Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on the State Defendants’ Rule 12(b) Motion to Dismiss, filed February 19, 2010 (Doc. 79). The Court held a hearing on May 19, 2010. The primary issues are: (i) whether Lymon has asserted any constitutional claims against Defendants John Sanchez, Abner Hernandez, Joe Williams, and the New Mexico Department of Corrections (“NMDOC”)(collectively “the State Defendants”) upon which the Court can grant relief; and (ii) whether Plaintiff Davon Lymon has asserted valid waivers of immunity for his negligence claims under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 through 41-4-27 (“NMTCA”), against the State Defendants. Because Lymon fails to state constitutional claims upon which the Court can grant relief, the Court will dismiss the constitutional claims in Counts V, VI, VII, VIII, XIII, and XIV asserted against the State Defendants. Because the Court finds that no waivers of immunity apply to Lymon’s NMTCA claims, the Court will also dismiss Counts I, II, III, and IV. The Court will therefore grant the State Defendants’ Rule 12(b) Motion to Dismiss and dismiss the State Defendants from the case. FACTUAL BACKGROUND At all times relevant to the Second Amended Complaint, Lymon was an inmate at the Central New Mexico Correctional Facility in Los Lunas, Valencia County, New Mexico. See Plaintiff Davon Lymon’s Second Amended Complaint for Negligence, Bodily Injury and Claims Under 42 U.S.C. Sections 1983 and 1985 ¶ 1, at 1, filed December 14, 2009 (Doc. 69) (“Second Am. Complaint”). At all relevant times, Sanchez was a NMDOC corrections officer, Hernandez was a NMDOC captain, and Williams was the Secretary of NMDOC. See Second Am. Complaint ¶¶ 2-4, at 2. According to the Second Amended Complaint, Defendant Aramark Corporation managed the prison kitchen at the Central New Mexico Correctional Facility, and Defendants Bertha Benavidez and Charlie Carrizales were employees of Aramark working in the prison kitchen. See Second Am. Complaint ¶¶ 5-6, at 2. Lymon alleges that he had a pre-existing injury to his left shoulder rotator cuff and did not receive a medical clearance before being assigned to work in the prison kitchen. See Second Am. Complaint ¶ 2, at 1. He alleges that, on September 23, 2004, a prescription was placed in his medical records, stating that he was prohibited from lifting objects with his left arm. See Second Am. Complaint ¶ 13, at 3. He also alleges that Nurse Jessica Garcia issued a prison health services pass/lay-in slip prohibiting him from lifting objects. See Second Am. Complaint ¶ 14, at 3. Lymon alleges that Salazar, a prison classification officer, classified Lymon to work in the prison kitchen. See Second Am. Complaint ¶ 10, at 3. Lymon’s claims, according to his Second Amended Complaint, arise out of events that occurred on July 3, 2005. He alleges that, on July 3, 2005, at 1:00 p.m., Benavidez assigned back-porter work to Lymon, which involved frequent heavy lifting. See Second Am. Complaint ¶ 16, at 4. Lymon alleges that, while lifting heavy trays in the dish room, his shoulder gave out, causing him to slip and fall, and causing him severe pain for which he sought medical care. See Second Am. Complaint ¶ 17, at 4. He alleges damages arising out of the injuries he sustained. See Second Am. Complaint at 20. PROCEDURAL BACKGROUND Lymon’s case was originally filed pro se in state court on August 26, 2005, alleging damages arising out of injuries he sustained from work that he was required to do in the prison kitchen while an inmate at the Central New Mexico Correctional Facility in Valencia County, New Mexico. See Complaint (Doc. 1-4). Counsel for Lymon, Solomon Brown, first appeared for Lymon in the case in state court on September 5, 2007. The case was removed to federal court on April 14, 2008. On February 9, 2009, the Court granted Lymon’s first motion to amend his complaint. See Memorandum Order and Opinion, filed February 4, 2009, 2009 WL 1299842 (Doc. 22). On April 23, 2009, Lymon filed an opposed motion to file a second amended complaint, which would add twenty-one inmates to the complaint either as a class action pursuant to rule 23 of the Federal Rules of Civil Procedure or using rule 20 joinder. See Plaintiff Davon Lymon’s Opposed Motion to File a Second Amended Complaint, filed April 23, 2009 (Doc. 35). The Court held a hearing on July 13, 2009, instructed Lymon that he needed to decide whether to proceed under rule 23 or rule 20, and denied his motion without prejudice. On July 24, 2009, Lymon filed a Motion for Reconsideration of the Court’s Denial of his Opposed Motion to File a Second Amended Complaint Adding Wexford Corporation as a Defendant. See Doc. 47. The motion for reconsideration was unopposed, and the Court granted Lymon leave to add Wexford Corporation as a defendant. See Order, filed December 12, 2009 (Doc. 67). Lymon also filed another motion for reconsideration, requesting class certification under rule 23 and abandoned his earlier request to join additional plaintiffs under rule 20. See Plaintiff Davon Lymon’s Reconsideration Motion to File a Second Amended Complaint for Class Certification, filed July 25, 2009 (Doc. 49). The Court denied the motion to amend and add a class action, finding such an amendment would be futile and would prejudice the Defendants. See Memorandum Opinion and Order, filed December 12, 2009, 2009 WL 5220285 (Doc. 68). 