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Quintana v. Santa Fe County Board of Commissioners

United States District Court, D. New Mexico

February 5, 2019

ROSE QUINTANA and CORY HICKERSON, Individually, and as the Personal Representatives of the ESTATE OF RICARDO JOSE ORTIZ, deceased, Plaintiff,
v.
SANTA FE COUNTY BOARD OF COMMISSIONERS; ANNE ROBINSON, in her individual capacity; DYLAN CHAVEZ, in his individual capacity; ANTHONY VALDO, in his individual capacity; TYLER LOPEZ, in his individual capacity; LEONARD GARCIA, in his individual capacity, and CRISTOBAL GALLEGOS, in his individual capacity, Defendants.

          Carolyn M. Nichols Alicia Consuelo Lopez Rothstein Donatelli LLP Albuquerque, New Mexico Attorneys for the Plaintiffs.

          Mark E. Komer Long Komer & Associates, P.A. Santa Fe, New Mexico Attorneys for the Defendants.

          Mark E. Komer Long Komer & Associates, P.A. Santa Fe, New Mexico and Christa M. Hazlett Conklin, Woodcock & Ziegler, P.C. Albuquerque, New Mexico Attorney for the Defendants Santa Fe County and Anne Robinson.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendants' Motion to Dismiss, filed April 27, 2018 (Doc. 13)(“MTD”); and (ii) the Plaintiffs' Motion to Amend the Complaint, filed September 12, 2018 (Doc. 30)(“MTA”). The primary issues are: (i) whether qualified immunity bars the Plaintiffs' claims against Defendant Santa Fe County Board of Commissioners in Santa Fe, New Mexico (“Santa Fe County”) under 42 U.S.C. § 1983 for its customs or practices of not providing appropriate medical attention to inmates in withdrawal, of not training its nurses to intake inmates suffering withdrawal, and of not training its employees to provide medical attention to inmates suffering withdrawal; (ii) whether the N.M. Stat. Ann. § 41-4-6 negligent-operation-of- a-building immunity waiver in the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 through 41-4-27 (“NMTCA”), applies where the Plaintiffs' claims relate to negligent supervision and medical treatment of inmates in a building, so that Plaintiffs Rosa Quintana, Ricardo Jose Ortiz' partner and his children's mother, see First Amended Complaint for Violations of the New Mexico Wrongful Death Act, the New Mexico Tort Claims Act, and the Federal Civil Rights Statute ¶ 1, at 2, filed April 11, 2018 (Doc. 10)(“First Amended Complaint”), and Cory Hickerson, Ortiz' brother, see First Amended Complaint ¶ 2, at 2, have stated a claim upon which relief can be granted against Santa Fe County for failure to provide proper medical attention to inmates suffering heroin withdrawal or to train its employees to provide such attention; (iii) whether the NMTCA's § 41-4-9 medical-facility waiver applies to Santa Fe County when the Plaintiffs allege facts related to Santa Fe County Adult Detention Facility (“ADF”)'s Medical Unit, so that the Plaintiffs have stated a claim upon which relief can be granted; and (iv) whether the Court should grant the Plaintiffs leave to amend the First Amended Complaint to add new factual allegations. The Court concludes that: (i) Defendants Dylan Chavez, Anthony Valdo, Tyler Lopez, Leonard Garcia, and Cristobal Gallegos (the “individual Defendants”) are entitled to qualified immunity, so the Court dismisses the § 1983 claims against them; (ii) with no federal claims remaining in the case, the Court remands the case to state court for determination of the NMTCA claims against Santa Fe County; and (iii) the Second Amended Complaint for Violations of the New Mexico Wrongful Death Act, the New Mexico Tort Claims Act, and the Federal Civil Rights Statute, filed September 12, 2018 (Doc. 30-1)(“Proposed Second Amended Complaint”) cannot survive a motion to dismiss, so the Court denies the MTA, because the amendment is futile.

         FACTUAL BACKGROUND

         The Court takes its facts from the First Amended Complaint. The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely the Plaintiffs' version of events.

         The lawsuit arises from Ortiz' January 7, 2016, death while in the ADF's custody. See First Amended Complaint at 1-2. Quintana, a resident of Santa Fe County, New Mexico, was Ortiz' partner before his death, and is his children's mother. See First Amended Complaint ¶ 1, at 2. Hickerson, a resident of Bernalillo County, New Mexico, is Ortiz' brother. See First Amended Complaint ¶ 2, at 2. Ortiz was a resident of Rio Arriba County, New Mexico at the time of his death. See First Amended Complaint ¶ 3, at 2. Santa Fe County “owned, operated, and maintained” the ADF, and the ADF employed Defendants Anne Robinson, a medical intake nurse; Anthony Valdo, a Classification Officer, responsible for classifying inmates into housing units; Dylan Chavez, Tyler Lopez, and Leonard Garcia, Corrections Officers; and Cristobal Gallegos, a Corporal[1]. First Amended Complaint ¶¶ 4-10, 119, 136, 155, 164, at 2-4, 18, 20, 22-23.

         In 2010, Ortiz sustained a severe back injury requiring surgery and developed a dependency on his prescription opiates. See First Amended Complaint ¶¶ 25, 27, at 6-7. From 2010 onwards, Ortiz struggled with substance, particularly opiate, abuse and with mental health problems, particularly depression and anxiety. See First Amended Complaint ¶¶ 24-44, at 6-9. In 2013, doctors at Christus St. Vincent's Hospital in Santa Fe, New Mexico, diagnosed Ortiz with “depression, anxiety, a history of polysubstance abuse, and Hepatitis C.” First Amended Complaint ¶ 38, at 8.

         Between June, 2013, and February, 2015, Ortiz entered the ADF at least seven times, in connection with his substance abuse. See First Amended Complaint ¶¶ 36, 46, at 8-9. On June 6, 2013, the ADF first booked Ortiz, and, after completing a “Medical Intake History and Screening Form, ” which notes Ortiz' daily use of 2 grams of heroin and assigns Ortiz a COWS Score[2] of 3, the ADF's Medical Unit recommended housing Ortiz “in the general inmate population.” First Amended Complaint ¶¶ 49-50, at 10. On July 3, 2013, the ADF partially completed a “Medical Services Form, ” which indicates that Ortiz has no medical restrictions but leaves blank the “‘intake housing recommendation' section, ” and completed a “‘History and Physical' form not[ing] a history of substance abuse.” First Amended Complaint ¶¶ 55-56, at 10-11. The First Amended Complaint states that “[i]t is unclear whether Mr. Ortiz was offered withdrawal medications in connection with this incarceration.” First Amended Complaint ¶ 57, at 11.

         On November 5, 2013, ADF booked Ortiz again, and completed a “History and Physical” form noting Ortiz' history of substance abuse and checking a box for “Follow-up PRN.”[3] First Amended Complaint ¶ 59, at 11. At intake, the ADF's Medical Unit also completed a “Medical Intake History and Screening” form noting Ortiz' “history of heroin abuse” and “recent treatment for anxiety, depression, and PTSD, ” but leaving blank a portion of the form asking whether the inmate “get[s] sick when [the inmate] stop[s] using drugs.” See First Amended Complaint ¶¶ 58-60, at 11. Ortiz requested “housing in Safekeeping” but “[t]he Medical Unit instead recommended him for placement into general population.” First Amended Complaint ¶ 58, at 11.

         On December 20, 2013, Ortiz “was booked back into ADF after violating his conditions of release by leaving the Hoy Recovery center[4] before his treatment was complete, after the center concluded it could not meet his health needs.” First Amended Complaint ¶ 61, at 11. After completing another “Medical Intake History and Screening” form, which documented no drug use or history despite Ortiz' transfer to the ADF directly from a detoxification facility, and despite his request for “housing in Safekeeping, ” the Medical Unit recommended housing him in general population. First Amended Complaint ¶¶ 61-63, at 11. The ADF placed Ortiz on suicide watch. See First Amended Complaint ¶ 63, at 11.

         On September 3, 2014, the ADF booked Ortiz again. See First Amended Complaint ¶ 64, at 12. The Medical Unit prepared a “History and Physical” form upon intake, describing Ortiz as a heroin user who last used two months before the intake. First Amended Complaint ¶ 64, at 12. On September 5, 2014, the ADF placed Ortiz on an “opiate protocol.” First Amended Complaint ¶ 65, at 12. On September 12, 2014, the Medical Unit completed a “Medical Intake History and Screening” form for Ortiz, which “is left mostly blank.” First Amended Complaint ¶ 66, at 12. On September 25, 2014, the ADF booked Ortiz again, completing a “Medical Intake History and Screening” form which asserts that Ortiz “does not take drugs, and does not note any history of substance abuse.” First Amended Complaint ¶ 67, at 12. The Medical Unit recommended housing Ortiz in the ADF's general population. First Amended Complaint ¶ 67, at 12. At the time, Ortiz “had been diagnosed with Hepatitis C.” First Amended Complaint ¶ 68, at 12. On February 11, 2015, the ADF booked Ortiz again, and the Medical Unit recommended housing him in general population despite his request for placement in “Safekeeping.” First Amended Complaint ¶ 69, at 12. No. records reflect Ortiz receiving treatment for his substance abuse during this incarceration. See First Amended Complaint ¶ 70, at 12.

         On January 4, 2016, the Santa Fe County Sheriff's Office (“Sheriff's Office”) arrested Ortiz “on charges including larceny.” First Amended Complaint ¶ 71, at 12. On the Plaintiffs' information and belief, “Ortiz had been heavily using heroin and other opiates” at the time of his arrest. First Amended Complaint ¶ 72, at 13. Upon Ortiz' arrival at the ADF, Robinson interviewed Ortiz. See First Amended Complaint ¶ 74, at 13. Robinson later told the Sheriff's Office that she “completed paperwork related to Mr. Ortiz' intake.” First Amended Complaint ¶ 75, at 13.

         The ADF's Intake Guidelines include “Guidelines governing the proper performance of an ‘Initial Poly-Substance Abuse Assessment' and a subsequent ‘Poly-Substance Abuse Withdrawal Assessment.'” First Amended Complaint ¶ 76, at 13. The ADF's Intake Guidelines also require intake nurses to “fully complete and sign a ‘Medical Intake History and Screening' form for each inmate.” First Amended Complaint ¶ 77, at 13. Regarding inmate substance abusers, the Intake Guidelines provide that most inmate substance abusers are still intoxicated during their intake assessments and that, because the individuals are not in withdrawal yet, personnel must assess them for “predictors of severe withdrawal” and reassess their symptoms within two hours from the time they ceased their substance use. First Amended Complaint ¶ 78, at 13. The ADF trains intake nurses to inquire at intake whether inmate substance abusers become “ill when [they] cease[] to use drugs, ” and requires intake nurses to “evaluate inmates for predicators of severe alcohol withdrawal and note their last use of opioids.” First Amended Complaint ¶¶ 79-80, at 13-14. Intake nurses “completing a [sic] ‘Initial Poly-Substance Abuse Assessment' for an inmate substance abuser are required to set forth a ‘treatment plan' for the inmate, ” and should evaluate the individuals' withdrawal symptoms and consider recommending housing individuals “at risk of severe opiate withdrawal in the medical unit.” First Amended Complaint ¶ 82, at 14. “Medical staff” should continue to monitor individuals undergoing opiate withdrawal, “with subsequent, regular assessments using validated tools like COWS, ” and the evaluations should occur “at least twice daily.” First Amended Complaint ¶¶ 83-84, at 14. The ADF's medical intake forms require intake nurses “to determine whether a COWS evaluation was performed.” First Amended Complaint ¶ 86, at 14.

         Robinson did not receive orientation for performing medical intakes, and her evaluation of Ortiz was consequently deficient. See First Amended Complaint ¶¶ 86-87, at 14. The First Amended Complaint contends that Robinson's deficient evaluation “proved fatal to [Ortiz'] efforts to safely withdraw from heroin while incarcerated.” First Amended Complaint ¶ 87, at 14. Robinson left several portions of Ortiz' “‘Medical Intake History and Screening' Form” blank and did not perform “multiple critical assessments.” First Amended Complaint ¶¶ 88-89, at 14. Robinson “noted no track marks on Mr. Ortiz' person -- though these were later identified in the [Office of the Medical Investigator (‘OMI')] report.” First Amended Complaint ¶ 90, at 15. Robinson noted that Ortiz used drugs, specifically heroin, but did not answer the Medical Intake History and Screening Form's question whether Ortiz would get sick when he stopped using drugs, see First Amended Complaint ¶ 91, at 15; recorded that Ortiz had no medical problems “requiring immediate attention, ” First Amended Complaint ¶ 92, at 15; and answered that Ortiz had no current signs or symptoms of withdrawal, although an inmate who observed Ortiz “around the same time noted that he looked sick, ” First Amended Complaint ¶ 93, at 15. Robinson did not complete the section of the Medical Intake History and Screening Form asking whether Ortiz “had been ‘on medications while in jail/prison that [he] did not take while out.'” First Amended Complaint ¶ 94, at 15. Robinson stated that Ortiz suffered no chronic illnesses or conditions, see First Amended Complaint ¶ 95, at 15; despite the ADF's “documented record of Mr. Ortiz' suffering from Hepatitis C, ” and she did not sign the Medical Intake History and Screening Form, First Amended Complaint ¶ 99, at 15. Robinson noted that Ortiz requested special housing, citing safety concerns. See First Amended Complaint ¶ 96, at 15. Robinson, however, recommended that the ADF house him in “General Population.” First Amended Complaint ¶ 97, at 15. Robinson left blank, unsigned, and undated, the Medical Intake History and Screening Form's portion inquiring whether the ADF “should observe any Medical Restrictions” for Ortiz. First Amended Complaint ¶ 98, at 15.

