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Tanner v. McMurray

United States District Court, D. New Mexico

September 27, 2019

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

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

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

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

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendants Timothy I. McMurray, M.D., Adriana Luna, R.N., Taileigh Sanchez, R.N[.]'s Motion for Partial Summary Judgment and Memorandum in Support, filed April 22, 2019 (Doc. 220)(“Partial MSJ”). The Court held a hearing on May 13, 2019. See Transcript of Proceedings at 2:3-5 (Court)(taken May 13, 2019), filed June 11, 2019 (Doc. 296)(“Tr.”). The primary issues are: (i) whether McMurray, Luna, and Sanchez, who are private parties working for Correct Care Solutions, LLC, a private contractor, are legally entitled to assert governmental immunity; (ii) whether the Court should dismiss Count I of Tanner's First Amended Complaint for Civil Rights Violations, Tort Claims, Wrongful Death, Statutory Violations, Damages, and Injunctive Relief, filed May 23, 2018 (Doc. 50)(“Complaint”)[1]as to Defendants Timothy I. McMurray, Adriana Luna, and Taileigh Sanchez (collectively, the “Correct Care Defendants”), because the 42 U.S.C. § 1983 claims in the Complaint's Count I are facially invalid where Tanner, as a detainee held pursuant to a probation violation, improperly alleges rights under the Eighth Amendment to the Constitution of the United States of America rather than exclusively under the Fourteenth Amendment to the Constitution of the United States of America; (iii) whether the Court should grant summary judgment in favor of the Correct Care Defendants on the Complaint's Count I, because the undisputed facts show the Correct Care Defendants did not violate Tanner's Fourteenth Amendment right to timely and adequate medical care; (iv) whether the Court should grant summary judgment in favor of the Correct Care Defendants on the Complaint's Count II, [2] because the undisputed facts support that the Correct Care Defendants did not unduly burden Tanner's reproductive rights, were not deliberately indifferent, and did not commit acts that shocked the conscience when caring for and treating Tanner; and (v) whether the Court should dismiss without prejudice the state law claims in the Complaint's Count III.[3] The Court concludes that: (i) McMurray, Luna, and Sanchez are legally entitled to assert governmental immunity; (ii) the 42 U.S.C. § 1983 claims in the Complaint's Count I are not facially invalid where Tanner, as a detainee held pursuant to a probation violation, properly alleged rights under the Eight and Fourteenth Amendments, in the alternative, consistent with rule 8(d); (iii) summary judgment in favor of the Correct Care Defendants on the Complaint's Count I is proper because the undisputed facts support that the Correct Care Defendants did not violate Tanner's Fourteenth Amendment right to timely and adequate medical care, and the right Tanner alleges was not clearly established; (iv) summary judgment in favor of the Correct Care Defendants on the Complaint's Count II is proper because the undisputed facts support that the Correct Care Defendants did not unduly burden Tanner's reproductive rights, were not deliberately indifferent, and did not commit acts that shocked the conscience when caring for and treating Tanner; and (v) dismissal without prejudice of the remaining state law claims found in the Complaint's Count III is proper. Accordingly, the Court grants the Partial MSJ.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers for the Partial MSJ. See Partial MSJ ¶¶ 1-41, at 4-12; Plaintiffs' Response in Opposition to Defendants McMurray, Luna, and Sanchez's Motion for Partial Summary Judgment at 1-22, [4] filed June 3, 2019 (Doc. 286)(“Response”), id., at ¶¶ A-Z, at 22-34;[5]and Defendants Timothy I. McMurray, M.D., Adriana Luna, R.N., Taileigh Sanchez, R.N.'s Reply in Support of their Motion for Partial Summary Judgment, filed June 19, 2019 (Doc. 316)(“Reply”), at ¶¶ A-Z, at 2-20.

         1. Tanner's Pregnancy and Healthcare History Before Her 2016 Arrest.

         Tanner was thirty-two years old in 2016. See Partial MSJ ¶ 1, at 4 (asserting this fact);[6]Response at 1.[7] Before 2016, Tanner was pregnant six times; four were terminated, one resulted in a miscarriage, and one resulted in a live birth. See Partial MSJ ¶ 1, at 4 (asserting this fact)(citing Deposition of Shawna Tanner at 56:8-19 (taken January 21, 2019), filed June 14, 2019 (Doc. 303-2)(“Tanner Depo.”)); id. at 56:22-4; id. at 58:16-18; id. at 61:19-22; id. at 62:22-24; id. at 68:5-12; id. at 69:14-20; id. at 70:17-71:6; id. at 73:3-5; id. at 81:14-18; Response at 1.[8] Tanner's seventh pregnancy, of which she learned in March, 2016, resulted in another stillbirth. See Partial MSJ ¶¶ 1-2, at 4 (citing Tanner Depo at 81:14-18; id. at 154:15-19);[9] Response at 1.[10] On August 30, 2016, Tanner first sought pregnancy confirmation and prenatal care, and Dr. Rowe at Integrative Medicine Spa[11] evaluated her. See Partial MSJ ¶ 2, at 4 (asserting this fact)(citing Tanner Depo at 155:16-18; id. at 163:19-164:15);[12] Response at 1.[13] Tanner reported that her last menstrual period occurred on February 14, 2016, six months before her appointment with Dr. Rowe. See Partial MSJ ¶ 3, at 4 (asserting this fact)(citing Tanner Depo. at 163:19-164:15); Response ¶ 3 and 7, [14] at 1-2.[15] Tanner informed Dr. Rowe that her 2016 pregnancy was her sixth pregnancy when it was her seventh. See Partial MSJ ¶ 3, at 4 (asserting this fact)(citing Tanner Depo. at 155:19-25); Response at 1-2.[16] Tanner reported that she smoked five cigarettes per day, but that she quit in 2016, and that, as of the August 30, 2016, visit, she did not currently smoke. See Partial MSJ ¶ 3, at 4 (asserting this fact)(citing Tanner Depo. at 155:19-25; id. at 162:8-12; id. at 163:23-164:15); Response at 1 (objecting to the Correct Care Defendant's characterization that Tanner told Dr. Rowe in 2016 that she was currently smoking five cigarettes per day).[17] Dr. Rowe determined that Tanner was twenty-eight weeks and two days pregnant, with a November 20, 2016, due date. See Partial MSJ ¶ 4, at 5 (asserting this fact)(citing Tanner Depo. at 164:16-19); Response at 1.[18] Dr. Rowe did not advise Tanner that hers was a high-risk pregnancy and placed no limitations on her, although he noted that she was receiving late prenatal care. See Partial MSJ ¶ 5, at 5 (asserting this fact)(citing Tanner Depo. at 166:9-22; id. at 169:19-170:4); Response at 1.[19]

         On September 2, 2016, Tanner returned to Dr. Rowe for an ultrasound and obstetric[20] visit appointment. See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing ACOG[21] Prenatal Antepartum Record at 1, filed June 14, 2019 (Doc. 303-3)(“Relevant Integrative Med Spa Records”)); Response at 1.[22] At the September 2, 2016 appointment, Dr. Rowe detected fetal heart tones, and Tanner's ultrasound indicated good fluid, posterior placenta, and was consistent with dates.[23] See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 2, 4). Response at 1.[24] On September 13, 2016, Tanner underwent another ultrasound showing good fluid, normal fetal growth, and an estimated fetal weight in the thirty-ninth percentile. See Partial Performing Ultrasound Examinations by Certified Nurse-Midwives, UC San Diego Health at 2, available at https://www.google.com/url?sa=t&rct=j&q=&esrc's&source=web&cd= 6&ved=2ahUKEwijxtDeuuniAhUGpJ4KHUR7APAQFjAFegQIBBAC&url=https%3A%2F%2F health.ucsd.edu%2Fmedinfo%2Fmedical-staff%2Fapplication%2FDocuments%2FSP85%2520 Ultrasound%2520by%2520CNM-9-2016%2520.pdf&usg=AOvVaw1xOwE9RAEzr--6NcRkLjcj (last visited September 19, 2019)(directing that if ultrasound size is “consistent with dates, ” to document that in prenatal record, and if size is “less than or greater than expected age, ” to confirm that by formal ultrasound). The American College of Obstetricians and Gynecologists, the American Institute of Ultrasound in Medicine, and the Society for Maternal-Fetal Medicine makes the following recommendation regarding estimating gestational age (a common term used during pregnancy to describe how advanced the pregnancy is, measured in weeks, see Gestational Age, MedicinePlus Medical Encyclopedia, available at MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 21, 22);[25]Response at 1 (not disputing this fact).[26] Tanner was ordered to follow up for an ultrasound in four weeks. See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 23); Response at 1.[27] On September 27, 2016, Tanner returned to Integrative Medicine Spa, her fetus' heart rate was recorded as 144, and Tanner was instructed to return in two weeks for a follow-up. See Partial MSJ ¶ 6, at 5 (asserting this fact)(citing Relevant Integrative Med Spa Records at 2); Response at 1.[28] On October 1, 2016, Tanner used methamphetamine while pregnant.[29] See Partial MSJ ¶ 7, at 5 (asserting this fact)(citing Tanner Depo. at 27:23-25); Response at 1.[30]

         2. Tanner's Probation Violation and Subsequent Arrest.

         On October 3, 2016, Tanner went to Lovelace Medical Center to evaluate her fetus. See Partial MSJ ¶ 8, at 5 (asserting this fact)(citing Tanner Depo. at 148:18-21);[31] Response at 1.[32] At the October 3, 2016, visit, Tanner did not report her methamphetamine use on October 1, 2016. See Partial MSJ ¶ 8, at 5 (asserting this fact)(citing Tanner Depo. at 148:25-149:4);[33] Response at 1.[34] Lovelace Medical Center noted no abnormalities in the tests that Tanner underwent on October 3, 2016, other than protein found in Tanner's urine. See Partial MSJ ¶ 8, at 5 (asserting this fact)(citing Tanner Depo. at 149:19-24);[35] Response at 1.[36] Lovelace Medical Center ordered Tanner to collect her urine for twenty-four hours and to return the next business day. See Partial MSJ ¶ 8, at 5 (asserting this fact)(citing Tanner Depo. at 149:14-25);[37] Response at 1 (not disputing this fact).[38]

         On October 4, 2016, Tanner reported to her parole officer and submitted a urine sample. See Partial MSJ ¶ 9, at 5 (asserting this fact)(citing Tanner Depo. at 153:1-15);[39] Response at 1.[40]Before giving her sample, Tanner inserted a plastic bottle covered in tape, which Tanner believed to contain another individual's urine, [41] into herself. See Partial MSJ ¶ 9, at 5 (asserting this fact)(citing Tanner Depo. at 197:13-25), Response at 2.[42] The bottle “went sideways, ” so Tanner was unable to use it during her urine test, and her sample tested positive for methamphetamine. Partial MSJ ¶ 9, at 5-6 (asserting this fact)(citing Tanner Depo. at 191:22-24).[43] See Response at 1-2.[44] On October 4, 2016, pursuant to the positive urine sample drug test, Tanner was arrested for violating her probation, pending a full probation violation hearing. See Partial MSJ ¶ 9, at 6 (asserting this fact)(citing Tanner Depo. at 153:1-5)[45]; Response at 1-2.[46]

         3. Correct Care's Intake and Screening of Tanner at Metropolitan Detention.

         Upon her arrival at the Metropolitan Detention Center in the County of Bernalillo, New Mexico (“Metropolitan Detention”), Tanner received an initial medical screening interview, at which a Receiving Screening Form was at least partially completed. See Partial MSJ ¶ 10, at 6 (asserting this fact)(citing Receiving Screening at 1 (dated October 4, 2016)), filed June 14, 2019 (Doc. 303-4)(“Oct. 4, 2016 Receiving Screening Form”);[47] Response at 1.[48] Medical staff from Correct Care Solutions LLC (“Correct Care”), a Kansas Limited Liability Company with a site office at Metropolitan Detention, Complaint ¶ 6, at 2, noted that “CCC pregnancy entered Prenatals ordered, Pregnancy labs ordered per protocol, Off-site coordinator notified via e-mails, pregnancy diet started, ” Partial MSJ ¶ 10, at 6 (asserting this fact)(citing Oct. 4, 2016 Receiving Screening Form at 3), Response at 2.[49] Tanner disclosed that she was pregnant at the initial intake on October 4, 2016, Tanner was in the third trimester of her pregnancy, and her pregnancy was obvious from the size of her abdomen. See Partial MSJ ¶ 10, at 6 (asserting this fact)(citing Oct. 4, 2016 Receiving Screening Form at 1); Response at 2.[50] The Oct. 4, 2016 Receiving Screening Form does not mention that Lovelace Hospital asked Tanner to provide a twenty-four hour urine sample. See Partial MSJ ¶ 10, at 6 (stating that Tanner did not disclose that “she had been asked to provide a 24 [hour] urine sample to Lovelace Hospital” (citing Oct. 4, 2016 Receiving Screening Form at 1-6 (not stating this information))), Response at 2 (not disputing that the form does not include this information).[51] The Oct. 4, 2016 Receiving Screening Form does not indicate that Tanner was In the Declaration of Shawna Tanner ¶ 2, at 1 (executed Jan. 17, 2019), filed June 3, 2019 (Doc. 286-1)(“Tanner Decl.”), however, Tanner states that she “told the intake staff that [she] was pregnant” on October 4, 2016. Tanner Decl. ¶ 2, at 1. The Court concludes that the record supports the text's fact. receiving prenatal care or that she had a follow up appointment with Dr. Rowe on October 11, 2016, but the intake form does contain additional inaccuracies or omissions by the Correct Care Defendants' staff. See Partial MSJ ¶ 10, at 6 (stating that Tanner did not disclose that “she had a follow-up appointment with Dr. Rowe on October 11, 2016” (citing Oct. 4, 2016 Receiving Screening Form at 1-6 (not stating this information))); Response at 2 (not disputing that the form does not include this information, but noting that the form does not indicate the Tanner was pregnant, which is “an obvious inaccuracy”).[52] On October 4, 2016, Tanner “filled out a sick call request form requesting prenatal vitamins, ” which the Correct Care medical team provided, and Tanner also received a “pregnancy diet consisting of an extra meal and milk.” Partial MSJ ¶ 12, at 6 (stating this fact)(citing Tanner Depo. at 178:17-179:15; id. at 180:7-181:11), Response at 1 (not disputing this fact).[53] Every day, Tanner received her prenatal vitamins from a “med pass” nurse, a nurse responsible for distributing medications or vitamins, and Tanner never communicated to the “med pass” nurse that she was having issues related to her pregnancy. Partial MSJ ¶ 13, at 6 (stating this fact)(citing Tanner Depo. at 190:10-13, id. at 191:1-4), Response at 1 (not disputing this fact).[54]

         4. Correct Care and Its Staffing on October 16 and 17, 2016.

         Dr. McMurray was the only physician working at Metropolitan Detention on the weekend of October 14-16, 2016. See Response ¶ S, at 31 (citing Deposition of Christopher Mercer, at 14:21-15:12 (taken March 20, 2019), filed June 3, 2019 (Doc. 286-18 (“Mercer Depo.”)); Deposition of Adriana Trujillo [formerly Luna], at 120:2-24 (taken October 24, 2018), filed June 3, 2019 (Doc. 286-12)(“Luna Depo.”).[55] During the weekend of October 14-16, Luna was the only “Med One”[56] nurse working the day shift, and Sanchez was the only Med One nurse working the night shift. See Response ¶ T, at 31 (stating this fact)(citing Luna Depo. at 86:9-12, 120:2-8; Sanchez Depo. at 69:14-20).[57] The only other medical professionals on site during the night shift were the Med 3 staff, who are paramedics and EMTs. See Reply ¶ T, at 16 (stating this fact)(citing Sanchez Depo. at 52:24-53:19; Luna Depo. at 83:23-84:16. Both Sanchez and Luna had the authority to order off-site transportation to emergency care on the weekend of October 14-16, 2016. See Response ¶ T, at 31 (stating this fact)(citing Jordan Depo. at 121:2-19).[58]

         5. Tanner's Treatment and Health During Her Incarceration.

         Tanner stated that she was having leg cramps every morning during her incarceration in 2016. See Partial MSJ ¶ 13, at 6 (stating this fact)(citing Tanner Depo. at 206:17-207:8), Response at 1.[59] Michelle Bouyer, a Correct Care employee responsible for scheduling off-site visits for inmates at the Correct Care providers' direction, maintained a spreadsheet tracking pregnancy off-site appointments, and one version of that spreadsheet indicated that Tanner was scheduled for an off-site prenatal appointment at Milagro[60] on October 27, 2016. See Partial MSJ ¶ 11, at 6 (stating that “CCS personnel also scheduled plaintiff to be sent to the off-site OB clinic on October 27, 2016”)(citing Deposition of Michelle Bouyer at 55:24-5 (taken March 26, 2019), filed June 14, 2019 (Doc. 303-5)(“Bouyer Depo. CCS Excerpts”));[61] Response at 3 (not disputing that a spreadsheet which Correct Care disclosed states that Tanner was scheduled for an October 27, 2016 prenatal appointment at Milagro).[62]

         On October 12, 2016, Tanner underwent a urinalysis and urine pregnancy test, and signed an Informed Consent for HIV (dated Oct. 12, 2016), filed June 3, 2019 (Doc. 287-4)(“HIV Test Consent Form”), although Tanner later refused an HIV test, see Partial MSJ ¶ 14, at 6 (stating this fact)(citing Medical History and Physical Assessment with Mental Health (dated October 14, 2016), filed June 14, 2019 (Doc. 303-6)(“Oct. 14, 2016 Screening Form”)); Response at 3-5.[63] On October 16, 2016, Luna worked as the “Med 1” nurse at Metropolitan Detention. See Partial MSJ ¶ 15, at 7 (stating this fact)(citing Deposition of Adriana Trujillo [formerly Luna], at 119:24-120:1 (taken October 24, 2018), filed June 3, 2019 (Doc. 286-12)(“Luna Depo.”)); Response at 1.[64] Early on October 16, 2016, when Tanner was still locked in her cell, “fluid began gushing from Ms. Tanner's vagina.” Response at 4 (stating this fact)(citing Tanner Decl. ¶¶ 9-11, at 3; Declaration of Ashlee Custy ¶¶ 10-11, at 3 (taken Feb. 18, 2019), filed June 3, 2019 (Doc. 286-2)(“Custy Decl.”).[65] Tanner attempted to inform corrections officers of her condition, but could not leave her cell until after med pass, sometime between 7:08 and 7:30 a.m. See Response at 4 (stating this fact)(citing Tanner Decl. ¶¶ 10-11, at 3; Custy Decl. ¶ 11, at 3.[66] Tanner “inserted her fingers into her vagina and attempted to feel for her cervix and the fetus, ” because she felt pressure, cramping, and discharge, and wanted to check if the baby was coming out, because she was concerned that she would not receive medical attention in time and that it was her only option. See Partial MSJ ¶ 18, at 7 (stating that Tanner inserted her fingers into her vagina and attempted to feel for her cervix and the fetus because she felt pressure, cramping, and liquid coming out)(citing Tanner Depo. at 219:19-220:10); Response at 6 (not disputing that Tanner felt the need to “touch her vagina on the morning of October 16, 2016, ” but adding that she felt that it was her only option because everyone was too busy to see her, after she requested medical attention).[67] On October 16, 2016 at or around 7:36 a.m., Claudia Rodriguez-Nunez, the day-shift officer stationed in Tanner's housing pod, called Luna and informed her that Tanner was not feeling well, that she was pregnant, and that she was spotting. See Partial MSJ ¶ 16, at 7 (stating this fact)(citing Luna Depo. at 122:8-123:22), Response at 4.[68] Luna responded that she was unable to see Tanner immediately, because she was busy, and indicated that she would call Rodriguez-Nunez back when she could see Tanner. See Partial MSJ ¶ 16, at 7 (stating this fact)(citing Luna Depo. at 122:8-123:22); Response at 5.[69] Luna called Rodriguez-Nunez back and told Rodriguez-Nunez that Tanner could be transported to the medical unit. See Partial MSJ ¶ 17, at 7 (stating this fact)(citing Luna Depo. at 110:10-119:9; id. at 125:16-126:24).[70] Tanner told Kerry Palmer in a telephone conversation that she checked her cervix and was dilated, but that she did not know exactly how to check her cervix. See Partial MSJ ¶ 18, at 7 (stating this fact)(citing Tanner Depo. at 219:19-220:10).[71]

