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Favela v. City of Las Cruces

United States District Court, D. New Mexico

June 27, 2019

RUBEN O. FAVELA, Plaintiff,
v.
CITY OF LAS CRUCES ex rel. LAS CRUCES POLICE DEPARTMENT; LAS CRUCES POLICE OFFICERS MATTHEW DOLLAR and MANUEL SOTO; PHC-LAS CRUCES, INC., a New Mexico Corporation, d/b/a MEMORIAL MEDICAL CENTER; DANIELLE WILHELM, M.D.; JAMES PROCTOR, R.N.; JAMIE PITTS, R.N.; JOSE REVELES, R.N.; CASSANDRIA BRANCH, R.N., and JOHN DOE SECURITY GUARDS 1 and 2, Defendants.

          Jose R. Coronado Law Offices of Jose R. Coronado Las Cruces, New Mexico Attorney for the Plaintiff

          Damian L. Martínez Haley R. Grant Holt Mynatt Martínez P.C. Attorneys for Defendants City of Las Cruces ex rel. Las Cruces Police Department, Matthew Dollar, and Manuel Soto

          J. Scott Mann Kathryn Brack Morrow Kemp Smith LLP Attorneys for Defendants PHC-Las Cruces, Inc. d/b/a Memorial Medical Center, James Proctor, Jamie Pitts, Jose Reveles, and Cassandria Branch

          MEMORANDUM OPINION[1]

         THIS MATTER comes before the Court on Defendants[] [Matthew Dollar and Manuel Soto's] Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed February 6, 2018 (Doc. 30) (“Motion”). The Court held a hearing on July 2, 2018. The primary issue is whether Defendants Matthew Dollar and Manuel Soto are entitled to qualified immunity and summary judgment with respect to: (i) Counts I and IX of the Complaint to Recover Damages for Deprivation of Civil Rights and Personal Injury at 1, filed in state court on May 2, 2017, filed in federal court on May 18, 2017 (Doc. 1-1)(“Complaint”), because probable cause supported the traffic stop and subsequent detention, and (ii) the Complaint's Counts II-III and VIII-IX, because neither Dollar nor Soto participated in the catheterization of which Plaintiff Ruben O. Favela complains. Counts I-III and Counts VIII-IX are the only counts that Favela brings against Dollar and Soto. The Court concludes that probable cause supports the traffic stop and subsequent detention, and that neither Dollar nor Soto participated in the catheterization, so they cannot be liable for any harm it caused. Further, the Court concludes that if Soto violated Favela's rights by not stopping the forced catheterization, this right was not clearly established when Soto acted. Accordingly, the Court determines that Dollar and Soto are entitled qualified immunity, because they did not violate Favela's clearly established constitutional rights, and grants the Motion.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in the Motion; in the Response to Defendants' Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 15, 2018 (Doc. 36)(“Response”); and in the Defendants' Reply in Support of Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 29, 2018 (Doc. 37)(“Reply”). The facts of this case are essentially undisputed. See Response at 2 (not disputing all but one of Dollar and Soto's thirty-nine proffered undisputed material facts); Reply ¶¶ 1-9, at 2 (not disputing the substantive content of any of Favela's twenty-four proffered undisputed material facts).

         On April 13, 2016, Dollar, a police officer with the Las Cruces Police Department (“LCPD”), observed Favela riding his motorcycle at approximately ninety miles an hour through an intersection that had a posted speed limit of thirty-five miles an hour. See Motion ¶¶ 1-2, at 4 (setting forth this fact) (citing Affidavit of Matthew Dollar ¶¶ 3-7, at 1-2 (dated February 1, 2018), filed February 6, 2018 (Doc. 30-1)(“Dollar Aff.”)); Response at 2 (not disputing this fact). Upon seeing Favela, Dollar activated the emergency lights on his police unit and pursued Favela for a distance, pacing Favela at approximately seventy-five miles an hour. See Motion ¶¶ 3-4, at 4 (setting forth this fact) (citing Dollar Aff. ¶¶ 8-9, at 2); Response at 2 (not disputing this fact). Favela eventually slowed after Dollar activated the sirens on his police unit, but did not stop for another nine blocks, at which point Favela made a sharp U-turn and stopped his motorcycle on a city sidewalk in a position directly in front of Dollar's police unit. See Motion ¶¶ 4-5, at 4 (setting forth this fact) (citing Dollar Aff. ¶¶ 9-10, at 2); Response at 2 (not disputing this fact). Dollar informed dispatch of his location, requested back up, and parked his police unit in front of Favela, who had not yet dismounted his motorcycle nor shut off its power. See Motion ¶¶ 6-8, at 4 (setting forth this fact) (citing Dollar Aff. ¶¶ 11-15, at 2); Response at 2 (not disputing this fact). Dollar then exited his police unit with his sidearm drawn and ordered Favela to cut the power to his motorcycle. See Motion ¶ 8, at 4 (setting forth this fact) (citing Dollar Aff. ¶¶ 13-15, at 2); Response at 2 (not disputing this fact). After revving his motorcycle engine, Favela complied, at which point Dollar holstered his sidearm. See Motion ¶ 8, at 4 (setting forth this fact) (citing Dollar Aff. ¶¶ 13-15, at 2); Response at 2 (not disputing this fact).