         Robinson “failed to complete the most relevant portions of an ‘Initial Poly-Substance Abuse Assessment' for Mr. Ortiz.” First Amended Complaint ¶ 100, at 16. On the Initial Poly-Substance Abuse Assessment, Robinson noted Ortiz' pupil size as 3, [5] and his respiratory rate as “an elevated 20 breaths per minute, ”[6] but “did not assess his capillary refill time.”[7] First Amended Complaint ¶ 101, at 16. Robinson did not evaluate Ortiz “for predicators of severe alcohol withdrawal or note his last use of opioids, ” First Amended Complaint ¶ 102, at 16, and left blank the Initial Poly-Substance Abuse Assessment's treatment plan section, which required her to determine whether Ortiz “should be housed in the medical unit, ” whether Ortiz reported “a history of illicit opioid use, ” whether the Medical Unit had completed a COWS for Ortiz, and whether Ortiz had attended opioid overdose training “or needed to be referred for it, ” and required her to set a time to reassess Ortiz' conditions. First Amended Complaint ¶ 104, at 16. On the “Poly-Substance Withdrawal Assessment, ” Robinson recorded Ortiz' “vital signs and his alcohol withdrawal assessment, ” First Amended Complaint ¶ 107, at 16, but she did not complete the “Opioid Withdrawal Assessment, ” First Amended Complaint ¶ 108, at 16. Robinson did not sign or date the form. See Complaint ¶ 106, at 16. The forms that Robinson left “nearly-blank” “are the only withdrawal assessments in the record for” Ortiz' January, 2016, incarceration. First Amended Complaint ¶ 109, at 16. Ortiz requested of Robinson “that he be placed in a cell by himself ‘because I'm going to kick real hard,' referring to his imminent heroin withdrawals, ” First Amended Complaint ¶ 110, at 17, but Robinson instead “recommended him for placement in the general inmate population, ” First Amended Complaint ¶ 111, at 17.

         Robinson offered and Ortiz accepted a “‘kick kit' -- a packet of medications (in this case, Dicyclomine, Methocarbamol, Loperamide, Hydroxyzine, and Promethazine) given to inmates to assist with their withdrawal symptoms.” First Amended Complaint ¶¶ 112-13, at 17. “A Physicians Order form shows that a five-day opiate-withdrawal protocol -- aka a ‘kick kit' -- was ordered for Mr. Ortiz on January 4, 2016 at 2:50 p.m., ” and, “f[]urther, a ‘Debit Memo' form generated by ADF shows that Mr. Ortiz personally signed and authorized a request for a $7.50 withdrawal from his inmate account in order to receive the medications.” First Amended Complaint ¶¶ 114-15, at 17. The accounts of the ADF's staffers “vary as to whether, ” after Ortiz paid for the kick kit, he “was offered and/or declined the withdrawal medications . . . at any other day or time throughout his final incarceration, from January 4 until his death on January 7, 2016.” First Amended Complaint ¶ 117, at 17. According to Robinson, Ortiz “accepted and took” the kick kit on January 4, 2016, but Chavez contends that he spoke with Ortiz during the evening of January 5, 2016, and that Ortiz refused the kick kit. First Amended Complaint ¶¶ 118-19, at 17-18. Upon the Plaintiffs' information and belief, Ortiz did not receive his kick kit, nor did the ADF's staff “adequately monitor him” for heroin withdrawal symptoms, “let alone refer him to the Medical Unit for what could have been life-saving treatment when they observed him to be in the throes of severe illness.” First Amended Complaint ¶ 120, at 18.

         Upon the Plaintiffs' information and belief, the kick kit's medications “do not meet the standard of care for treating opiate withdrawal, because they did not include methadone and buprenorphine.”[8] First Amended Complaint ¶ 122, at 18. The ADF's kick kit treats “discrete symptoms of withdrawal, like nausea, vomiting, diarrhea, and stomach cramps, ” whereas the “use of Medication-Assisted Treatment (MAT), ” including methadone and buprenorphine, “has been shown to greatly reduce mortality” in other correctional facilities, “even in non-overdose situations.” First Amended Complaint ¶¶ 122-23, at 18. MAT has been adopted by jails across the United States, and, in Australia, reduced deaths occurring early in incarceration by ninety-four percent. See First Amended Complaint ¶¶ 124-25, at 18. The National Commission on Correctional Healthcare, “the national leader in establishing standards of care in jails and prisons in the United States, ” endorses MAT and Dr. Homer Venters, “a national expert in providing health services to the incarcerated, former Medical Director and Chief Medical Officer of New York City's Jail Correctional Health Service, and current Director of Programs for Physicians for Human Rights” describes methadone use as the standard of care for “tapered” opiate detoxification and describes kick kits as “substandard and ill-advised.” First Amended Complaint ¶ 127, at 19.

         On January 4, 2016, inmates and staff at the ADF observed Ortiz' symptoms. See First Amended Complaint ¶¶ 128-67, at 19-23. Ronnie Montano, who “was housed with Mr. Ortiz during his initial intake” and who roomed with Ortiz in general population housing for one day, observed that, “throughout their incarceration together, ” Ortiz looked sick and vomited “numerous times” around the cell. See First Amended Complaint ¶ 128, at 19. When Montano asked the ADF staff to clean the cell, they relocated Montano to another cell. See First Amended Complaint ¶ 129, at 19. Chavez observed Ortiz “experiencing symptoms of severe heroin withdrawal, ” during the evening of January 4, 2016, and Ortiz informed Chavez that he was withdrawing and “throwing up blood.” See First Amended Complaint ¶ 131, at 19. Chavez informed the “next shift of corrections officers” about Ortiz' condition but did not assist Ortiz or refer Ortiz to the Medical “for observation and treatment.” See First Amended Complaint ¶¶ 132-33, at 19-20. Contrary to the ADF's policy, the ADF generated “no medical report” for Mr. Ortiz. See First Amended Complaint ¶ 134, at 20.

         Through January 5 and 6, 2016, Ortiz' condition worsened, but the ADF staff did not provide medical assistance. See First Amended Complaint ¶ 135, at 20. On the morning of January 5, 2016, Valdo met with Ortiz to classify Ortiz “in the appropriate housing unit, ” and, despite, Ortiz' “severely ill” appearance, statements about his withdrawal, and request for housing in “safe keeping, ” Valdo classified him to general population housing. First Amended Complaint ¶¶ 136-38, at 20. Later that morning, at 11:47 a.m., surveillance video of Ortiz' unit shows a corrections officer escorting Ortiz out of his cell and down the hall as he is “swaying from side to side and bumping into the wall, ” and at 11:50 a.m., escorting Ortiz back to his cell. First Amended Complaint ¶¶ 141-42, at 20. The corrections officer in the video did not seek medical assistance for Ortiz, “there was no medical report form generated, ” and “no observation logs” for Ortiz' cell “appear to have been generated for this date, and there does not appear to be any record of whether Mr. Ortiz was offered, accepted, and/or declined his withdrawal medications.” First Amended Complaint ¶¶ 143-45, at 21. On January 6, 2016, Ortiz' “medical situation became critical.” First Amended Complaint ¶ 146, at 21. The ADF's surveillance video shows Ortiz “swaying on his feet while being moved from a holding cell at 2:20 a.m.” and struggling to “drag a mattress to his cell . . . at 2:43 a.m.” First Amended Complaint ¶¶ 147-48, at 21. The surveillance video of Ortiz' cell “inexplicably ‘jumps' from one time to another, several minutes later, during the morning and afternoon of January 6, 2016 . . ., includ[ing] a jump from 3:09:25 a.m. to 3:47:52 a.m. -- so that 38.5 minutes of footage are missing.” First Amended Complaint ¶¶ 149-50, at 21. According to the ADF's records, Ortiz declined withdrawal medication when offered them “at 10:07 a.m., 3:45 p.m., and 8:46 p.m. on January 6, ” and according to the ADF's Nurse Kathleen Silva, “who was on duty at ADF at the time of Mr. Ortiz' death, ” the ADF does not dispense withdrawal medications to inmates who “feel they don't need [them]” or are not inclined to take them. First Amended Complaint ¶¶ 151-52, at 21. The ADF's policy regarding administering withdrawal medication to inmates includes no exception “for inmates who are severely ill, and/or who are unable to understand the consequences of failure to take their withdrawal medications.” First Amended Complaint ¶ 153, at 22. Video of “the holding cell area of the Alpha Unit, ” where Ortiz was housed, does not show the ADF's staff approaching Ortiz' cell at the times that they purportedly offered Ortiz withdrawal medications, and, the video does not skip at the times the ADF staff purport to have offered Ortiz the medications. See First Amended Complaint ¶ 154, at 22. On January 6, 2016, Lopez, who was on duty in Ortiz' housing unit on January 6, 2016, saw Ortiz “dry heaving” and saw vomit on Ortiz' cell floor. First Amended Complaint ¶¶ 155, 157, at 22. Lopez observed that Ortiz “didn't say much, ” was “very quiet, ” “looked sick, ” and had a “blank stare” when not “excessively vomiting.” First Amended Complaint ¶¶ 156, 158-59, at 22. Lopez did not call for medical assistance, “nor did he continue to monitor [Ortiz'] medical situation.” See First Amended Complaint ¶ 160, at 22. By his own admission, Lopez “got busy during the day, ” and “failed to even arrange for Mr. Ortiz' cell to be cleaned.” First Amended Complaint ¶ 161, at 22. Abdias Flores, an inmate in the cell adjacent to Ortiz' cell, “heard Mr. Ortiz ‘groaning throughout the night' of January 6 and early morning hours of January 7” and watched Ortiz “curled up in a ball in bed while ill.” First Amended Complaint ¶¶ 162-63, at 23. Flores “knew that Mr. Ortiz was ‘kicking' from heroin.” First Amended Complaint ¶ 163, at 23.

         Garcia, on duty from 6:00 p.m. on January 6, until after 6:00 a.m. on January 7, “later told investigators he had observed Mr. Ortiz sitting on the toilet ‘and breathing' late on the evening of January 6, ” but no surveillance footage shows anyone approaching Ortiz' cell after 12:43 p.m. on January 6, 2016. First Amended Complaint ¶ 164, at 23. Security “videos of the housing units at ADF operate by motion detector -- if a person moves in the area on which the security camera is trained, the camera turns on and records the action.” First Amended Complaint ¶ 166, at 23. The ADF staff generated no medical report for Ortiz on January 6, 2016. See First Amended Complaint ¶ 167, at 23. On January 7, 2016, Garcia purportedly observed Ortiz. See First Amended Complaint ¶ 168, at 23. Garcia told investigators that he saw Ortiz “lying on his bed in the fetal position” at 6:40 a.m.” First Amended Complaint ¶ 168, at 23. No. “motion-activated security video, ” however, shows Garcia approaching Ortiz' cell, and Garcia's claim to investigators that Ortiz showed no discomfort contradicts Montano's account. See First Amended Complaint ¶¶ 169-70, at 23.

         On January 7, 2016, at 8:09 a.m., another ADF employee, Gallegos, “heard [Ortiz] ‘pushing' and ‘making noises on the toilet'” in his cell, but no “motion-activated security video” shows Gallegos passing Ortiz' cell. First Amended Complaint ¶¶ 171-72, at 24. According to Gallegos, “Ortiz did not ask for medical assistance, ” and Gallegos “did not seek medical assistance for Mr. Ortiz on his own initiative.” First Amended Complaint ¶¶ 173-74, at 24. At 8:20 a.m., “Officer Garcia reportedly approached Mr. Ortiz' cell and asked him ‘if he was ok, '” but no “motion-activated security video” shows Garcia approaching Ortiz' cell. First Amended Complaint ¶¶ 175-76, at 24. According to Garcia, in response to Garcia's question, Ortiz “motioned with his hand in a way that Officer Garcia interpreted as answering in the affirmative, ” but Ortiz did not verbally respond. First Amended Complaint ¶ 178, at 24.