         6. Tanner's First Visit to the Medical Unit.

         A corrections officer escorted Tanner to Metropolitan Detention's medical unit, where Luna took her medical history and assessed Tanner, but Luna did not perform a vaginal inspection or a urine dipstick, or test fluid from Tanner's vagina. See Partial MSJ ¶ 19, at 7 (stating these facts but describing Luna's assessment as “head to toe, ” and not mentioning that Luna did not perform a vaginal inspection or a urine dipstick)(citing Luna Depo. at 127:22-129:24); Response at 6-7 (citing Luna Depo. at 136:18, id. at 139:6, id. at 154:3-9)(disputing that Luna took Tanner's medical history and performed a head to toe assessment, but stating that Luna did not perform a vaginal inspection or urine dipstick, or test fluid from Tanner's vagina).[72] Luna spent five minutes in the examination room with Tanner on that occasion. See Response at 7 (stating this fact)(citing Exam. Dental Video at 8:56 a.m., id. at 9:02 a.m.).[73] Tanner reported spotting, which Luna did not observe while Tanner was in the medical unit. See Partial MSJ ¶ 20, at 8 (stating this fact)(citing Tanner Depo. at 228:8-10; Luna Depo. at 134:2-135:7).[74] Tanner informed Luna that she could feel fetal movement at this time. See Partial MSJ ¶ 20, at 8 (stating this fact)(citing Tanner Depo. at 228:8-10; Luna Depo. at 134:2-135:7).[75] Luna charted Tanner's medical complaints, interactions, and observations in Tanner's medical record. See Partial MSJ ¶ 20, at 8 (stating this fact)(citing Luna Depo. at 130:8-131:9).[76] Because the medical unit's examination room contained no computer, and Luna brought no hard copies of the form with her into the examination room, Luna completed the Nursing Pathway at her nurse's station computer, from memory, twenty minutes after examining Tanner. See Response at 8 (stating this fact)(citing Luna Depo. at 129:19-24; id. at 132:9-14; Exam Dental Video at 9:02 a.m.; Nursing Pathway at 8).[77]On the Nursing Pathway, Luna checked “drug use” and wrote “meth 10.13.16.” Response at 8 (stating this fact)(citing Pathway Form at 2).[78] Luna marked Tanner's reported issues as “Routine, ” and not as “Emergent” or “Urgent, ” despite Tanner reporting symptoms consistent with either an “Emergent” or “Urgent” pathway. Response at 8 (stating this fact)(citing Nursing Pathway at 2, 5-6; Tanner Decl. ¶¶ 2, 12; Luna Depo. at 139:6; id. at 143:2-4; id. at 154:14-21; Urinalysis Dip and Urine Pregnancy Test Form (dated Oct. 12, 2016), filed June 3, 2019 (Doc. 287-5)(“UA Dip Test Form”)).[79] Luna never obtained a release of information nor requested Tanner's medical records. See Response at 9 (stating this fact)(citing Luna Depo. at 132:23-133:1, id. at 149:12-16).[80] While Tanner was in the medical unit undergoing evaluation, Luna gave her fluids to drink. See Partial MSJ ¶ 22, at 8 (stating this fact)(citing Luna Depo. At 154:22-157:22).[81] Luna listened to Tanner's fetus' heart rate before and after Tanner drank fluids. See Partial MSJ ¶ 22, at 8 (stating this fact)(citing Luna Depo. at 150:19-152:5).[82] Luna used a temporary amplified audio tone fetal heart rate monitor -- the use of which she received training on in one session conducted by a physician's assistant in August or September of 2014 -- which required her to manually count the heart rate. See Response at 9 (citing Luna Depo. at 27:6-27:24, id. at 28:21-30:19; id. at 150:25-151:10).[83] Luna offered Tylenol to address Tanner's cramping, which Tanner initially declined but later accepted shortly before returning to her housing pod. See Partial MSJ ¶ 23, at 8 (stating this fact)(citing Luna Depo. at 154:22-157:22).[84] Luna also provided Tanner with a water pitcher and sanitary pads, and asked Tanner to save the pads if she experienced spotting again. See Partial MSJ ¶ 23, at 8 (stating this fact)(citing Luna Depo. at 154:22-157:22).[85]

         7. Tanner's Return to the Housing Unit and the Code 43.

         As corrections officer Rebecca Macias walked Tanner from the medical unit back to her housing pod after her first visit with Luna, they stopped walking more than once because Tanner complained of pain, and said she felt “‘pressure down there.'” Response at 9 (quoting Corrections Officer Rebecca Macias Interview (dated Nov. 6, 2016), filed June 4, 2019 (Doc. 288)(“Macias Interview Audio”)).[86] Less than half an hour after Tanner returned to her housing pod, Macias checked on her, noticed blood on sanitary napkins in Tanner's cell's trash can, and that Tanner looked to be in pain and complained to Macias of “contractions.” Response at 10 (stating these facts)(citing F7 Dayroom Video at 10:03 a.m. (dated October 16, 2016), filed June 4, 2019 (Doc. 288)(“F7 Dayroom Video”)); Macias Interview at 14:19-23; 11:15-17).[87] Macias called the medical unit, but no one answered, which Macias described as “standard, typical, ” but Macias did not wait for a call back -- rather, she called a Code 43 for a medical emergency. See Response (stating these facts)(citing Macias Interview Tr. at 12:5-17 (stating that Macias called medical and they did not answer, which she considered standard and typical)); Macias Interview Tr. at 12:24-13:19 (stating that Macias decided not to wait for the call back, but to call a Code 43); Deposition of Rebecca Macias at 102:17-103:9 (dated October 5, 2018), filed June 3, 2019 (Doc. 286-13)(“Macias Depo.”)(stating that Macias called medical and received no answer, and then called a Code 43 for a medical emergency); Housing Pod Shift Log at 4 (noting: “called code 43 for inmate Tanner, Shawna. Inmate complaining of bleeding and cramping. Inmate is pregnant.”).[88] Luna responded to the Code 43, along with Emergency Medical Technician-Paramedic Ruby Boyd, at 10:07 a.m., after Tanner reported pain, bleeding, and anxiety -- the second time Luna saw Tanner on October 16, 2016. See Partial MSJ ¶ 24, at 8 (stating this fact)(citing Luna Depo. at 165:15-169:25), Response at 9-10 (admitting this fact and adding the time, and that Boyd also responded to the Code 43)(citing F7 Dayroom Video at 10:07 a.m. (dated October 16, 2016)).[89] Luna noticed a pad in Tanner's trash can with light pink fluid on it, [90] and noted that Tanner was hyperventilating, and that Tanner stated: “I don't want to have this baby here.” Response at 10 (stating this fact)(citing Progress Notes at 1 (dated Oct. 16, 2016), filed June 3, 2019 (Doc. 287-8)(“Luna Progress Note”)).[91] Luna asked Tanner, “‘Is this your pad, is this the bleeding?'” and Tanner reported that she had “‘been soaking a couple of pads an hour, '” to which Luna replied by calling Tanner “‘a drug addict.'” Response at 10 (quoting OPS Report at 34)(citing Custy Decl. ¶ 20, at 5).[92] Tanner's vital signs were stable at the time, and Luna spoke to Tanner about her symptoms. See Partial MSJ ¶ 24, at 8 (stating this fact)(citing Luna Depo. at 165:15-169:25).[93]

         8. Tanner's Second Visit to the Medical Unit.

         Luna took Tanner to the medical unit for further evaluation and observation. See Partial MSJ ¶ 25, at 8 (stating this fact)(citing Luna Depo. at 169:25-176:21; id. at 182:2-182:13).[94] While walking to the medical unit, Tanner “grabbed at her stomach, bent over in pain, and held onto the wall in the sallyport.” Response at 11 (citing F7 Dayroom Video at 10:12 a.m.; F7 Sallyport Video at 10:13 a.m. (dated Oct. 16, 2016), filed June 4, 2019 (Doc. 288)(“F7 Sallyport Video”)).[95]During the walk, Macias saw Tanner leaking clear fluid “like water” through her pants and onto the ground, and Macias did not smell urine in the short time that she stood near the liquid. Response at 11 (stating this fact)(quoting Corrections Officer Rebecca Macias Interview at 18:1-9 (dated November 6, 2016), filed June 4, 2019 (Doc. 288)(“Macias Interview”)).[96] Tanner arrived in the medical unit, and spent six minutes in the examination room. See Response at 11 (stating this fact)(citing Exam Dental Video at 10:26-10:32 a.m. (dated Oct. 16, 2016), filed June 4, 2019 (Doc. 288)(“Exam Dental Video”); id. at 10:34 a.m.).[97] Luna took Tanner's vital signs and listened to the fetus' heart rate, which resulted in a normal reading, in the 130s. See Partial MSJ ¶ 25, at 8 (stating this fact)(citing Luna Depo. at 169:25-176:21; id. at 182:2-182:13).[98] During Tanner's second visit to the medical unit, no one collected clear fluid from Tanner's vagina or performed a vaginal inspection. Response at 11 (stating this fact)(citing Nursing Pathway at 4-5; Luna Depo. at 136:18; Custy Decl. at 14).[99] Luna, concerned that the fluid on Tanner's sanitary pad and on Tanner's clothing was amniotic fluid, performed a Nitrazine paper test on the pads and clothing, which Luna read to produce a negative result. See Partial MSJ ¶ 25, at 8-9 (stating that Luna performed a Nitrazine paper test, concerned that the fluid on Tanner's pads and clothing was amniotic, and that she noted a negative result)(citing Luna Depo. at 169:25-176:21; id. at 182:2-182:13; McMurray Depo. at 148:23-149:3); Response at 11 (stating that Luna performed the Nitrazine test on Tanner's pads and clothing)(citing Luna Depo. at 173:5-10).[100] Applying the Nitrazine paper test to objects such as a soiled uniform or a discarded sanitary napkin is not a reliable way of testing the pH of a bodily fluid. See Response at 11 (stating this fact)(citing Ehrenberg Depo. at 86:10-87:3; Levy Depo. at 40:6-41:8; Chiang Depo. at 63:19-22).[101] Luna relied on her nursing school training on pH testing, in order to perform the Nitrazine paper test. See Response at 11-12 (stating this fact)(citing Luna Depo. at 172:21-24).[102]

         9. Luna's Call to Dr. McMurray.

         Luna called Dr. McMurray, the on-call physician, at 10:28 a.m. on October 16, 2016. See Partial MSJ ¶ 26, at 9 (stating this fact)(citing Luna Depo. Excerpts at 160:9-161:2, filed June 14, 2019 (Doc. 303-7)(“Luna Depo. Excerpts”)); id. at 181:13-18.[103] Luna told Dr. McMurray that she had evaluated Tanner twice that morning, and she reported to him Tanner's complaints, medical history, positive fetal heart tones, and negative Nitrazine paper test. Partial MSJ ¶ 26, at 9 (stating this fact)(citing Luna Depo. Excerpts at 181:13-18).[104] Dr. McMurray ordered that Tanner be held for medical observation in the Sheltered Housing Unit (“SHU”), where corrections officers would make rounds approximately every 15 minutes. See Partial MSJ ¶ 26, at 9 (stating this fact)(citing McMurray Depo. Excerpts at 182:2-184:24, filed June 14, 2019 (Doc. 303- 8)(“McMurray Depo. Excerpts”)).[105] On October 16, 2016, Dr. McMurray did not request or review any records about Tanner's medical history, although Dr. McMurray signed electronically the Boyd Emergency Response Worksheet at 6:53 p.m. Mountain Standard Time. See Response at 12 (stating this fact)(citing McMurray Depo. at 146:22-147:6).[106]

         10. Tanner's Placement in the SHU and Luna's Observation of Tanner.

         Tanner initially wanted to go to the hospital, and after Luna consulted with Dr. McMurray and received his orders to move her to the SHU, Tanner asked to return instead to her housing pod and forgo care, but Luna told her she had to stay in the SHU, or “we'd just be going back and forth with code[ 43s].” Response at 13 (stating this fact)(citing Luna Depo. at 183:17-23; id. at 184:12-14; Boyd Emergency Response Worksheet at 5; Luna Interview Tr. at 8:13-18)(quoting Luna Interview Tr. at 8:14-15).[107] Tanner, after her placement in the SHU at 10:38 a.m., complained of anxiety to the officer on duty around 11:13 a.m. See Response at 13 (stating this fact)(citing Luna Progress Note at 1).[108] Luna went to check on Tanner[109] and listened to Tanner's fetus' heart tones. See Partial MSJ ¶ 27, at 9 (citing Luna Depo. at 186:1-23; id. at 188:25-189:15).[110] Tanner asked Luna to let her go to the hospital, but Luna declined. See Response at 14 (citing Tanner Decl. ¶ 20, at 7).[111] Luna did not vaginally examine Tanner. See Response at 14 (citing Tanner Decl. ¶ 20, at 7).[112] Luna checked on Tanner once more, shortly before the end of her shift between approximately 5:15 p.m., and 5:50 p.m., and Tanner was on the telephone at the time. Partial MSJ ¶ 27, at 9 (stating that Luna checked on Tanner before the end of her shift)(citing Luna Depo. at 186:1-23; id. at 188:25-189:15).[113] When Luna saw her, Tanner was anxious, crying, leaking fluid, bleeding, and in pain.[114] Luna provided Tanner with no further care, but when she went back to check on Tanner, she stated that “we did kind of a wave good luck; see ya next time, ” and then Luna went home. Response at 14 (stating this fact)(citing Luna Depo. at 186:18-19).[115] Tanner asked to see a doctor or go to the hospital multiple times during the day on October 16, 2016, and her requests were denied, including by Luna. See Response at 14 (stating this fact)(citing Tanner Decl. ¶ 16, at 5-6; id. at ¶ 20, at 7; OPS Report at 34).[116] Luna told Taileigh Sanchez, the only oncoming Med One nurse, about Tanner's condition, and mentioned that listening to Tanner's fetus' heart rate helped ease Tanner's anxiety. See Partial MSJ ¶ 28, at 9 (stating this fact)(citing Luna Depo. at 187:21-188:17; Sanchez Depo. at 126:1-6.[117] Luna had no more direct involvement with Tanner's care after Luna's shift ended on October 16, 2016. See Partial MSJ ¶ 29, at 9 (stating this fact)(citing Luna Depo. at 192:24-193:2).[118] Luna later reported that she would have wanted a provider to perform a pelvic exam, opining that it “‘probably would have been the determining factor right there.'” Response at 14-15 (stating this fact)(citing Luna Depo. at 205:23-206:7).[119]

         11. Sanchez' Observation of Tanner.

         Sanchez saw Tanner for medication pass and vital signs at 7:28 p.m. on October 16, 2016. See Partial MSJ ¶ 30, at 9 (stating this fact)(citing Sanchez Depo. at 134:12-13).[120] When Sanchez first saw Tanner, Tanner's vital signs were normal, she reported fetal movement, expressed no concerns, and her bleeding had improved -- Sanchez conducted a pad check, which revealed an amount of pink tinged discharge, not enough to saturate the pad, but Sanchez did not inform a health-care provider of Tanner's condition or conduct any examination or testing. See Partial MSJ ¶ 30, at 9 (citing Sanchez Depo. at 134:12-13; id. at 134:18-137:6; id. at 170:13-21; Sanchez Progress Note at 1).[121]

         At 8:57 p.m. on October 16, 2016, Sanchez received a call from a medical back officer reporting that Tanner stated she was experiencing cramping episodes. See Partial MSJ ¶ 31, at 10 (stating this fact)(citing Sanchez Progress Note at 1).[122] Tanner stated that she did not believe she was having contractions and Sanchez reported that Tanner's abdomen did not harden during the cramping episodes, and that there was continued fetal movement, although Tanner was having and reporting a lot of anxiety. See Partial MSJ ¶ 31, at 10 (stating this fact)(citing Sanchez Progress Note at 1).[123] Sanchez later stated that Tanner said she “felt like something was coming on, ” reported feeling cramping, and expressed that she believed her uterus was “‘hanging out.'” Response at 16 (stating this fact)(quoting Sanchez Progress Note at 1)(citing Sanchez Depo. at 142:3-4).[124] Tanner asked Sanchez to check if her uterus was hanging out, but Sanchez declined. See Response at 16 (stating this fact)(citing Sanchez Depo. at 144:16-145:3).[125] Sanchez did not check for fetal heart tones or contact a provider. See Response at 16 (stating this fact)(citing Tanner Decl. ¶ 23, at 7; Sanchez Progress Note at 1; Sanchez Depo. at 147:12-17).[126] Sanchez asked Tanner to time her cramps. See Response at 16 (stating this fact)(citing Tanner Decl. ¶ 23, at 7).[127] Sanchez informed Tanner that she could remain in the front of the medical unit for observation, but Tanner elected to return to her cell in the SHU. See Partial MSJ ¶ 31, at 10 (stating this fact)(citing Sanchez Progress Note at 1).[128] Sanchez advised Tanner to inform the staff regarding any concerns. See Partial MSJ ¶ 32, at 10 (stating this fact)(citing Sanchez Progress Note at 1).[129] Sanchez gave Tanner Tylenol for the pain and did not interact with her again. See Response at 16 (stating this fact)(citing Sanchez Progress Note at 1; Sanchez Depo. At 174:2-4).[130] Sanchez was not notified of any concerns Tanner had after she returned to her cell. See Partial MSJ ¶ 32, at 10 (stating this fact)(citing Tanner Depo. at 257:5-10).[131] Tanner later reported that her symptoms persisted throughout the night without treatment. See Response at 14 (citing Ambulance Report at 5, filed June 3, 2019 (Doc. 287-12)(“Ambulance Report”)).[132]