         After Favela had shut off the power to this motorcycle, Dollar activated his lapel footage. See Motion ¶ 9, at 5 (setting forth this fact) (citing Dollar Aff. ¶¶ 5, 16, at 2; Matthew Dollar Lapel Video 1 at 00:35-00:40 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-1)(“Dollar Video 1”)); Response at 2 (not disputing this fact). As Favela was dismounting his motorcycle, Dollar noticed what he believed to be a handgun protruding from underneath Favela's jacket. See Motion ¶¶ 10, 15, at 5 (setting forth this fact) (citing Dollar Aff. ¶¶ 17, 22, at 2-3; Dollar Video 1 at 03:45-04:00, 01:30-01:35); Response at 2 (not disputing this fact). Upon seeing the weapon, Dollar ordered Favela to turn around so Dollar could pat him down. See Motion ¶ 11, at 5 (setting forth this fact) (citing Dollar Aff. ¶¶ 18 at 3; Dollar Video 1 at 00:35-00:40); Response at 2 (not disputing this fact). Dollar eventually threatened to taser Favela before Dollar was able to pat down Favela. See Motion ¶¶ 11-13, at 5 (setting forth this fact) (citing Dollar Aff. ¶¶ 18-20, at 3; Dollar Video 1 at 00:30-00:45, 00:40-01:00); Response at 2 (not disputing this fact). Dollar then secured the handgun on Favela's person and placed Favela in handcuffs. See Motion ¶¶ 13-15, at 5 (setting forth this fact) (citing Dollar Aff. ¶¶ 20- 22, at 3; Dollar Video 1 at 00:40-01:00, 01:15-01:20, 01:30-01:35); Response at 2 (not disputing this fact). During this time, Favela began sweating profusely in a manner that indicated to Dollar that Favela was under the influence of an intoxicating substance. See Motion ¶ 16, at 5 (setting forth this fact) (citing Dollar Aff. ¶ 23, at 3; Dollar Video 1 at 01:50-1:55); Response at 2 (not disputing this fact). Dollar then placed a handcuffed Favela in the back of his police unit. See Motion ¶ 17, at 5 (setting forth this fact) (citing Dollar Video 1 at 01:50-01:55); Response at 2 (not disputing this fact).

         Once in the back of Dollar's police unit, Favela began to express that he was hot and felt that he may pass out. See Motion ¶ 19, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 25, at 3; Dollar Video 1 at 03:30-05:10); Response at 2 (not disputing this fact). Favela repeatedly requested that Dollar take off Favela's jacket and neckband. See Motion ¶ 19, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 25, at 3; Dollar Video 1 at 03:30-05:10); Response at 2 (not disputing this fact). After waiting for backup to arrive, Dollar removed Favela's neckband and opened the door of the police unit for Favela. See Motion ¶ 21, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 26, at 3; Dollar Video 1 at 05:20-06:45); Response at 2 (not disputing this fact). Dollar then attempted to read Favela his Miranda[2] rights; Favela, however, passed out in the back of Dollar's police unit as his Miranda rights were read to him. See Motion ¶¶ 22-23, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 27-29, at 3; Dollar Video 1 at 07:10-07:45, 08:00-08:15); Response at 2 (not disputing this fact). At this point, other officers at the scene contacted emergency services to tend to Favela. See Motion ¶ 23, at 6 (setting forth this fact) (citing Dollar Aff. ¶¶ 28-29, at 3; Dollar Video 1 at 08:00-08:15); Response at 2 (not disputing this fact). Officers removed Favela from the back of Dollar's police unit and laid Favela on the sidewalk while waiting for emergency services. See Motion ¶ 25, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 30, at 4; Dollar Video 1 at 10:20-10:45); Response at 2 (not disputing this fact). Favela faded in and out of consciousness while being moved from the police unit to the sidewalk. See Motion ¶ 25, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 30, at 4; Dollar Video 1 at 10:20-10:45); Response at 2 (not disputing this fact).

         While the officers were waiting for emergency personnel, Dollar requested that dispatch run a “Triple-I check”[3] on Favela to determine whether Favela had any warrants. Motion ¶ 24, at 6 (setting forth this fact) (citing Dollar Aff. ¶ 30, at 4; Dollar Video 1 at 13:10-13:50). See Response at 2 (not disputing this fact). While waiting for this information from dispatch, Dollar informed other officers at the scene that Favela would be under arrest regardless what dispatch informed, because Favela had concealed a firearm without a permit. See Motion ¶ 27, at 7 (setting forth this fact) (citing Dollar Aff. ¶ 31, at 4; Dollar Video 1 at 16:20-16:20); Response at 2 (not disputing this fact). Dispatch then informed Dollar that Favela had a previous felony conviction for shooting from a vehicle. See Motion ¶ 26, at 7 (setting forth this fact) (citing Dollar Aff. ¶¶ 30-32; Dollar Video 1 at 17:15-17:25; Response at 2 (not disputing this fact).

         Once emergency services arrived on the scene, Favela was loaded into an ambulance. See Motion ¶¶ 28-29, at 7 (setting forth this fact) (citing Affidavit of Manuel Soto ¶¶ 6-8, at 1-2 (dated February 5, 2018), filed February 6, 2018 (Doc. 30-2)(“Soto Aff.”); Officer Manuel Soto Lapel Video 1 at 04:40-05:10, 13:30, 16:45-17:05 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-2)(“Soto Video 1”); Dollar Aff. ¶ 33, at 4; Officer Matthew Dollar Video 2 at 00:45-01:45 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-1)(“Dollar Video 2”)); Response at 2 (not disputing this fact). At this point, Favela regained consciousness and began asking what happened. See Motion ¶ 29, at 7 (setting forth this fact) (citing Dollar Aff. ¶ 33, at 4; Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Dollar informed Favela that he was under arrest for concealing a firearm and that officers were further investigating Favela as a felon in possession of a firearm. See Motion ¶ 29, at 7 (setting forth this fact) (citing Dollar Aff. ¶ 33, at 4; Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Favela was further informed that he could either leave the ambulance if he answered emergency personnel's questions or go to the hospital if he did not answer questions. See Motion ¶ 30, at 7 (setting forth this fact) (citing Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Favela was instructed that he was going to jail regardless whether he answered emergency personnel's questions. See Motion ¶ 30, at 7 (setting forth this fact) (citing Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Favela refused to answer questions, and emergency personnel accordingly transported Favela to Memorial Medical Center (“Memorial Medical”) hospital. See Motion ¶ 31, at 7 (setting forth this fact) (citing Dollar Aff. ¶ 34, at 4); Response at 2 (not disputing this fact). Dollar remained at the scene and Soto, an officer with LCPD, followed Favela and emergency personnel to Memorial Medical. See Motion ¶ 32, at 7 (setting forth this fact) (citing Dollar Aff. ¶ 34, at 4); Response at 2 (not disputing this fact). Dollar no longer had any contact with Favela. See Transcript of Hearing at 9:14-21 (taken July 2, 2018)(Court, Coronado, Martinez), filed October 31, 2018 (Doc. 52)(“Tr.”)(noting the undisputed nature of this fact).

