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Favela v. City of Las Cruces ex rel. Las Cruces Police Department

United States District Court, D. New Mexico

January 6, 2020

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

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

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

          John Scott Mann Kathryn Brack Morrow Mann Morrow, PLLC Las Cruces, New Mexico Attorneys for Defendants PHC-Las Cruces, Inc. d/b/a Memorial Medical Center, James Proctor, R.N., Jamie Pitts, R.N., Jose Reveles, R.N., and Cassandria Branch, R.N.

          MEMORANDUM OPINION [1]

         THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed September 13, 2019 (Doc. 84)(“MSJ”). The Court held a hearing on November 1, 2019. See Clerk's Minutes, filed November 1, 2019 (Doc. 117). The primary issue is whether, given that the Court has dismissed all federal claims in this case, the Court should decline to exercise supplemental jurisdiction over the remaining state law claims. The Court concludes that it will not exercise supplemental jurisdiction, because: (i) Plaintiff Ruben O. Favela has agreed that summary judgment is appropriate for Counts II, III, IV, VIII, and IX against Defendant Jamie Pitts, R.N., for Counts II, III, and IV against Defendants Memorial Medical Center, James Proctor, R.N., Jose Reveles, R.N., and Cassandria Branch, R.N., and for Counts VI and VII against Memorial Medical; (ii) all federal claims have been dismissed; (iii) the Court has dismissed all claims over which it has original jurisdiction; and (iv) New Mexico courts are better suited to resolve the remaining state-law claims. Accordingly, the Court remands the case.[2]

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in the Defendants' Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed February 6, 2018 (Doc. 30)(“Motion”); the Response to Defendants' Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 15, 2018 (Doc. 36)(“Response”); and the Defendants' Reply in Support of Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 29, 2018 (Doc. 37)(“Reply”). The facts of this case are essentially undisputed. See Response at 2 (disputing only one of Matthew Dollar and Manuel Soto's thirty-nine proffered material facts); Reply ¶¶ 1-9, at 2 (not disputing the substantive content of Favela's twenty-four proffered material facts).

         On April 13, 2016, Dollar, a police officer with the Las Cruces Police Department, observed Favela riding his motorcycle at approximately ninety miles per hour through an intersection that had a posted speed limit of thirty-five miles per hour. See Motion ¶¶ 1-2, at 4 (setting forth this fact)(citing Affidavit of Matthew Dollar ¶¶ 3-7, at 1-2 (dated February 1, 2018), filed February 6, 2018 (Doc. 30-1)(“Dollar Aff.”)); Response at 2 (not disputing this fact). Upon seeing Favela, Dollar activated the emergency lights on his police car and pursued Favela for a distance, pacing Favela at approximately seventy-five miles per hour. See Motion ¶¶ 3-4, at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 8-9, at 2); Response at 2 (not disputing this fact). Favela eventually slowed after Dollar activated the sirens on his police car, but he did not stop for another nine blocks, at which point Favela made a sharp U-turn and stopped his motorcycle on a city sidewalk in a position directly in front of Dollar's police car. See Motion ¶¶ 4-5, at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 9-10, at 2); Response at 2 (not disputing this fact). Dollar informed dispatch of his location, requested additional officers, and parked his police car in front of Favela, who had not yet dismounted his motorcycle or shut off its power. See Motion ¶¶ 6-8, at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 11-15, at 2); Response at 2 (not disputing this fact). Dollar then exited his police car with his sidearm drawn and ordered Favela to cut the power to his motorcycle. See Motion ¶ 8, at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 13-15, at 2); Response at 2 (not disputing this fact). After starting his motorcycle engine, Favela complied, at which point Dollar holstered his sidearm. See Motion ¶ 8, at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 13-15, at 2); Response at 2 (not disputing this fact).