         12. Dr. McMurray's Examination of Tanner.

         After arriving at Metropolitan Detention in the morning of October 17, 2016, Dr. McMurray rounded on Tanner with Nurse Anthony Spencer in the SHU and conducted a visual examination of Tanner in her cell. Partial MSJ ¶ 33, at 10 (stating this fact)(citing McMurray Depo. at 185:2-13; id. at 188:20-189:2).[133] Dr. McMurray pressed Tanner about cramping in her upper abdomen. See Partial MSJ ¶ 34, at 10 (stating this fact)(citing McMurray Depo. at 189:21-22).[134] Dr. McMurray determined that Tanner was stable, would be seen in the medical services unit later in the week, and sent Tanner back to her pod. See Partial MSJ ¶ 34, at 10 (stating this fact)(citing McMurray Depo. at 190:1-3; McMurray Progress Note at 1).[135]

         13. Tanner's Return to the Housing Unit on October 17, 2016.

         At 9:07 a.m., Tanner was escorted from the SHU back to her housing pod. See Response at 18 (stating this fact)(citing Med. Waiting Video at 9:07 a.m. (dated Oct. 17, 2016), filed June 3, 2019 (Doc. 288)).[136] When she returned to her cell, Tanner requested a clean uniform. See Response at 18 (stating this fact)(citing OPS Reports at 4).[137] Tanner noted she was experiencing cramping, pressure, and an absence of fetal movement. See Partial MSJ ¶ 35, at 11 (stating this fact)(citing Tanner Depo. at 261:20-263:6).[138] Tanner had not reported to Dr. McMurray or the medical team before leaving the SHU that she could not feel fetal movement. See Partial MSJ ¶ 35, at 11 (stating this fact)(citing Tanner Depo. at 261:20-263:6).[139] No members of the medical team were present in Tanner's housing pod at that time. See Response at 18 (stating this fact)(citing Tanner Decl. ¶ 26, at 8; F7 pod log 10-17-16; OPS Reports at 4).[140] Tanner walked around, showered, and drank coffee. See Partial MSJ ¶ 35, at 11 (stating this fact)(citing Tanner Depo. at 261:20-263:6).[141] After getting dressed, Tanner felt a wet sensation and noted bright red bleeding with a “‘huge clot that passed from my vagina.'” Partial MSJ ¶ 35, at 11 (stating this fact)(quoting Tanner Depo. at 261:20-263:6).[142] Tanner's cellmate, Custy, requested more sanitary napkins for Tanner. See Response at 18 (stating this fact)(citing OPS Reports at 4).[143] Tanner was saturating pads and her clothing with blood. See Response at 18 (stating this fact)(citing Tanner Decl. ¶¶ 26, 28, at 8-9).[144] Tanner told Fastenau that she was bleeding a lot and having contractions. See Response at 18 (stating this fact)(citing OPS Reports at 4).[145]Fastenau called for medical help at 9:51 a.m. See Response at 18 (stating this fact)(citing F7 pod log 10-17-16 at 2).[146] Medical staff told Fastenau to send Tanner to medical. See Response at 18 (stating this fact)(citing OPS Reports at 4).[147] Tanner waited in the housing unit's sallyport for five to ten minutes, bleeding heavily. See Response at 18 (stating this fact)(citing OPS Reports at 4; Corrections Officer Toni Fastenau Interview at 10:25-11:17 (dated Nov. 6, 2016), filed June 3, 2019 (Doc. 288)(“Fastenau Interview”)).[148] Someone brought a wheelchair, and Tanner, accompanied by Custy and another inmate, returned to the medical unit in a wheelchair. See Partial MSJ ¶ 36, at 11 (stating this fact)(citing Tanner Depo. at 263:7-264:12; Progress Notes, filed June 14, 2019 (Doc. 303-12)(“Spencer Progress Note”)); Response at 19 (stating that Custy and “Sigwerth” accompanied Tanner to the medical unit)(citing Med. Waiting Video at 10:03 a.m.; Exam. Dental Video at 10:13 a.m.).[149]

         14. Tanner's Oct. 17, 2016, Loss of Fetal Movement.

         Tanner waited approximately 18 minutes before being examined. See Response at 19 (stating this fact)(citing Exam Dental Video at 10:13 a.m.; id. at 10:27-10:30 a.m.).[150] In the examination room, Tanner noted contraction-like sensations and she reported that the fetus was not moving, and, although Spencer and Nurse Elisa Manquero attempted to obtain fetal heart tones, neither could detect fetal heart tones. See Partial MSJ ¶ 36, at 11 (stating this fact)(citing Tanner Depo. at 263:7-264:12; Spencer Progress Note at 1).[151] Tanner felt increased pressure after going to the bathroom to change her pad, and Spencer noted that he did not observe crowning at this time, but shortly thereafter, Tanner began having regular contractions and crowning was noted -- the ambulance team then arrived and decided to deliver the baby in the medical unit. See Partial MSJ ¶ 38, at 11 (stating this fact)(citing Spencer Progress Note at 1).[152]

         15. The Delivery.

         When Albuquerque Ambulance Paramedic Alfonso Martinez arrived at Metropolitan Detention at approximately 11:10 a.m., he saw Tanner on a table “‘in pain'” and that she “‘looked like she was in labor.'” Response at 20 (stating this fact)(quoting Deposition of Alfonso Jesus Martinez at 16:4-6 (dated Feb. 28, 2019), filed June 3, 2019 (Doc. 286-16)(“Martinez Depo.”)).[153]Several people were in the room, and the medical personnel were gathered around Tanner while, as Martinez described, “she was, obviously, having contractions.” See Response at 20 (stating this fact)(citing Martinez Depo. at 22:22-23).[154] Tanner's pants were on and when they were removed, her baby was already crowning. See Response at 20 (stating this fact)(citing Martinez Depo. at 16:4-6; id. at 22:22-23; Ambulance Report at 3).[155]

         Dr. McMurray did not observe or interact with Tanner herself when she returned to the infirmary on the morning of October 17, 2016. Response at 20 (stating this fact)(citing Spencer Depo. at 118:9-118:15; id. at 118:18-22; id. at 172:6-172:18).[156] Spencer went to Dr. McMurray's office and told him that “Shawna's back down complaining of the same issues that the night nurse reported, even though we just saw her in the SHU, she complained -- voiced that all those symptoms and everything were gone away, she wanted to go back to her pod, feeling good, ” that she now “saturat[ed]” a pad with a bloody discharge, and that Spencer could not “find a fetal heart tone, ” but had asked another nurse to check -- at this point, Dr. McMurray issued a verbal order to send Tanner to the hospital. See Response at 20-21 (stating this fact)(citing Spencer Depo. at 118:9-15; id. at 118:18-22; id. at 172:6-18).[157] Dr. McMurray, whose last delivery was in medical school, was present for Tanner's delivery, while paramedic Keith Drummond, who had performed five deliveries in the past several years, delivered the baby. See Partial MSJ ¶ 39, at 11 (stating this fact)(citing McMurray Depo. at 211:13-18; id. at 216:20-217:5; id. at 217:9-15).[158] In the examination room, someone turned to Dr. McMurray and stated “okay, doctor, this one's yours, ” and in response, Dr. McMurray threw his hands up and shook his head “no.” Response at 21 (stating this fact)(quoting Spencer Depo. at 31:4-16).[159]

         When Drummond delivered the baby, he noted that the umbilical cord was wrapped tightly around the baby's neck. See Partial MSJ ¶ 40, at 11 (stating this fact)(citing McMurray Depo. at 212:23-213:7; Ambulance Report at 5).[160] Drummond removed the umbilical cord from around the neck, and one of the paramedics suctioned the baby's airway with a bulb syringe. See Response at 22 (stating this fact)(citing Martinez Depo. at 40:16-41:14; id. at 43:8-44:5; id. at 48:22-24).[161] The Albuquerque Ambulance staff pronounced the fetus dead at 11:28 a.m. See Partial MSJ ¶ 40, at 12 (stating this fact)(citing Ambulance Report).[162]

         16. The Events After the Delivery.

         Tanner “thought [she] was having a nightmare” when paramedics said her baby was not breathing and told her not to look. See Response ¶ A, at 22 (stating this fact)(citing Tanner Decl. ¶ 33, at 10-11).[163] Someone asked if Tanner wanted to hold her stillborn baby and Tanner held him for a few seconds before staff took him back. See Response ¶ A, at 22 (stating this fact)(citing Tanner Decl. ¶ 33, at 11).[164] Tanner was transferred to a gurney, buckled into its seatbelts, given a blanket, and wheeled down the main hallway at Metropolitan Detention toward the ambulance. See Response ¶ A, at 22-23 (stating this fact)(citing Tanner Decl. ¶ 33, at 11; Martinez Depo. at 52:15-53:13; 55:12-57:21; 60:17-61:22; Main/Releasing Video at 11:35 a.m. (dated Oct. 17, 2016), filed June 4, 2019 (Doc. 288)(“Main/Releasing Video”)).[165] A corrections officer walked beside Tanner carrying the deceased baby wrapped in a blanket, with the placenta in a biohazard bag. See Response ¶ A, at 23 (stating this fact)(citing Tanner Decl. ¶ 33, at 11; Martinez Depo. at 52:15-53:13; id. at 55:25-57:21; id. at 60:17-61:22).[166] The Albuquerque Ambulance paramedics and corrections officers transported Tanner to Lovelace Women's Hospital, because Tanner told the paramedics that Lovelace Women's Hospital was “‘where she had been receiving her care from, '” and because Albuquerque Ambulance paramedics -- after futilely asking Dr. McMurray for guidance -- called a type of physician called an “MCEP”[167] at Lovelace Women's Hospital, who instructed them to bring Tanner and her baby there. Response ¶ B, at 23 (stating this fact)(citing Martinez Depo. at 46:24-47:19; id. at 47:20-48:20; Tanner Decl. ¶ 34).[168]

         When Tanner and her baby arrived at Lovelace Women's Hospital, nurses and medical staff at Lovelace examined Tanner, asked her questions, and created a timeline of events, which they recorded in her medical records. See Response ¶ C, at 23 (stating this fact)(citing Levy Depo. at 8:21-9:13; id. at 10:2-16; id. at 11:8-15).[169] While on a rotation for Dr. Rowe -- Tanner's prenatal care provider before her incarceration -- Certified Nurse Stephanie Levy received a 911 page summoning her to Tanner's hospital room. See Response at ¶ C, at 23-24 (stating this fact)(citing Levy Depo. at 10:2-16; id. at 11:8-15.[170] Levy briefly looked at Tanner's baby and concluded that it was “‘definitely apparent'” that “‘the baby was not deceased for a long time, that his body was that of a “healthy well-formed newborn, '” and Levy further described the baby as “‘beautiful, '” “‘totally normal, '” “‘average size, '” and “‘fully developed for that gestation.'” Response ¶ C, at 24 (stating this fact)(quoting Levy Depo. at 28:25-29:21; id. at 85:7-17).[171] Levy saw Tanner interact with her baby and described Tanner as being “‘in a very obvious state of shock, '” with “‘just a shocked glazed eye, off and on crying, staring out, '” and “‘in distress.'” Response ¶ C, at 24 (stating this fact)(citing Levy Depo. at 30:5-13; id. at 85:2-6).[172] Tanner's mother was briefly allowed into Tanner's hospital room and saw Tanner “‘curled up in a fetal position, just . . . shaking to death'” and “‘crying, '” and she also saw Tanner's baby in its crib and noted that: “‘[h]e looked fine, '” and that she “‘thought he was alive for a minute.'” Response ¶ C, at 24 (stating this fact)(citing Videotaped Deposition of Sherre Smith at 69:8-25, taken April 2, 2019, filed June 3, 2019 (Doc. 286-23)(“Smith Depo.”)).[173] After a few hours in the hospital, Tanner's baby's body was taken to the Office of the Medical Investigator for an autopsy, and corrections officers returned Tanner to a cell in Metropolitan Detention's SHU, and released her from prison a few days later. See Response ¶ C, at 24 (stating this fact)(citing Tanner Decl. ¶ 35, at 11; Response at 22 (responding to the Correct Care Defendants' proposed fact 41, disputing the characterization of Dr. Singh's autopsy report).[174] Dr. Ehrenberg opined that Tanner's baby's death was preventable. See Response ¶ D, at 24 (stating that “Baby Jay's death was preventable”)(citing Ehrenberg Depo. at 166:1-5).[175] Dr. Chiang opined that Tanner's baby might have survived had Tanner been transported to the hospital on October 16, 2016, and both Dr. Chiang and Dr. Ehrenberg opined that Tanner's baby might have survived if Metropolitan Detention had properly trained nursing staff. See Response ¶ D, at 24 (stating this fact)(citing Chiang Depo. at 100:23-101:2; id. at 104:5-8; Ehrenberg Depo. at 95:16-97:6).[176] Dr. Ehrenberg also opined that Tanner's pregnancy had “‘no unusual complications, '” and that no “‘fetal complication of pregnancy or maternal exposure in pregnancy'” caused Tanner's baby's death but rather, that Tanner's baby died because Tanner went into “‘unmonitored labor'” at the jail, and routine problems which would have been addressed in a hospital setting went unaddressed. Response ¶ E (stating that Tanner's pregnancy had no unusual complications, that fetal complications or maternal exposure did not cause her baby's death, and that her baby died because Tanner's labor at the jail was unmonitored and routine conditions, which would have been addressed in a hospital setting, went unaddressed)(quoting Ehrenberg Depo. at 44:18-46:6)(citing Ehrenberg Decl.).[177]

         17. Correct Care's and Metropolitan Detention's Policies, Practices, and Contractual Requirements.

         Correct Care is a private company which provides health-care services at correctional facilities. See Response ¶ Z, at 33 (citing Schwartzmiller Depo. at 22:16-23:7).[178] At the time of Tanner's incarceration and her baby's stillbirth, Bernalillo County operated Metropolitan Detention pursuant to a contract with Correct Care dating from December 9, 2014, incorporating a Bernalillo County-issued request for proposal (“RFP”), a Correct Care proposal, a Correct Care staffing pattern listing Correct Care personnel who would be required to work at Metropolitan Detention, and requiring that Correct Care comply with all current and future Metropolitan Detention policies and procedures, as well as with National Commission on Correctional Health Care (“NCCHC”) standards. See Response ¶ F, at 25 (stating this fact)(citing Medical, Dental, Mental Health, Psychiatric, and Methadone Services Agreement, filed June 3, 2019 (Doc. 287-22)(“Contract”); Bernalillo County Request for Proposal (RFP) #45-14-PL Medical, Dental, Mental Health, Psychiatric, and Methadone Services for the Metropolitan Detention Center (MDC) Inmates, filed June 3, 2019 (Doc. 287-23)(“RFP”); Bernalillo County Medical, Dental, Mental Health, Psychiatric, and Methodone Services for the Metropolitan Detention Center (MDC) Inmates Request for Proposal (RFP) #45-14-PL Binder #1: Technical Proposal, filed June 3, 2019 (Doc. 287-24)(“Correct Care Proposal”); Addendum #3 Appendix H, filed June 3, 2019 (Doc. 287-25)(“Correct Care Staffing Pattern”); McMurray Depo. at 231:10-232:19).[179] At the time of the contract and in October, 2016, the NCCHC Standards for Health Services in Jail (“NCCHC Standards”) were in effect. See Response ¶ G, at 25 (stating this fact)(citing McMurray Depo. at 46:6-16).[180] The Metropolitan Detention Policies and Procedures in effect in October, 2016, included “Access to Care” and “Counseling and Care of the Pregnant Inmate” protocols, which refer to:

specific provisions regarding access to care, understaffing, punishing inmates for seeking care for their serious health care needs or exhibiting psychiatric symptoms, limits on fees, counseling and care of the pregnant inmate, requirements for qualified clinicians who are physicians certified/eligible in obstetrics to provide such care, immediate off-site transport of pregnant inmates who experience contractions of labor, and specific clinical protocols on pregnancy and preterm labor.