         Staff at Memorial Medical informed Favela that they would need a blood test and a urine sample to clear him for transportation to the jail. See Motion ¶ 35, at 8 (setting forth this fact) (citing Soto Aff. at ¶¶ 13-14, at 2; Officer Manuel Soto Lapel Video 2 at 00:45-01:00, 01:15-01:25 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-2)(“Soto Video 2”)); Response at 2 (not disputing this fact). Favela was also informed that his failure to give a urine sample would result in staff catheterizing Favela to collect the urine. See Motion ¶ 35, at 8 (setting forth this fact) (citing Soto Aff. at ¶¶ 13-14, at 2; Soto Video 2 at 00:45-01:00, 01:15-01:25); Response at 2 (not disputing this fact). Soto was standing in the doorway of the hospital room while Memorial Medical staff attempted to collect urine samples from Favela. See Response ¶ 15, at 4 (setting forth this fact) (citing Soto Video 2); Reply ¶ 6, at 2 (admitting this fact). Favela was handcuffed to a floor mattress with Soto's police-issued handcuffs. See Response ¶ 2, at 2 (setting forth this fact) (citing Soto Video 2); Reply ¶ 1, at 2 (admitting this fact). Favela was provided with water so he could provide a urine sample. See Response ¶ 10, at 3 (setting forth this fact) (citing Transcript of Officer Manuel Soto's April 13, 2016 Lapel Video at 4:1-2, filed March 3, 2018 (Doc. 36-1)(“Tr. of Soto Lapel”)); Reply ¶ 3, at 2 (admitting this fact). Favela became agitated, began screaming and crying, and had to be restrained by seven male nurses. See Response ¶ 13, at 3 (setting forth this fact) (citing Tr. of Soto Lapel at 7:16-25, 8:1-25; Soto Video 2); Reply ¶ 4, at 2 (admitting this fact). At this point, Soto entered the hospital room and removed the handcuffs from Favela, and Memorial Medical staff placed Favela in soft restraints. See Response ¶ 14, at 4 (setting forth this fact) (citing Tr. of Soto Lapel at 8:5-13; Soto Video 2); Reply ¶ 7, at 2 (not disputing this fact). While Favela was placed in soft restraints, Soto received an incoming call on his cellular telephone. See Response ¶ 16, at 4 (setting forth this fact) (citing Tr. of Soto Lapel at 9:12); Reply ¶ 4, at 2 (not disputing this fact). This call informed Soto that the District Attorney was not going to charge Favela with felony possession of a deadly weapon, because the District Attorney was waiting on a report regarding Favela's felony status. See Motion ¶ 38, at 8 (setting forth this fact) (citing Soto Aff. ¶¶ 18-19, at 2-3; Soto Video 2 at 06:55-07:45); Response at 2 (not disputing this fact). After receiving this information, Soto remained in the room with Favela while Memorial Medical staff attempted to collect a urine sample from Favela. See Response ¶ 23, at 4-5 (setting forth this fact) (citing Tr. of Soto Lapel at 12:1-25; Soto Video 2); Reply ¶ 8, at 2 (admitting this fact). Favela was not willing to provide a urine sample; Memorial Medical staff subsequently used a straight catheter on Favel to obtain a urine sample. See Tr. at 9:2-8 (Coronado) (stating a catheterization of Favela occurred at Memorial Medical); id. at 11:19-25 (Martinez) (noting the undisputed nature of this fact).[4] As Favela was not yet charged, Favela was then released from the hospital of his own recognizance. See Motion ¶ 38, at 8 (setting forth this fact) (citing Soto Aff. at ¶¶ 18-19, at 2-3; Soto Video 2 at 06:55-07:45); Response at 2 (not disputing this fact).

         PROCEDURAL BACKGROUND

         Favela filed his Complaint in state court on May 2, 2017. He brings nine counts against the Defendants. See Complaint ¶¶ 63-107, at 9-15. In Count I, Favela alleges Defendants City of Las Cruces, Dollar, and Solo violated his rights under the Fourth Amendment of the Constitution of the United States by detaining him for an unreasonable amount of time without probable cause, constituting a constructive arrest, and bringing him to Memorial Medical to conduct a search of his body without a warrant. See Complaint ¶¶ 63-69, 72 at 9-10. In Count II, Favela alleges Dollar, Solo, and the Memorial Medical Defendants -- Memorial Medical, Dr. Danielle Wilhelm, Jamie Pitts, James Proctor, Jose Reveles, and Cassandria Branch -- violated Favela's Fourth Amendment rights by forcibly inserting a straight catheter[5] without a valid arrest or law enforcement authority. See Complaint ¶¶ 75-78, at 10. In Count III, Favela alleges Dollar, Solo, and the Memorial Medical Defendants violated his Fourth Amendment rights by extracting his urine without probable cause or a warrant. See Complaint ¶¶ 81-84, at 11. Favela alleges in Count IV that the Memorial Medical Defendants breached their duty to conform to professional standards by forcibly obtaining Favela's urine sample without consent or probable cause via straight catheterization. See Complaint ¶¶ 87-89, at 11-12. In Count V, Favela alleges that Memorial Medical and Dr. Wilhelm failed to obtain his informed consent to treatment, as the law requires, or should have known it was given “under duress and/or revoked by Plaintiff prior to treatment, ” Complaint ¶ 95, at 13, and thus “failed to comport with professional standards, ” Complaint ¶ 96, at 13. See id. ¶¶ 93-96, at 13. In Count VI, Favela alleges that, if Dr. Wilhelm is not Memorial Medical's employee, Memorial Medical was negligent in selecting Dr. Wilhelm as a staff physician and granting her staff privileges, or, alternatively, that Memorial Medical was negligent in failing to supervise Dr. Wilhelm and determining whether she possessed the care and skill an emergency room doctor requires. See Complaint ¶¶ 99-100, at 13-14. In Count VII, Favela alleges Memorial Medical and Dr. Wilhelm are “engaging in commerce by providing services, ” the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to-26 (“NMUPA”), binds them, and they violated the NMUPA by “engaging in unconscionable trade practices” when they billed Favela for a medical service he refused and did not request. See Complaint ¶¶ 101-04, at 14. In Count VIII, Favela alleges Soto, Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel acted in concert to commit assault and battery against Favela by physically inserting a straight catheter into him to extract urine. See Complaint ¶¶ 108-11, at 15. Finally, Favela alleges in Count IX that Soto, Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel intentionally and unlawfully confined him in room 18 of Memorial Medical without his consent or a valid arrest, constituting false imprisonment. See Complaint ¶¶ 113-16, at 15.