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

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

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

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

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

         PROCEDURAL BACKGROUND

         Favela filed his Complaint in New Mexico state court on May 2, 2017. See Complaint to Recover Damages for Deprivation of Civil Rights and Personal Injury at 1, filed May 18, 2017 (Doc. 1-1)(“Complaint”). He brings nine counts against the Defendants. See Complaint ¶¶ 63-107, at 9-15. In Count I, Favela alleges Defendants City of Las Cruces, Dollar, and Soto violated his rights under the Fourth Amendment of the Constitution of the United States of America by detaining him for an unreasonable amount of time without probable cause, constituting a constructive arrest, and bringing him to Memorial Medical to conduct a search of his body without a warrant. See Complaint ¶¶ 63-69, 72, at 9-10. In Count II, Favela alleges that Dollar, Soto, and the Memorial Medical Defendants -- Memorial Medical, and Defendants Dr. Danielle Wilhelm, Jamie Pitts, R.N., James Proctor, R.N., Jose Reveles, R.N., and Cassandria Branch, R.N. -- violated Favela's rights under the Fourth Amendment to the Constitution by forcibly inserting a straight catheter[6] without a valid arrest or law enforcement authority. See Complaint ¶¶ 75-78, at 10. In Count III, Favela alleges Dollar, Soto, and the Memorial Medical Defendants violated his Fourth Amendment rights by extracting his urine without probable cause or a warrant. See Complaint ¶¶ 81-84, at 11. Favela alleges in Count IV that the Memorial Medical Defendants breached their duty to conform to professional standards by forcibly obtaining Favela's urine sample without consent or probable cause via straight catheterization. See Complaint ¶¶ 87-89, at 11-12. In Count V, Favela alleges that Memorial Medical and Dr. Wilhelm, M.D., failed to obtain his informed consent to treatment, as the law requires, or that they should have known it was given “under duress and/or revoked by Plaintiff prior to treatment, ” Complaint ¶ 95, at 13, and thus “failed to comport with professional standards, ” Complaint ¶ 96, at 13. See id. ¶¶ 93-96, at 13. In Count VI, Favela alleges that, if Dr. Wilhelm is not Memorial Medical's employee, Memorial Medical was negligent in selecting Dr. Wilhelm as a staff physician and granting her staff privileges, or, alternatively, that Memorial Medical was negligent in failing to supervise Dr. Wilhelm and determining whether she possessed the care and skill an emergency room doctor requires. See Complaint ¶¶ 99-100, at 13-14. In Count VII, Favela alleges that Memorial Medical and Dr. Wilhelm are “engaging in commerce by providing services, ” that the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to-26 (“NMUPA”), binds them, and that they violated the NMUPA by “engaging in unconscionable trade practices” when they billed Favela for a medical service he refused and did not request. Complaint ¶¶ 101-04, at 14. In Count VIII, Favela alleges that Soto, Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel acted in concert to commit assault and battery against Favela by physically inserting a straight catheter into him to extract urine. See Complaint ¶¶ 108-11, at 15. Finally, Favela alleges in Count IX that Soto, Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel intentionally and unlawfully confined him in room 18 of Memorial Medical without his consent or a valid arrest, constituting false imprisonment. See Complaint ¶¶ 113-16, at 15.

         On May 30, 2017, Favela stipulated to the dismissal of the City of Las Cruces ex rel. Las Cruces Police Department. See Stipulation of Dismissal as to Defendant City of Las Cruces Ex Rel. Las Cruces Police Department Without Prejudice at 1, filed May 30, 2017 (Doc. 3). On September 21, 2019, the Court held that Dollar and Soto are entitled to qualified immunity on the federal claims, and dismissed all federal claims against them. See Order at 1-5, filed September 21, 2018 (Doc. 47). The Court explained its reasoning in its Memorandum Opinion, 398 F.Supp.3d 858 (D.N.M. June 27, 2019)(Browning, J.)(Doc. 73)(“June 27 MO”). In the June 27 MO, the Court held that Soto is entitled to summary judgment on two state law claims -- Count VIII for assault and battery, and Count IX for false imprisonment. See June 27 MO at 118, 398 F.Supp.3d at 942. In Count VIII, Favela alleges that Soto, as well as Memorial Medical, Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch, committed assault and battery by “intentionally and physically penetrat[ing], or caus[ing] to be penetrated, a straight catheter into Plaintiff's penis for the sole purpose of forcibly extracting urine from him, ” Complaint ¶ 108, at 14; in Count IX, Favela alleges that Soto, as well as Memorial Medical, Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch, committed false imprisonment by “intentionally confin[ing]” him at the hospital without his consent. Complaint ¶ 113, at 15.

         As to Count VIII, the Court noted that Favela conceded that probable cause existed for Soto to conduct a traffic stop, and thus probable cause supported Favela's arrest. See June 27 MO at 120, 398 F.Supp.3d at 942-943. The Court reasoned:

Favela's lawful arrest removes any potential for assault by Soto under New Mexico law. See N.M. Stat. Ann. § 30-3-1(B) (stating that assault must involve an unlawful act). Further, it is undisputed that Favela was given multiple opportunities to voluntarily and naturally provide a urine sample to Memorial Medical, and the Court has concluded that Soto had no part in the catheterization. Soto also did not threaten to catheterize Favela. The catheterization was a result of only Favela's uncooperative behavior.