Response ¶ H, at 25-26 (stating this fact)(citing Access to Care, filed June 3, 2019 (Doc. 287-26); Counseling and Care of the Pregnant Inmate, filed June 3, 2019 (Doc. 287-27)).[181] As the Metropolitan Detention site medical director, Dr. McMurray had the authority to make all day-to-day clinical decisions on-site. See Response ¶ I, at 26 (stating this fact)(citing Videotape Deposition of David Jordan -- 30(b)(6) Witness at 66:22-67:12 (taken March 28, 2019), filed April 29, 2019 (Doc. 233-1)(“Jordan Depo.”)); Videotaped Deposition of: Lori Schwartzmiller 30(b)(6) at 44:7-19 (taken April 4, 2019), filed April 29, 2019 (Doc. 233-2)(“Schwartzmiller Depo.”)).[182] Part of Dr. McMurray's job responsibility at Metropolitan Detention was to assist in “‘assur[ing] compliance with NCCHC and ACA standards, '” as well as “‘treatment protocols, clinical policies and procedures.'” Response ¶ I, at 26 (stating this fact)(first quoting McMurray Depo. at 53:13-22, and then quoting McMurray Depo. at 49:23-50:7).[183] Dr. McMurray expressed that he was not familiar with specific clinical protocol documents referenced in “HCA 12.53, ” but stated that he speculated they “corresponded to something published by the NCCHC.” Response ¶ I, at 26 (stating this fact)(citing McMurray Depo. at 243:9-244:16; id. at 248:6-14).[184]

         Defendant Thomas J. Ruiz, in his official capacity as Bernalillo County's Jail Administrator at Metropolitan Detention, “reviewed, approved, and admitted factual findings from a legally authorized investigation regarding this incident contained in a report submitted by the County's Office of Professional Standards (OPS) at MDC.” Response ¶ J, at 26 (stating this fact)(citing OPS Report at 54-55).[185] The OPS Report's findings included determinations based on a preponderance of the evidence that Dr. McMurray engaged in misconduct by “‘not authorizing and ensuring an earlier transfer of inmate Tanner, to an emergency facility that could provide the specialized treatment needed;'” that Luna and other Correct Care employees “‘permit[ted] unreasonable delays before Inmates are seen for treatment, '” in violation of the Access to Care protocol; that Luna and several other Correct Care employees did not provide Tanner, a pregnant inmate, with “‘care from qualified physicians, i.e., physicians that are certified/eligible in obstetrics, '” in violation of the Counseling and Care of the Pregnant Inmate protocol; and that Luna and other Correct Care employees did not “‘immediately transport'” Tanner to the hospital when she began experiencing “‘contractions of labor, '” in violation of another protocol. Response ¶ J, at 27 (stating this fact)(quoting OPS Report at 54-55 (alterations in Response)).[186]

         A June 1, 2015 amendment to the Contract added a provision for “‘bi-weekly onsite OB/GYN clinics at 4 hours per clinic.'” Response ¶ K, at 27 (stating this fact)(quoting First Amendment at 2, dated June 1, 2015, filed May 1, 2019 (Doc. 242-3)(“First Contract Amendment”)).[187] Neither Bernalillo County nor Correct Care implemented a bi-weekly onsite OB/GYN clinic at Metropolitan Detention in 2015, or 2016. See Response ¶ K, at 27 (stating this fact)(citing McMurray Depo. at 256:22-257:3; Jordan Depo. at 107:2-11; id. at 134:11-22).[188]Metropolitan Detention did not have equipment or qualified personnel on-site to perform ultrasounds. See Response ¶ K, at 27 (stating this fact)(citing McMurray Depo. at 102:7-14; id. at 150:21-151:20; Ehrenberg Depo. at 49:17-22).[189]

         Correct Care, according to its corporate designee, does “‘not consider a pregnant inmate's baby to be a patient' -- they are ‘specifically excluded' from care.” Response ¶ L, at 27 (stating this fact)(quoting Schwartzmiller Depo. at 58:5-14).[190] Schwartzmiller stated, “‘We're not responsible for the care of infants. They're not incarcerated individuals.'” Response ¶ L, at 27 (stating this fact)(quoting Schwartzmiller Depo. at 58:16-17).[191] In 2016, Correct Care had no staff at Metropolitan Detention who were certified in obstetrics, and Correct Care did not equip itself or intend to perform labor and delivery services on-site at Metropolitan Detention. See Response ¶ L, at 27-28 (stating this fact)(citing Jordan Depo. at 28:17-22; id. at 34:6-14).[192]

         During 2016, Dr. McMurray, who has no specialization in obstetrics, gynecology, or maternal-fetal medicine, was a salaried Correct Care employee who worked a regular schedule at Metropolitan Detention and maintained no outside employment. Response ¶ M, at 28 (stating this fact)(citing McMurray Depo. at 9:3-7; id. at 13:2-7; id. at 14:9-13; id. at 22:1-23).[193] After nursing school, Spencer received no further specialized training in obstetrics, pregnancy, or childbirth. See Response ¶ M, at 28 (stating that Spencer has received no specialized training in obstetrics, pregnancy, or childbirth)(citing Spencer Depo. at 15:8-12; id. at 15:21-24).[194]

         Luna began work as a full-time, salaried Correct Care employee in August, 2014 -- her first job after graduating from nursing school -- and in January, 2016, she reduced her hours at Metropolitan Detention to one Sunday day shift per week, and she began a full-time job elsewhere. See Response ¶ N, at 28 (stating this fact)(citing Luna Depo. at 13:15-17; id. at 14:9-15:10; id. at 16:21-17:1).[195] Luna has no specialized training in obstetrics or midwifery, is not licensed, as an R.N., to perform vaginal or pelvic examinations, and Luna last received training on amniotic fluid testing in nursing school. See Response ¶ N, at 28 (stating this fact)(citing Luna Depo. at 17:22-25; id. at 136:18-24; id. at 172:19-24).[196] In 2016, Sanchez was a full-time, salaried Correct Care employee who usually worked a regular schedule of three twelve-hour shifts at Metropolitan Detention per week. See Response ¶ O, at 28 (stating this fact)(citing Sanchez Depo. at 12:8-22; id. at 33:7-19).[197] Before working as a Correct Care employee, Sanchez had never worked in obstetrics or midwifery, and had no specialized pregnancy or childbirth training. See Response ¶ O, at 28-29 (stating this fact)(citing Sanchez Depo. at 21:12-22:1).[198] It is not within Sanchez' “‘scope of practice'” to perform vaginal examinations. Response ¶ O, at 29 (stating this fact)(quoting Sanchez Depo. at 144:16-145:3).[199]

         Pursuant to the Contract's legal requirements, the NCCHC's Accreditation Committee conducted an investigation of NCCHC Standards compliance at Metropolitan Detention for the three years preceding the report's date of April 24, 2018, and Bernalillo County adopted that report as a Request For Proposal (RFP) addendum to a contract issued later in 2018. See Response ¶ P, at 29 (stating this fact)(citing National Commission on Correctional Health Care Accreditation Report of the Health Care Services at Metropolitan Detnetion [sic] Center Albuquerque, NM (dated April 22, 2018), filed June 3, 2019 (Doc. 287-28)(“NCCHC Accreditation Rpt.”); Madrid Depo. at 39:4-42:3 (stating that Madrid provided a copy of the most recent NCCHC Accreditation Report, which became part of Addendum Number 2 to the RFP, and that, in turn, became an exhibit to the 2018 contract).[200] The NCCHC Accreditation Committee issued findings concerning Metropolitan Detention's compliance with NCCHC standards. Response ¶ P, at 29 (stating this fact)(citing NCCHC Accreditation Rpt. at 6).[201]

         Bernalillo County's contract with Correct Care includes a staffing plan in which Correct Care will maintain an on-site medical director, two full-time physicians, two full-time mid-level providers, and ten RNs. See Response ¶ Q, at 30 (citing Chavez Depo. at 106:24-110:16; Correct Care Staffing Pattern, at 118.[202] In September, 2016, Bernalillo County's contract with Correct Care was amended to reduce funding levels for mid-level providers and for RNs, reducing the number of mid-level providers from two full-time positions to one, and the number of medical RNs from ten full-time positions to eight, while the number of full-time physician positions remained at two. See Response ¶ Q, at 29 (stating this fact)(citing Deposition of Virginia Chavez at 114:17-117:25 (taken March 26, 2019), filed June 3, 2019 (Doc. 286-7)(“Chavez Depo.”)).[203] Nonetheless, there remained periodic vacancies in the physician positions, including at the time Tanner was incarcerated. See Response ¶¶ Q-R, at 29-30 (stating this fact)(citing Chavez Depo. at 114:17-117:25).[204]

         Finally, Dr. Robert Greifinger, an expert appointed by the Honorable James A. Parker, United States District Judge for the District of New Mexico, in the McLendon, et al. v. City of Albuquerque, et al., No. CV 95-00024 JAP, litigation, issued a report in April, 2016, detailing his findings from a comprehensive investigation into the quality of medical care at Metropolitan Detention. See Response ¶ U, at 31-32 (asserting this fact); McMurray Depo. At 250:18-251:6.[205] Dr. McMurray reviewed Dr. Greifinger's report and was aware of its contents. See Response ¶ U, at 32 (asserting this fact); McMurray Depo. at 260:21-261:23.[206] Dr. McMurray understood the report to conclude, in part, that “the [Correct Care] nurses weren't documenting fully.” Response ¶ U, at 32 (quoting McMurray Depo. at 261:3-11).[207] Finally, the Court acknowledges the existence of allegations that Luna and Sanchez “engaged in similar acts in [. . .] prior incident[s] at MDC.” Response ¶¶ V-W, at 32-33 (citing Luna Depo. at 7:20-8:2; id. at 206:10-208:24; Sanchez Depo. at 7:4-7:21).[208]

         The Court now turns to the Procedural Background.[209]

         PROCEDURAL BACKGROUND

         Tanner filed her original complaint on August 25, 2017. See Complaint for Civil Rights Violations, Tort Claims, Statutory Violations, Damages, and Injunctive Relief, filed August 25, 2017 (Doc. 1). Tanner filed an amended complaint on May 23, 2018. See Complaint at 1. In Count I, Tanner alleges that the Correct Care Defendants violated her rights under the Eighth and Fourteenth Amendments, and in Count II, Tanner alleges that the Correct Care Defendants violated her substantive due process rights under the Fourteenth Amendment. See Complaint at 22-24.

         1.The Partial MSJ.

         On April 22, 2018, the Correct Care Defendants filed the Partial MSJ, asking the Court to grant summary judgment in their favor on the Complaint's Counts I and II. See Partial MSJ at 1. The Correct Care Defendants first contend that Count I is facially invalid where it alleges violations under both the Eighth and Fourteenth Amendments, because the court in a District of New Mexico case previously concluded in Kretek v. Board of Commissioners of Luna County, No. CIV 11-0676 RB/GBW, 2013 WL 12039991 (D.N.M. April 29, 2013)(Brack, J.)(“Kretek”), [210]that “an inmate held in a detention center pursuant to a probation violation is properly classified as a pretrial detainee, ” with rights under the Fourteenth Amendment but not under the Eighth Amendment. Partial MSJ at 2. The Correct Care Defendants argue that, in light of Chavez v. Board of County Commissioners of Sierra County, 899 F.Supp.2d 1163, 1185-86 (D.N.M. 2012)(Browning, J.)(“Chavez”), a plaintiff must plead the correct constitutional provision underlying his or her § 1983 claim to state a valid claim, and that if the plaintiff pleads two identical constitutional provisions but only one is correct, the claim is invalid on its face, even if the protections are the same under both provisions. See Partial MSJ at 3 (citing Chavez 899 F.Supp.2d at 1185-86).

         The Correct Care Defendants next contend that, even if Tanner's claim is valid as pled, the undisputed facts do not establish a cause of action under either the Eighth or Fourteenth Amendment, because the “undisputed facts support that none of the moving Defendants were deliberately indifferent or committed acts that shocked the conscience when providing care and treatment to Plaintiff.” Partial MSJ at 4. Third, the Correct Care Defendants contend that, based on the undisputed facts, they are entitled to qualified immunity. See Partial MSJ at 4. The Correct Care Defendants argue that a government contractor can assert qualified immunity as a defense despite not being a government employee. See Partial MSJ at 4. The Correct Care Defendants conclude, accordingly, that they “are entitled to summary judgment on Counts I and II . . . .” Partial MSJ at 4.

         Beginning with Luna, the Correct Care Defendants argue that the undisputed facts fail to establish that she was deliberately indifferent to Tanner's needs, her actions did not rise to the level of shocking the judicial conscience, and, therefore, she is entitled to qualified immunity. See Partial MSJ at 21. The Correct Care Defendants contend that Luna saw Tanner twice on October 16, 2016, and that the undisputed facts indicate that, both times, Luna provided Tanner with appropriate medical care and “had no subjective knowledge of any complications or issues with” Tanner's pregnancy. Partial MSJ at 21. The Correct Care Defendants argue that Tanner can produce no evidence that Luna acted with deliberate indifference, where Luna evaluated her, provided Dr. McMurray with full and accurate accountings of Tanner's status, administered tests to evaluate Tanner's and her unborn baby's conditions, and monitored Tanner's and her unborn baby's vital signs. See Partial MSJ at 21-22. The Correct Care Defendants aver that, based on these facts, Luna cannot be held liable even under a gatekeeper theory of liability, [211] and that she is entitled to qualified immunity, because, if her assessment of Tanner's level of risk was incorrect, that error would “at most give rise to a State law negligence claim and not rise to the level of a constitutional violation.” Partial MSJ at 22. The Correct Care Defendants further argue that none of Luna's conduct “rises to the level of shocking the conscience, ” where at “no point did she deny [Tanner] care or blatantly ignore her needs.” Partial MSJ at 23.

         Turning to Sanchez, the Correct Care Defendants similarly argue that her actions, while evaluating Tanner twice during the night of October 16-17, 2016, were not deliberately indifferent and did not shock the conscience. See Partial MSJ at 24. The Correct Care Defendants argue that, “[b]ased on Plaintiff's medical records, the report from Nurse Luna, and her personal and timely assessment of Plaintiff, Nurse Sanchez had no reason to suspect that Plaintiff was experiencing a condition that would require an escalation of medical treatment.” Partial MSJ at 25. The Correct Care Defendants conclude that Sanchez, like Luna, is entitled to qualified immunity. See Partial MSJ at 25.

         The Correct Care Defendants next address Dr. McMurray. See Partial MSJ at 25. The Correct Care Defendants argue that, based on the fact “that there was no indication that Plaintiff had a high-risk pregnancy, she reported that she did not have any issues and that she wanted to return to her pod, ” the actions that Dr. McMurray took when he saw Tanner in the Sheltered Housing Unit (“SHU”) were not unreasonable. Partial MSJ at 27. The Correct Care Defendants aver that Tanner's anticipated delivery date “was four to five weeks away, she did not appear to be in labor and was not having consistent contractions, ” so Dr. McMurray had no reason to classify her as “an obstetrical emergency, and saw no medical reason to send [Tanner] out for additional care at that point.” Partial MSJ at 27. The Correct Care Defendants argue that Dr. McMurray had no subjective knowledge of any other underlying issue that might affect Tanner's pregnancy and that he made reasonable care decisions given the information that he had. See Partial MSJ at 27. The Correct Care Defendants conclude that Dr. McMurray acted proactively, reasonably, and without recklessness, and therefore is entitled to qualified immunity. See Partial MSJ at 28.

         2. The Response.

         Tanner responded on June 3, 2019, and asks the Court to deny the Partial MSJ. See Response at 1. Tanner argues that the Correct Care Defendants have not satisfied the usual test for conferring qualified immunity on a person who is not a government official and therefore have not borne their burden of pleading the affirmative defense. See Response at 34. Tanner further contends that the Correct Care Defendants “have not met their burden of establishing undisputed material facts which make them eligible to assert a defense of qualified immunity in the first place.” Response at 35. Tanner avers that, even where government officials are the individuals asserting qualified immunity, the Court's review of the evidence plays an important role in determining its sufficiency, and whether there are undisputed facts which could provide a basis for summary judgment. See Response at 35. Tanner argues that those determinations “are not subject to review via an interlocutory appeal based on a government official's assertion of a qualified immunity defense, ” which is limited to purely legal questions. Response at 35.

         Tanner contends that the qualified immunity defense is not available to the Correct Care Defendants, because they are nothing “other than employees of a private company that is in the business of providing medical services to inmates.” Response at 36. In her additional facts, Tanner argues that, in 2016, McMurray, Luna, and Sanchez worked as full-time salaried Correct Care employees, and that none of them had adequate training in obstetrics, pregnancy, or childbirth to adequately treat Tanner. See Response ¶¶ M-O, at 28-29. Tanner also contends that Correct Care, during the relevant time,

was a private company with 100% of its business operations devoted to government contracting for health-care services at jails, prisons, and similar correctional facilities. The company's jail division was working in about 200 jails in 38 states in 2016. This is a competitive marketplace for government contracts to provide health-care services to MDC and similar facilities. In addition to Defendant CCS, there are at least three different companies that regularly bid for such contracts: Centurion, Corizon, and Wexford.

         Response ¶ Z, at 33-34 (citations omitted). Tanner contends that, based on these facts and the evidence which Tanner cites to support them, under Richardson v. McKnight, 521 U.S. 399 (1997)(“Richardson”), and its progeny, the Correct Care Defendants “may not avail themselves of a qualified immunity defense.” Response at 36.

         Tanner avers that the Tenth Circuit has not decided whether qualified immunity is available to private company employees providing inmates with medical services, but other Courts of Appeals to address the question “have determined that qualified immunity is unavailable under these circumstances.” Response at 36 (emphasis in Response). Tanner argues that the courts of appeals that have reached this conclusion have applied Richardson's precedent and methodology. See Response at 36. Tanner acknowledges the argument that Filarsky v. Delta, 566 U.S. 377 (2012)(“Filarsky”), overruled Richardson, but contends that courts have rejected that argument. See Response at 36. Tanner contends that the Court should reject the Correct Care Defendants' suggestion that the Court follow Estate of Lockett v. Fallin, 841 F.3d 1098 (10th Cir. 2016)(“Lockett”), because it addresses a situation, unlike the one here, where there is no private market for the services the contractor provided. See Response at 36-37. Tanner argues that the Correct Care Defendants present no evidence analogizing their situation to that of the physician at issue in Lockett, and “they present no other evidence to show that the fact-specific concerns which distinguish Richardson from Filarsky place them on the Filarsky side of the line.” Response at 37.

         Tanner argues that the Correct Care Defendants' qualified immunity argument has no objective, admissible evidentiary basis, but rather relies on policy arguments which “exemplify the extent to which the doctrine of qualified immunity has become a ‘highly manipulable balancing test.'” Response at 37 (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)). Tanner states that she adopts and incorporates by reference her arguments and authorities in response to the Correct Care Defendants' Health Care Defendants' Motion to Stay, filed March 20, 2019 (Doc. 169)(“First Motion to Stay”), and Health Care Defendants' Second Motion to Stay, filed May 1, 2019 (Doc. 245)(“Second Motion to Stay”), “which assert that the federal common-law doctrine of qualified immunity has become so conceptually incoherent that it should be abrogated, modified, or deemed not to apply in this case.” Response at 38 n.10. See Plaintiffs' Response to Health Care Defendants' Motion to Stay, filed April 3, 2019 (Doc. 198)(“First Motion to Stay Response”); Plaintiffs' Response to “Health Care” Defendants' Second Motion to Stay, filed May 15, 2019 (Doc. 269)(“Second Motion to Stay Response”). Tanner contends that Herrera v. Santa Fe Pub. Schs., 41 F.Supp.3d 1027, 1186-87 (D.N.M. 2014)(Browning, J.)(granting qualified immunity to a private company that provided security services at a public school event), and Marquez v. The Geo Group, Inc., No. CIV 16-1259 JB/SCY, Order, filed March 29, 2018 (Doc. 80)(granting defendant qualified immunity to a self-employed individual contracted to provide mental health counseling to a state-custody inmate), are factually and procedurally distinct, and “the parties therein did not cogently address the weight of authority from multiple circuit courts which better fit the facts of the present case.” Response at 37 n.9. Tanner contends that the Court should consider that the State of New Mexico has decided not to extend sovereign immunity to private prison operators, and has not extended such immunity to the Correct Care Defendants or to other private prison contractors. See Response at 38. Tanner notes that “many district courts” have, in recent years, elected “to provide alternative holdings which conclude that qualified immunity is not available in this scenario but also determine that the doctrine would not apply to the specific facts of the case even if it were available.” Response at 38. Tanner asks that the Court take a similar approach and hold that the Correct Care Defendants may not assert a qualified-immunity defense and that, even if they could, that defense would not apply to these facts. See Response at 38-39.