         1.The Motion.

         Dollar and Soto move the Court to grant them qualified immunity and summary judgment under rule 56 of the Federal Rules of Civil Procedure by filing their Motion on February 6, 2018. See Motion at 1. Regarding Count I, Soto argues that he could not have invaded Favela's Fourth Amendment rights during the traffic stop, because he was not involved with the stop and an officer can be liable only if his own actions proximately violate the Fourth Amendment. See Motion at 10 (citing Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)). Dollar argues that Favela's reckless driving provided reasonable suspicion to conduct the traffic stop, while Favela's “concealed weapon and felony possession of a firearm supplied probable cause for continued detention until his release.” Motion at 10-11. Dollar asserts that an officer may perform a pat-down search for weapons when he has specific information leading him to believe the individual is armed or dangerous. See Motion at 15. Dollar and Soto thus argue that there is no constitutional violation nor clearly established law to prevent their asserting qualified immunity as to the traffic stop and pat-down search. See Motion at 17-18. Finally, Dollar and Soto contend that the Triple-I report showing Favela's lack of a concealed firearm permit and his felony conviction for shooting from a motor vehicle provide probable cause for his arrest, and that Dollar and Soto were thus acting appropriately in their continued detention of Favela. See Motion at 20-21.

         Regarding Counts II, III, VIII, and IX, Dollar and Soto assert that the evidence clearly shows that they were not involved in Favela's catheterization, or any of Memorial Medical and its staff's alleged wrongful acts. See Motion at 21. Dollar and Soto also contend that any force which they used was reasonable. See Motion at 21-22. Dollar and Soto further assert that there is probable cause to support Favela's detention, and thus any false imprisonment claims alleged under the federal Constitution or the Constitution of the State of New Mexico must fail. See Motion at 22-24.

         2. The Response.

         Favela responded to the Motion on March 15, 2018. See Response at 1. Favela concedes that the law which Dollar and Soto cites regarding Count I shows that they had probable cause to conduct the traffic stop and reasonable suspicion to conduct the pat down, and thus will not resist the Court's ruling in their favor on this Count. See Response at 1-2.

         Favela challenges, however, the assertion that Soto had no part in Favela's treatment or catheterization, and thus disputes that Soto is entitled to qualified immunity on Counts II, III, VIII, and IX. See Response at 5. Favela asserts that Soto “set into motion a chain of events that he knew would lead to the deprivation of [Favela's] constitutional rights.” Response at 5-7. Favela relies on Martinez v. Carson, and Trask v. Franco, 446 F.3d 1036 (10th Cir. 2006), to establish the proposition that an actor can be held liable for harm caused when he or she “sets in motion a series of events that are reasonably likely to cause the deprivation of a constitutional right.” Response at 7. See id. at 8. Favela contends that the Memorial Medical Defendants only insisted on taking a blood and urine sample from him, because Soto told them he was under arrest and had to be medically cleared before being transported to the detention center. See Response at 8. Favela notes that Soto knew before the forced catheterization that Favela would not be held in the detention center and was free to go but did not tell the nurses that there was no longer a reason to clear Favela for confinement. See Response at 8-9. Favela alleges that Soto knew or should have known that the catheterization, as an intrusion into the human body, requires a search warrant to perform absent exigent circumstances. See Response at 9 (citing Schmerber v. California, 384 U.S. 757 (1966)). Favela further contends that Soto knew or should have known that a catheterization without informed consent, a search warrant, or an emergency would shock the conscience. See Response at 10 (citing Rochin v. California, 342 U.S. 165 (1952); Yanez v. Romero, 619 F.2d 851 (10th Cir. 1980); Woods v. Brumlop, 1962-NMSC-133, 377 P.2d 520). Favela asserts that Soto is thus proximately liable for the harm that the Memorial Medical Defendants caused, “because at least some of this harm would not have occurred but for Soto's failure to inform them that [Favela] was free to go, that there was no need for a medical clearance.” Response at 11.

         3.The Reply.

         Dollar and Soto replied to Favela's Response on March 29, 2018. See Reply at 1. Soto reasserts his entitlement to qualified immunity under Counts II, III, VIII, and IX by noting that Favela was transported to Memorial Medical because he lost consciousness during the traffic stop and not for any “criminal investigatory purpose.” Reply at 3. Soto alleges that he “had no reason to believe that Plaintiff's medical clearance was part of, or would lead to, any violation of his rights.” Reply at 3. Soto asserts that, even if the Memorial Medical Defendants violated Favela's rights, he was not a but-for cause of the violation. See Reply at 4. Soto states that Favela “was under MMC's exclusive care and control until he would have been released to Soto's custody, ” and that Favela has not cited to any clearly established law so as to waive Soto or Dollar's qualified immunity. Reply at 4.

         Soto proceeds to note that Favela concedes probable cause supported his arrest and does not dispute the probable cause supporting his detention at Memorial Medical. See Reply at 5. While Favela argues that the District Attorney's decision not to charge Favela terminated the basis for continued detention, Soto asserts that the District Attorney's “decision does not implicate the probable cause supporting” detention. Reply at 5. Soto alleges that Favela's loss of consciousness instituted the responsibility of the arresting officers to provide him with medical treatment. See Reply at 6. Further, Soto argues that the forced catheterization was done only to ensure Favela's health and not to support criminal charges. See Reply at 6-7. Soto notes that Favela was not arrested on drug-related charges, or any other charges supporting the need for a urine or blood sample. See Reply at 7.