June 27 MO at 120, 398 F.Supp.3d at 943. The Court also concluded that Soto did not commit battery, because he was not involved in the catheterization. See June 27 MO at 121, 398 F.Supp.3d at 943. Although Soto helped remove Favela's handcuffs “so he could be placed in soft restraints, ” soft restraints were necessary, because of “Favela's uncooperative nature.” June 27 MO at 121, 398 F.Supp.3d at 943. The Court further noted that, although the catheterization may be considered offensive conduct, it does not constitute battery unless it is done unlawfully. See June 27 MO at 120, 398 F.Supp.3d at 943.

         As to Count IX, the Court held that, because Soto had probable cause to arrest Favela, Soto could not have committed false imprisonment. See June 27 MO at 121, 398 F.Supp.3d at 944. The Court noted that “New Mexico law informs that false imprisonment, which includes false arrest, ‘occurs when a person intentionally confines or restrains another person without consent and with knowledge that he has no lawful authority to do so.'” June 27 MO at 121, 398 F.Supp.3d at 943 (quoting Santillo v. N.M. Dep't of Pub. Safety, 2007-NMCA-159, ¶ 12, 173 P.3d 6, 10 (emphasis added by June 27 MO)). The Court reasoned that, because probable cause supports Favela's arrest, it “cannot be said that Soto intentionally confined Favela knowing he had no lawful authority to do so.” June 27 MO at 123, 398 F.Supp.3d at 944. Because Favela stipulated to the dismissal of the City of Las Cruces ex rel. Las Cruces Police Department, and the Court terminated Dollar and Soto as Defendants, the only Defendants remaining are Memorial Medical, Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch.

         1.The MSJ.

         On September 13, 2019, Memorial Medical, Proctor, Pitts, Reveles, and Branch filed the MSJ, asking the Court to “render judgment as a matter of law in favor of them as to all of the remaining claims and causes of action asserted against them.” MSJ at 23. As to Counts II and III, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that Favela “cannot adduce any evidence” that they violated his Fourth Amendment rights. MSJ at 9. As to Count VI, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that “Mr. Favela cannot adduce any evidence from which the Court could infer the Hospital failed to screen Dr. Wilhelm's competency” or to supervise her. MSJ at 18. Memorial Medical, Proctor, Pitts, Reveles, and Branch contend that Count VI simply reiterates the claims that other Counts bring. See MSJ at 22-23. Furthermore, Pitts and Branch argue that there is no evidence supporting any claims brought against them, because Pitts and Branch were not “present during” and did not participate[] in the” catheterization. MSJ at 23. As to Count VII, Memorial Medical argues that Favela has no evidence to support his NMUPA claim against it. See MSJ at 18.

         There are three state law claims: Count V, a lack-of-informed-consent claim; Count VIII, an assault-and-battery claim; and Count IX, a false-imprisonment claim. As to Count V, Memorial Medical, Proctor, Pitts, Reveles, and Branch assert that they owed “no duty as a matter of law to obtain [Favela's] consent” to perform a catheterization, which they argue was “necessary to protect Mr. Favela's health and life.” MSJ at 12. As to Count VIII, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that Favela's assault and battery claims “fail as a matter of law, ” because Favela was incapable of consenting and needed immediate treatment when they performed the catheterization. MSJ at 20. As to Count IX, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that there “was probable cause to restrain Mr. Favela, ” which “negates any claim for false imprisonment.” MSJ at 21. According to Favela, “there is no dispute there was probable cause from the outset and further reasonable cause because of the threat to Mr. Favela's health and the threat he presented to himself and the Hospital staff.” MSJ at 22.

         2.The MSJ Response.

         In the Plaintiff's Response to Defendants' Motion for Summary Judgment, filed September 27, 2019 (Doc. 91)(“MSJ Response”), Favela concedes that the Defendants are entitled to summary judgment on Counts II, III, and IV against Memorial Medical, Proctor, Pitts, Reveles, and Branch, as well as on Count VI against Memorial Medical and Count VII against Memorial Medical and Dr. Wilhelm. See MSJ Response ¶¶ IV.a, IV.d, IV.e, IV.g, at 16, 21, 21, 23. As to Count V, Favela argues that there was no medical emergency and that he was capable of consenting, so Dr. Wilhelm had a duty to obtain Favela's consent. See MSJ Response ¶ IV.c, at 20. Favela also contends that liability should extend to Medical Memorial under the theory of apparent agency. See MSJ Response at ¶ IV.b, at 16. As to Count VIII, Favela argues that, “because Mr. Favela was no longer under arrest when Officer Soto said he would not be charged, and because Mr. Favela was able to consent and refused that consent, the Defendants' offensive touching of him without consent met the elements of assault and battery.” MSJ Response ¶ IV.f, at 21. As to Count IX, Favela concedes “that from the time he was initially detained through his arrest, the police had probable cause to detain him.” MSJ Response ¶ IV.g, at 21. Favela maintains, however, that Medical Memorial, Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch did not have probable cause, because they knew that he had refused treatment. See MSJ Response ¶ IV.g, at 22-23. Favela concedes that there is no evidence supporting any claims brought against Pitts, but he maintains that there is evidence supporting his claims against Branch. See MSJ Response ¶ IV.g, at 23-24. According to Favela, the “evidence supports that Primary Nurse Branch was personally involved in Mr. Favela's care during the crucial time of determining whether there was a medical emergency, whether Mr. Favela was unable to consent, and whether restraints were necessary, ” and therefore the Court should not dismiss the claims against Branch. See MSJ Response ¶ IV.g, at 24.