         Tanner next turns to her argument that the Correct Care Defendants are not entitled to summary judgment on the Complaint's Count I. See Response at 39. Tanner argues that there is a split in authority regarding “whether or under what circumstances individuals taken into custody on probation violations are treated as inmates or pretrial detainees.” Response at 39 (citing Kellum v. Bernalillo Cty., 250 F.Supp.3d 846, 850-55 (D.N.M. 2017)(Browning, J.)). Tanner avers that, because she cannot predict how the Court will rule on that distinction, she pleaded in the alternative, which rule 8(d) of the Federal Rules of Civil Procedure expressly permits. See Response at 39. Tanner contends that, because the deliberate indifference standard is the same under either amendment, her alternative pleading does not unfairly prejudice the Correct Care Defendants. See Response at 39. Tanner argues that, even assuming she is a pretrial detainee rather than an inmate, the Correct Care Defendants are not entitled to partial summary judgment. See Response at 40.

         Tanner next turns to the objective and subjective elements of a deliberate indifference claim. See Response at 40. Tanner avers that caselaw clearly establishes that pregnancy and childbirth satisfy the claim's objective element. See Response at 40. Tanner contends that the subjective element is also clearly established in cases concerning “‘claims by pregnant inmates who experience medical complications while incarcerated.'” Response at 41 (quoting Black-Polsen v. Blansett, No. CIV 04-0963 MCA/ACT, 2005 WL 8163774, at *7 (D.N.M. June 24, 2005)(Armijo, J.)). Tanner cites to factually similar examples from caselaw wherein courts have found that a deliberate indifference claim's elements are satisfied and qualified immunity does not apply. See Response at 41-42 (citing Havard v. Wayne County, 436 Fed.Appx. 451, 455 (6th Cir. 2011); Pool v. Sebastian Cty., 418 F.3d 934, 944-45 (8th Cir. 2005); Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007); Boswell v. Sherburne Cty., 849 F.2d 1117, 1122 (8th Cir. 1988); Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1984); Herrera v. Valentine, 653 F.2d 1220, 1225 (8th Cir. 1981); Moulton v. DeSue, 966 F.Supp.2d 1298, 1306 (M.D. Fla. 2012); Doe v. Gustavus, 294 F.Supp.2d 1003, 1006-10 (E.D. Wis. 2003)). Tanner argues that the Correct Care Defendants have not met “their initial responsibility of ‘identifying' the objective element of a deliberate indifference claim as one on which they seek partial summary judgment, ” Response at 42 (quoting Fed.R.Civ.P. 56(a), where the Correct Care Defendants present no argument or evidence disputing that Tanner was “in an advanced stage of her pregnancy, or that her pregnancy and its complications presented an objectively serious medical need, ” Response at 42. Tanner argues that, without “specific legal authority” or evidence “on third trimester pregnancies or their complications, ” the Correct Care Defendants cannot overcome the medical evidence, professional standards, and expert opinions to which Tanner cites. Response at 42.

         Tanner notes that two categories of conduct can support a deliberate indifference claim: (i) actual provision of health-care services to a patient in custody suffering from a condition which can be treated while the patient is in custody; and (ii) diagnosis or treatment the patient's condition on-site is not possible because of the staff's lack of equipment or qualifications, so staff takes on a “gatekeeper” role in determining whether to send the patient off-site for care, typically in situations requiring emergent care. Response at 42-43. Tanner avers that pregnancy can support either claim, because, before labor, a patient may be able to receive care where she is held, but once in labor or experiencing complications, her situation becomes emergent and may require immediate transport to a hospital or off-site facility. See Response at 43. Tanner contends that the Correct Care Defendants acknowledge that a gatekeeper claim can apply either to corrections officers or to medical personnel. See Response at 43. Tanner also contends that the Correct Care Defendants do not assert that any of them were qualified or equipped to deliver babies or to treat obstetrical emergencies, so they were limited to a gatekeeper role. See Response at 43.

         Tanner argues that, whether Tanner's pregnancy is categorized under either or both categories of deliberate indifference claims, the Correct Care Defendants focus solely on the claim's subjective element. See Response at 43. Tanner argues that, for the Correct Care Defendants to raise a defense that the difference between what they did and what Tanner wanted them to do is a difference of opinion within a reasonable range of alternatives, both parties “must be qualified and competent enough to reach that opinion, ” which the Correct Care Defendants are not, where they contend that they were not qualified to perform vaginal or pelvic examinations, or to deliver babies. Response at 43. Even if both providers are qualified to render opinions, deliberate indifference reasonably may be inferred if the adopted opinion is “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person did not base the decision on such a judgment.” Response at 44 (quoting Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016)(en banc)(internal citations and quotation marks omitted)).

         Tanner contends that, when a provider “‘says he did not realize his treatment decisions (or lack thereof) could cause serious harm to a plaintiff, a jury is entitled to weigh that explanation against certain clues that the doctor did know.'” Response at 45 (quoting Petties v. Carter, 836 F.3d at 731). Tanner contends, for example, that Dr. McMurray's admission that, on October 17, 2016, seeing Tanner's “blood-soaked pad” gave him “enough subjective knowledge to authorize emergency transport to a hospital, ” supports a reasonable inference that, if any of the Correct Care Defendants knew Tanner was bleeding the previous day, “that fact was enough to give them subjective awareness of the same need for emergency medical transport at that time.” Response at 45. Tanner urges the Court to recognize the distinction between a “subjective awareness of a substantial risk of harm and subjective awareness of a particular result of that risk.” Response at 46 (emphasis in Response). Tanner avers, accordingly, that she need not allege that the Correct Care Defendants knew the particular manner by which injury would occur, that the risk was personal to her, that it came from a single source, or that the officials believed the harm would actually occur -- she must show only that the Correct Care Defendants acted or failed to act despite their knowledge of the substantial risk of harm. See Response at 46. Tanner argues that, in determining whether she has proved deliberate indifference, the Court may consider inferences from circumstantial evidence, as well as direct evidence, viewing all evidence in the light most favorable to Tanner and drawing all reasonable inferences in her favor. See Response at 47.

         Tanner contends that some courts reasonably have inferred that deliberate indifference to a serious medical need's subjective element is met where the serious need “would be obvious to a layperson with no medical training.” Response at 47 (citing Havard v. Wayne County, 436 Fed.Appx. at 456; Carr v. El Paso Cnty., 757 Fed.Appx. 651, 656 (10th Cir. 2018)(unpublished)). Tanner contends that courts have concluded that pregnancy and childbirth are situations where the medical needs are blatantly obvious and the risks are great. See Response at 47. Tanner argues that the Court reasonably can infer that her medical needs' seriousness was obvious where the officers stationed in her Metropolitan Detention housing unit “thought it serious enough to report the matter . . . and to call [in a] medical emergency” even after Tanner returned to the housing unit from her first medical unit visit in the morning of October 16, 2016. Response at 47-48.

         Tanner submits that willful blindness can constitute constructive knowledge with respect to a deliberate indifference claim and that the Correct Care Defendants willfully blinded themselves to Tanner's condition's facts. See Response at 48. Tanner posits that the Correct Care Defendants willfully blinded themselves by: (i) ignoring Tanner's requests for medical assistance, see Response at 48; (ii) not attempting to request Tanner's prenatal records from before her incarceration, see Response at 49; (iii) ignoring deficiencies on Tanner's healthcare charts at Metropolitan Detention, see Response at 50; (iv) ignoring Tanner's follow-up requests for medical attention after she was placed in a SHU segregation cell, ostensibly for monitoring purposes, Response at 50; (v) harboring a subjective bias against inmates as inherently incredible and prone to lying, see Response at 51; (vi) not following established protocols and procedures, see Response at 51; and (vii) being on notice of constitutional deficiencies in care because of several reports identifying systemic deficiencies at Metropolitan Detention, see Response at 52-53.

         Tanner then turns to her argument that the Correct Care Defendants are not entitled to summary judgment on the Complaint's Count II. See Response at 54. Tanner explains that, unlike Count I's deliberate indifference standard, Count II is based on the undue-burden standard applicable to state action infringing “on an expectant mother's fundamental liberty interest in choosing to carry her pregnancy to term and become a parent . . . .” Response at 54. Tanner argues that the Correct Care Defendants do not attack the claims which Tanner makes in Count II, so the Court should deny their motion on that basis alone. See Response at 54. Tanner argues, nevertheless, that, although Tanner's fetus does not constitute a separate person for a § 1983 claim's purposes, the Due Process Clause's substantive component still affords protection to the mother's liberty interest in choosing to carry to term and become a parent. See Response at 55. Tanner contends that, whereas a mother's liberty interest in reproductive choice might conflict with a governmental interest in protecting a fetus' innocent life, there is no such conflict where the mother chooses to carry the pregnancy to term, as Tanner chose. See Response at 55. Tanner frames a mother's choice to carry to term as a clearly established right to procreate and also a fundamental liberty interest which the Fourteenth Amendment protects. See Response at 55.

         Tanner highlights the undue burden standard which Planned Parenthood v. Casey, 505 U.S. 833, 876-77 (1992)(“Casey”), sets forth and which Tanner posits applies to cases where a woman chooses to continue her pregnancy until birth. See Response at 56. Tanner posits that the undue burden standard protects the right “‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'” Response at 56 (quoting Casey, 505 U.S. at 875 (Casey quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972))). Tanner proposes that the undue-burden test asks courts to look to whether the action's purpose or effect “‘is to place a substantial obstacle in the path of a woman's choice.'” Response at 56 (quoting Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292, 2309 (2016)). Tanner avers that no Metropolitan Detention regulation existed in 2016 which would have prohibited the Correct Care Defendants from “effecting Plaintiff Tanner's transport to a hospital” and that, in fact, the Correct Care Defendants violated Metropolitan Detention policy by not transporting Tanner. Response at 57. Tanner also contends that courts “clearly recognize that a woman's interest in carrying a viable pregnancy to term and giving birth constitutes such a serious medical need.” Response at 57. Tanner concludes that the Correct Care Defendants had no substantial or legitimate state interest in not taking prompt action to help Tanner protect her viable fetus' life and that they unduly burdened her reproductive choice by denying Tanner access to a qualified and properly equipped obstetrical care facility. See Response at 57-58. Tanner requests that the Court deny the Correct Care Defendants partial summary judgment on the federal civil-rights claims which Tanner asserts against them in the Complaint's Counts I and II. See Response at 59. Tanner also asks that the Court “determine that none of the [Correct Care] Defendants may avail themselves of the defense of qualified immunity for the reasons stated above . . ., while also providing an alternative holding that, based on the sufficiency of the evidence, ” none of the Correct Care Defendants would be entitled to qualified immunity or otherwise to partial summary judgment even if the qualified immunity defense were available to them. Response at 59.

         3.The Reply.

         The Correct Care Defendants filed a Reply. See Reply at 1. In the Reply, the Correct Care Defendants argue that, even in the light most favorable to Tanner, “no action or inaction by these Defendants rises to the level of deliberate indifference or shocking the conscience.” Reply at 1. The Correct Care Defendants remark that Tanner's Response “focuses extensively on institutional issues, ” but that Tanner has asserted no constitutional claims against either Correct Care or Metropolitan Detention, so their alleged conduct has no bearing on the individual Correct Care Defendants. Reply at 2-3. The Correct Care Defendants object to the Response's additional facts A-Z as immaterial, incomplete, and misleading, and lacking the support of admissible evidence. See Reply at 2.

         The Correct Care Defendants argue that they have “furnished sufficient facts showing that they are entitled” to assert a qualified immunity defense, considering the Tenth Circuit's “emphasis on the availability of qualified immunity to all individuals carrying out government responsibilities, ” and the “three enumerated purposes served by qualified immunity . . . .” Reply at 20. First, the Correct Care Defendants argue that Tanner's argument asserting that the Correct Care Defendants face an “Additional Upfront Barrier” to asserting qualified immunity “Is Not Supported By Any Legal Precedent.” Reply at 20 (capitalization because text appears in heading). The Correct Care Defendants contend that Weise v. Casper, 507 F.3d 1260, 1263-68 (10th Cir. 2007), to which Tanner cites, is inapposite. See Reply at 20-21. The Correct Care Defendants argue that, in Weise v. Casper, the Tenth Circuit “evaluated whether it had appellate jurisdiction to review a denial of a motion to dismiss on qualified immunity grounds filed in immediate response to the plaintiffs' initial complaint.” Reply at 21 (citing Weise v. Casper, 507 F.3d at 1261). The Correct Care Defendants aver that, in Weise v. Casper, the Tenth Circuit held that it lacked jurisdiction to hear the appeal of the district court's denial of a motion to dismiss, because the district court's decision was not on the merits. See Reply at 21.

         The Correct Care Defendants contrast Weise v. Casper with Tanner's case, wherein Tanner filed her Complaint naming the individual Correct Care Defendants, trial is set less than one month from the Reply's filing date, and discovery is closed except for limited, identified issues. See Reply at 21. The Correct Care Defendants argue that, therefore, there is “undoubtedly a sufficient record revealing all relevant facts to the individual Defendants' entitlement to qualified immunity, ” and that Tanner's statement that the Correct Care Defendants have not met their burden lacks support in the caselaw suggesting that such a burden should be imposed. See Reply at 21. The Correct Care Defendants argue that Weise v. Casper stands for the proposition that a court may deny a defendant's motion to dismiss and order limited discovery before ruling on the merits, but that, in this case, there is no dispute about the factual record's sufficiency, so such a denial is not necessary. See Reply at 21-22.

         The Correct Care Defendants next turn to the “numerous cases” that they cite “articulating the unique analysis applied to summary judgment decisions involving qualified immunity.” Reply at 22. The Correct Care Defendants note that, in contrast, Tanner “cites to no authority supporting their urging of this Court to first find that Plaintiff has created a genuine issue of material fact with respect to the qualified immunity claims.” Reply at 22. The Correct Care Defendants clarify that they are not seeking to automatically shift the burden to Tanner by asserting qualified immunity, but rather that they “merely recognize that the factual record developed in this case supports their assertions of qualified immunity and acknowledge that Supreme Court and Tenth Circuit precedent mandate an initial heavy two-step burden be shifted onto Plaintiff as a result.” Reply at 22.

         The Correct Care Defendants address Tanner's argument that the qualified immunity doctrine should be abrogated. See Reply at 23. The Correct Care Defendants contend that they rely only upon “clearly established precedent in their assertions of qualified immunity based on prior decisions from the Supreme Court and Tenth Circuit, ” and that the three articulated purposes of extending qualified immunity to all individuals carrying out government responsibilities urge the Court to conclude that the individual Correct Care Defendants are entitled to qualified immunity and protection from civil suit. Reply at 23.

         The Correct Care Defendants assert that, although they are private parties, they are entitled to assert a qualified immunity defense. See Reply at 23. First, the Correct Care Defendants contend that common law immunity principles support their right to assert the defense. See Reply at 24. The Correct Care Defendants argue that in Filarsky, the Supreme Court “rejected as ‘invalid' the distinction that private individuals employed by the government were precluded from seeking the same qualified immunity that their public employee counterparts performing the same work were entitled to seek.” Reply at 24 (citing Filarsky, 566 U.S. at 384, 389). The Correct Care Defendants argue that the Supreme Court looked to common law at the time of § 1983's enactment and found that individuals serving at the highest levels of government and individuals who worked only on a part time or episodic basis for government, were equally entitled to immunity. See Reply at 24. Based on these findings, the Correct Care Defendants aver, the Supreme Court “unanimously held that a privately-employed attorney acting under color of state law in performing part-time investigative work for the government could seek the same qualified immunity his public-employee counterparts were entitled to seek.” Reply at 24-25.

         The Correct Care Defendants assert that the Tenth Circuit adopted the reasoning of Filarsky v. Delia in Estate of Lockett, 841 F.3d at 1108, “wherein it found that a privately-employed physician hired to assist government employees in performing an execution at a state penitentiary was entitled to seek qualified immunity in defense of a § 1983 claim.” Reply at 25. The Correct Care Defendants argue that the Tenth Circuit concluded that the private physician was performing a traditional state function; that, if a permanent government employee performed his job, they would be entitled to qualified immunity; and that therefore it would make “no sense” to deprive him of the same protection the permanent government employee would enjoy when the common law did not draw distinctions between the two. Estate of Lockett, 841 F.3d at 1109. See Reply at 25.

         The Correct Care Defendants argue that they are like the privately employed attorney in Filarsky and like the privately employed physician in Estate of Lockett, because they were hired to work alongside government employees, including Bernalillo County corrections officers, in a public institution. Reply at 25. The Correct Care Defendants note that, of the 825 employees at Metropolitan Detention, approximately 700 were Bernalillo County employees. See Reply at 25-26 (citing Ruiz Depo. at 13). The Correct Care Defendants also contend that, after Filarsky and Estate of Lockett, there is no dispute that the individual Correct Care Defendants' Bernalillo County-employed counterparts “doing the same work would be entitled to assert qualified immunity.” Reply at 26.

         Turning to Tanner's argument that Tanner's case is more like Richardson than like Estate of Lockett, the Correct Care Defendants contend that “[t]his assertion misses the mark, ” ignores the narrowness of the Richardson decision, and ignores the fact that Richardson was not intended to foreclose all private individuals' immunity claims. See Reply at 26. The Correct Care Defendants further argue that the Richardson market forces are not present in this case “despite the presence of other healthcare contractors because the individual Defendants operated under substantial government supervision, ” where Bernalillo County, not Correct Care, oversaw Metropolitan Detention's operations. Reply at 26-27 (citations omitted). The Correct Care Defendants aver that Metropolitan Detention “reserves the right to review qualifications and hiring decisions within the facility as well as reserves the right to review assignments and initiate reassignments of key personnel.” Reply at 27 (citation omitted). The Correct Care Defendants also argue that Correct Care “was required to provide monthly reports” to Metropolitan Detention, and that Metropolitan Detention-designated monitoring and compliance personnel oversaw Correct Care operations. See Reply at 27. The Correct Care Defendants further note that Correct Care employees, including the individual Correct Care Defendants, “were required to undergo several training sessions unrelated to CCS policies.” Reply at 27 (citation omitted).

         For the foregoing reasons, the Correct Care Defendants conclude that the Richardson market forces “are much weaker here.” Reply at 27. Correct Care, the Correct Care Defendants argue, “was not responsible for administering, managing, and supervising the healthcare delivery system at MDC, including the services provided to Ms. Tanner at all times relevant to this suit.” Reply at 27. The Correct Care Defendants argue that, unlike the Richardson prison guards, the individual Correct Care Defendants “acted within a government system, not a private one[, ]” when they went to work at Metropolitan Detention, because they “were required to follow government policies and procedures; meet with and provide monthly reports to government supervisors; work with their government supervisors in assigning employee roles and having to incorporate any reassignments mandated by the government; and ultimately seeking guidance in the regularly updated government policies and procedures.” Reply at 27-28 (citation omitted).

         The Correct Care Defendants conclude that;

Accordingly, as in Filarsky and Estate of Lockett [sic], general principles of immunity at common law, e.g., the absence of any distinction between public servants and private individuals, or between those working full-time “or on some other basis” for purposes of affording immunity protections from suit, support the right of the individual Defendants to assert qualified immunity in their performance of government function.