         Regarding the state law claims, Soto states that he “did not unlawfully touch, attempt to touch, threaten, insult, or in any way batter or assault” Favela. Reply at 8. Soto alleges that his “interactions with Plaintiff were limited to removing his handcuffs and verbally confirming that failure to comply with MMC staff would force staff to catheterize” him. Reply at 8. Soto states that this contact was “sanctioned by his law enforcement authority and probable cause.” Reply at 8 (citing Santillo v. N.M. Dep't of Pub. Safety, 2007-NMCA-159, ¶ 14, 173 P.3d 6, 10-11). Finally, Soto argues that probable cause supports the arrest and continued detention of Favela, thus no false imprisonment claims can stand. See Reply at 9.

         4. The Hearing.

         The Court held a hearing on July 2, 2018, to hear argument regarding Dollar and Soto's Motion. See Tr. at 7:18-21 (Court). The Court quickly determined that all claims against Dollar should be dismissed, allowing the parties to argue only regarding Soto's conduct. See Tr. at 9:11-16 (Court, Coronado). Accordingly, Dollar and Soto started with arguments regarding whether Soto is entitled to qualified immunity on Fourth Amendment unreasonable search and excessive force claims. See Tr. at 9:17-10:7 (Court, Martinez). Dollar and Soto argued that there was no constitutional violation resulting from their handcuffing of Favela, because the initial search and seizure was proper -- as Favela conceded. See Tr. at 11:12-18 (Martinez). They further argued that Soto cannot be liable for any excessive force claim from Favela's catheterization, because Soto “was not involved in that aspect of the hospital process, ” did not transport Favela to the hospital, and was at the hospital only because Favela was going to be arrested. Tr. at 11:24-25 (Martinez). See id. at 11:7-12:2 (Martinez). All Soto did at the hospital, he argued, was remove the handcuffs that he had placed on Favela so the medical staff could place Favela in soft restraints and complete their medical clearance of him. See Tr. at 12:2-5 (Martinez). Favela argued in response that Soto is liable, because he participated in the excessive force used against Favela by permitting the hospital staff to catheterize Favela despite knowing that he was not going to be charged or detained. See Tr. at 13:16-14:19 (Coronado). He also argued that Favela was no longer under arrest once Soto learned charges were not going to be brought. See Tr. at 15:16-21 (Coronado). Favela argued that this news meant the excessive force of the hospital staff in catheterizing Favela against his will and without any medical necessity can be imputed onto Soto for not stopping it. See Tr. at 22:8-22 (Coronado). Memorial Medical, Proctor, Pitts, Reveles, and Branch posited their belief that the catheter was medically necessary because of Favela's history of losing consciousness that night, although they conceded it was unclear whether he would be in the emergency room but for his interaction with the police. See Tr. at 28:13-17 (Brack Morrow); id. at 29:1-4, 13-20 (Brack Morrow). Dollar and Soto noted that Favela was only at Memorial Medical because Dollar responsibly called an ambulance to ensure Favela's health after he passed out during the arrest. See Tr. at 31:2-6 (Martinez). In response, Favela could not produce any cases with a similar factual situation to show the law is clearly established that this was excessive force on Soto's part. See Tr. at 38:25-39:2 (Coronado). Dollar and Soto asserted the requirement for Favela to tender a case on point establishing officers must stop any force in the medical providers catheterizing Favela. See Tr. at 42:2-12 (Martinez).

         As to whether the catheterization constituted an unreasonable search, Dollar and Soto argued that the catheterization was done only to obtain a medical clearance and to ensure Favela was healthy, with no evidence showing the urine was used for any other purpose. See Tr. at 43:25-44:24 (Martinez). Favela responded that no bodily intrusion may be made, even in a non-criminal setting, without a search warrant unless there are exigent circumstances -- which were not present here. See Tr. at 45:23-46:8 (Coronado). He further argued that Soto is liable for this violation because he knew that the arrest was not enduring and that Favela was free to leave once Soto learned no charges would be brought that night, but still permitted Memorial Medical to conduct a search. See Tr. at 45:9-15 (Coronado). Dollar and Soto countered that the law is not clearly established that what Soto did is a constitutional violation, and that officers are still entitled to qualified immunity when they should have known that probable cause to make an arrest has dissipated. See Tr. at 48:1-18 (Martinez). As to the state law claims of assault and battery, Dollar and Soto asserted that Soto cannot be held liable, because he had no contact with Favela during the catheterization. See Tr. at 51:1-9 (Martinez). Finally, as to the state law claim of false imprisonment, they argued that Soto again cannot be liable because there was probable cause to make the stop and seizure. See Tr. at 51:10-19 (Martinez). Favela reasserted that Soto was present during the catheterization and should have ended the encounter once he learned charges were going to be dropped, but because he did not stop the catheterization, he is liable for assault, battery, and false imprisonment. See Tr. at 52:15-20 (Coronado, Court).

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.) (alteration in Herrera v. Santa Fe Pub. Sch.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)(internal quotations and brackets omitted).