         Ortiz died the morning of January 7, 2016. See First Amended Complaint ¶ 192, at 25. No. “ADF staff or inmates witnessed Mr. Ortiz' final collapse.” First Amended Complaint ¶ 179, at 24. When Garcia went to Ortiz' cell at 8:46 a.m. on January 7, 2016, he observed Ortiz “lying naked across his bed, ‘with his body half off' the bed”; fluid that “looked brown” “all over the floor and walls”; Ortiz unresponsive while Garcia called his name thrice; and Ortiz not breathing. First Amended Complaint ¶¶ 180-83, at 24. Garcia “called a Code Red, [9] to which Lieutenant and Shift Commander Joshua Podlesny immediately responded, ” and Podlesny, “observing the position of Mr. Ortiz' body and puddles of blood around him, activated a Code Blue within the facility, to which a number of medical staff, including Nurse Kathleen Silva, responded.” First Amended Complaint ¶¶ 184-85, at 25. Silva determined that Ortiz had no pulse and was not breathing, and, once other staff members moved Ortiz to the floor, Silva began performing chest compressions. See First Amended Complaint ¶¶ 186-87, at 25. Silva and other staff attempted to revive Ortiz with cardiopulmonary resuscitation (“CPR”). See First Amended Complaint ¶¶ 186-88, at 25. “Efforts to start an IV in Mr. Ortiz' foot were unsuccessful.” First Amended Complaint ¶ 189, at 25. Emergency Medical Services (“EMS”) arrived at 9:02 a.m., and continued CPR and other emergency medical measures including attempting to “run a rhythm strip, ” to determine if Ortiz had heart activity, until, at 9:08 a.m., EMS called Ortiz' death. First Amended Complaint ¶¶ 190-92, at 25.

         At 9:30 a.m. on January 7, 2016, responding detectives arrived and found Ortiz “lying nude on his floor near his cell door, ” with “a pair of boxer shorts covered in blood and feces” near his feet. First Amended Complaint ¶¶ 193-94, at 25. Ortiz' body revealed no apparent injuries, “but blood trails were on his face, coming out of his mouth, his upper arms and shoulders, his rear end, and his lower legs and feet.” First Amended Complaint ¶ 195, at 26. Ortiz' cell was covered with blood and feces, there were “‘small pools of a liquid/reddish substance' on Mr. Ortiz' bed, ” “blood transfer stains on the wall at the head and left side of the bed, ” and a “‘large pool of a dark brown/reddish liquid substance' . . . on the concrete floor to the right of the bed, and a drip trail of blood . . . under the bed.” First Amended Complaint ¶¶ 196-98, at 26. There was “blood on the walls on the right side of the cell, ” “blood transfer stains near and below the cell's metal table, ” “blood and liquid feces inside and surrounding the toilet, and several blood stains on the toilet seat.” First Amended Complaint ¶¶ 199-200, at 26. At 11:02 a.m., OMI pronounced Ortiz dead. See First Amended Complaint ¶ 201, at 26.

         The March 8, 2016, OMI report concluded that Ortiz “died of an acute gastrointestinal hemorrhage due to probable heroin withdrawal.” First Amended Complaint ¶ 202, at 26. The report found “significant bleeding throughout the gastrointestinal system”; “engorged blood vessels in Mr. Ortiz' esophagus” because of his esophageal lining tearing; bloody fluid in his airways “attributed to aspiration”; a fatty liver; and “scars and puncture marks on his arms consistent with intravenous drug use.” First Amended Complaint ¶¶ 203-206, at 26-27. The ADF staff speculated to investigators that Ortiz died as a “result of his being ‘stuffed like a turkey' full of drugs, ” but the OMI report found no drugs or foreign objects in his body cavity, although he tested “presumptively positive” for opiates and anti-anxiety medications. First Amended Complaint ¶¶ 207, 209, at 27. The Medical Investigator opined that “it is very likely that because Mr. Ortiz used heroin steadily and abruptly stopped when he was incarcerated, that he had experienced symptoms of withdrawal, including vomiting.” First Amended Complaint ¶ 210, at 27. The Medical Investigator explained that opiate heroin withdrawal “can begin within 12 hours of the last dose, ” that individuals dependent on heroin are at their “worst in the first 24-48 hours, ” and that withdrawal symptoms “can last for a week or more.” First Amended Complaint ¶ 211, at 27. The Medical Investigator opined that “[s]ignificant vomiting from heroin withdrawal caused irritation and tearing of Mr. Ortiz' esophageal lining that resulted in ‘bleeding into the stomach and intestines,' which resulted in his death.” First Amended Complaint ¶ 212, at 27.

         PROCEDURAL BACKGROUND

         In the First Amended Complaint, the Plaintiffs' contend that: (i) Santa Fe County and the individual Defendants negligently maintained and operated the ADF in violation of the NMTCA by failing to

adopt and implement policies and procedures concerning employee training -- including but not limited to medical intake nurse training -- which resulted in inmates in emergency medical situations, like Mr. Ortiz, not receiving proper medical evaluations (including relevant substance abuse evaluations and withdrawal assessments), and consequently being inappropriately placed, unmonitored, in the general inmate population of ADF while suffering from dangerous symptoms of heroin withdrawal.

         First Amended Complaint ¶ 221, at 29; (ii) Santa Fe County and the individual Defendants negligently maintained and operated the ADF in violation of the NMTCA by negligently classifying Ortiz in general population housing, negligently monitoring his withdrawal symptoms, negligently treating his withdrawal with a substandard kick kit that he may have never received, and negligently failing to refer him to the Medical Unit for observation and treatment, see First Amended Complaint ¶¶ 223-27, at 29-31; (iii) the individual Defendants violated 42 U.S.C. § 1983 by deliberately disregarding the known risk of serious medical harm to Ortiz, through inadequate intake, inappropriate housing placement, and inadequate monitoring and medical care, see First Amended Complaint ¶¶ 232-40, at 31-32; and (iv) Santa Fe County “is jointly and severally liable for all injuries and damages caused Mr. Ortiz by . . . the individual Defendants, pursuant to the doctrines of vicarious liability and respondeat superior, ” First Amended Complaint ¶ 230, at 31. The Defendants invoke the NMTCA's § 41-4-6 negligent-operation-of-a-building waiver and § 41-4-9 medical-facility waiver. See First Amended Complaint at 28 (“COUNT I: Plaintiffs' Claims Against All Defendants Under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-6 and 41-4-9.”). On January 15, 2018, the Defendants removed the suit to federal court under federal-question jurisdiction. See Notice of Removal under 28 U.S.C. § 1441 at 2, filed January 15, 2018 (Doc. 1). The Defendants filed the MTD on April 27, 2018. See MTD at 27.

         1. The MTD.

         The Defendants ask that the Court dismiss the Plaintiffs' NMTCA claims, because the Plaintiffs do not “allege facts falling within an existing waiver of immunity, ” and that the Court dismiss the Plaintiffs' § 1983 claims, because the individual Defendants “are entitled to qualified immunity.” MTD at 1. First, the Defendants contend that, because the Plaintiffs' NMTCA claims against the individual Defendants and some of the Plaintiffs' NMTCA claims against Santa Fe County depend on the individual Defendants' actions against a single inmate, Ortiz, the NMTCA's § 41-4-6 negligent-operation-of-a-building waiver does not apply. See MTD at 9-12 (citing Kreutzer v. Aldo Leopold High Sch., 2018-NMCA-005, ¶ 53, 409 P.3d 930, 942, for the statement that the § 41-4-6 waiver's application requires that the negligent operation or maintenance create a dangerous condition which threatens the general public or a class of the building's users). According to the Defendants, the Court has stated that § 41-4-6 “does not waive a defendant's immunity when a plaintiff's claim is predicated on allegations of single, discrete actions affecting only a single detainee, ” and the Court has recognized that New Mexico courts have repeatedly held the same. MTD at 10 (citing Gallegos v. Bernalillo Cty. Bd. of Comm'rs, No. CIV 16-0127 JB/WPL, 2017 WL 3575883, at *43-44 (D.N.M. Aug. 17, 2017)(Browning, J.)(“Gallegos”); Archibeque v. Moya, 1993-NMSC-079, ¶ 14 n.3, 866 P.2d 344, 349).

         The Defendants argue that the First Amended Complaint's allegations that Santa Fe County negligently supervised and trained its employees, and failed to adopt “operational policies and procedures concerning medical intake training, orientation, placement and monitoring, ” do not suffice to waive immunity under § 41-4-6, because the § 41-4-6 waiver “does not apply to such negligent supervision or training claims” or to generalized allegations of inadequate safety policies, MTD at 12-14, and so the Plaintiffs' argument that Santa Fe County “negligently supervised and trained its employees by failing to adopt and inculcate reasonable and proper operational policies and procedures concerning the safety of” the ADF does not suffice to invoke the § 41-4-6 waiver. MTD at 13 (citing Kreutzer v. Aldo Leopold High Sch., 2018-NMCA-005, ¶¶ 53, 66-77, 409 P.3d at 931-32, 945-48). The Defendants summarize that the

plaintiffs' generalized claims about a lack of operational policies and procedures concerning medical intake training, orientation, placement and monitoring, fall short of the factual allegations held to be determinative in Upton[ v. Clovis Municipal School District, 2006-NMSC-040, 141 P.3d 1259], such as the fact that the facility in Upton promised the decedent's parents that certain safety procedures would be provided to address a specific safety risk and then failed to implement the safety procedures.

MTD at 13 (citing Kreutzer v. Aldo Leopold High Sch., 2018-NMCA-005, ¶ 72, 409 P.3d at 948). The Defendants continue, arguing in response to the Plaintiffs' contention that the entire kick kit protocol the ADF follows is inadequate and poses a risk to all similarly situated inmates, because it lacks a methadone dose, the Court has previously concluded that the kick kit protocol is not “abjectly unsafe, ” and administering methadone or an alternative to an inmate is an individualized determination affecting only one person that does not suffice to waive immunity under § 41-4-6. See MTD at 15-16 (quoting Gallegos, 2017 WL 3575883, at *43).

         Second, addressing the Plaintiffs' § 41-4-9 allegations, the Defendants argue that the ADF is a jail, and not a “‘hospital, infirmary, mental institution, clinic, dispensary, medical care home' or like facility, ” and none of the First Amended Complaint's factual allegations occurred in a medical facility. MTD at 16 (quoting NMTCA § 41-4-9; and citing Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 30, 187 P.3d 179, 185). The Defendants state that “[t]here is no authority establishing that negligence claims based on medical conditions of inmates in the general population of a prison or jail fall under” the § 41-4-6 waiver. MTD at 17. The Defendants note that the First Amended Complaint makes no allegation about a medical facility, but that the Defendants “address the reference out of an excess of caution.” MTD at 16.

         The Defendants next turn to the Plaintiffs' § 1983 claims against the individual Defendants, and aver that the individual Defendants are entitled to qualified immunity, warranting dismissal of the § 1983 claims against them. See MTD at 17. The Defendants assert that, under the United States Court of Appeals for the Tenth Circuit law,

to survive a Rule 12(b)(6) motion to dismiss based on qualified immunity, a plaintiff must “nudge their claims across the line from conceivable to plausible, [by] alleg[ing] facts sufficient to show (assuming they are true) that the defendants plausibly violated [the plaintiff's] constitutional rights and that those rights were clearly established at the time.”