Reply at 28.

         The Correct Care Defendants next argue that all three purposes underlying qualified immunity support allowing them to assert the defense. See Reply at 28. First, regarding “preventing ‘unwarranted timidity' -- ‘the most important special government immunity-producing concern, '” Reply at 28 (quoting Richardson, 521 U.S. at 408-09), the Supreme Court found that the timidity concern is less likely present or special when a private company subject to competitive market pressures operates a prison. See Reply at 28. The Correct Care Defendants argue that the Supreme Court explained that a government-run prison, like Metropolitan Detention, is different, because employees are subject to more restrictive institutional rules and regulations limiting their incentives and their supervisors' ability to reward and punish certain behavior. See Reply at 28. The Correct Care Defendants argue that Tanner relies primarily upon cases from the United States Court of Appeals for the Seventh Circuit, which has “adopted a broad interpretation of Richardson and found that its holding equally applies to deny immunity to employees of private corporations working at state-run facilities pursuant to a contract with the state regardless of the level of supervision employed by the government . . . .” Reply at 28 (citations omitted). The Correct Care Defendants aver that other Courts of Appeals, including the United States Court of Appeals for the Tenth Circuit, have instead insisted that each case be analyzed on its own facts. See Reply at 28. The Correct Care Defendants urge that Richardson is controlling only in the context of private employees operating a private jail, and not in the context of private employees working within a government system, and under close government supervision and control. See Reply at 32.

         Second, the Correct Care Defendants urge that the purpose of ensuring that the threat of litigation and liability does not deter qualified candidates from entering public service militates in favor of extending them qualified immunity. See Reply at 32. The Correct Care Defendants contend that Luna, Sanchez, and Dr. McMurray “are talented medical professionals who do not solely rely on the government for their livelihood.” Reply at 33. Further, the Correct Care Defendants note that the individual Correct Care Defendants “work in close coordination with the county corrections officers, ” and that denying them the ability to seek the same protection as their public counterparts leaves them holding the bag and facing full liability for actions taken in conjunction with government employees -- exactly what the Correct Care Defendants contend that the Supreme Court in Filarsky feared. Reply at 33. The Correct Care Defendants warn that, absent immunity, “it is very likely that the individual CCS Defendants, as well as any other talented private individuals considering taking a position providing medical care at the MDC, will think twice before doing so.” Reply at 33.

         Regarding Richardson's third articulated qualified immunity purpose, “preventing the harmful distractions from carrying out the work of government that can often accompany damages suits, ” the Correct Care Defendants contend that where private individuals, as here, work alongside and in coordination with government employees, protecting that purpose is particularly important. Reply at 34. The Correct Care Defendants contend that, if this case moves forward, it is “highly likely that various government employees in addition to the individually named defendants herein will be required to testify, given their roles in the instant dispute, ” and that this involvement will substantially undermine “one of the important reasons immunity is accorded public employees in the first place . . . .” Reply at 34 (citations omitted).

         The Correct Care Defendants next argue that the Court should dismiss the Complaint's Count I as invalid and prejudicial to the individual Correct Care Defendants, because it “brings an allegation with the wrong underlying constitutional amendment . . . .” Reply at 34. The Correct Care Defendants argue that Tanner's assertion of a constitutional violation under both the Eighth and Fourteenth Amendments has prejudiced them, because they “have been trying to defend allegations that are based on two separate and different constitutional rights.” Reply at 35. The Correct Care Defendants ask the Court to reject Tanner's contention that she pled in the alternative, because “the Court is split on whether she would be designated as a pretrial detainee or prisoner, ” because the Correct Care Defendants contend that the Court clearly held in Chavez that “an individual being held for a probation violation is a pretrial detainee.” Reply at 35. The Correct Care Defendants ask, accordingly, that the Court dismiss Count I as invalid or, in the alternative, dismiss the Eighth Amendment allegations. See Reply at 35.

         The Correct Care Defendants then argue that they were not deliberately indifferent to Tanner's medical needs, and that they have “presented evidence and arguments supporting why they lacked the mens rea on par with criminal recklessness standard under the deliberate indifference analysis.” Reply at 36. The Correct Care Defendants aver that Tanner must show more than negligent diagnosis or treatment, and that, if a medical professional is exercising his or her “considered medical judgment, ” the subjective component is not satisfied “absent an extraordinary degree of neglect.” Spencer v. Abbott, 731 Fed.Appx. 731, 745 (10th Cir.

         2017)(unpublished) (alterations in original). See Reply at 36. The Correct Care Defendants argue that Luna, Sanchez, and Dr. McMurray all “exercised their medical judgment in caring for Plaintiff and none can be said to have been in conscious disregard of her complaints, ” so Tanner “cannot make a showing that these Defendants displayed an extraordinary degree of neglect.” Reply at 37.

         The Correct Care Defendants argue that Tanner cannot prove deliberate indifference's subjective component with either of her two proposed methods of showing subjective deliberate indifference. See Reply at 38. The Correct Care Defendants state that, when courts decide to impute circumstantial knowledge on a healthcare provider/defendant, they look for context clues, none of which exist here. See Reply at 38. For instance, the Correct Care Defendants note that, in the Seventh Circuit case to which Tanner cites, the Seventh Circuit looked at

“the existence of documents the doctor regularly consulted which advised against his course of treatment, ” “evidence that the patient repeatedly complained of enduring pain with no modifications in care, ” “inexplicable delays or departures from common medical standards, ” or “the doctor's own testimony that indicates knowledge of necessary treatment he failed to provide.”

Reply at 38 (quoting Petties v. Carter, 836 F.3d at 731). The Correct Care Defendants argue that these context clues do not exist here, and that Tanner relies exclusively on her assertions that if any of the Correct Care Defendants knew she was bleeding, “that fact alone was enough to give them subjective awareness of the need for emergency medical transport, ” and that “performance of a pH test for presence of amniotic fluid proves awareness of the risk of prematurely ruptured membranes.” Reply at 38 (citing Response at 45-46). The Correct Care Defendants indicate that neither assertion suffices to satisfy the deliberate indifference test's subjective component. See Reply at 39. The Correct Care Defendants contend that Tanner has not shown that the Correct Care Defendants “willfully ignored the standard of care with full knowledge that [they] would be prolonging [Tanner's] pain and impeding recovery.” Reply at 39.

         The Correct Care Defendants then address Tanner's alternate proposed method of proving the deliberate indifference test's subjective component: that “it is enough to show that ‘the official acted or failed to act despite his knowledge of a substantial risk of harm.'” Reply at 39 (quoting Gonzalez v. Martinez, 403 F.3d at 1183). The Correct Care Defendants state that the caselaw to which Tanner cites in support of this proposed method of proof is inapposite, because the Correct Care Defendants “were not in a role of policy making and were not decision makers or representatives of MDC or CCS in regard to the determination of how to accommodate pregnant inmates.” Reply at 40. The Correct Care Defendants argue that Tanner does not even try to show what historical evidence “could give rise to the individual CCS Defendants' knowledge of such substantial risk.” Reply at 40. The Correct Care Defendants further argue that, “to the extent this ‘method' relies on inference from circumstantial evidence, it is also insufficient for the same lack of circumstantial ‘context clues' argued above.” Reply at 40 (internal quotation marks for emphasis and not for quotation).

         Regarding Tanner's assertion that the Correct Care Defendants' Motion “contains no discussion of the methods of proof that the Court should apply to determine whether Plaintiff has shown a disputed issue of material fact on this element, ” Response at 47, the Correct Care Defendants argue that this contention is “wholly unsupported by any legal authority and indeed Plaintiff does not cite to any case or rule on this point, ” Reply at 40. The Correct Care Defendants aver that they bear no burden to clarify a method of proof regarding the deliberate indifference test's subjective component. See Reply at 40. In conclusion, the Correct Care Defendants state that:

As shown by the evidence presented in Defendants' motion, Nurse Luna, Nurse Sanchez, and Dr. McMurray were not deliberately indifferent to Ms. Tanner's medical needs. Petties [v. Carter, 836 F.3d 722 (7th Cir. 2016)(en banc)] does not support imputing knowledge of a substantial risk of harm to Ms. Tanner's pregnancy that was disregarded by the individual CCS Defendants and neither Layton [v. Board of Cty. Comm'rs of Oklahoma Cty., 512 Fed.Appx. 861 (10th Cir. 2013)] nor Plaintiff's cited prison assault cases apply here where Plaintiff points to no prior instances of insufficient medical care that the individual CCS Defendants were aware of. No jury could reasonably conclude that the individual CCS Defendants' care and treatment of Ms. Tanner showed a “conscious disregard” for her medical needs. Heidtke v. Corrections Corp. of America, 489 Fed. App'x 275, 281 (10th Cir. 2012)(unpublished)(emphasis in original).

Reply at 41.

         Next, the Correct Care Defendants argue that Tanner's claim of deliberate indifference in the context of pregnancy and childbirth is not clearly established, because the out-of-circuit cases to which Tanner cites “present drastically different alleged conduct that factored into the analysis . . . .” Reply at 41. The Correct Care Defendants contend that the medical care which Tanner received at Metropolitan Detention does “not rise to the level of conduct in Plaintiff's cited cases.” Reply at 42. Further, the Correct Care Defendants argue that “the Tenth Circuit and Supreme Court have never found the constitutional right alleged to be violated here to be clearly established in any such case.” Reply at 42.

         Turning to Tanner's willful blindness assertion, the Correct Care Defendants aver that precedent does not support that argument, and that the argument ignores the fact that the Correct Care Defendants provided Tanner care on numerous occasions in response to her complaints. See Reply at 42-43. For instance, the Correct Care Defendants note that their Motion's facts indicate that the Correct Care Defendants, on numerous occasions, “directly observ[ed], monitor[ed], provid[ed] medicine, or perform[ed] tests on Ms. Tanner in direct response” to her requests for medical assistance. Reply at 43 (alterations added). The Correct Care Defendants note that their facts include reference to instances in which the Correct Care Defendants provided Tanner with

prenatal vitamins; a head to toe assessment in the medical unit on October 16, 2016; observation in the medical unit for an additional hour on October 16, 2016 to listen to the fetus' heart rate; responding to a Code 43 for additional pain on October 16, 2016; testing the light pink fluid on Ms. Tanner's sanitary pad for amniotic fluid,

as well as calling “Dr. McMurray who recommended observation in the SHU following the Code 43; an offer from Nurse Sanchez to remain in the SHU due to” Tanner's reported cramping and which Tanner declined; “a visit from Dr. McMurray at Ms. Tanner's cell the morning of October 17, 2016; and immediate EMT response for the Code called on October 17, 2016.” Reply at 43 (citing MSJ ¶¶ 12, 19, 21, 22, 24, 25, 26, 31, 33, 36). The Correct Care Defendants remark that the undisputed facts also show that Tanner did not communicate issues with her pregnancy to the med pass nurses, that Tanner expressed no concerns to Sanchez initially during the October 16, 2016, night shift, that Tanner declined continued observation in the SHU on October 16, 2016, that Tanner denied complaints to Dr. McMurray on the morning of October 17, 2016, and that Tanner “did not report to anyone later in the morning on October 17, 2016 that she could not feel fetal movement . . . .” Reply at 43 (citing Motion ¶¶ 13, 30, 31, 33-34, 35). The Correct Care Defendants argue that Tanner's condition did not evince any obvious, underlying risk of harm to Tanner's fetus, and that, considering the foregoing facts, the Correct Care Defendants responded to the concerns which Tanner voiced, and did not consciously disregard her pregnancy, and thus did not evince a culpable state of mind. See Reply at 43.

         Regarding Tanner's argument that the Correct Care Defendants did not request Tanner's prenatal records from before her incarceration, the Correct Care Defendants remark that Tanner told Correct Care personnel about her pregnancy, but did not inform them of any complications, and that, given that at Tanner's initial screening Correct Care staff ordered her prenatal vitamins and pregnancy labs, started a pregnancy diet, and made an appointment for her at an obstetrics clinic, Tanner cannot show that their conduct in not requesting her pre-incarceration records was unlawful. See Reply at 44. Regarding Tanner's argument that the individual Correct Care Defendants “displayed subjective bias in not finding Ms. Tanner's complaints credible by thinking she was exaggerating her symptoms, ” the Correct Care Defendants note that Tanner cites to no in-circuit or Supreme Court precedent in support of her statement, and cites to nothing in the record evincing this alleged subjective bias. Reply at 44-45.

         The Correct Care Defendants also argue that they were not merely gatekeepers in Tanner's treatment and care, because “they were qualified to care for and treat pregnant patients and used their collective medical knowledge and clinical assessment skills while treating Plaintiff.” Reply at 45. The Correct Care Defendants argue that the facts upon which Tanner relies to support her gatekeeper theory of liability are premised on Metropolitan Detention's alleged institutional deficiencies, and on the Correct Care Defendants' alleged failure to follow policies and procedures -- both of which the Correct Care Defendants contend are “more properly directed to an institutional claim, which was not asserted by Plaintiff in her First Amended Complaint.” Reply at 45. The Correct Care Defendants argue that, because they “used their medical knowledge, skills and assessment techniques to” evaluate Tanner, they were “qualified professionals” and not mere gatekeepers, and they used their professional judgment in their care and treatment of Tanner. Reply at 46-48.

         The Correct Care Defendants aver that their alleged failure to follow institutional policies and procedures is circumstantial, because policies and procedures “do not define the medical standard of practice, which must be provided through testimony by a medical expert or elucidate what constitutes deliberate indifference or a violation of substantive due process.” Reply at 49. Here, the Correct Care Defendants argue, “the consistent care, observation and interventions provided by the individual CCS Defendants should provide substantially more evidence that they were not deliberately indifferent to” Tanner than their circumstantial alleged failure to follow protocols and procedures. Reply at 49. Additionally, the Correct Care Defendants maintain that alleged deficiencies at Metropolitan Detention are immaterial in a summary judgment motion directed at individual Correct Care Defendants. See Reply at 49-50.

There is no testimony from Nurse Luna and Nurse Sanchez that they reviewed any reports regarding alleged systemic deficiencies. While Dr. McMurray may have been aware of the report by Dr. Greifinger, there is no evidence that any of the purported issues in the report were directly related to the care and treatment he or any of the nurses provided to Plaintiff. At this juncture there are no Federal institutional claims. Thus, Plaintiff's backdoor approach to insert these arguments and “supporting facts” is improper.

Reply at 50 (internal quotation marks for emphasis and not quotation).

         Turning next to Tanner's substantive due process claim, the Correct Care Defendants argue that none of them violated Tanner's right to substantive due process, and that the undue burden standard which Tanner employs is the “wrong standard for substantive due process.” Reply at 50. The Correct Care Defendants argue that the correct standard requires Tanner to show that the Defendants' behavior “shocks the conscience.” Reply at 50 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). The Correct Care Defendants aver that the Tenth Circuit adopted this standard in Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006). See Reply at 50-51. The Correct Care Defendants argue that the shocks-the-conscience test is an objective one. See Reply at 51. The Correct Care Defendants argue that, in this case, “there already exists an explicit textual source of constitutional protection against the actions alleged by Plaintiff: that of cruel and unusual punishment, which requires Plaintiff to meet a deliberate indifference standard.” Reply at 51. The Correct Care Defendants caution the Court that Tanner requests that the Court “monumental[ly]” expand the substantive due process concept. Reply at 51-52. The Correct Care Defendants argue that Tanner's undue-burden argument is inapposite, because the undue-burden cases “challenged the constitutionality of legislation, rather than specific actions by the executive branch.” Reply at 52-53. The Correct Care Defendants aver that both the Supreme Court and the Tenth Circuit have recognized the importance of this distinction. See Reply at 53-54 (citing Collins v. Harker Heights, 503 U.S. 115');">503 U.S. 115, 128 (1992); Dawson v. Bd. of Cty. Comm'rs of Jefferson Cty., 732 Fed.Appx. 624 (10th Cir. 2018)(unpublished)). For the foregoing reasons, the Correct Care Defendants ask that the Court grant summary judgment in favor of the individual Correct Care Defendants as to Counts I and II. See Reply at 54.

         4.The Hearing.

         The Court held a hearing on this Motion and other motions on May 13, 2019. See Tr. at 2:3-5 (Court). After addressing other motions, which the Court does not discuss in this Memorandum Opinion and Order, the Court asked what other motions were currently pending. See Tr. at 25:7-8 (Court). Tanner stated that she was not sure private contractors have qualified immunity available to them as a defense and that, even if they could assert that defense, the law is not clearly established in this area. See Tr. at 63:3-11 (Leonard). Tanner further stated that, under Richardson, “a private entity who chooses, for business reasons, in effect, to engage in certain Government activities, like running a prison, ” is not entitled to qualified immunity, “because the competitive market pressures, in part, ” distinguish that entity “from a traditional Government actor.” Tr. at 141:13-20 (Harrison). Tanner stated that, in Richardson, the Supreme Court considered: (i) whether it was a large multistate private management firm; (ii) whether it was organized for profit; (iii) whethere its governmental contract expires; (iv) whether there were competing firms; (v) whether there was higher pay and extra benefits to offset employee liability; and (vi) whether they had an option to decline the government contract. See Tr. at 141:21-142:6 (Harrison). Tanner also argued that the Court may consider several financial factors in determining whether a private contractor is entitled to assert a qualified defense, but that Tanner needs access to Correct Care's financial records to address that argument. See Tr. at 142:10-17 (Harrison). The parties did not extensively argue the Motion at the hearing, but the Court stated that it “would make sense for me to decide” it before turning to the other motions. Tr. at 62:17-18 (Court).

         5.The Surreply

         Tanner filed a surreply. See Surreply at 1. Tanner notes at the outset that the Surreply focuses on the admissibility and materiality of evidence already in the record rather than on proffering more facts that may delay the Court's opinion. See Surreply at 1. Tanner first argues that the Correct Care Defendants submit new evidence for the first time in the Reply in contravention of Local Rule 56.1(b), and so this new evidence cannot provide a basis for granting partial summary judgment in the Correct Care Defendants' favor. See Surreply at 2. Tanner asserts that the Correct Care Defendants submitted nineteen new exhibits with their Reply, but only cited to portions of the first ten of those exhibits in the lettered paragraphs and that other portions of those exhibits appear for the first time in the argument section. See Surreply at 2. Tanner argues that the Correct Care Defendants “attempt to transform their reply brief into a whole new motion” which does not comply with the Court's scheduling orders or Local Rule 56.1. Surreply at 2. Tanner also argues that the addition of new exhibits violates rule 56 procedure which allows Tanner, as non-movant, a fair opportunity to respond to evidence on which the initial MSJ is based. See Surreply at 2.