Plustwik v. Voss of Nor. ASA, No. 2:11CV00757 DS, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) --that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting) (emphasis in original).[6] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Piping, Inc., 184 F.Supp.3d 1030 (D.N.M. 2016)(Browning, J.), the Court granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-contract or breach-of-the-implied-warranty-of-merchantability claims. See 184 F.Supp.3d at 1075-78. The Court reasoned that the plaintiff could prove neither the breach-of-contract claim's causation requirement nor the breach-of-the-implied-warranty-of-merchantability claim's proximate-causation requirement with mere common knowledge, and so New Mexico law required that the plaintiff bolster its arguments with expert testimony, which the plaintiff had not provided. See 184 F.Supp.3d at 1067, 1073, 1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove “an essential element of the nonmoving party's case, ” rendering “all other facts immaterial.” 184 F.Supp.3d at 1075 (internal quotation marks omitted) quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1). Thus, if a plaintiff has the burden of proof, and the plaintiff has no competent evidence, the defendant may move, without any competent evidence itself, past the plaintiff's lack of competent evidence, and secure summary judgment. See, e.g., Celotex, 477 U.S. at 323-25 (providing that summary judgment is proper where a plaintiff lacks evidence on an essential element of its case); Am. Mech. Sols., LLC v. Northland Piping, Inc., 184 F.Supp.3d at 1075 (granting summary judgment because plaintiff lacked evidence on causation); Morales v. E.D. Entyre & Co., 382 F.Supp.2d 1252, 1272 (D.N.M. 2005)(Browning, J.) (granting summary judgment because plaintiff lacked competent evidence that defendants defectively manufactured an oil distributor). A conclusory assertion that the plaintiff lacks evidence is insufficient, however, to secure summary judgment; the defendant must make some evidentiary showing that the plaintiff lacks competent evidence. See Halley v. Huckaby, 902 F.3d 1136, 1143 (10th Cir. 2018)(stating that summary judgment may be warranted if the movant notes a lack of evidence for an essential element of the claim). See also 11 James William Moore et al., Moore's Federal Practice § 56.40[1][b][iv], at 56-109 to -111 (3d ed. 2018).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted) (quoting Applied Genetics Int'l Inc. v. First Affiliated Sec., Inc., 912 F.2d at 1241). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1)(A). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby, 477 U.S. at 259. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (internal quotation marks omitted) (quoting Coleman v. Darden, 595 F.2d 533, 536 (10th Cir. 1979)).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. v. Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)(McConnell, J.)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1871)(“Schuylkill”); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, cannot find for the nonmoving party, “there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” (citation omitted)). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States concluded that summary judgment is appropriate where video evidence quite clearly contradicted the plaintiff's version of the facts. See 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Scott v. Harris, 550 U.S. at 380-81 (alterations in Scott v. Harris) (emphasis in Liberty Lobby).

         The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, ‘[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]'” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008)[(Tymkovich, J.)].

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (second alteration in Thomson v. Salt Lake Cty., third and fourth alterations in York v. City of Las Cruces). “The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir. 2009)(Tymkovich, J.) (unpublished), ] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff'd, 499 Fed.Appx. 771 (10th Cir. 2012).

         LAW REGARDING QUALIFIED IMMUNITY

         Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Butz v. Economou, 438 U.S. 478, 506 (1978). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28, 2009)(Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S. at 504. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971)(“Bivens”). “The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized by Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

         Under § 1983 and Bivens, a plaintiff may seek money damages from government officials who have violated his or her constitutional or statutory rights. To ensure, however, that fear of liability will not “unduly inhibit officials in the discharge of their duties, ” Anderson v. Creighton, 483 U.S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, the officials are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

That means a court can often avoid ruling on the plaintiff's claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Greene, 563 U.S. 692, 705 (2011).

         Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(internal quotation marks omitted) (quoting Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs, ” and operates “to protect officers from the sometimes ‘hazy border[s]'” of the law. Saucier v. Katz, 533 U.S. 194, 205 (2001)(quoting Priester v. City of Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)(citing Pearson v. Callahan, 555 U.S. at 232, 236). See also Pueblo of Pojoaque v. New Mexico, 214 F.Supp.3d 1028, 1096 (D.N.M. 2016)(Browning, J.).

         1. Procedural Approach to Qualified Immunity.

         The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory, Saucier v. Katz' protocol -- by which a court first decides if the defendant's actions violated the Constitution, and then the court determines if the right violated was clearly established -- will often be beneficial. See Pearson v. Callahan, 555 U.S. at 233, 236. In rejecting the prior mandatory approach, the Supreme Court recognizes that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right, ” and that such an approach burdens district courts and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237. The Supreme Court also recognizes that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the ‘older, wiser judicial counsel not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.'” 555 U.S. at 241 (quoting Scott v. Harris, 550 U.S. at 388). See Reichle v. Howards, 566 U.S. 658, 664 (2012)(affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior case law “comports with our usual reluctance to decide constitutional questions unnecessarily”).

         The Supreme Court recognizes seven circumstances where district courts “should address only”[7] the clearly established prong of the qualified immunity analysis, Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011)(internal quotation marks omitted) (quoting Camreta v. Greene, 563 U.S. at 707), when:

(1) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage, ” and “the precise factual basis for the . . . claim . . . may be hard to identify”; (5) tackling the first element “may create a risk of bad decisionmaking, ” due to inadequate briefing; (6) discussing both elements risks “bad decisionmaking, ” because the court is firmly convinced that the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (7) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”

Kerns v. Bader, 663 F.3d at 1180-81 (quoting Pearson v. Callahan, 555 U.S. at 236-42). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance, ” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely to face challenges only in the qualified immunity context. Camreta v. Greene, 563 U.S. at 706. See Kerns v. Bader, 663 F.3d at 1181.[8] “Courts should think carefully before expending ‘scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.'” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37).[9] See Camreta v. Greene, 563 U.S. at 707 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). The Tenth Circuit will remand a case to the district court for further consideration when the district court has given only cursory treatment to qualified immunity's clearly established prong. See Kerns v. Bader, 663 F.3d at 1182. See also Kerns v. Bd. of Comm'rs of Bernalillo Cty., 888 F.Supp.2d 1176, 1202 (D.N.M. 2012)(Browning, J.), abrogated on other grounds as recognized by Ysasi v. Brown, 3 F.Supp.3d 1088, 1130 n.24 (D.N.M. 2014)(Browning, J.).

         2. Clearly Established Rights.

         To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee would understand that what he or she did violated a right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007)(Gorsuch, J.). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable' and ‘unquestioned.'” Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir. 2011)(unpublished)[10] (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).

         “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992), overruled in part on other grounds by Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998), as recognized by Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012). “In determining whether the right was ‘clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001)(alteration in Holland ex rel. Overdorff v. Harrington) (quoting Saucier v. Katz, 533 U.S. at 202). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)(McConnell, J.).