1. Lymon’s Second Amended Complaint. Lymon filed his Second Amended Complaint on December 14, 2009. See Doc. 69. The Second Amended Complaint contains fifteen counts. Counts I through VIII, XIII, and XIV are asserted against either all Defendants, or against one or more of the State Defendants. Counts V through XIV assert federal constitutional claims. Count V is a § 1983 claim against the state Defendants for violations of the Fourteenth Amendment, alleging that the State Defendants deprived Lymon of his liberty interest in protection from abuse of inmate labor. See Second Am. Complaint ¶ 36-43, at 9-11. Count VI alleges violations “of civil rights Section 42 U.S.C.1981 through Section 1983,” and alleges that the Defendants intended to harm Lymon because of his race. Second Am. Complaint ¶¶ 44-50, at 11-13. Count VII is a § 1983 claim asserted against Williams for violations of Lymon’s Fourteenth Amendment rights, alleging that Williams ignored the substandard food and services that Ara-mark provided. See Second Am. Complaint ¶¶ 51-56, at 13-14. Count VIII is a § 1983 claim for violations of the Fourteenth Amendment asserted against NMDOC, alleging that it had a custom or policy of allowing classification officers to misclassify inmates, and failed to train corrections officers how to deal with healthcare precautions involving food preparation. See Second Am. Complaint ¶¶ 57-59, at 14. Count XIII asserts an infliction-of-involuntary-servitude claim in violation of the Thirteenth and Fourteenth Amendments, alleging that the Defendants’ conduct in ordering Lymon to do work had the indices of slavery. See Second Am. Complaint ¶¶ 76-80, at 18-19. Count XIV asserts that Sanchez’ classification of prisoners represented a threat to public health. See Second Am. Complaint ¶¶ 81-83, at 19. Counts I through IV assert state claims under the NMTCA. Count I asserts claims under the NMTCA of negligence and personal injury that Sanchez caused. Lymon alleges that Sanchez negligently classified Lymon to work in the kitchen. See Second Am. Complaint ¶¶ 19-24, at 4-6. Count II asserts claims under the NMTCA of negligence and personal injury that Hernandez caused, alleging that Hernandez denied Lymon the use of the prison grievance process. See Second Am. Complaint ¶¶ 25-29, at 5-7. Count III against Williams and Count IV against NMDOC allege claims of negligence and respondeat superior because Williams and NMDOC allegedly failed to train corrections officers, failed to monitor private contractors, and maintained a policy of disallowing grievance appeals where inmates are injured while working for private contractors. See Second Am. Complaint ¶¶ 30-35, at 7-9. Counts IX, X, XI, and XII, against Ara-mark, Neubauer, Carrizales, and Benavidez (“the Aramark Defendants”), allege § 1983 violations of the Fourteenth Amendment (Counts IX, X, and XI) and claims for intentional infliction of emotional distress (Count XII). See Second Am. Complaint ¶¶ 60-75, at 14-18. Count XV is asserted against Wexford and alleges deliberate indifference to Lymon’s medical condition. See Second Am. Complaint ¶¶ 84-88, at 20. Counts IX, X, XI, XII, and XV are not at issue in the State Defendants’ motion to dismiss. 2. State Defendants’ Motion to Dismiss. The State Defendants move the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claims asserted against them in Lymon’s Second Amended Complaint. The State Defendants thus take no position with respect to Counts IX, X, XI, XII, or XV. The State Defendants seek dismissal with prejudice of all counts brought against them, arguing that all the relevant Counts fail to state a claim upon which the Court can grant relief. The State Defendants also argue that Lymon lacks standing to bring the claims in Counts VII, VIII, and XIV. The State Defendants further argue that the individual State Defendants are entitled to qualified immunity, a. The Federal Constitutional Claims. The States Defendants argue that Lymon has failed to state any federal constitutional claims against them. Specifically, the State Defendants argue that the Court should dismiss Count V, because Lymon’s Second Amended Complaint fails to allege a protected liberty or life interest that the State Defendants violated. See Motion at 18-20. The State Defendants further argue that the Court should dismiss Count VI, because Lymon’s allegation do not support the existence of any enforceable contract between Lymon and anyone else, and accordingly, they argue, his equal contracting rights under 42 U.S.C. § 1981 could not have been violated. See Motion at 21. The State Defendants also argue that the Court should dismiss Counts VII and VIII because they assert claims about substandard food preparation and kitchen services, which are not related to Lymon’s injuries to his shoulder after heavy lifting in the prison kitchen, and thus he fails to allege injury-in-fact necessary for standing. See Motion at 22. See Motion at 23-24. Further, the State Defendants contend that Lymon lacks standing to bring Counts VII and VIII because they assert general grievances appropriately addressed in the representative branches, and not in this Court. See Motion at 24-25. With