MTD at 18 (alterations in MTD)(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)). In evaluating a qualified immunity claim, the Court must determine: (i) that the plaintiff's allegations, if true, state a claim for a violation of a constitutional right; and (ii) that the right was clearly established at the time that the defendant acted. See MTD at 18 (citing Bisbee v. Bey, 39 F.3d 1096, 1100 (10th Cir. 1994)). According to the Defendants, the Plaintiffs must show that Ortiz suffered an objectively serious medical harm -- here, the First Amended Complaint alleges that the harm is death as a result of an acute gastrointestinal hemorrhage -- and that the individual Defendants inferred that Ortiz faced the risk of the harm -- or that the risk was obvious to each of them -- and that they acted with deliberate indifference to the risk. See MTD at 18-20 (citing Martinez v. Beggs, 563 F.3d 1082, 1089-90 (10th Cir. 2009)). Regarding Robinson's alleged deliberate indifference, the Defendants argue that Ortiz exhibited no abnormal symptoms nor requested any particular medical treatment during the intake Robinson performed on January 4, 2016. See MTD at 21. The Defendants argue that the risk that Ortiz “would be at an imminent risk of death from a gastrointestinal hemorrhage during the intake, let alone several days later, ” was not obvious to Robinson during the intake and that caselaw requires plaintiffs to show that a defendant faced “an imminent -- as opposed to a mere possibility -- of serious harm under such circumstances.” MTD at 21 (citing Spencer v. Abbott, 731 Fed.Appx. 731, 745 (10th Cir. 2017)(unpublished)[10]). The Defendants note that Robinson's intake “resulted in [Ortiz] being placed on the very protocol for handling [heroin withdrawal] within the ADF, ” and, that Robinson provided Ortiz with withdrawal medications and knew that Ortiz had begun the medications. MTD at 23. The Defendants argue that, although the Plaintiffs assert that Ortiz required more monitoring under a treatment plan than the intake recommended, the “negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” MTD at 23 (citing Spencer v. Abbott, 731 Fed.Appx. at 745). Further, the Defendants contend that Ortiz had no right to any particular course of treatment, see MTD at 23 (citing Callahan v. Poppel, 471 F.3d 1155, 1160 (10th Cir. 2006)), and that prison officials have no duty to constantly monitor inmates, see MTD at 23 (citing Gaston v. Ploeger, 229 Fed.Appx. 702');">229 Fed.Appx. 702, 711 (10th Cir. 2007)(unpublished)).

         Regarding Chavez' and Lopez' alleged deliberate indifference, the Defendants aver that neither Chavez nor Lopez would have “perceived a potential risk of death to Ortiz, ” and that, according to the Defendants, Chavez and Lopez witnessed only heroin withdrawal symptoms. MTD at 23. The Defendants argue that “the burden is on the plaintiff to allege that these defendants had knowledge of an objective risk of harm of death to Ortiz from an acute internal hemorrhage or that the risk was obvious.” MTD at 23 (citing Martinez v. Beggs, 563 F.3d at 1089-90). The Defendants allege that the Plaintiffs' allegations contradict any showing that Chavez and Lopez could have discerned that Ortiz was at an imminent risk of death when they encountered him, because the Plaintiffs allege “that following Mr. Ortiz' death, ADF staff had no idea that he had died from a hemorrhage related to his heroin withdrawal. The complaint alleges that staff mistakenly perceived that he died from concealing drugs in his body cavities.” MTD at 24 (citing First Amended Complaint ¶ 207, at 27). The Defendants also argue that the fact that Chavez passed on Ortiz' report that he was throwing up blood to other staff contradicts allegations that Chavez acted with deliberate indifference. See MTD at 24.

         Regarding Valdo's alleged deliberate indifference in classifying Ortiz into the general population at the ADF, the Defendants note that nothing suggests that Valdo would have concluded that Ortiz “was at an imminent risk of death from an acute hemorrhage on January 5th” or that Ortiz asked Valdo for medical assistance or for placement in the medical facility for medical care. MTD at 24. Regarding Garcia's and Gallegos' alleged deliberate indifference, the Defendants argue that Garcia and Gallegos knew that Ortiz was “undergoing heroin withdrawal, ” and appeared “unwell, ” but emphasize that Ortiz did not ask for medical assistance. MTD at 25. According to the Defendants, Garcia and Gallegos would not have known that Ortiz faced “risk of an imminent fatal hemorrhage, ” and the Defendants conclude that Garcia and Gallegos did not act with deliberate indifference to a known or obvious risk. MTD at 25. The Defendants contend that, although the Plaintiffs argue that Garcia and Gallegos did not check on Ortiz, even if they did not see Ortiz, that fact does not show Garcia's and Gallegos' deliberate indifference to Ortiz' medical needs. MTD at 25. For the foregoing reasons, the Defendants ask that the Court dismiss the First Amended Complaint with prejudice and “grant the individual-capacity defendants' request for qualified immunity under Count II, and for all other appropriate relief.” MTD at 26.

         2. The MTD Response.

         The Plaintiffs responded on August 13, 2018. See Plaintiffs' Response to Defendants' Motion to Dismiss at 33, filed August 13, 2018 (Doc. 23)(“MTD Response”). The Plaintiffs explain that they will seek leave to amend their First Amended Complaint, [11] which the Defendants oppose, but contend that the First Amended Complaint, nevertheless, states a plausible claim upon which relief can be granted. See MTD Response at 1-2 & 1 n.3. The Plaintiffs note that they have “voluntarily dismissed their TCA claims against the individual Defendants.” MTD Response at 15 n.3.

         The Plaintiffs then address the Defendants' arguments about the NMTCA. See MTD Response at 16-21. The Plaintiffs first explain that their claims against Santa Fe County under the NMTCA's § 41-4-6's waiver turn on Santa Fe County's negligent maintenance of the ADF by its failure to train employees to provide proper medical attention for withdrawal. See MTD Response at 16. The Plaintiffs argue that this failure is shown throughout Ortiz' history with the ADF of inadequate evaluations and monitoring, and the ADF's “pattern of failing to follow its own medical intake guidelines.” MTD Response at 16. The Plaintiffs aver that the pleading standards “do not require a plaintiff to plead facts describing injuries to multiple individuals in order to pass muster under § 41-4-6.” MTD Response at 17 (citing Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, 141 P.3d 1259). Second, regarding the Defendants' contention that the Plaintiffs allege a claim “purely for negligent supervision and training, ” the Plaintiffs argue that the line between supervision and training, and maintaining a public building, are blurring and that the Plaintiffs' claims, like those in Upton v. Clovis Municipal School District, are “part and parcel of the dysfunctional system” at the ADF. MTD Response at 20. See MTD Response at 19-20. Last, the Plaintiffs aver that, contrary to the Defendants' § 41-4-9 arguments, Lessen v. City of Albuquerque “stands for the proposition that a government entity does not waive sovereign immunity where a private medical contractor, rather than the government entity, operated the medical unit of a correctional facility.” MTD Response at 21 (citing Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 31, 187 P.3d at 185). The Plaintiffs contend that they have stated a claim under § 41-4-9, because the ADF, and not a private contractor, “operated and maintained the Medical Intake Unit, ” and the Medical Unit's employees acted negligently. MTD at 21.

         Next, the Plaintiffs turn to the claims against the individual Defendants under § 1983. See MTD at 22. The Plaintiffs contend that the individual Defendants need not have known that Ortiz faced the risk of an acute internal hemorrhage, but rather, that they need have known only that Ortiz was at risk because of a “severe, life-threatening illness.” MTD Response at 24. The Plaintiffs argue that they need show only that “Mr. Ortiz' symptoms ‘constituted sufficient harm in themselves to satisfy the objective component.'” MTD Response at 29 (quoting Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).

         Regarding Robinson's alleged deliberate indifference, the Plaintiffs argue that Robinson was aware that Ortiz would suffer heroin withdrawals and had Hepatitis C, and that this combination of factors should have alerted her to a severe risk to Ortiz' health. See MTD Response at 25. The Plaintiffs argue that another inmate with Ortiz in the Medical Intake Unit observed that Ortiz was ill during Robinson's intake, and that, the “serious risk of significant harm” to Ortiz at the time of Robinson's intake “should have been obvious to any layperson, let alone a nurse.” MTD Response at 25. The Plaintiffs allege that there is ample evidence to satisfy that Robinson was subjectively deliberately indifferent to Ortiz' risks, where she

failed at adhering to any of ADF's guidelines for conducting a medical intake -- she did not conduct an initial assessment “for predictors of severe withdrawal” at the initial review, let alone reassess Mr. Ortiz' symptoms two hours later, as the guidelines mandated; falsely stated on Mr. Ortiz' Intake History that Mr. Ortiz did not suffer from any chronic illnesses or conditions; did not perform a required COWS assessment, let alone order follow-up monitoring; did not inquire as to the nature and extent of Mr. Ortiz' illness when he stopped using drugs; did not list his symptoms, despite his obvious illness, as attested to by a witness; did not identify any medical restrictions or potential complications; did not assess him for an opiate overdose or note his last use of opioids; left entirely blank a required “treatment plan, ” which required her to assess whether Mr. Ortiz should be housed in the Medical Unit and whether he had a history of illicit opioid use, and to refer him for overdose training and COWS evaluations; totally ignored an additional form requiring her to complete an “Opioid Withdrawal Assessment” for Mr. Ortiz; and then decided to place Mr. Ortiz in the general inmate population without providing for any additional medical assistance or follow-up evaluations . . . .

MTD Response at 26 (citations omitted). The Plaintiffs argue that Robinson's several omissions in the intake process outweigh that she arranged for Ortiz to receive a kick kit -- and the Plaintiffs allege that Ortiz never received the kick kit. See MTD Response at 25-26. Further, the Plaintiffs aver that the Tenth Circuit has held that a corrections officer who acts “solely . . . as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.” MTD Response at 27 (quoting Mata v. Saiz, 427 F.3d at 751 (internal quotation marks omitted)).

         Regarding Chavez' alleged deliberate indifference, the Plaintiffs contend that Chavez' “objective awareness” of Ortiz' heroin withdrawal and bloody vomit should have alerted him to Ortiz' serious medical condition, and that Chavez' failure to take any action -- such as preparing a report or obtaining Ortiz immediate medical assistance -- in response to these facts, beyond updating the next group of corrections officers at the end of his shift, constituted deliberate indifference. MTD Response at 27-28. Regarding Valdo's alleged deliberate indifference, the Plaintiffs allege that, when Valdo met with Chavez, Valdo learned of Ortiz' heroin withdrawal and severely ill appearance, and that these facts would alert any layperson to Ortiz' risk of serious medical harm. See MTD Response at 28. The Plaintiffs note that by not sending Ortiz to the Medical Unit for assistance, Valdo, whom the ADF employed to make proper housing classifications, acted with deliberate indifference to Ortiz' risk. See MTD Response at 28-29. Regarding Lopez' alleged deliberate indifference, the Plaintiffs argue that Lopez, like Valdo and Chavez, was aware of Ortiz' symptoms and should have been alerted to the risk, and that Lopez took no action to aid Ortiz. See MTD Response at 29. Regarding Gallegos' alleged deliberate indifference, the Plaintiffs allege that Gallegos likewise observed Ortiz' symptoms and, given that Gallegos observed Ortiz soon before his death and the state of Ortiz' cell at his death, Ortiz' need for medical attention would have been obvious. See MTD Response at 30. The Plaintiffs aver that Gallegos' failure, like the other individual Defendants' failure, to obtain medical attention for Ortiz constitutes deliberate indifference. See MTD Response at 30. Last, the Plaintiffs contend that, because Garcia stated that he observed Ortiz twenty-six minutes before finding the body, the same arguments for Gallegos' deliberate indifference apply to Garcia's actions. See MTD Response at 30-31. The Plaintiffs conclude by asking that, if the Court decides that the First Amended Complaint does not state a claim, the Court grant the Plaintiffs leave to amend the First Amended Complaint, stating that the Plaintiff's Proposed Second Amended Complaint “further develops each of their existing claims, is not futile, was not brought in bad faith, will not prejudice the Defendants, and is not the result of undue delay.” MTD Response at 31-32.

         3. The MTD Reply.

         The Defendants replied on October 12, 2018. See Defendants' Reply Brief in Support of Motion to Dismiss at 15, filed October 12, 2018 (Doc. 33)(“MTD Reply”). The Defendants state that they reply to the MTD Response and reserve their arguments about the MTA for the Defendants' Response Opposing Plaintiffs' Motion to Amend the Complaint [Doc. 30], filed October 12, 2018 (Doc. 34)(“MTA Response”). MTD Reply at 1. The Defendants reiterate that the First Amended Complaint does not state a “cognizable claim for negligence under the New Mexico Tort Claims Act, ” and that, furthermore, “the individual Defendants are entitled to qualified immunity.” MTD Reply at 2. The Defendants acknowledge the Plaintiffs' withdrawal, which the Plaintiffs articulate in a footnote, of their NMTCA claims against the individual Defendants. See MTD Reply at 2. The Defendants repeat their arguments -- that the Plaintiffs make allegations about discrete medical and administrative decisions affecting a single inmate, or about negligent supervision and training -- why the Plaintiffs' claims against Santa Fe County do not satisfy the requirements for § 41-4-6(A)'s sovereign immunity waiver. See MTD Reply at 2-3. The Defendants note that the Plaintiffs do not respond to the Defendants' argument that Kreutzer v. Aldo Leopold High School “reaffirmed that § 41-4-6 does not encompass negligence claims based on a lack of supervision of employees and that generalized allegations concerning inadequate safety policies as well as alleged failure to follow such policies do not fall within the scope of the waiver.” MTD Reply at 3. The Defendants indicate that the Plaintiffs' allegations about Ortiz' time at the ADF before the January, 2016, incarceration do not allege a pattern “of performing inadequate medical intake evaluations and monitoring of inmates withdrawing from heroin use, ” MTD Reply at 6 (quoting MTD Response at 19), because, during those incarcerations, there are no allegations that Ortiz was withdrawing from heroin or in need of medical attention, see MTD Reply at 4-7.