         The Supreme Court has clarified that qualified immunity's clearly established prong is a very high burden for the plaintiff: “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. at 741 (alterations in Ashcroft v. al-Kidd) (quoting Anderson v. Creighton, 483 U.S. at 640. “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Reichle v. Howards, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule' is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 563 U.S. at 742. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates “to protect officers from the sometimes ‘hazy border[s]'” of the law. Saucier v. Katz, 533 U.S. at 205 (quoting Priester v. City of Riviera Beach, 208 F.3d at 926-27).

         “[A] case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law, ” but the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader, 663 F.3d at 1186-87 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn't whether we all have some general privacy interest in our homes, ” but “whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

         Although the Tenth Circuit has recognized “a sliding scale” for qualified immunity's clearly established inquiry, Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(McConnell, J.)(“We have therefore adopted a sliding scale to determine when law is clearly established.”), the Tenth Circuit may have since walked back its holding that a sliding scale is the appropriate approach, see Aldaba v. Pickens, 844 F.3d 870, 876 (10th Cir. 2016)(“Aldaba II”). In Aldaba II, the Tenth Circuit reconsidered its ruling from Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015)(“Aldaba I”), that officers were entitled to qualified immunity after the Supreme Court vacated its decision in light of Mullenix v. Luna, 136 S.Ct. 305 (2015)(per curiam). In concluding that it had previously erred in Aldaba I, the Tenth Circuit determined:

We erred . . . by relying on excessive-force cases markedly different from this one. Although we cited Graham v. Connor, 490 U.S. 386 . . . (1989) to lead off our clearly-established-law discussion, we did not just repeat its general rule and conclude that the officers' conduct had violated it. Instead, we turned to our circuit's sliding-scale approach measuring degrees of egregiousness in affirming the denial of qualified immunity. Aldaba, 777 F.3d at 1159. We also relied on several cases resolving excessive-force claims. But none of those cases remotely involved a situation as here . .

Aldaba II, 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer, 536 U.S. at 739-41, and the Supreme Court's most recent qualified immunity decisions do not invoke that case. See Aldaba II, 844 F.3d at 874 n.1. See also Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10 (10th Cir. 2017)(“But our sliding-scale approach may arguably conflict with recent Supreme Court precedent on qualified immunity.”). The Tenth Circuit explained:

To show clearly established law, the Hope Court did not require earlier cases with “fundamentally similar” facts, noting that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” [Hope v. Pelzer, 536 U.S.] at 741 . . . . This calls to mind our sliding-scale approach measuring the egregiousness of conduct. See Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). But the Supreme Court has vacated our opinion here and remanded for us to reconsider our opinion in view of Mullenix, which reversed the Fifth Circuit after finding that the cases it relied on were “simply too factually distinct to speak clearly to the specific circumstances here.” 136 S.Ct. at 312. We also note that the majority opinion in Mullenix does not cite Hope v. Pelzer, 536 U.S. 730 . . . (2002). As can happen over time, the Supreme Court might be emphasizing different portions of its earlier decisions.

Aldaba II, 844 F.3d at 874 n.1. Since Aldaba II, the Supreme Court has reversed, per curiam, another Tenth Circuit qualified immunity decision. See White v. Pauly, 137 S.Ct. 548, 551 (2017)(per curiam). In concluding that police officers were entitled to qualified immunity, the Supreme Court emphasized: “As this Court explained decades ago, the clearly established law must be ‘particularized' to the facts of the case.” White v. Pauly, 137 S.Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. at 640). With that principle in mind, the Supreme Court explained that the Tenth Circuit “panel majority misunderstood the ‘clearly established' analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” White v. Pauly, 137 S.Ct. at 552. See District of Columbia v. Wesby, 138 S.Ct. 577, 591 (2018)(“Tellingly, neither the panel majority nor the partygoers have identified a single precedent -- much less a controlling case or robust consensus of cases -- finding a Fourth Amendment violation ‘under similar circumstances.'” (quoting White v. Pauly, 137 S.Ct. at 552)). Although the Supreme Court noted that “we have held that [Tennessee v. ]Garner[, 471 U.S. 1 (1985), ] and Graham[ v. Connor] do not by themselves create clearly established law outside ‘an obvious case, '” it concluded “[t]his is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham.” White v. Pauly, 137 S.Ct. at 552 (quoting Brosseau v. Haugen, 436 U.S. 194, 199 (2004)(per curiam).[11]

         RELEVANT LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

         Section 1983 of Title 42 of the United States Code provides:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d at 1255 (“The requisite causal connection is satisfied if [Defendants] set in motion a series of events that [Defendants] knew or reasonably should have known would cause others to deprive [Plaintiffs] of [their] constitutional rights.” (alterations in Martinez v. Carson) (internal quotation marks omitted) (quoting Trask v. Franco, 446 F.3d at 1046)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997)(stating that “a municipality may not be held liable under § 1983 solely because it employs a tortfeasor”). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casaus, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011)(Browning, J.) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 689 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998)(Seymour, C.J.).

         1. Color of State Law.

         “Under Section 1983, liability attaches only to conduct occurring ‘under color of law.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The under-color-of-state-law requirement is a “‘jurisdictional requisite for a § 1983 action,' which . . . furthers the fundamental goals of ‘preserv[ing] an area of individual freedom by limiting the reach of federal law . . . [and] avoid[ing] imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.'” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995)(alterations in Jojola v. Chavez)(first quoting Polk Cty. v. Dodson, 454 U.S. 312, 315 (1981); and then quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” West v. Atkins, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “The authority with which the defendant is allegedly ‘clothed' may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to conclude that an action was taken under color of state law, the court must determine that “‘the conduct allegedly causing the deprivation of a federal right' [is] ‘fairly attributable to the State.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

         The Tenth Circuit has directed that, while “‘state employment is generally sufficient to render the defendant a state actor . . . [, ]' at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'” Jojola v. Chavez, 55 F.3d at 493 (first quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n.18; and then quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,' there must be ‘a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer's attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties.”

David v. City & Cty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996)(citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).

