a contractor is operating the medical facility. See Tr. at 10:5-8 (Martinez). In support of this proposition, Rodriguez-Nuñez cited Lessen v. City of Albuquerque and Rave v. Board of Commissioners for the County of Bernalillo. See Tr. at 10:8-13 (Martinez). Rodriguez-Nuñez argued, accordingly, that there is no § 41-4-9 waiver. See Tr. at 10:13-14 (Martinez). Rodriguez-Nuñez addressed Tanner's mention of a possible § 41-4-12 waiver and asserted that there is no intentional tort here and that this possible waiver was not well pled. See Tr. at 10:14-19 (Martinez).

         The Court discussed the facts of Upton v. Clovis Municipal School District and stated that it seemed Upton v. Clovis Municipal School District is a case at the boundaries of the doctrine, and that, while factually it dealt with a single student, its analysis discussed how the conduct in question applied to a broader class. See Tr. at 10:20-11:2 (Court). Rodriguez-Nuñez responded that, in Upton v. Clovis Municipal School District, “[t]he school ignored information . . . that the plaintiff provided them about her medical condition [and] they failed to warn the [substitute] teacher about her medical condition and most significantly they failed to follow through with the proper emergency procedures when she did have an emergency.” Tr. at 11:3-9 (Martinez). Rodriguez-Nuñez argued that, in Upton v. Clovis Municipal School District, the Supreme Court of New Mexico concluded that the school's actions and omissions combined to create a dangerous condition, placing the student in a far worse position than would be reasonably expected of school life. See Tr. at 11:9-12 (Martinez). Rodriguez-Nuñez averred that in the present case, however, there is no “appealed delay of care, ” nor is there an allegation that Tanner suffered any harm because of the delay in care. Tr. at 11:13-15 (Martinez). Rodriguez-Nuñez argued that Tanner was taken to the infirmary within hours of her request and remained there until the following morning. See Tr. at 11:15-18 (Martinez). Rodriguez-Nuñez stated that “[t]here is just no showing that this alleged delay created a dangerous condition that was dangerous to the population” and that Upton v. Clovis Municipal School District requires the danger to be more widespread than a singular event. See Tr. at 11:19-23 (Martinez). Rodriguez-Nuñez argued that a detention officer who delays for an hour or two providing an inmate care, when the Amended Complaint does not allege that it was an emergency, “can't possibly rise to the level of creating a dangerous condition to the general population as a whole that's required under § 41-4-6.” Tr. at 11:25-12:6 (Martinez).

         Tanner began with reference to the standard of review and noted that there is no evidence before the Court, but merely the Amended Complaint's factual allegations, and facts which Rodriguez-Nuñez provided as “background” at the hearing. Tr. at 12:18-23 (Leonard). Tanner asserted that the relevant document is the Amended Complaint, because the Motions are a rule 12(b)(6) motions based on the pleadings, and that Tanner's pleading is reviewed in the light most favorable to her, with all reasonable inferences drawn in her favor. See Tr. at 12:23-13:6 (Leonard). Tanner stated that the pleading standard is the notice standard. See Tr. at 13:9-10 (Leonard). Tanner noted her belief that Rodriguez-Nuñez' and Muñoz' argument is that they are both entitled to dismissal because “there is a way to read plaintiff's pleading as if it didn't state a plausible claim against them if you draw the inferences in favor of them and just kind of minimize what the allegations are.” Tr. at 13:13-21 (Leonard). Tanner stated that the “issue was clearly a pregnant inmate in the last trimester of her pregnancy . . . complaining that she's, her water has broke and she thinks she's having contractions so they think . . . she's about to de[liver] this baby or that there are some kind of complications, ” and, construing the allegations in the light most favorable to her, Tanner asserted that these circumstances do constitute an emergency situation. Tr. at 13:22-14:5 (Leonard).

         Tanner asserted that she would rely on her Response to Rodriguez-Nuñez Motion as to her causation and alternative pleading arguments, but that she wanted to focus on the § 41-4-6 issue. See Tr. at 14:11-18 (Leonard). Tanner asserted that corrections officers directly committed a tort by not providing Tanner with access to medical services, and that the Amended Complaint distinguishes between the counts for medical negligence and professional malpractice, alleged against CCS, the contractors, and the licensed providers, and the ordinary negligence claims against Rodriguez-Nuñez and Muñoz. See Tr. at 15:18-16:2 (Leonard). Tanner argues that, for medical personnel to know that there is an inmate who needs care, a corrections officer needs to inform them, and to transport that inmate to the infirmary or to get medical personnel from the infirmary to pick up the inmate from the housing unit -- and that this involvement provides a clear nexus to the operation of the building. See Tr. at 16:6-13 (Leonard).