         Regarding the § 41-4-9 waiver, the Defendants argue that no caselaw applies the § 41-4-9 waiver to a jail's intake facility, and that the First Amended Complaint contains no allegation that the ADF's medical intake unit “is similar to a hospital, infirmary, mental institution, clinic, dispensary, medical care home, or like facilities.” MTD Reply at 7-8. The Defendants contend that “[t]he fact that a detention center employee conducts a medical intake of detainees does not fit within the definition of ‘medical facilities' that admit patients and provide medical care.” MTD Reply at 8 (quoting NMTCA § 41-4-9). The Defendants contend that the Plaintiffs may not rely on the § 41-4-9 immunity waiver and ask that the Court dismiss their negligence claim “for this reason.” MTD Reply at 8.

         Regarding the Plaintiffs' § 1983 claims, the Defendants first allege that the Plaintiffs have not established a basis for a plausible allegation of a constitutional right violation. See MTD Reply at 8. Although Robinson “does not dispute for the purposes of this motion” the allegation that Ortiz indicated that he anticipated experiencing heroin withdrawal during his incarceration, the Defendants contend that the First Amended Complaint does not allege that he experienced withdrawal symptoms during his encounter with Robinson. MTD Reply at 8. The Defendants argue that the allegation another inmate observed Ortiz looking sick during intake does not suffice to show Robinson recognized or should have recognized “an exigent serious medical need.” MTD Reply at 8. The Defendants contend that the Plaintiffs have not met the requirement of showing that Robinson drew the inference “that Ortiz was at an immediate risk of harm or death when she encountered him during the intake.” MTD Reply at 9. The Defendants also argue that Robinson was not deliberately indifferent when she demonstrated clear intent to care for Ortiz' anticipated withdrawal symptoms by evaluating him and placing him on opioid withdrawal protocol. See MTD Reply at 9 (quoting Spencer v. Abbott, 732 Fed.Appx. at 741-47; Self v. Crum, 439 F.3d 1227, 1233 (10th Cir. 2006)). The Defendants argue that Robinson could not have been deliberately indifferent to Ortiz' escalating medical needs when she had no further involvement with Ortiz during the days in which his symptoms worsened and absent allegations that she “acquired any additional information . . . that [Ortiz] had either refused or not received medications, that he had any different symptoms, or that any other similar events occurred.” MTD Reply at 10.

         The Defendants contend that, pursuant to McGarry v. Board of County Commissioners, 294 F.Supp.3d 1170 (D.N.M. 2018)(Browning, J.), the Plaintiffs bear the burden of proving the law violated was clearly established at the time of the events. See MTD at 10 (citing McGarry v. Bd. of Cty. Comm'rs, 294 F.Supp.3d at 1199-1200). The Defendants argue that no Tenth Circuit caselaw recognizes a timeline as attenuated as that from Robinson's intake to Ortiz' death as a basis for deliberate indifference to medical needs claims. See MTD Reply at 11. The Defendants argue that, for the foregoing reasons, Robinson is entitled to qualified immunity. See MTD Reply at 11.

         The Defendants argue that the individual Defendants are also entitled to qualified immunity. See MTD Reply at 11. The Defendants argue that detention officers who are not medical providers, such as the individual Defendants, are entitled to defer to the professional medical judgment of the ADF's medical personnel in placing Ortiz on the opioid withdrawal protocol. See MTD Reply at 11-12. The Defendants allege that the question for the purposes of the § 1983 claim is whether it was obvious to each individual Defendant “that the protocol that the medical staff had implemented to deal with those withdrawal symptoms was ineffective and that Ortiz had an obvious serious medical need that medical staff had not addressed.” MTD Reply at 12. The Defendants argue that Ortiz did not request medical assistance from any of the individual Defendants, and that the First Amended Complaint raises no allegations that any of the individual Defendants actually drew the inference that Ortiz had a serious medical need that the ADF's medical personnel did not previously address. See MTD Reply at 12-14. The Defendants request, for the foregoing reasons, that the Court dismiss the case with prejudice and determine that the individual Defendants are entitled to qualified immunity. See MTD Reply at 14. The Defendants also attach a copy of a blank COWS form. See MTD Reply at 17-18.

         4. The MTA.

         The Plaintiffs filed the MTA on September 12, 2018. See MTA at 17. The Plaintiffs note that, on July 11, 2018, the Defendants stated that they opposed an earlier version of the Second Amended Complaint, not filed with the Court. See MTA at 1. The Plaintiffs explain that, although the Defendants have not stated their position on the Second Amended Complaint's current version, the Plaintiffs assume that the Defendants oppose it. See MTA at 1; Proposed Second Amended Complaint at 1.

         The Plaintiffs summarize the factual allegations in the Proposed Second Amended Complaint. See MTA at 2-5. The Plaintiffs state that they add language describing the ADF's Medical Unit as “an infirmary- or clinic-like facility within the meaning of NMSA 1978 § 41-4-9.” MTA at 2 (quoting Proposed Second Amended Complaint ¶ 4, at 3). The Plaintiffs state that they further explain that the co-occurrence of opiate addiction and Hepatitis C makes a patient high-risk, and in need of medical attention and monitoring; and that correctional facilities' failures to monitor opiate withdrawal patients have led to “numerous” deaths “in the past five years, ” MTA at 3 (quoting Proposed Second Amended Complaint ¶¶ 113-14, at 17); and that Dr. Homer Venters, “a national expert in providing health services to the incarcerated, former Medical Director and Chief Medical Officer of New York City's Jail Correctional Health Service, and current Director of Programs for Physicians for Human Rights, ” opines that Robinson, as a “licensed medical nurse, ” should have recognized that not referring an inmate suffering from opiate withdrawal, particularly combined with Hepatitis C, would “expose the inmate to the substantial risk of serious harm, including the risk of death, ” MTA at 3 (quoting Proposed Second Amended Complaint ¶ 115, at 18). The Plaintiffs state that they discuss how the ADF's opiate withdrawal protocol is “below the standard of care, ” which they identify as the MAT protocol that the Bernalillo County Metropolitan Detention Center in Albuquerque, New Mexico (“MDC”) uses -- a protocol which includes the use of methadone. MTA at 3 (quoting Proposed Second Amended Complaint ¶¶ 127-32, at 19-20).

         The Plaintiffs indicate that they allege that the ADF trained Chavez to recognize when inmates require immediate or emergency medical attention, including vomiting blood, and that vomiting blood is obvious even to a layperson as an emergent medical need, and that, if Chavez did not receive such training, “this would constitute evidence of [the ADF's] failure to train its corrections officers” adequately. MTA at 3 (quoting Proposed Second Amended Complaint ¶ 140 & n.1, at 21). The Plaintiffs state that they include language making more “explicit” that Valdo had access to Ortiz' “inmate records” and was aware of Ortiz' Hepatitis C diagnosis, and that Valdo, “as an experienced classification officer, ” knew that Ortiz “was in need of immediate medical assistance and at risk of serious medical harm.” MTA at 3 (quoting Proposed Second Amended Complaint ¶¶ 145, 147-48, at 22). Further, the Plaintiffs state that they “make more explicit” that Lopez, as an experienced corrections officer presumably trained to recognize signs of need for immediate medical attention, and who reviewed Ortiz' intake information and observed Ortiz exhibiting withdrawal symptoms, would have been aware of the medical risks to Ortiz and acted without regard to that risk. MTA at 3-4 (quoting Proposed Second Amended Complaint ¶¶ 170-74, at 25).

         The Plaintiffs explain that they similarly emphasize and “make explicit” allegations that Garcia and Gallegos should have been aware of the risk to Ortiz, and did not act to counteract that risk, and that the Plaintiffs add language alleging that, if Garcia did not monitor Ortiz, Garcia failed to monitor an inmate at risk of medical harm, which aligns with the ADF's practice of not adequately monitoring the inmates. MTA at 4 (quoting Proposed Second Amended Complaint ¶¶ 185-86, 190-94, 199-201, at 26-29). The Plaintiffs indicate that they rewrite “a factual allegation about which Defendants are apparently confused, ” and explain that they clarify that the ADF staff blamed Ortiz' death on Ortiz' smuggling drugs into the ADF rather than blaming it on the ADF's negligence. MTA at 4 (citing Proposed Second Amended Complaint ¶ 230, at 31). According to the Plaintiffs, they also add allegations describing “a 2002-2003 U.S. Department of Justice [(‘DOJ')] investigation into conditions at the ADF, ” in which the DOJ concluded in a report (the “2003 DOJ Report”) that the ADF provided insufficient medical attention and screening to inmates, and that the ADF did not “properly refer” inmates suffering from life-threatening opiate withdrawal for medical assistance. MTA at 4-5 (citing Proposed Second Amended Complaint ¶¶ 237-43, at 32-34).

         The Plaintiffs explain that they also include allegations about “three withdrawal-related inmate deaths [at the ADF] ¶ 2015 and 2016.” MTA at 5 (citing Proposed Second Amended Complaint ¶¶ 244-256, at 34-36). The Plaintiffs detail that these deaths included: (i) Dr. Thomas Pederson's death from alcohol withdrawal after the ADF failed to “complete intake documentation, ” to “perform critical assessments that would have triaged Dr. Pederson into the medical unit, ” and to properly “train its medical staff;” (ii) John DeLaura's death from alcohol withdrawal after the ADF did not provide adequate medical intake, assessment, or attention; and (iii) Stacy Lynn Gambler's death from alcohol withdrawal after the ADF did not monitor her regularly or provide appropriate medical attention. MTA at 5 (citing Proposed Second Amended Complaint ¶¶ 244-56, at 34-36). The Plaintiffs add that they also include allegations about the ADF's failure to protect other inmates from harm, resulting in Dickie Ortega's 2004 death “by beating” and Thomas Wayne Ferguson's 2018 death “by suicide.” MTA at 5 (citing Proposed Second Amended Complaint ¶¶ 257-58, at 36).

         The Plaintiffs also summarize the changes that the Proposed Second Amended Complaint makes to their claims. See MTA at 5-6. The Plaintiffs note that they eliminate their NMTCA claims against the individual Defendants. See MTA at 5. The Plaintiffs explain that they add paragraphs to Count I, which details their claims against Santa Fe County under the NMTCA, describing the ADF's pattern of failing to provide adequate medical attention and monitoring to inmates by detailing Ortiz' history with the ADF; the ADF's previous failures to attend to Ortiz' medical situation; and Dr. Pederson's, DeLaura's, and Gambler's deaths. See MTA at 5-6 (citing Proposed Second Amended Complaint ¶¶ 270-72, at 39-40). The Plaintiffs also describe that they partially rewrite the paragraphs in Count II which state the Plaintiffs' claims against the individual Defendants, but that the factual allegations in those paragraphs are identical to those in the First Amended Complaint. See MTA at 6 (citing Proposed Second Amended Complaint ¶¶ 284-88, at 42-43). The Plaintiffs indicate that they add a Count III, which “sets forth a Monell[ v. Department of Social Services of New York City, 436 U.S. 658 (1978)(“Monell”), ] claim against Santa Fe County” based on the ADF's customs and practices of deliberate indifference to inmates' “serious medical needs, ” particularly the needs of inmates suffering withdrawal. MTA at 6 (quoting Proposed Second Amended Complaint ¶¶ 290-95, at 44-45). The Plaintiffs point to Ortiz' history at the ADF, and Dr. Pederson's, DeLaura's, and Gambler's deaths, as evidence for the claim. See MTA at 6 (citing Proposed Second Amended Complaint ¶¶ 293-95, at 44-45). The Plaintiffs also indicate that they add a § 1983 failure-to-train theory against the ADF for the ADF's failure to train Robinson in proper intake methods, and its failure to train Chavez, Valdo, Lopez, Garcia, and Gallegos to obtain medical attention for inmates suffering withdrawal. See MTA at 6 (citing Proposed Second Amended Complaint ¶¶ 296-99, at 46-47).