         Tanner then argues that, in addition to violating rule 56, the Correct Care Defendants' use of new facts in the Reply just creates more disputed issues of fact, rather than showing, as a Rule 56 movant must, the absence of genuine disputes of material facts. See Surreply at 2, (citing Fed.R.Civ.P. 56(a)). Tanner argues that none of the Correct Care Defendants' new exhibits afford any basis for doubting the admissibility of the evidence which Tanner submits in the Response. See Surreply at 3.

         Tanner then turns to her exhibits' admissibility, and rebuts what she calls Correct Care Defendants' “boilerplate objections to the authenticity and admissibility of some of the exhibits” submitted in the Response. Surreply at 4. Tanner argues instead that the Response's material evidence can be presented in an admissible form at trial. See Surreply at 4. Tanner notes that rule 56(c) only allows admissibility objections when “the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Surreply at 4, (citing Fed. R. Civ. Proc. 56(c)(2) (emphasis in Surreply)).

         Tanner asserts that the Court must consider at the summary-judgment stage the exhibits which she submits with the Response. See Surreply at 4. Tanner argues that much of the Correct Care Defendants' evidentiary arguments ignore the 2010 amendments to rule 56. See Surreply at 5. Tanner argues that the 2010 amendments render the Response exhibits proper for consideration at the summary-judgment stage, because they are all “capable of being ‘presented in a form that would be admissible in evidence' at trial.” Surreply at 7 (quoting Maurer v. Independence Town, 870 F.3d 380, 384 (5th Cir. 2017))(emphasis in Surreply). First, Tanner disputes the Correct Care Defendants' form objections to Tanner's declaration. Surreply at 5. Tanner notes that “‘28 U.S.C. § 1746 allows a written unsworn declaration . . . subscribed in proper form as true under penalty of perjury to substitute for an affidavit.'” Surreply at 5 (quoting Fed. R. Civ. Proc. 56(c) Advisory Committee's Notes). Tanner then counters the Correct Care Defendants' hearsay objections to Tanner's declaration, asserting that many of those objections refer to statements which Tanner attributes to the Defendants as party opponents. See Surreply at 6 (citing Fed.R.Evid. 801(d)(2)). Next, Tanner argues that Court must consider the video and documentary evidence which she submits with the Response as they are all readily authenticated under the rule 56(c) standard. See Surreply at 6-7. Tanner cites to the Court's opinion in Lopez v. Delta Machinery Corp., 312 F.Supp.3d 1115, 1154 (D.N.M. 2018)(Browning, J.), for the proposition that “‘authentication is not a high threshold,' especially when, as here, the party raising the objection presents ‘no evidence to questions' the documents' ‘genuineness.” Surreply at 8 (quoting Lopez v. Delta Machinery Corp., 312 F.Supp.3d at 1154). Tanner argues that the Correct Care Defendants give no such evidence, and further notes that all of the Response exhibits are either “authentic per se because they appear on a Defendant's letterhead and were produced in discovery, ” or authenticating testimony accompanies the exhibits. Surreply at 9-10, (citing Law Co. v. Mohawk Const. and Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009)).

         Having allegedly established admissibility for summary judgment purposes, Tanner then argues that the Response evidence is material and creates disputed issues of fact precluding summary judgment. See Surreply at 13. In the interest of allowing a timely disposition of the MSJ, Tanner focuses “the remainder of this surreply on identifying the false premises underlying [the Correct Care Defendants'] new arguments about materiality.” Surreply at 14. Tanner contends that one such false premises is the assertion that “each fact can be considered in isolation from the rest.” Surreply at 14. Tanner analogizes to United States v. Arvizu, 534 U.S. 266, 274-75 (2002), a suppression case, and argues that all facts must be “‘taken together' and ‘considered under the totality of the circumstances.'” Surreply at 14.

         In this vein, Tanner turns to the deliberate indifference claim and quotes Justice Scalia's observation that “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in combination' when each would not do so alone . . . [, ] when they have a mutual enforcing effect that produces the deprivation of a single, identifiable need.” Surreply at 15 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). Tanner then counters the Correct Care Defendants' assertion that their care amounted to mere medical negligence:

Even if a single interaction between an inmate and medical staff may establish nothing more than ordinary negligence when viewed in isolation, the Tenth Circuit still considers the context provided by the inmate's subsequent interactions with medical staff or requests for medical attention when drawing a reasonable inference of deliberate indifference.

Surreply at 15 (citing Blackmon v. Sutton, 734 F.3d 1237, 1245-46 (10th Cir. 2013)). In this way, Tanner directs the Court to look beyond each individual interaction between Tanner and the Correct Care Defendants, and toward “the institutional context in which the [Correct Care] Defendants' [sic] operated.” Surreply at 16.

         Tanner next argues that the Correct Care Defendants' Reply mischaracterizes the incident as a “mere disagreement between the parties about when to examine . . . Tanner or send her to the hospital.” Surreply at 16. Tanner contends that “mere disagreement” cannot be used to characterize a delay in the provision of qualified medical care when that delay causes substantial injury to an inmate. Surreply at 16. Tanner thus analogizes the delay in this case to the denial of care in Blackmon v. Sutton, 734 F.3d 1237 (10th Cir. 2013), and Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001), neither of which “required factually identical precedent from the Supreme Court or the Tenth Circuit.” Surreply at 15. Instead, “‘denial of meaningful access to care and the delay in doing so,' is ‘enough to suggest conscious disregard of a substantial risk of serious harm.'” Surreply at 17 (citing Blackmon v. Sutton, 734 F.3d at 1244-45). On this point, Tanner distinguishes Kerns v. Bader, 633 F.3d 1173 (10th Cir. 2011), by noting that Blackmon v. Sutton was decided more recently despite Kerns v. Bader's use of a more stringent test. Surreply at 18. Tanner notes that the “test for deliberate indifference articulated in Estelle [v. Gamble, 429 U.S. 97, 104 (1976)] and Farmer [v. Brennan, 511 U.S. 825, 828 (1994)] requires substantial, serious harm by definition and applies to consistently recurring fact patterns in the controlled environment of a prison or detention facility, ” which placed the Correct Care Defendants on notice of Tanner's constitutional rights. Surreply at 18. Tanner thus argues that the deliberate indifference claim in Count I of the Amended Complaint is “clearly established, regardless of whether the court considers her to be an inmate or a pretrial detainee.” Surreply at 18.

         Tanner then turns to argue against the Correct Care Defendants' entitlement to qualified immunity, which Tanner describes as “another false premise.” Surreply at 18. Tanner notes that the Partial MSJ “contained a single paragraph of argument and no statements of fact regarding their assertion that they may avail themselves of the defense of qualified immunity despite being private employees of a government contractor, ” while Tanner's Response “provided over three pages of argument citing extensive authority, as well as four statements of additional facts to show” that the Correct Care Defendants are not entitled to a qualified immunity defense. Surreply at 19 (citations omitted). Tanner notes with disapproval that the Correct Care Defendants elected to “raise a whole new set of arguments about privatizing the doctrine of qualified immunity” for the first time in the Reply. Surreply at 19. Tanner argues that the Correct Care Defendants add ten new exhibits in the Reply in contravention of rule 56 procedure, because they raised a new “fact specific” qualified immunity argument. Surreply at 19. Tanner agrees that “persons who are not government officials must show specific, material facts which establish they are entitled to assert the defense of qualified immunity, ” but argues that the Correct Care Defendants nonetheless fail to comply with D.N.M.LR-Civ. 56.1's requirement of specific enumeration. Surreply at 19. Tanner posits that such failure means that the Correct Care Defendants have “waived any fact-specific arguments” necessary for a qualified immunity defense. Surreply at 19-20. On this point, Tanner cites to Rosewood Services, Inc. v. Sunflower Diversified Services, Inc., 413 F.3d 1163, 1168 (10th Cir. 2005), for the proposition that the Court may “declin[e] to consider fact-specific arguments for privatizing qualified immunity that were not timely raised in a motion for summary judgment.”[212] Surreply at 20.

         Tanner argues that, even if the Court considers the Correct Care Defendants' new, unnumbered factual allegations and exhibits, “those facts are neither undisputed nor specific enough to place [the Correct Care Defendants] in the same category as the private contractors at issue in Filarsky v. Delia, 566 U.S. 377 (2012), or Estate of Lockett v. Fallin, 841 F.3d 1098 (10th Cir. 2016).” Surreply at 20. Instead, Tanner views the Correct Care Defendants' factual allegations as falling into three categories: (i) that the Correct Care Defendants occasionally worked closely with corrections officers; (ii) that Correct Care's contract with Bernalillo County allowed Bernalillo County to monitor and enforce its terms; and (iii) that the Correct Care Defendants all held other jobs before or after their employment with Correct Care. See Surreply at 20. Tanner asserts that “none of these generic factual allegations are sufficient to meet the requirements for a government contractor or its employees to avail themselves of a qualified immunity defense.” Surreply at 20.

         First, whether a private employee of a government contractor worked elsewhere before or after becoming that contractor's employee is too generic an inquiry to provide a “workable, objective standard for deciding which private employees may avail themselves of qualified immunity, ” according to Tanner. Surreply at 20. Instead, Tanner points to the Filarsky inquiry whether there are historical, common-law precedents affording immunity to similar parties. Surreply at 20 (citing Filarksy, 566 U.S. at 393-94). Tanner defines the Filarksy defendants as “private individuals who contracted directly with the government to perform a particular work assignment in the private sector, ” and argues that none of the Correct Care Defendants meet that description. Surreply at 20 (emphasis in Surreply). Second, Tanner notes that all government contracts entail some government supervision of the contractor, and that such supervision often involves government officials working with the contractor's employees. Surreply at 21. Tanner cites to Richardson, 521 U.S. at 410, and Rosewood, 413 F.3d at 1169, both of which denied qualified immunity to private contractors despite government supervision. See Surreply at 21.

         Tanner urges the Court, instead of relying on what Tanner calls the Correct Care Defendants' “freewheeling policy arguments, ” to focus on whether the Correct Care Defendants have “first answered the historical question of whether immunity existed at common law.” Surreply at 21. Tanner quotes McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012), which held that “there was no common-law tradition of immunity for a private doctor working for a public institution at the time Congress passed § 1983.” Surreply at 21. Tanner then posits that the doctor from the television series “Gunsmoke, ” which the Court posed as a hypothetical at the June 26th, 2019, hearing, would not be immune under the common law. Surreply at 21-22. According to Tanner, the inquiry into common-law traditions is intended to foreclose the courts from engaging in “the type of generic, freewheeling policy arguments” the Correct Care Defendants assert in their Reply. Surreply at 22. As support for this position, Tanner cites, among others, to Ziglar v. Abbasi, 137 S.Ct. 1843, 1871 (2017), in which Justice Thomas notes that federal courts “have previously disclaimed the power to make” “freewheeling policy choice[s].” Surreply at 22. Tanner thus argues that the Court should reject the Correct Care Defendants' policy arguments and instead solely focus on the historical common-law analogues. See Surreply at 22.

         Tanner next turns to her Fourteenth Amendment claim that the Correct Care Defendants unduly burdened the exercise of her fundamental right to carry her pregnancy to term and give birth. See Surreply at 22. Tanner maintains that the Correct Care Defendants “attempt to sidestep” this claim by “raising the new argument that the ‘undue burden' test only applies when an expectant mother challenges legislative action and cannot apply when she instead challenges executive action.” Surreply at 23. Tanner disputes the Correct Care Defendants' characterization of Tenth Circuit law on this point. See Surreply at 23. Tanner posits that other Tenth Circuit panels reject Dawson v. Bd. of Cty. Comm'rs of Jefferson Cty, 732 Fed. App'x. 624, on which the Correct Care Defendants rely to assert the legislative-executive distinction, and which is, besides, an unpublished opinion. See Surreply at 23. Nor does Tanner agree that the proper inquiry for executive action under an undue burden claim is whether the action shocks the conscience. See Surreply at 23. Tanner relies on Kingsley v. Henderson, 135 S.Ct. 2466, 2473-74 (2015), for this point. See Surreply at 23. Kingsley v. Henderson held that “a pretrial detainee can establish a due-process violation by ‘providing only objective evidence that the challenged governmental action is not rationally related to a legitimate government objective or that it is excessive in relation to that purpose.'” Colbruno v. Kessler, No. 18-1056, ___ F.3d ___, 2019 WL 2751434, at *4 n.3 (10th Cir. July 2, 2019)(quoting Kingsley, 135 S.Ct. at 2473-74). Tanner notes that the Correct Care Defendants' shock-the-conscience argument relies on the concurring opinion of the Honorable Timothy Tymkovich, Chief Judge of the Tenth Circuit, in Dawson v. Bd. of Cty. Comm'rs of Jefferson Cty, 732 Fed. App'x. 624. Tanner asserts, however, that Chief Judge Tymkovich acknowledged this test “has not been consistently followed by the Supreme Court, other circuits, or even the Tenth Circuit itself.” Surreply at 23-24 (citing Dawson v. Bd. Of Cty Comm'rs of Jefferson Cty, 732 Fed. App'x. at 635-36).

         Instead, Tanner urges the Court to apply the undue-burden test to executive action, and cites an Eighth Circuit decision, a published district court opinion, and two unpublished district court opinions involving reproductive choice to support this point. See Surreply at 24 (citing Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1048 (8th Cir. 1997); Planned Parenthood of Northern New England v. City of Manchester, No. CIV A.01-83, 2001 WL 531537, at *2 (D.N.H. April. 27, 2001)(McAuliffe, J.); Roe v. Leis, No. CIV A.00-651, 2001 WL 1842459, at *3 (S.D. Ohio Jan. 10, 2001)(Dlott, J.); Assoc. in Obstetrics & Gynecology v. Upper Merion Tp., 270 F.Supp.2d 633, 654 (E.D. Pa. 2003)(Baylson, J.)). Tanner argues that these cases show that the “standard of judicial review for substantive due process challenges to executive action is not limited to a rigid distinction between executive versus legislative action, and the test for what shocks the conscience is subject to variation depending on context.” Surreply at 24. Tanner argues, therefore, that there is no legal barrier that prevents the Court from applying the undue burden standard here. See Surreply at 24. Tanner argues that, judged under this standard, the Correct Care Defendants “have not provided any reason to dispute Plaintiffs' evidence that they violated this standard.” Surreply at 24. For the foregoing reasons, Tanner requests that the Court deny the Correct Care Defendants summary judgment.

         LAW REGARDING STATING AFFIRMATIVE DEFENSES

         Rule 8(c) of the Federal Rules of Civil Procedure provides:

         (c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

Fed. R. Civ. P. 8(c). “[A] responsive pleading must set forth certain enumerated substantive defenses as well as ‘any other matter constituting an avoidance or affirmative defense.'” 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1270, at 557-58 (3d ed. 2004)(quoting a prior version of rule 8(c)). Modeled after the English and New York rules in force when the Federal Rules of Civil Procedure first were drafted, see Judicature Act (The Annual Practice, 1937) O.19, r. 15; N.Y.C.P.A. (1937) § 242, rule 8(c) makes no attempt to define the concept of affirmative defense. Instead, it obligates defendants to plead affirmatively any of nineteen defenses that rule 8(c)(1) lists that the defendant wishes to assert. See Fed.R.Civ.P. 8(c). If the district court or jury hearing a case accepts the defendant's affirmative defense, the defense defeats the plaintiff's claim. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1274 (10th Cir. 2012)(“[O]nce the court's jurisdiction has been properly invoked in the plaintiff's complaint, the assertion of such a defense is relevant only to whether the plaintiff can make out a successful claim for relief, and not to whether the court has original jurisdiction over the claim itself.” (internal quotation marks omitted)(quoting S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010))); 5 Wright & Miller, supra, § 1270, at 561. The burden of proof for affirmative defenses generally rests on the defendant. See Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 5 n.8 (1st Cir. 2001); Schleibaum v. Kmart Corp., 153 F.3d 493, 501 (7th Cir. 1998). In stating affirmative defenses, defendants do not need to provide “factual support.” Lane v. Page, 272 F.R.D. 581, 594 (D.N.M. 2011)(Browning, J.). In Lane v. Page, the Court “declin[ed] to extend the heightened pleading standard the Supreme Court established in Bell Atlantic v. Twombly[, 550 U.S. 544 (2007)] and Ashcroft v. Iqbal[, 556 U.S. 662 (2009), ] to affirmative defenses pled in answers, because the text of the rules, and the functional demands of claims and defenses, militate against requiring factual specificity in affirmative defenses.” Lane v. Page, 272 F.R.D. at 588.[213]

         Although affirmative defenses generally must be pled in the defendant's answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions: (i) where 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, 1137-41 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009)); Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)(McConnell, J.)); 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.” (citation omitted)). The defense of limitations is the affirmative defense that the complaint's uncontroverted facts will most likely establish. See 5 Wright & Miller, supra, § 1277, at 643. 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 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); Andrew v. Schlumberger Tech. Corp., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.). 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 (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, the plaintiff must plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from caselaw in Courts of Appeals, that the plaintiff may avoid this problem altogether -- at least at the motion-to-dismiss stage -- by simply 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. City of New York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, No. CIV-08-140-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 this avoidance practice, see Anderson Living Tr. v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1208-09, 1234-38 (D.N.M. 2014)(Browning, J.).

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure 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.) (emphasis added). “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).[214] 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. The Court determined that, without the requisite evidence, the plaintiff 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 Wm. 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)). 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.” (citation and internal quotation marks omitted)).

         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 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).

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.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “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, 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. Economu, 438 U.S. 478, 504 (1978). “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 in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 . . . (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure 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, they 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. Green, 563 U.S. 692, 705 (2011). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).

         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. at 231 (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). When a defendant asserts qualified immunity, the plaintiff must demonstrate on the facts alleged: (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).

         In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “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. Colorado Dept. Of Corrections, 429 Fed.Appx. 707, 710 (10th Cir. 2011)(unpublished)(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.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). See Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question . . . unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “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)(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).

         The Supreme Court has clarified that the clearly established prong of the qualified immunity test 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, the 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. 731, 741 (2011). “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate, '” Reichle v. Howards, 566 U.S. 658, 664 (2012)(quoting Ashcroft v. al-Kidd, 563 U.S. at 741), although a case directly on point is not required, see 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 volatile 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.

         The Tenth Circuit held in Kerns v. Bader, 633 F.3d 1173 (10th Cir. 2011), that, although “a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law, ” the law is not clearly established where “a distinction might make a constitutional difference.” 663 F.3d at 1188 (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 home, ” but “whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification.” 663 F.3d at 1183. Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.”). “[W]hen an officer's violation . . . is particularly clear . . ., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284. 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).