         The Court asked whether the core cases were struggling, not with whether a third party did the action in question, but whether New Mexico courts should allow a waiver that deals with buildings when the actions in question have more to do with policies, personnel, and training than with the actual building. See Tr. at 16:14-23 (Court). The Court asked whether, reading the core cases as Tanner suggests, the building “sort of disappear[s] from the story.” Tr. at 16:25-17:1 (Court). Tanner responded that, because of the unique situation of a prison, wherein inmates are entirely dependent on corrections officers to get from point A to point B, negligent failure to transport the inmates around the facility constitutes negligent operation or maintenance of a building. See Tr. at 17:2-10 (Leonard).

         Tanner asserts that negligence in the operation of public medical facilities, buildings, equipment, and furnishing, enough to justify a state law claim for negligent operation, includes negligence regarding communications equipment. See Tr. at 17:11-15 (Leonard). Tanner asserts that, in the jail, corrections officers have access to both a telephone and a two-way radio -- while the telephone is for routine calls, Code 43 sent over a two-way radio is equivalent to a 911 call. See Tr. at 17:16-20 (Tanner). Tanner argues that, if an officer uses their telephone instead of the two-way radio to make a Code 43 emergency call, such conduct would constitute enough of a nexus to equipment to justify a negligent operation claim under state law -- evincing that the statute is not strictly about buildings. See Tr. at 17:20-23 (Leonard).

         The Court asked whether Tanner would agree with the Court that the State of New Mexico has not adopted such a broad reading of this waiver of sovereign immunity under the NMTCA. See Tr. at 17:24-18:3 (Court). Tanner replied that, where some cases tend to follow Archibeque v. Moya, some of the cases after Archibeque v. Moya have returned to a plain language reading of the statute and that Upton v. Clovis Municipal School District is one such case. See Tr. at 18:4- 10 (Leonard). Tanner specifically cites to paragraph 24 of Upton v. Clovis Municipal School District:

Failure to respond appropriately to an emergency medical situation is a potential threat to every student in school because such a situation can occur at any time, regardless of special health needs. The school's indifference towards Sarah's special medical needs makes it more likely that all similarly situated students were at risk as well. The same policies that led the Uptons to rely on the school's diligence were in place for other at-risk students. This is not a case of action uniquely affecting only one student. The school's failures, if proven, created a dangerous condition for all special-needs children, and with regard to emergency responsiveness, for every student at the school.

Tr. at 18:12-25 (Leonard)(quoting Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040 at ¶ 24, 141 P.3d at 1265). Tanner also cites to paragraph 14 of Upton v. Clovis Municipal School District, wherein the Supreme Court of New Mexico suggests that a failure to respond to a fire in a reasonable manner -- perhaps by neglecting to implement a fire plan -- would constitute negligent operation of the school building within the NMTCA's meaning. See Tr. at 18:10-12 (Leonard)(citing Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040 at ¶ 14, 141 P.3d at 1262-63).

         Tanner then references Rave v. Board of Commissioners for the County of Bernalillo 2017 WL 3600452, in which Judge Brack applies Upton v. Clovis Municipal School District to MDC, noting: “Plaintiff alleges that the County's employees ignored information he gave them about his medical condition, failed to staff the facility or manage or train its employees to render aid to inmates with medical conditions, and failed to follow through with and/or enforce its policies related to inmates with medical issues.” Tr. at 19:4-10 (Leonard)(quoting Rave v. Bd. of Comm'rs for the Cty. of Bernalillo, 2017 WL 3600452, at *10). Tanner concludes that the facts alleged are in line with cases holding that municipalities can be liable under § 41-4-6. See Tr. at 19:10-14 (Leonard).

         The Court then stated that, setting aside Rave v. Board of Commissioners for the County of Bernalillo, and focusing just on Upton v. Clovis Municipal School District, it seemed that Tanner would need to allege that the MDC ignored information which Tanner provided. See Tr. at 19:21-20:3 (Court). The Court remarked that, in Upton v. Clovis Municipal School District, the school failed to inform the substitute teacher about the student's condition, and the Court asked Tanner whether there was a similar circumstance here. See Tr. at 20:4-7 (Court). The Court noted that the Amended Complaint cites to the McClendon litigation, and the Court asked whether, ...


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