         The Plaintiffs argue that the Court should grant them leave to amend the First Amended Complaint. See MTA at 1. The Plaintiffs contend that they make the amendments in good faith, because they add information that they have obtained since filing the First Amended Complaint and they attempt to resolve the Defendants' “various issues with” the First Amended Complaint. MTA at 6-7. The Plaintiffs contend that the amendments are not “the result of undue delay or dilatory motive, ” when “all deadlines have been either vacated or have yet to be set, ” and the Honorable Laura J. Fashing, United States Magistrate Judge for the District of New Mexico, granted the Defendants' Unopposed Motion to Stay, filed April 30, 2018 (Doc. 14)(“Motion to Stay”)(requesting the Court to stay discovery and other proceedings pending the MTD's resolution). MTA at 8. See Order Granting Unopposed Motion to Stay, filed April 30, 2018 (Doc. 15)(“Order Granting Stay”). The Plaintiffs contend that the amendments do not prejudice the Defendants, because many of the amendments “merely summarize or seek to better clarify their existing factual allegations from the operative First Amended Complaint, ” and, because, one of the amendments pertains to the Plaintiffs' “decision to drop their TCA claims against all of the individual Defendants.” MTA at 10. The Plaintiffs contend that, to the extent there are new substantive allegations, they do not pertain specifically to Ortiz, they arise out of the same subject matter as the First Amended Complaint, and the Defendants will have ample time to investigate them, as “discovery in this case has yet to even begin.” MTA at 11. The Plaintiffs further contend that the amendments are not futile. See MTA at 11-17. The Plaintiffs argue that their amended Count I alleges that “on eight separate occasions over a three-year period, ADF established a persistent pattern of performing inadequate medical intake evaluations and follow-up monitoring of a class of users of the building, inmates withdrawing from chronic drug use, as evidenced by the numerous experiences of Mr. Ortiz.” MTA at 12 (citing Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, 141 P.3d 1259; C.H. v. Los Lunas Sch. Bd. of Educ., 852 F.Supp.2d 1344 (D.N.M. 2012)(Browning, J.)). The Plaintiffs contend that the amended Count I enhances the existing NMTCA claim against the ADF by noting the ADF's repeated failure to provide appropriate medical attention to inmates and describing that this failure has continued since the 2003 DOJ Report, which examined and labeled the failure unconstitutional. See MTA at 12-14. The Plaintiffs note that Count II in the Proposed Second Amended Complaint contains no substantive amendments to Count II in the First Amended Complaint. See MTA at 14. Last, the Plaintiffs aver that the newly added Count III sets forth a claim under Monell, because it shows that the ADF followed customs and practices of “deliberate indifference to inmates' serious medical needs.” MTA at 14 (quoting Proposed Second Amended Complaint ¶ 292, at 44). The Plaintiffs argue that the allegations about the DOJ investigation; Dr. Pederson's, DeLaura's, and Gambler's death; and Ortiz' experiences in the ADF support their argument that the ADF has a culture of deliberate indifference towards inmates' medical needs. See MTA at 15. The Plaintiffs explain that they support their failure-to-train theory under Monell with Robinson's lack of training regarding intake and with the lack of training of the intake nurse who assessed Dr. Pederson. See MTA at 15-16. Further, the Plaintiffs allege that Chavez', Valdo's, Lopez', Garcia's, and Gallegos' failure to get Ortiz medical attention show that the ADF failed to train its staff to obtain medical attention for inmates suffering withdrawal. See MTA at 16.

         5. The MTA Response.

         On October 12, 2018, the Defendants responded to the MTA. See MTA Response at 19. The Defendants note that the question for the Court is whether the Proposed Second Amended Complaint states a claim upon which relief can be granted and argue that it does not. See MTA Response at 1-2. The Defendants reiterate their arguments from the MTD that the Plaintiffs do not state a claim under § 41-4-6. See MTA Response at 2-3. The Defendants contend that decisions regarding Ortiz' classification and treatment represent discrete administrative decisions about a single inmate, and do not trigger the § 41-4-6 immunity waiver. See MTA Response at 2-3. The Defendants argue that, following Kreutzer v. Aldo Leopold High School, “merely claiming that the alleged negligence derives from deficiencies in training, monitoring or supervision similarly does not bring such claims within the applicable waiver.” MTA Response at 3.

         The Defendants also argue that the Plaintiffs' additional allegations about the DOJ investigation and an alleged systematic problem at the ADF do not state a claim that Ortiz' death resulted from negligent operation of a building as the NMTCA defines that phrase, because the DOJ investigation occurred while private corporations and contractors managed the ADF's medical unit, the DOJ's case was dismissed in 2009, after Santa Fe County's “substantial compliance with the terms of the settlement agreement, ” and the DOJ investigation occurred thirteen to fourteen years before Ortiz' incarceration at the ADF. MTA Response at 4-5. The Defendants also argue that Ortega's death occurred fourteen years before Ortiz' incarceration and is unrelated to Ortiz' death. See MTA Response at 5. The Defendants similarly contend that Dr. Pederson's death from alcohol withdrawal is unrelated to Ortiz' opiate withdrawal or to “management of opioid-dependent detainees, ” as “it is not clear that Pederson actually died from complications of withdrawal, ” and that Dr. Pederson was seen in an emergency room and “not housed in the medical unit” on the evening of the incident, “due to the lack of an available bed.” MTA Response at 5. The Defendants note that Gambler, unlike Ortiz, “was assigned to the medical unit, ” and that her death is unrelated to Ortiz' death. MTA Response at 5. According to the Defendants, DeLaura's death from alcohol withdrawal complications and Ferguson's death by suicide occurred after Ortiz' death, and neither death relates to intake decisions for inmates suffering opioid withdrawal. See MTA Response at 6.

         Regarding the Plaintiffs' claim under § 41-4-9, the Defendants note that “merely applying a label to the so-called medical unit does not frame the case within the parameters of the NMTCA.” MTA Response at 7. The Defendants contend that Bell Atlantic v. Twombly, 550 U.S. 544 (2007), must mean that merely applying a conclusory label absent allegations of plausible facts is insufficient to state a claim. See MTA Response at 7. The Defendants repeat their argument that the ADF's medical intake unit “may well assist in identifying conditions and circumstances that might require medical treatment at a medical facility, ” and that the medical intake unit does not -- unlike the facilities that qualify as medical facilities for § 41-4-9's purposes -- provide medical care and treatment to inmate patients. MTA Response at 7-8.

         Finally, the Defendants contend that the Plaintiffs' Monell claim “is futile.” MTA Response at 8. The Defendants argue that the Plaintiffs do not identify a “specific policy or practice” that is unconstitutional. MTA Response at 12. The Defendants aver that, to succeed under Monell, the Plaintiffs must establish an “official municipal policy, ” such as “the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” MTA Response at 12 (citing Connick v. Thompson, 563 U.S. 51, 60-61 (2011)). The Defendants contend that plaintiffs can also show the existence of a custom when they can show:

(1) The existence of a continuing, persistent and widespread practice of unconstitutional misconduct by the [municipality's] employees;
(2) Deliberate indifference to or tacit approval of such misconduct by the [municipality's] policymaking officials after notice to the officials of that particular misconduct; and
(3) That the plaintiff was injured by virtue of the unconstitutional acts pursuant to the [municipality's] custom and that the custom was the moving force behind the unconstitutional acts.

MTA at 13 (alterations in MTA)(quoting Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993)). According to the Defendants, “Monell's deliberate indifference standard may be satisfied when the municipality has ‘notice that its action or failure is substantially certain to result in a constitutional violation, and it consciously and deliberately chooses to disregard the risk of harm.'” MTA Response at 13 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1999)). The Defendants contend that the DOJ investigation, and DeLaura's and Ferguson's deaths, occurred too long before and after Ortiz' death to meet the notice requirement, and that Gambler's and Dr. Pederson's deaths, both involving alcohol withdrawal, did not provide notice about the ADF's customs regarding opiate withdrawal treatment. See MTA Response at 14-15. The Defendants argue that the “sheer number of” inmates suffering opioid withdrawal and the Plaintiffs' failure to identify a single other opioid withdrawal case shows “there is not a continuing, persistent and widespread practice of unconstitutional misconduct related to the management of opioid dependency.” MTA Response at 15. The Defendants further contend that no evidence shows that Santa Fe County's indifference to opiate withdrawal was related to Ortiz' death, “days after his intake, ” from “emergent hemorrhage.” MTA Response at 15.

         The Defendants argue that the Plaintiffs do not allege that training related to Dr. Pederson's or Gambler's deaths, and so the Plaintiffs do not allege “a pattern of similar constitutional violations by untrained employees, ” “notice to any particular County decision maker that employees were committing constitutional violations due to lack of training, ” or “any deliberate indifference by any County authority concerning choices in implementing a training regimen.” MTA Response at 16-17 (citing Connick v. Thompson, 563 U.S. at 61; City of Canton v. Harris, 489 U.S. 378, 395 (1989); Bd. of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997); Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 1996)).

         6. The MTA Reply.

         On December 11, 2018, the Plaintiffs replied. See Plaintiffs' Reply to Defendants' Response Opposing Plaintiffs' Motion to Amend the Complaint at 14, filed December 11, 2018 (Doc. 39)(“MTA Reply”). First, the Plaintiffs repeat that Ortiz' history with the ADF shows a “cognizable claim under § 41-4-6.” MTA Reply at 4. The Plaintiffs further argue that they state a claim under § 41-4-6, because the DOJ investigation demonstrates that the ADF was on notice of the deficiencies in its medical attention; Dr. Pederson's, Gambler's and DeLaura's deaths show a failure to assess, monitor, and refer to medical attention inmates experiencing drug withdrawals; and Dr. Pederson's death resulted from the ADF's admitted failure to train its nurses, review medical records, properly complete intake, or assess Dr. Pederson. See MTA Reply at 5-7.

         Second, the Plaintiffs argue that “this Court recently rejected a § 41-4-9 claim involving a jail's medical unit because ‘liability against a jail cannot be based on § 41-4-9 when the jail has contracted with a private entity to provide medical services,' not because a ‘jail is not a medical facility,' in Defendants' oft-repeated phrase.” MTA Reply at 8 (emphasis in MTD Reply)(quoting Salazar v. San Juan Cty. Det. Ctr., No. CIV 15-0417 JB/LF, No. CIV 15-0439 JB/LF, No. CIV 15-0497 JB/LF, No. CIV 15-0526 JB/LF, 2016 WL 335447, at *49 (D.N.M. Jan. 15, 2016)(Browning, J.)). The Plaintiffs assert that the Medical Intake Unit “functions as ‘a cliniclike environment,' by virtue of the fact that ‘inmates are [being] medically evaluated' there.” MTA Reply at 8 (quoting Second Amended Complaint ¶ 4, at 260).

         The Plaintiffs next note that, in the MTA Response, the “Defendants do not dispute that Plaintiffs' amendments to Count II set forth a cognizable § 1983 claim, ” and so the Court should allow that claim to proceed. See MTA Reply at 8. Last, the Plaintiffs reply to the Defendants' attack on their Monell claim by arguing that no caselaw supports that events postdating the main factual allegations cannot evidence “a widespread custom of deliberate indifference” when the events are based on “the same kind of municipal misconduct.” MTA Reply at 11. The Plaintiffs also object to the Defendants' focus on drug versus opioid withdrawals, and contend that the ADF failed to address both drug and alcohol withdrawals properly. See MTA Reply at 11. Regarding their failure-to-train theory, the Plaintiffs contend that Robinson's lack of training on intake and poor intake for Ortiz; Dr. Pederson's death; the ADF's admission that the intake nurses received no orientation regarding intake procedures and did not properly intake Dr. Pederson; and an ADF internal investigation document determining that the ADF should improve orientations of intake nurses to avoid inmate deaths state a cognizable claim regarding the ADF's failure to train its nurses and a “deliberate indifference to withdrawing inmates' Fourteenth Amendment rights.” MTA Reply at 11-12. The Plaintiffs contend that Dr. Pederson's, DeLaura's, Gambler's, and Ortiz' deaths resulted from improper monitoring by the ADF's staff of inmates suffering withdrawal and shows a failure to train such employees to obtain medical attention for withdrawing inmates. See MTA Reply at 12. In response to the Defendants' argument about decisionmakers' notice of such problems, the Plaintiffs argue that they need not identify at the pleading stage “how and when County decisionmakers learned of a problem so widespread as to be obvious” and that, particularly given a high-profile death, like Dr. Pederson's death, “it appears ludicrous on its face that County decisionmakers would not be aware of a training deficiency.” MTA Reply at 13 (emphasis in original).

         LAW REGARDING AMENDING THE PLEADINGS BEFORE TRIAL

         Rule 15(a) provides that a party may amend his or her pleading as a matter of right within twenty-one days of serving it and within twenty-one days of the service of a response pleading. See Fed.R.Civ.P. 15(a). Otherwise, the party must obtain the opposing parties' consent or the court's leave -- which should be “freely give[n] . . . when justice so requires” -- to amend his or her pleading. Rule 15(a) provides:

(a) Amendments Before Trial.
(1) Amending as a Matter of Course.