         3.The MSJ Reply.

         In the Defendants' Reply in Support of Summary Judgment, filed October 11, 2019 (Doc. 106)(“MSJ Reply”), Memorial Medical, Proctor, Pitts, Reveles, and Branch contend that, based on Favela's concessions, summary judgment is proper for Counts II, III, IV, VI, and VII, and for all claims against Pitts. See MSJ Reply at 1. Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that Favela “concedes summary judgment should be granted as to [his] federal claims (and others) and does not object to the Court's continued exercise of supplemental jurisdiction.” MSJ Reply at 1 n.2. Memorial Medical, Proctor, Pitts, Reveles, and Branch maintain that “a district court may exercise supplemental jurisdiction over state claims in the absence of any triable federal claims ‘when the nature and extent of pretrial proceedings, judicial economy, convenience, and fairness would be served by retaining jurisdiction.'” MSJ Reply at 1 n.2 (quoting Thatcher Enters. v. Cache Ct. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)).

         Memorial Medical, Proctor, Pitts, Reveles, and Branch argue:

Given the facts (1) the Court is well-versed in the facts and law of this case, (2) the expense and time associated with having to begin anew in state court after this case has been pending in federal court for more than two years, and (3) Plaintiff has not objected to the Court retaining supplemental jurisdiction over the state law claims, maintaining jurisdiction over those claims remains fully within the gambit of the Court's discretion and is appropriate under the circumstances.

MSJ Reply at 1 n.2. Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that their statement of facts “remains uncontroverted, ” and that the few facts that Favela contests “are immaterial and properly disregarded.” MSJ Reply at 3-5.

         As to Count V, Memorial Medical first argues that Favela did not allege in his Complaint that Dr. Wilhelm was Memorial Medical's apparent agent, and that neither the “New Mexico Court of Appeals [n]or the New Mexico Supreme Court [has ever] extended vicarious liability on a theory of apparent authority to a hospital based on an independent contractor's alleged failure to obtain the informed consent of a patient.” MSJ Reply at 8. They contend, moreover, that “there is no competent summary judgment evidence to support [that Favela] thought Dr. Wilhelm was an apparent employee or agent of” Memorial Medical. MSJ Reply at 9. Accordingly, Memorial Medical maintains that it “had no duty to obtain Plaintiff's informed consent or to ensure Dr. Wilhelm did.” MSJ Reply at 9. Second, Memorial Medical argues that Favela does not offer evidence disputing that Medical Memorial's staff believed that he was suffering a medical emergency and that Favela had “elevated vital signs” when he was admitted. MSJ Reply at 9. Third, Memorial Medical avers that “the undisputed evidence shows [that Favela] was unable to consent.” MSJ Reply at 10.

         As to Count VIII, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that Favela “has given the Court no reason to set aside its prior conclusion the catherization [sic] was not offensive in light of the medical need for it.” MSJ Reply at 11. Moreover, Memorial Medical, Proctor, Pitts, Reveles, and Branch assert that “testimony and the medical records unequivocally establish [that Favela] could not consent and the catherization [sic] was critical to ensure his life and health. There is no issue for trial on the assault and battery claim.” MSJ Reply at 11. As to Count IX, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that “it is undisputed the Hospital staff believed it had authority to keep [Favela] until all of the necessary medical treatment was performed.” MSJ Reply at 12. According to them, Favela does not dispute that, given that he “passed out and continued to (at the very least) appear to lose consciousness and not be able to fully orient himself, it was reasonable for Hospital staff to complete the medical treatment.” MSJ Reply at 12. Last, Branch argues that there “is no evidence [she] was involved in the catheterization; summary judgment is proper as to all of the claims against her.” MSJ Reply at 12.

         4.The ...


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