respect to Count XIII, which alleges Lymon was forced to do work in prison against his will in violation of the Thirteenth Amendment, the State Defendants argue that the Thirteenth Amendment provides an exception for punishment for a crime for which a person has been convicted, and thus the State has the lawful authority to impose involuntary servitude on Lymon as punishment for crimes for which he was convicted. See Motion at 25. The State Defendants also contend that the Court should dismiss Count XIV, because Lymon makes no allegations that Sanchez’ classification decisions impact the general public, and thus no federal policy against public health hazards could have been violated. See Motion at 26. They further argue that Lymon lacks standing because he did not suffer an injury-in-fact. See Motion at 26. In response, Lymon states that he “alleges coercion in making him do heavy lifting in the face of a doctor’s note that heavy lifting would be harmful to him.” Plaintiffs Response Memorandum to the State Defendants’ Motion for Dismissal at 3, filed March 22, 2010 (Doc. 80). Lymon argues that, whereas the State Defendants describe the case as involving a simple shoulder injury, he contends it is a case about civil-rights violations. See Response at 3. Lymon argues that § 41-4-6 of the NMTCA is the applicable waiver for Lymon’s claims in Counts I and II because New Mexico courts have expanded the scope of § 41-4-6 beyond premise liability and his claims are within the expanded scope. See Response at 6. Lymon also contends that Sanchez engaged in deliberate, forcible conduct sufficient to invoke the waiver in § 41-4-6. See Response at 7. Lymon further argues that Sanchez was not acting as a “classification” officer, because the medical doctor had already performed the task for him, but rather was acting as a “regular” corrections officer carrying out the directives of the doctor. Response at 8. Lymon contends that, under New Mexico law, sheriffs, deputies, and jailers at the county jail are all law-enforcement officers within § 41^1-12. See Response at 9. Lymon further argues in his response brief that the State Defendants are liable for assault and battery of Lymon, because he was forced to do heavy lifting against his will and the State Defendants knew such lifting could cause him injury, and because immunity is waived under § 41-4-12. See Response at 9. In response to the State Defendants’ argument that the Court should dismiss the due-process claims, Lymon argues that the primary focus of his Second Amended Complaint is substantive due-process violations based on the danger-creation doctrine. See Response at 10. Lymon contends that Aramark had a contractual relationship with the NMDOC which led to his injuries. See Response at 10. He also argues that he had a contract with Aramark because he did work that Aramark accepted and for which it provided remuneration. See Response at 11. As to the State Defendants’ argument that Lymon lacks standing to bring Counts VII, VIII, and XIV, Lymon argues that he filed an affidavit which states that he has Hepatitis C, which is one of the illnesses he mentions as a possible disease sustained from the kitchen at the prison, and thus he has asserted an injury-in-faet to establish standing. See Response at 11. Lymon argues, as to his Thirteenth Amendment claim, that “Defendants cite to no authority that assault and battery may be inflicted upon a prison inmate to force him to perform heavy lifting which has been upon medical (doctor’s) advice.” Response at 11. He also argues that the State Defendants interpretation of the Thirteenth Amendment “is without merit or authority” and therefore the Court should not dismiss Count XIII. Response at 12. The State Defendants reply that Lymon does not dispute that the holding in Archibeque v. Moya, 116 N.M. 616, 866 P.2d 344 (1993) — that § 41-4-6 does not waive immunity when public employees negligently perform administrative functions' — controls. See State Defendants’ Reply in Support of Rule 12(b) Motion to Dismiss at 1, filed March 26, 2010 (Doc. 85). The State Defendants argue that this case is almost identical to the facts in Archibeque v. Moya, because, in both cases, the classification officer allegedly misclassified an inmate after being provided notice that there might be physical danger for the inmate if misclassified. See Reply at 1. The State Defendants further argue that Lymon did not allege in his Second Amended Complaint that other inmates were injured because of Sanchez’ misclassifications, although he alleges that others were misclassified. See Reply at 2. The State Defendants argue that, to fall within § 41^4-6’s waiver, the negligence of a public employee must cause bodily injury to more than one inmate, and Lymon has not made such allegations here. See Reply at 2. The State Defendants further contend that Sanchez and Hernandez should not be considered law-enforcement officers because there is no allegation that a majority of their time is spent enforcing the law. See Reply at 5-6. They argue that, even if they are considered law-enforcement officers, under § 41-4-12, their conduct does not fall within the acts listed in § 41-4-12. See Reply at 6. The State Defendants contend that Lymon, in his response, attempts to shoehorn in