         A party may amend its pleading once as a matter of course within:

(A) 21 days serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

Fed. R. Civ. P. 15(a). Under rule 15(a), the court should freely grant leave to amend a pleading where justice so requires. See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M. 2010)(Browning, J.); Youell v. Russell, No. 04-1396, 2007 WL 709041, at *1-2 (D.N.M. Feb. 14, 2007)(Browning, J.); Burleson v. ENMR-Plateau Tele. Co-op., No. 05-0073, 2005 WL 3664299, at *1-2 (D.N.M. Sept. 23, 2005)(Browning, J.). The Supreme Court of the United States has stated that, in the absence of an apparent reason such as “undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc., ” leave to amend should be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962). Furthermore, the Tenth Circuit has held that district courts should grant a plaintiff leave to amend when doing so would yield a meritorious claim. See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). See also In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80.

         A court should deny leave to amend under rule 15(a), however, where the proposed “amendment would be futile.” Jefferson Cty. Sch. Dist. v. Moody's Investor's Serv., 175 F.3d 848, 859 (10th Cir. 1999). See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80. An amendment is “futile” if the pleading, “as amended, would be subject to dismissal.” In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80 (citing TV Commc'ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)). A court may also deny leave to amend “upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, [or] failure to cure deficiencies by amendments previously allowed.” In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579 (quoting Frank v. U.S. W., Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993)).

         “The . . . Tenth Circuit has emphasized that ‘[t]he purpose of [rule 15(a)] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'” B.T. ex rel. G.T. v. Santa Fe Pub. Sch., No. 05-1165, 2007 WL 1306814, at *2 (D.N.M. March 12, 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)).

         If a party seeks to amend his or her pleading after the time for seeking leave for pleading amendments has passed under a scheduling order, then, in addition to meeting rule 15(a)(2)'s requirements, he or she must satisfy rule 16(b)(4)'s good-cause requirement. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)(Matheson, J.)(“After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.”). Rule 16(b)(4) states: “A schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “In practice, this standard requires the movant to show the ‘scheduling deadlines cannot be met despite [the movant's] diligent efforts.'” Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d at 1240. The rule “focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment.” Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d 1285, 1313 (D.N.M. 2010)(Browning, J.)(“Properly construed, ‘good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts.”). See Gerald v. Locksley, 849 F.Supp.2d 1190, 1209-11 (D.N.M. 2011)(Browning, J.)(same).

         The Court has previously stated that its rule 16(b) good-cause inquiry focuses on the diligence of the party seeking to amend the scheduling order. See Walker v. THI of N.M. at Hobbs Ctr., 262 F.R.D. 599, 602-03 (D.N.M. 2009)(Browning, J.); Guidance Endodontics, LLC v. Dentsply Int'l, Inc., No. 08-1101, 2009 WL 3672505, at *2-3 (D.N.M. Sept. 29, 2009)(Browning, J.); Trujillo v. Bd. of Educ. of the Albuquerque Pub. Sch., Nos. 02-1146 and 03-1185, 2007 WL 2296955, at *3 (D.N.M. June 5, 2007)(Browning, J.). The United States District Court for the District of South Carolina has stated:

Rule 16(b)'s “good cause” standard is much different than the more lenient standard contained in Rule 15(a). Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment. Properly construed, “good cause” means that scheduling deadlines cannot be met despite a party's diligent efforts. In other words, this court may “modify the schedule on a showing of good cause if [the deadline] cannot be met despite the diligence of the party seeking the extension.” Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.

Dilmar Oil Co., Inc. v. Federated Mut. Ins., 986 F.Supp. 959, 980 (D.S.C. 1997)(Currie, J.) (citations omitted), aff'd, 129 F.3d 116 (4th Cir. 1997). See Denmon v. Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993)(O'Connor, J.)(affirming an order denying the plaintiff's motion to amend after the deadline which the scheduling order established had passed and stating that, “[t]o establish ‘good cause,' the party seeking to extend the deadline must establish that the scheduling order's deadline could not have been met with diligence”). Cf. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518-19 (10th Cir. 1990)(affirming, under rule 16(b), denial of a motion to amend an answer to include a compulsory counterclaim filed three months after the scheduling order deadline).

         In In re Kirkland, 86 F.3d 172 (10th Cir. 1996), the Tenth Circuit dealt with the definition of “good cause” in the context of rule 4(j).[12] The Tenth Circuit noted:

[W]ithout attempting a rigid or all-encompassing definition of “good cause, ” it would appear to require at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of “good faith on the part of the party seeking the enlargement and some reasonable basis for noncompliance within the time specified” is normally required.

86 F.3d at 175 (emphasis omitted)(internal quotation marks omitted)(quoting Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987)). The Tenth Circuit explained that Putnam v. Morris “thus recognized that the two standards, although interrelated, are not identical and that ‘good cause' requires a greater showing than ‘excusable neglect.'” In re Kirkland, 86 F.3d at 175.

         Other courts within the Tenth Circuit have held that “the ‘good cause' standard primarily considers the diligence of the party . . . seeking an extension[, who] must show that despite due diligence it could not have reasonably met the scheduled deadlines. Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 301 (D. Kan.1996)(Rushfelt, M.J.)(alterations in original)(internal quotation marks omitted). The Honorable Dale A. Kimball, now-Senior United States District Judge for the District of Utah, concluded that “good cause” existed to amend his scheduling order when he decided to permit the plaintiff's counsel to withdraw as counsel. Kee v. Fifth Third Bank, No. CIV 06-0602 DAK/PMW, 2008 WL 183384, at *1 (D. Utah Jan. 17, 2008). Judge Kimball reasoned: “[I]n light of the court's decision to permit [counsel] to withdraw . . . the court has determined that good cause exists for amending the existing scheduling order.” Kee v. Fifth Third Bank, 2008 WL 183384, at *1.

         LAW REGARDING MOTIONS TO DISMISS UNDER RULE 12(b)(6)

         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint's sufficiency is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim for relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570).

         Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense -- the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009); Robbins v. Oklahoma, 519 F.3d 1242); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense most likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure: Civil § 1277 (3d ed. 2014). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.); Rohner v. Union Pac. R.R., 225 F.2d 272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604, 604 (7th Cir. 1954)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from caselaw in several Courts of Appeals, that the plaintiff may avoid this problem altogether -- at least at the motion-to-dismiss stage -- by refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris v. New York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, No. CIV 08-0140-W, 2008 WL 3833472 (W.D. Okla. Aug. 15, 2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the Court has permitted it, see Anderson Living Tr. v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1235-36 (D.N.M. 2014)(Browning, J.).

         NEW MEXICO NEGLIGENCE LAW UNDER THE NMTCA

         The NMTCA is based on traditional tort concepts of duty and a reasonably prudent person's standard of care while performing that duty. See N.M. Stat. Ann. § 41-4-2(B). See also Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 36, 953 P.2d 722, 732 (“Plaintiff's negligence claims must be premised on a duty that Charter owed to Plaintiff, and it is for the court to determine as a matter of law whether such a duty exists.” (citation omitted));[13] Johnson v. Sch. Bd. of Albuquerque Pub. Sch. Sys., 1992-NMCA-125, ¶ 1, 845 P.2d 844 (“Duty or responsibility is not provided in the Tort Claim Act; it must be found outside the Act either at common law or by statute.”). [14] “Where there is no duty, there can be no negligence.” Sw. Pub. Serv. Co. v. Artesia Alfalfa Growers' Ass'n, 1960-NMSC-052, ¶ 21, 353 P.2d 62, 68 (1960). See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 73 P.3d 181, 185-86 (“Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages.”); Bierner v. City of Truth or Consequences, 2004-NMCA-093, ¶ 18, 96 P.3d 322, 326 (“Consequently, the waiver of immunity in Section 41-4-4(A) of the TCA does not apply to the City because it had no duty upon which negligence could be premised.”).[15]

         Under New Mexico law, “negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 73 P.3d at 186 (internal quotation marks omitted)(quoting Ramirez v. Armstrong, 1983-NMSC-104, 673 P.2d 822, 825, overruled on other grounds by Folz v. State, 1990-NMSC-075, 797 P.2d 246, 249). New Mexico follows the principle “that a negligent actor only owes a duty to those whose injuries are a foreseeable result of the negligence.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 20, 73 P.3d at 190.

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime unless the actor at the time of his [or her] negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself [or herself] of the opportunity to commit such a tort or a crime.

Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 21, 73 P.3d at 191 (emphasis added)(internal quotation marks omitted)(quoting Sarracino v. Martinez, 1994-NMCA-013, ¶ 12, 870 P.2d 155, 157). “The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader zone of risk that poses a general threat of harm to others.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 8, 73 P.3d at 186 (internal quotation marks omitted)(quoting McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992)(citation and footnote omitted)). The proximate-causation element of negligence “is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 8, 73 P.3d at 186 (quoting McCain v. Fla. Power Corp., 593 So.2d at 502). The Supreme Court of New Mexico opined on the duty element and the proximate-causation element of negligence, stating: “[T]he former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 8, 73 P.3d at 186 (emphasis in original).

         In Herrera v. Quality Pontiac, the plaintiffs sued the owner of a stolen vehicle for injuries caused by a collision with the owner's car when the owner left his keys in the car and the car unlocked at a garage. See 2003-NMSC-018, ¶ 2, 73 P.3d at 185. The plaintiffs provided an affidavit asserting that Albuquerque has a high rate of automobile thefts, that thieves are much more likely to steal unattended vehicles which have keys in the ignition, and that stolen cars are much more likely to be involved in automobile accidents. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 3, 73 P.3d at 191. The Supreme Court of New Mexico held that the affidavit established that the “Defendant's acts foreseeably created a zone of danger, which included Plaintiffs.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 24, 73 P.3d at 192. The Supreme Court of New Mexico found that the plaintiffs' injuries -- which a third-party car thief's dangerous driving caused -- were foreseeable and that the defendants owed a duty to the plaintiffs as a matter of law. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 25, 73 P.3d at 192.

         In Bober v. New Mexico State Fair, a motorist was injured in a collision with a vehicle as it exited the state fairgrounds parking area onto abutting highway. See 1991-NMSC-031, ¶ 1, 808 P.2d 614, 616. The motorist sued the state fair, state fair commission, and state police, and appealed the district court's grant of summary judgment in favor of the defendants. See Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 1, 808 P.2d at 616. The Supreme Court of New Mexico analyzed the duty owed to Bober and the foreseeability of the harm to determine whether immunity was waived under § 41-4-6. See Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 10, 808 P.2d at 618.

Under the definitions of “negligence” and “ordinary care” in UJI Civil 1601 and 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 . . . . Every person has a duty to exercise ordinary care for the safety of others. Whether or not defendant breached [that] dut[y] is a question of the reasonableness of its conduct, and thus a fact question.

Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 17, 808 P.2d at 621 (emphasis added)(citations and internal quotation marks omitted)(quoting Knapp v. Fraternal Order of Eagles, 1987-NMCA-064, ¶ 10, 738 P.2d 129, 131 (citation omitted)). “What constitutes ‘ordinary care' varies with the nature of what is being done. . . . As the risk of danger that should reasonably be foreseen increases, the amount of care required also increases.” Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 10, 808 P.2d at 618 (citations and internal quotation marks omitted)(quoting N.M.R.A. Civ. UJI 13- 1603). The Supreme Court of New Mexico held that the state fair could not escape liability under the NMTCA, because it did not “adduce some evidence that it was unaware of the danger of an accident arising from a large number of cars exiting the Fairground at one time following an event like the concert at Tingley Coliseum.” Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 23, 808 P.2d at 622.

         In Castillo v. County of Santa Fe, 1988-NMSC-037, ¶ 1, 755 P.2d 48, 49, the Supreme Court of New Mexico addressed whether to dismiss a complaint, because § 41-4-6 waived the defendants' immunity. In that case, the mother of an injured invitee sued the operator of county-owned public housing to recover damages for dog bite injuries. See Castillo v. Cty. of Santa Fe, 1988-NMSC-037, ¶ 2, 755 P.2d at 49. The Supreme Court of New Mexico noted that it, “assume[d] the truth of the facts alleged in the complaint” and held that Castillo pled that the housing authority “was aware or should have been aware of the continuing problem of loose-running dogs and the resulting danger this condition posed for the common area of Valle Vista which the Housing Authority had the duty to maintain in a safe condition.” Castillo v. Cty. of Santa Fe, 1988-NMSC-037, ¶ 4, 755 P.2d at 50 (emphasis added). In finding that there was an unsafe condition, the Supreme Court of New Mexico held that the “existence of a duty [rested] upon whether dogs roaming loose upon the common grounds of a government-operated residential complex could represent an unsafe condition, ” and found that, given the potential safety hazard for residents and their invitees, “loose-running dogs could represent an unsafe condition upon the land.” Castillo v. Cty. of Santa Fe, 1988-NMSC-037, ¶ 9, 755 P.2d at 51. Ultimately, it held that “[t]he complaint sufficiently alleges facts that state a claim upon which relief could be granted.” Castillo v. Cty. of Santa Fe, 1988-NMSC-037, ¶ 10, 755 P.2d at 51.