         2. Individual Liability.

         Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant[s] knew or reasonably should have known would cause others to deprive the plaintiff of [his] constitutional rights, ” thus establishing the “requisite causal connection” between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d at 1046 (internal quotation marks omitted) (quoting Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990)). The Tenth Circuit has explained that § 1983 liability “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Martinez v. Carson, 697 F.3d at 1255 (internal quotation marks omitted) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. at 663). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles -- including principles of causation . . . .” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M. 2009)(Browning, J.).[12]

         The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant], ” so long as there was not a superseding, intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately' or ‘legally' caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic' or but-for sense by the illegal entry.” Id. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange County Dep't of Prob., 115 F.3d 1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 . . . (1989).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255 The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit:

“Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect's conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See Id. § 440.”

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, “[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's responsibility.” Trask v. Franco, 446 F.3d at 1047 (internal quotation marks omitted) (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)).

[I]f “the reasonable foreseeability of [an intervening act's occurrence] is a factor in determining whether the intervening act relieves the actor from liability for his antecedent [wrongful act], and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was [wrongful] or foreseeable, the question should be left for the jury.”

Trask v. Franco, 446 F.3d at 1047 (second, third, and fourth alterations added by Trask v. Franco) (quoting Restatement (Second) of Torts § 453 cmt. b).

         3. Supervisory Liability.

         The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is “an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, . . . exercise of control or direction, or . . . failure to supervise.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)(internal quotation marks omitted) quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “‘deliberate' or ‘conscious' choice.” Barney v. Pulsipher, 143 F.3d at 1307 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). Accord Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. at 404 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.” (emphasis in original)).

         The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, “supervisory liability for government officials based on an employee's or subordinate's constitutional violations.” Garcia v. Casaus, 2011 WL 7444745, at *25 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson held:

Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights . . . secured by the Constitution . . . .”

614 F.3d at 1199 (quoting 42 U.S.C. § 1983). The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent, ” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

A plaintiff may . . . succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.

Dodds v. Richardson, 614 F.3d at 1199 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1199 n.8. Relying on the Supreme Court's opinion in Board of County Commissioners of Bryan County v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

“Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.”

Dodds v. Richardson, 614 F.3d at 1199-1200 n.8 (internal quotation marks and citations omitted)(quoting Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. at 404-05). The Tenth Circuit noted: “We think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit reduced the test to what is essentially a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative' link . . . between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy . . . -- express or otherwise -- showing their authorization or approval of such misconduct.'” Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).

         LAW REGARDING STATE ACTION AND CIVIL-RIGHTS CLAIMS

         The Supreme Court has stated that it is a

judicial obligation . . . to not only “‘preserv[e] an area of individual freedom by limiting the reach of federal law' and avoi[d] the imposition of responsibility on a State for conduct it could not control, ” [Nat'l Collegiate Athletic Ass'n v.] Tarkanian, [488 U.S. 179');">488 U.S. 179, 191 (2001)](quoting Lugar, supra, at 936-937 . . .), but also to assure that constitutional standards are invoked “when it can be said that the State is responsible for the specific conduct of which the plaintiff complains, ” Blum [v. Yartesky, 457 U.S. 991, 1004 (1982)](emphasis in original).

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)(first two alterations in Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n). Most rights under the Constitution secure protection only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)(“[M]ost rights secured by the Constitution are protected only against infringement by governments.”). Under some circumstances, however, private parties' conduct may be deemed to be state action when “the conduct allegedly causing the deprivation of a federal right may be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. at 937. Whether the conduct may in fact be “fairly attributed” to the state requires a two-part inquiry. Lugar v. Edmondson Oil Co., 457 U.S. at 937. “First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.” Lugar v. Edmondson Oil Co., 457 U.S. at 937. “Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. at 937. See West v. Atkins, 487 U.S. at 48 (explaining that, to state a claim under § 1983, the plaintiff must show: (i) a deprivation of a right that the federal Constitution or federal laws secure; and (ii) that a person acting under color of state law caused the deprivation).

         The Supreme Court in Lugar v. Edmondson Oil Co. explained that the two prongs merge when the claim is “directed against a party whose official character is such as to lend the weight of the State to his decisions, ” whereas they remain distinct when analyzing private parties' conduct. 457 U.S. at 937. The first prong of Lugar v. Edmondson Oil Co.'s test -- that the deprivation of a right is attributable to the state -- is satisfied when “the authority of state officials . . . put the weight of the State behind their private decision.” 457 U.S. at 940. The second prong, identification of a defendant as a state actor, is met where the defendant “is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” 457 U.S. at 937. The Supreme Court applied these prongs and determined that the plaintiff's allegation that private unlawful conduct deprived him of his property without due process failed to state a claim under § 1983. See 457 U.S. at 940. The Supreme Court also held that the plaintiff's claim, which alleged that the private parties had invoked a state statute maliciously or without valid grounds, did not give rise to state action. See 457 U.S. at 940. Instead, that claim amounted to nothing more than the private misuse or abuse of a state statute. See 457 U.S. at 940-41.

         For a private individual to act under color of state law, the deprivation of a federal right “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible, ” and the defendant accused of a constitutional deprivation “must be a person who may fairly be said to be a state actor[, ] . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. at 937.

Congress did not, in using the term “under the color of state law, ” intend to subject private citizens, acting as private citizens, to a federal lawsuit whenever they seek to initiate a prosecution or seek a remedy involving the judicial system. To hold otherwise would significantly disregard one purpose of the state action requirement, which is to “preserve[] an area of individual freedom by limiting the reach of federal law and federal judicial power.” Lugar, 457 U.S. at 936 . . . . Instead, in enacting § 1983, Congress intended to provide a federal cause of action primarily when the actions of private individuals are undertaken with state authority. See Id. at 934. Thus, absent more, causing the state, or an arm of the state, to initiate a prosecution or serve process is insufficient to give rise to state action.

How v. City of Baxter Springs, 217 Fed.Appx. 787');">217 Fed.Appx. 787, 793 (10th Cir. 2007)(unpublished).

         1. Whether There Is State Action by Private Actors is ...


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