         LAW REGARDING THE EIGHTH AMENDMENT

         When a prisoner is incarcerated after being indicted, the Eighth Amendment protects him from “a prison official's ‘deliberate indifference' to a substantial risk of serious harm, ” as well as from the intentional use of excessive force. Farmer v. Brennan, 511 U.S. 825, 828 (1994)(quoting Helling v. McKinney, 509 U.S. 25, 28 (1993)). “[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners, ” but “[t]hey are . . . responsible for taking reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is “sufficiently serious, ” i.e., an injury that equates to the “denial of the minimal civilized measure of life's necessities”; and (ii) the official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation marks omitted). The second condition represents the functional application of the deliberate indifference standard. See Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006)(“To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm], the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm[, ] the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component.” (internal quotation marks omitted)(quoting Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003))).

         Analyzing whether the plaintiff has satisfied the first element, the objective element, “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Courts should also consider “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36 (emphasis in original). “In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36. The Eighth Amendment does not protect against “de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)(internal quotation marks omitted)(“That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action.”). The Tenth Circuit has noted that, “in Hudson, the Supreme Court evidenced its ‘commit[ment] to an Eighth Amendment which protects against cruel and unusual force, not merely cruel and unusual force that results in sufficient injury.'” United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). Were it otherwise, the Tenth Circuit reasoned, “a prisoner could constitutionally be attacked for the sole purpose of causing pain as long as the blows were inflicted in a manner that resulted in visible (or palpable or diagnosable) injuries that were de minimis.” United States v. LaVallee, 439 F.3d at 688. See Hudson v. McMillian, 503 U.S. at 13 (Blackmun, J., concurring)(“The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with ‘significant injury,' e.g., injury that requires medical attention or leaves permanent marks.”). Thus, to establish excessive force in violation of the Eight Amendment, the plaintiff need not establish that he or she “suffered a certain level or type of injury.” United States v. LaVallee, 439 F.3d at 688.

         The second element regarding the government official's state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Courts apply this subjective inquiry to determine whether the allegations are that a “short-term” or “one-time” violation occurred, or that “continuing” or “systemic” violations occurred. Wilson v. Seiter, 501 U.S. at 299. The Supreme Court has stated: “With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S. at 836. The Supreme Court provided the following test for determining when this subjective element is met:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer v. Brennan, 511 U.S. at 837. For Eighth Amendment purposes, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 Fed.Appx. 821, 823-24 (10th Cir. 2007)(unpublished)(quoting Smith v. Cummings, 445 F.3d at 1258).

         In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court addressed whether a plaintiff could assert both Eighth Amendment violations and substantive due-process violations in the same suit against government officials alleging that they engaged in physically abusive conduct. See 490 U.S. at 394-95. More specifically, it held that, when a specific constitutional amendment provides “an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, ” courts should analyze all constitutional claims under that amendment's standards rather than under “the more generalized notion of ‘substantive due process.'” 490 U.S. at 395. The Supreme Court gave as an example for this principle “the Eighth Amendment's ban on cruel and unusual punishments, ” because it is one of the “two primary sources of constitutional protection against physically abusive governmental conduct.” 490 U.S. at 395. The Supreme Court later clarified that its holding in Graham v. Connor “simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). To illustrate this point, the Supreme Court has recognized that, if a search or seizure did not occur, the Fourth Amendment does not cover the situation, and the plaintiff may proceed on a substantive due-process theory. See Cty. of Sacramento v. Lewis, 523 U.S. at 843-44 (“The Fourth Amendment covers only ‘searches and seizures,' neither of which took place here. . . . Graham's more-specific-provision rule is therefore no bar to respondents' suit.”)(quoting U.S. Const. amend. IV).

         In Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), the Tenth Circuit addressed a case where the plaintiff asserted claims that they were “denied necessary medical care [in prison] in violation of their rights under the Eighth and Fourteenth Amendments.” 83 F.3d at 1202. In determining whether to apply Eighth Amendment standards or substantive due-process standards when reviewing the plaintiffs' claims in Riddle v. Mondragon, the Tenth Circuit noted that, “where constitutional protection is afforded under specific constitutional provisions, alleged violations of the protection should be analyzed under those provisions and not under the more generalized provisions of substantive due process.” 83 F.3d at 1202 (citing Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990)). Thus, the Tenth Circuit reviewed the plaintiffs' claims for denial of medical care in prison under the Eighth Amendment and did not consider the plaintiffs' substantive due-process theory. See Riddle v. Monragon, 83 F.3d at 1202 (“Accordingly, we will review plaintiffs' claims under the Eighth Amendment as made applicable to the states through the Fourteenth Amendment.”). See also Salazar v. San Juan Cty. Det. Ctr., 2016 WL 335447, at *30-32.

         LAW REGARDING SUBSTANTIVE DUE PROCESS CLAIMS

         The Fourteenth Amendment's Due Process Clause provides that “no State shall . . . deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1. “[T]he Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression. . . . Its purpose was to protect the people from the State[.]'” DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989)(quoting Paratt v. Taylor, 451 U.S. 527, 549 (1981)). Accordingly, the substantive component of the Due Process Clause protects fundamental liberty interests from arbitrary government deprivation. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982). The Supreme Court of the United States of America and the Tenth Circuit have found the Due Process Clause to protect myriad liberty interests against intrusive legislation and policy, including: familial association, see Trujillo v. Bd. Of County Comm'rs, 768 F.2d 1186, 1188-89 (10th Cir. 1985); privacy, see, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); and abortion, see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876-77 (1992). In addition to protecting against legislative enactments that infringe on liberty, the Supreme Court has also long held that substantive due process protects against egregious official misconduct. See Rochin v. California, 342 U.S. 165, 210 (1952).

         As a consequence of such diverse substantive rights, a variety of tests have arisen to evaluate whether a substantive due process violation has occurred. Compare Kitchen v. Herbert, 755 F.3d 1193, 1218 (10th Cir. 2003)(noting the applicability of the “narrowly tailored / compelling interest test” to infringements on certain fundamental rights), with Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993)(applying a balancing test to identify whether the state's conduct “constituted an undue burden on [the plaintiff's] associational rights”). The established test for challenges to legislation or policy concerning the right to abortion is whether the enactment poses an undue burden on a woman's right to an abortion. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. at 876-77. Alternatively, a cognizable substantive due process violation by an executive official is one that alleges behavior shocks the conscience or falls “at the ends of the tort law's spectrum of culpability.” Cty of Sacramento v. Lewis, 523 U.S. at 848 (“Lewis”).[215]The undue-burden and compelling-interest tests recognize that policy and legislation often follow from ordered deliberation, while the shocks-the-conscience test recognizes that executive officials are often confronted with exigent situations which required fast responses and afford little opportunity for deliberation. Accordingly, the constitutional test for determining whether executive officials violate a plaintiff's substantive due process rights will vary with the circumstances and the level of urgency with which the executive is confronted. “Rules of due process are not . . . subject to mechanical application in unfamiliar territory.” Lewis, 510 U.S. at 850. What “shocks [the conscience] in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstance before any abuse of power is condemned as conscience shocking.” Lewis, 510 U.S. at 850. The Honorable Timothy Tymkovich, then Circuit Judge --and now Chief Judge -- of the Tenth Circuit, summarizes how courts should adapt the shock-the-conscience test to the particular facts of each case:

Thus, the cases recognize that common-sense distinctions exist between force in one setting (say, a prison) and force in another (say, a kennel business). The case law also recognizes official conduct may be more egregious in circumstances allowing for deliberation (such as when a person is in custody or under governmental control or supervision) than in circumstances calling for quick decisions (such as police chases or prison disturbances).

Williams v. Berney, 519 F.3d 1216, 1220-21 (10th Cir. 2008). Accordingly, the proper test for gauging whether executive officials violate substantive due process is whether the official's actions shock the court's conscience, and what shocks the conscience will vary with the circumstances according to the degree of emergency the official faces.

         1. What Shocks the Conscience.

         A government actor's official conduct intended to injure in a way that cannot reasonably be justified by any government interest most likely shocks the conscience. See Lewis, 523 U.S. at 849 (“[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”). “[A] plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Camuglia v. City of Albuquerque, 448 F.3d at 1222 (quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)(internal quotation marks omitted)). “The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d at 1222-23 (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995))(internal quotation marks omitted).

Establishing these limits advances “three basic principles highlighted by the Supreme Court in evaluating substantive due process claims: (1) the need for restraint in defining their scope; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety.”

Camuglia v. City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).

         “Whether the conduct shocks the conscience is an objective test, based on the circumstances, rather than a subjective test based on the government actor's knowledge.” Pena v. Greffet, 922 F.Supp.2d at 1227 (citing James v. Chavez, 830 F.Supp.2d 1208, 1276 (D.N.M. 2011)(Browning, J.), aff'd, 511 Fed.Appx. 742 (10th Cir. 2013)(finding that the use of deadly force did not shock the conscience even if the suspect did not have an intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate a [government actor's] conduct objectively”)).

         In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir. 2001), the widow of a corrections officer sued the director, deputy director, warden, and deputy wardens of the department of corrections, alleging that the defendants deliberately failed to ensure proper training and supervision of penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective action to protect her husband, all of which resulted in him being killed during the escape of three inmates. See 265 F.3d at 1132. The district court found that the plaintiff failed to state a § 1983 claim for violation of the Due Process Clause under a danger-creation theory, because the defendants' actions were “not of such a magnitude that the Court is able to conclude they shock the conscience.” 265 F.3d at 1134. The Tenth Circuit agreed with the district court's conclusion, stating: “[U]nder the circumstances of this case, inaction in the face of known dangers or risks [was] not enough to satisfy the danger-creation theory's conscience shocking standard.” 265 F.3d at 1135.

         In Schaefer v. Las Cruces Public School District, 716 F.Supp.2d 1052 (D.N.M. Apr. 30, 2010)(Browning, J.), the plaintiff alleged that the defendants -- the school district, superintendent, principal, and vice principal of a middle school -- violated the plaintiff's substantive due-process rights when they did not take sufficient action to prevent a student at the school from “racking” the plaintiff's son. 716 F.Supp.2d at 1072-73. The Court concluded that the defendants' conduct did not shock the conscience. See 716 F.Supp.2d at 1074-75. The Court explained:

Assuming the absolute worst from the Schaefers' alleged facts, the Defendants were aware of three instances of an unknown eighth-grade student racking[216] various sixth-grade students within the span of a month, and failed to implement policies to improve hallway monitoring and stop this conduct from occurring in time to prevent [J.H.' son] from falling victim to the same fate. Further, the Defendants indicated to the sixth graders that it had policies in place to punish individuals that assaulted other students but did not, in fact, have such policies.
While such behavior may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages, the Court's conscience is not shocked . . . .
Any number of actions by the Defendants might have remedied the problem, but the Court's conscience is not shocked by the Defendants' failure to consider or implement such a policy. Even if the Defendants knew that students frequently -- more than three times per month -- attacked other students in the halls and declined to implement safety measures to minimize that conduct, the Court is not convinced that it would rise to the level of shocking the conscience.

716 F.Supp.2d at 1074-75.

         ANALYSIS

         The Court will grant the Correct Care Defendants' Partial MSJ, because the Correct Care Defendants are entitled to qualified immunity on the Complaint's Counts I and II. First, the Court considers whether the Correct Care Defendants may assert a qualified immunity defense as private contractors, and the Court concludes that they can, under Filarsky, assert a qualified immunity defense. Second, the Court concludes that Tanner, as a pretrial detainee, has rights under the Fourteenth Amendment, but not under the Eighth Amendment, so the Court dismisses Tanner's Eighth Amendment claims asserted in Count I. Third, the Court concludes that the undisputed evidence does not establish a genuine question whether the Correct Care Defendants violated Tanner's Fourteenth Amendment Rights asserted in Counts I and II. Fourth, the Court concludes that, even if there were a constitutional violation, the rights in question are not clearly established. Accordingly, the Court grants summary judgment in the Correct Care Defendants' favor as to Counts I and II.

         I. THE CORRECT CARE DEFENDANTS ARE ELIGIBLE TO ASSERT THE QUALIFIED IMMUNITY DEFENSE.

         As a precursory issue, the Court, before addressing the Correct Care Defendants' entitlement to qualified immunity, must determine whether they are eligible to assert the qualified immunity defense at all. See Weise v. Casper, 507 F.3d 1260, 1264 (10th Cir. 2007)(establishing that, while ordinarily, a district court would first analyze whether a constitutional violation occurred, “this analysis can only proceed after the court determines that a defendant is entitled to assert qualified immunity in the first instance.”). Tanner contends that the Correct Care Defendants may not assert a qualified immunity defense after Richardson, because the Correct Care Defendants are nothing “other than employees of a private company that is in the business of providing medical services to inmates.” Response at 36. Tanner also argues that, in 2016, McMurray, Luna, and Sanchez worked as full-time salaried Correct Care employees, and that none of them had adequate training in obstetrics, pregnancy, or childbirth to adequately treat Tanner. See Response ¶¶ M-O, at 28-29. Further, Tanner contends that Correct Care, during the relevant time,

was a private company with 100% of its business operations devoted to government contracting for health-care services at jails, prisons, and similar correctional facilities. The company's jail division was working in about 200 jails in 38 states in 2016. This is a competitive marketplace for government contracts to provide health-care services to MDC and similar facilities. In addition to Defendant CCS, there are at least three different companies that regularly bid for such contracts: Centurion, Corizon, and Wexford.

Response ¶ Z, at 33-34 (citations omitted). Tanner argues that, although the Tenth Circuit has yet to determine whether “‘employees of a private company providing medical services to inmates'” may assert qualified immunity, other Courts of Appeals have determined qualified immunity is not available under these circumstances. Response at 36 (citing Kellum v. Mares, 657 Fed.Appx. 763, 768 n.3 (10th Cir. 2016)(unpublished)). Tanner cites to McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012)(“McCullum”), Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016)(en banc)(“Petties”), Jensen v. Lane Cty., 222 F.3d 570, 577-78 (9th Cir. 2000)(“Jensen”), and Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999)(“Hinson”), as examples of cases applying Richardson's precedent and methodology to determine that qualified immunity is not available to a private healthcare provider in a prison. Response at 36.

         Tanner distinguishes her case from Lockett, a Tenth Circuit case which held “that a private doctor contracted by the government for the specific purpose of executing a prisoner by means of a lethal injection may avail himself of the defense of qualified immunity, ” because Tanner contends that there is a competitive marketplace for governmental health-care contractors such as Correct Care, whereas no private marketplace for lethal-injection-administering executioners exists. Response at 36-37. Tanner urges the Court to step away from the “free-wheeling policy analysis” upon which Tanner contends the Correct Care Defendants rely, and suggests that the Court, rather than consider the need for deterrence or market factors allowing private contractors to offset risk, look to the fact that the state of New Mexico has not extended immunity to the Correct Care Defendants or to other private prison contractors. Response at 38.

         Although the Court agrees with Tanner's assertion that Filarsky did not overrule Richardson, the Court nevertheless notes that Filarsky defines the parameters of Richardson's narrow scope and establishes a broad rule conferring immunity on private party § 1983 defendants working for the government. See Filarsky, 566 U.S. at 379 (“Richardson involved the unusual circumstances of prison guards employed by a private company who worked in a privately run prison facility. Nothing of the sort is involved . . . in the typical case of an individual hired by the government to assist in carrying out its work.”); id. at 393 (“Richardson was a self-consciously ‘narrow[]' decision.” (alterations in Filarsky)(quoting Richardson, 521 U.S. at 413)).

         Accordingly, the Court concludes that Tanner's argument that the Correct Care Defendants may not assert a qualified immunity defense after Richardson, because the Correct Care Defendants are nothing “other than employees of a private company that is in the business of providing medical services to inmates, ” Response at 36, is not viable after Filarsky.

         In Filarsky, the Supreme Court conducted a common-law analysis of the protections afforded to private citizens executing government responsibilities and concluded that, at common law, core government functions often involved private citizens' active participation and that, accordingly, “common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.” Filarsky, 566 U.S. at 386. The Supreme Court noted that “examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself.” Filarsky, 566 U.S at 389. The Supreme Court concluded that, in addition to the history of immunity for citizens executing public functions, the purposes of affording § 1983 immunity do not counsel “against carrying forward the common law rule.” Filarsky, 566 U.S at 389.

         Turning to qualified immunity's purposes, the Supreme Court noted:

As we have explained, such immunity “protect[s] government's ability to perform its traditional functions.” Wyatt v. Cole, 504 U.S. 158 . . . (1992). It does so by helping to avoid “unwarranted timidity” in performance of public duties, ensuring that talented candidates are not deterred from public service, and preventing the harmful distractions from carrying out the work of government that can often accompany damages suits. Richardson v. McKnight, 521 U.S. 399, 409-411 . . . (1997).

Filarsky, 566 U.S at 389-90. See Richardson, 521 U.S. at 400-411. The Supreme Court concluded that qualified immunity's purposes are equally implicated whether the individual facing suit is a state actor working full-time or an individual working for the state on some other basis. See Filarsky, 566 U.S. at 390.

We have called the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public's business “the most important special government immunity-producing concern.” [Richardson, 521 U.S.] at 409 . . . . Ensuring that those who serve the government do so “with the decisiveness and the judgment required by the public good, ” Scheuer v. Rhodes, 416 U.S. 232, 240 . . . (1974), is of vital importance regardless whether the individual sued as a state actor works full-time or on some other basis.
Affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to “‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.'” Richardson, supra, at 408 . . . (quoting Wyatt, supra, at 167 . . . .). The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals. This case is a good example: Filarsky had 29 years of specialized experience as an attorney in labor, employment, and personnel matters, with particular expertise in conducting internal affairs investigations. . . . The City of Rialto certainly had no permanent employee with anything approaching those qualifications. To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work -- work that will not expose them to liability for government actions. This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity enjoyed by their public employee counterparts.
Sometimes, as in this case, private individuals will work in close coordination with public employees, and face threatened legal action for the same conduct. . . . Because government employees will often be protected from suit by some form of immunity, those working alongside them could be left holding the bag -- facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same activity. Under such circumstances, any private individual with a choice might think twice before accepting a government assignment.
The public interest in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits is also implicated when individuals other than permanent government employees discharge these duties. See Richardson, supra, at 411 . . . . Not only will such individuals' performance of any ongoing government responsibilities suffer from the distraction of lawsuits, but such distractions will also often affect any public employees with whom they work by embroiling those employees in litigation. This case is again a good example: if the suit against Filarsky moves forward, it is highly likely that Chief Wells, Bekker, and Peel will all be required to testify, given their roles in the dispute. Allowing suit under § 1983 against private individuals assisting the government will substantially undermine an important reason immunity is according public employees in the first place.
Distinguishing among those who carry out the public's business based on the nature of their particular relationship with the government also creates significant line-drawing problems. . . . Such questions deprive state actors of the ability to “reasonably anticipate when their conduct may give rise to liability for damages, ” Anderson v. Creighton, 483 U.S. 635, 646 . . . ...

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