         Roaming prison gangs also present a danger to all inmates where the gang is known to be violent and has access to weapons. See Callaway v. N.M. Dep't of Corr., 1994-NMCA-049, ¶ 19, 875 P.2d 393, 399, cert. denied, Nos. 22, 079, 22, 081, 879 P.2d 91 (1994)(unpublished table opinion).[16] The Court of Appeals of New Mexico followed the reasoning of Castillo v. County of Santa Fe, stating:

In Castillo, our Supreme Court determined that the plaintiff had adequately stated a claim under Section 41-4-6 by alleging in the complaint that loose-running dogs on the common grounds of the county-owned and county-operated public housing project represented an unsafe condition, provided the county knew or should have known of the danger and that the danger was foreseeable.

Callaway v. N.M. Dep't of Corr., 1994-NMCA-049, ¶ 15, 875 P.2d at 398 (emphasis added). The Court of Appeals of New Mexico held that the plaintiff had

[s]tated a claim sufficient to waive immunity under Section 41-4-6 because Defendants knew or should have known that roaming gang members with a known propensity for violence had access to potential weapons in the recreation area, that such gang members created a dangerous condition on the premises of the penitentiary, and that the danger to other inmates was foreseeable.

Callaway v. N.M. Dep't of Corr., 1994-NMCA-049, ¶ 19, 875 P.2d at 399 (emphasis added).

         LAW REGARDING THE NMTCA

         The New Mexico Legislature enacted the NMTCA, because it recognized “the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.” N.M. Stat. Ann. § 41-4-2(A). The New Mexico Legislature, however, also recognized

that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.

N.M. Stat. Ann. § 41-4-2(A). As a result, it was “declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.” N.M. Stat. Ann. § 41-4-2(A). The NMTCA is also “based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.” N.M. Stat. Ann. § 41-4-2(C). The NMTCA is the

exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim.

N.M. Stat. Ann. § 41-4-17(A).

         A plaintiff may not sue a New Mexico governmental entity or its employees or agents unless the plaintiff's cause of action fits within one of the exceptions that the NMTCA grants for governmental entities and public employees. See Begay v. State, 1985-NMCA-117, ¶ 10, 723 P.2d at 256 (“Consent to be sued may not be implied, but must come within one of the exceptions to immunity under the Tort Claims Act.”), [17] rev'd on other grounds by Smialek v. Begay, 1986-NMSC-049, 721 P.2d 1306. “A plaintiff also may not sue a governmental entity or its employees for a damage claim arising out of violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of immunity.” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1251 (D.N.M. 2010)(Browning, J.), aff'd, 499 Fed.Appx. 771 (10th Cir. 2012)(unpublished). Accord Barreras v. State of N.M. Corr. Dep't, 2003-NMCA-027, ¶ 24, 62 P.3d 770, 776 (“In the absence of affirmative legislation, the courts of this state have consistently declined to permit individuals to bring private lawsuits to enforce rights guaranteed by the New Mexico Constitution, based on the absence of an express waiver of immunity under the Tort Claims Act.”);[18] Chavez v. City of Albuquerque, 1998-NMCA-004, ¶ 8, 952 P.2d 474, 477 (noting that a plaintiff cannot seek damages for violations of rights under the New Mexico Constitution against a city or its employees or agents unless the NMTCA waives immunity);[19] Rubio v. Carlsbad Mun. Sch. Dist., 1987-NMCA-127, ¶ 11, 744 P.2d 919, 922 (holding that no waiver of immunity exists for damages arising out of alleged educational malpractice claim against a school board);[20] Begay v. State, 1985-NMCA-117, ¶ 14, 723 P.2d at 257 (finding that no waiver existed in NMTCA for suit for damages under Article II, § 11 of the New Mexico Constitution -- a provision that protects the “free exercise of religion”). The NMTCA does not limit the availability of many forms of equitable relief. See N.M. Stat. Ann. § 41-4-17(A) (“Nothing in this section shall be construed to prohibit any proceedings for mandamus, prohibition, habeas corpus, certiorari, injunction or quo warranto.”); El Dorado Utils. Inc. v. Eldorado Area Water & Sanitation Dist., 2005-NMCA-036, ¶ 28, 109 P.3d 305, 312 (“The Tort Claims Act would not bar a claim for injunctive relief.”).[21] Thus, if no specific waiver can be found in the NMTCA, a plaintiff's complaint against the governmental entity or its employees must be dismissed. See Begay v. State, 1985-NMCA-117, ¶ 8, 723 P.2d at 255.

         LAW REGARDING NMTCA § 41-4-6

         Section 41-4-6 exempts from immunity “liability for 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.” N.M. Stat. Ann. § 41-4-6. Section 41-4-6's exemption balances the principle that “government should not have the duty to do everything that might be done” with the desire “to compensate those injured by the negligence of public employees and to impose duties of reasonable care.” Cobos v. Doña Ana Cty. Hous. Auth., 1998-NMSC-049, ¶ 6, 970 P.2d 1143, 1145 (citations and internal quotation marks omitted). To resolve the tension between these two goals, § 41-4-6 “grant[s] governmental entities and employees a general immunity from tort liability, [and] waive[s] that immunity in certain defined circumstances.” Cobos v. Doña Ana Cty. Hous. Auth., 1998-NMSC-049, ¶ 6, 970 P.2d at 1145. Section 41-4-6

allows individual claims against governmental entities that are based on “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.” [NMTCA § 41-4-6]. For the waiver to apply, the negligent“operation or maintenance” must create a dangerous condition that threatens the general public or a class of users of the building.

Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 8, 141 P.3d at 1261.

         The Supreme Court of New Mexico has adopted a broad interpretation of what constitutes a “building, public park, machinery, equipment, or furnishings.” N.M. Stat. Ann. § 41-4-6. Like common-law premises liability, the § 41-4-6 waiver may apply even when the negligence at issue occurred outside the boundaries of property owned and operated by the government. “[T]he duty of a landowner to exercise ordinary care to avoid creating, or permitting an unreasonable risk of harm to others is not determined by . . . the happenstance that the accident and resulting injury occur inside or outside the property boundary.” Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 12, 808 P.2d at 618-19. The Supreme Court of New Mexico explained, furthermore, that “[w]hile [§] 41-4-6 may appropriately be termed a ‘premises liability' statute, the liability envisioned by that section is not limited to claims caused by injuries occurring on or off certain ‘premises,' as the words ‘machinery' and ‘equipment' reveal.” Cobos v. Doña Ana Cty. Hous. Auth., 1998-NMSC-049, ¶ 9, 970 P.2d at 1146 (quoting N.M. Stat. Ann. § 41-4-6). Also, like common-law premises liability, § 41-4-6 does not require that the negligence be related to a physical aspect of the building, machinery, or equipment. “The waiver applies to more than the operation or maintenance of the physical aspects of the building, and includes safety policies necessary to protect the people who use the building.”) Encinias v. Whitener Law Firm, P.A., 2013-NMCA-045, ¶ 10, 299 P.3d 424, 428 (quoting Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 141 P.3d at 1261). Section 41-4-6 instead “contemplates waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government.” Bober v. N.M. State Fair, 1991-NMSC-031, ¶ 27, 808 P.2d at 623 (citations and internal quotation marks omitted).

         The Supreme Court of New Mexico has also interpreted § 41-4-6's phrase “operation and maintenance” somewhat broadly. See N.M. Stat. Ann. § 41-4-6. “[Operation and maintenance] is not ‘limited [in] its applicability strictly to defects in the physical building.'” Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1139 (10th Cir. 2006)(quoting Upton v. Clovis Mun. Sch. Dist., 2005-NMCA-085, ¶ 6, 141 P.3d at 1260-61). New Mexico courts have, however, found that § 41-4-6's waiver of immunity does not extend to negligent supervision, see Pemberton v. Cordova, 1987-NMCA-020, ¶ 5, 734 P.2d at 256, [22] negligent design, see Rivera v. King, 1988-NMCA-093, ¶¶ 29-34, 765 P.2d 1187, 1194, cert. denied, No. 18, 041, 765 P.2d 758 (1988)(unpublished table opinion), [23] negligent inspection, see Martinez v. Kaune, 1987-NMCA- 131, ¶¶ 5-10, 745 P.2d 714, 716-17, cert. denied, No. 17, 361, 744 P.2d 912 (1987)(unpublished table opinion), [24] negligent regulation and investigation of violations, see Caillouette v. Hercules, Inc., 1992-NMCA-008, ¶ 31, 827 P.2d 1306, 1312;[25] or negligent classification of a prison inmate, see Archibeque v. Moya, 1993-NMSC-079, ¶¶ 9-12, 866 P.2d at 348.

         Although negligent supervision alone is not enough to trigger the § 41-4-6 waiver, “a claim that involves elements of negligent supervision can still fall under the waiver if that supervision is directly tied to the operation . . . of the building.” Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 16, 141 P.3d at 1263. See Leitheid v. City of Santa Fe, 1997-NMCA-041, ¶¶ 3-4, 940 P.2d 459, 467;[26] Romero v. State, 1991-NMSC-071, ¶ 9, 815 P.2d 628, 630 (the Highway Department's maintenance responsibilities included “supervising the county's actual day-to-day maintenance of the roadway.”), receded from on other grounds by Dunleavy v. Miller, 1993-NMSC-059, 862 P.2d 1212. In Leitheid v. City of Santa Fe, city pool lifeguards failed to ask for children's ages and heights, although pool regulations required adult supervision for children younger than seven and shorter than forty-eight inches. See Leitheid v. City of Santa Fe, 1997-NMCA-041, ¶ 2, 940 P.2d at 460-61. The Court of Appeals of New Mexico found that when the “lifeguards did not adequately perform duties that were essential to public safety, they negligently operated the swimming pool and thereby created a condition on the premises that was dangerous to [the child] and the general public.” Leitheid v. City of Santa Fe, 1997-NMCA-041, ¶ 12, 940 P.2d at 462. The school's conduct in Upton v. Clovis Municipal School District went beyond negligent supervision, because: “(i) the school ignored information that the plaintiffs provided them; (ii) the school failed to warn the substitute teacher about the student's condition; and (iii) the school failed to follow through with the proper emergency procedures.” C.H. v. Los Lunas Schools Bd. of Educ., 852 F.Supp.2d at 1353 (citing Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 18, 141 P.3d at 126). In Rave v. Board of Commissioners for the County of Bernalillo, No. CIV 17-0636 RB/LF, 2017 WL 3600452, at *10 (D.N.M. Aug. 18, 2017)(Brack, J.), Judge Brack found that § 41-4-6's waiver applied where “the County's employees ignored information [plaintiff] 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.” Rave v. Bd. of Comm'rs for the Cty. of Bernalillo, 2017 WL 3600452, at *10.

         In the prison context, the Supreme Court of New Mexico has held that “[t]he ‘operation' and ‘maintenance' of the penitentiary premises, as these terms are used in [§] 41-4-6, does not include the security, custody, and classification of inmates. . . . Section 41-4-6 does not waive immunity when public employees negligently perform such administrative functions.” Archibeque v. Moya, 1993-NMSC-079, ¶ 8, 866 P.2d at 347 (citations omitted). In Archibeque v. Moya, Chris Archibeque, an inmate at the Central New Mexico Correction Facility, was transferred to the New Mexico State Penitentiary in Santa Fe, New Mexico. See1993-NMSC-079, ¶ 2, 866 P.2d at 346. Before being released into general population, a prison intake officer, Moya-Martinez, met with Archibeque to discuss whether he had any known enemies within the prison's general population. See1993-NMSC-079, ¶ 2, 866 P.2d at 346. Archibeque informed Moya-Martinez that another inmate, Gallegos, was one of his enemies, and Moya-Martinez, without checking an available list of current inmates, informed Archibeque that Gallegos was no longer at the prison. See1993-NMSC-079, ¶ 2, 866 P.2d at 346. Archibeque was released into general population, and Gallegos assaulted him that night. See1993-NMSC-079, ¶ 2, 866 P.2d at 346. Archibeque sued Moya-Martinez, other corrections officers, and the New Mexico Department of Corrections in federal court for violations under 42 U.S.C. § 1983 and the NMTCA. See1993-NMSC-079, ¶ 3, 866 P.2d at 346. The district court interpreted § 41-4-6 narrowly and held that the statute did not waive immunity for negligent security and custody of inmates at the penitentiary. See1993- ...


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