a cause of action — assault and battery — which appears nowhere in his Second Amended Complaint. See Reply at 7. As to Counts III and IV, the State Defendants argue that Lymon does not refute that, if no waiver exceptions are met, vicarious liability may not be imposed under the NMTCA. Lymon also does not dispute that none of his alleged negligence claims in Counts III and TV fall within § 41-4r-6’s waiver of immunity. See Reply at 8. The State Defendants also contend that Lymon does not argue in his due process claims in Counts V, VII, and VIII that he had any liberty or life interest which the State Defendants’ actions impacted. See Reply at 8. Lymon argues, instead, that he is asserting a substantive due-process claim under the danger-creation doctrine. The State Defendants counter that, if Lymon is asserting a substantive due-process claim, he must prove that the challenged government action “shocks the conscience” of federal judges, and that Lymon’s allegations have not reached that high standard. Reply at 9. The State Defendants further argue that Lymon does not refute that Counts VII and VIII appear to be generalized grievances that legislation would better address. See Reply at 11. With respect to Lymon’s argument that he had a contract with Aramark, the State Defendants argue that there can be no contract without consideration or freely obtained mutual assent, and contend that, as a prisoner, Lymon could be forced to work and thus consideration was not present. See Reply at 11. The State Defendants further contend that Sanchez ordering Lymon to work did not interfere with a contract to do work, and if Sanchez interfered with anything, it was with a medical order from a doctor, and not with a contract with Aramark. See Reply at 11. The State Defendants further argue that Lymon did not rebut the assertion that incarcerated persons are excepted from the Thirteenth Amendment’s prohibition of forced labor. See Reply at 12. They contend that, even if Lymon was intimidated into doing heavy lifting, as he alleges, he still has no claim under the Thirteenth Amendment. See Reply at 12. The State Defendants also argue that Lymon made no attempt to rebut the argument that the individual State Defendants are entitled to qualified immunity. See Reply at 12. b. The NMTCA Claims. The State Defendants argue that the Court should dismiss Count I because the tort claims against Sanchez fall outside of the scope of the New Mexico Tort Claims Act’s waivers of immunity for state employees. See Motion at 4. The State Defendants argue that Lymon’s claims arise from Sanchez’ alleged negligent misclassification of Lymon and that neither NMSA 1978, § 41-4-6 or § 41-4-12 — both of which Lymon cites in Count I — are applicable. Section 41-4-6 waives immunity for conduct involving “the operation or maintenance of any building, public park, machinery, equipment or furnishings,” and the State Defendants contend that a classification that allows an inmate to work in a certain section of the prison has nothing to do with the maintenance and operation of the prison’s physical premises, and is thus not within the scope of the waiver. See Motion at 5. The State Defendants also contend that the Supreme Court of New Mexico has directly addressed whether classification of inmates is included in the § 41-4-6 waiver, and has found that it does not. See Motion at 5-6 (citing Archibeque v. Moya, 116 N.M. 616, 619, 866 P.2d 344, 347 (1993)). The State Defendants further contend that § 41-4-12 is inapplicable because Sanchez is a classification officer within the NMDOC engaged in administrative tasks like classifying inmates for work and is not a law-enforcement officer. See Motion at 6-7. Further, the State Defendants contend that, even if the Court concludes that Sanchez is a law-enforcement officer, § 41-4-12 waives immunity only if the damages claimed arise from specific conduct listed in § 41-4-12 and argue that Sanchez’ misclassification does not fall within the list of conduct. See Motion at 7-8. The State Defendants argue that, because Sanchez’ immunity from suit is not waived, the Court should dismiss Count I. The State Defendants make a similar argument for why the Court should dismiss Count II. They argue that Lymon’s claims against Hernandez also fall outside of the scope of immunity waivers under the NMTCA. In the Second Amended Complaint, Lymon alleges that Hernandez was negligent because he refused to grant Lymon permission to use the prison grievance process. The State Defendants contend that Lymon’s claim is beyond § 41-4-6’s scope, because Hernandez’ action was an administrative function that the waiver of immunity in § 41-4-6 does not cover. See Motion at 9. The State Defendants further argue that Hernandez is not a law-enforcement officer for purposes of the waiver of immunity in § 41-4-12, and, even if he is considered a law-enforcement officer, Hernandez’ conduct does not fall within the list of conduct in § 41-4-12. Thus, because no waiver of immunity is applicable to Lymon’s negligence claims against Hernandez, the State Defendants argue that the Court should dismiss Count II as a matter of law. See Motion at 10. The State Defendants further argue that the Court should dismiss the respondeat superior claims in Counts III and IV against Williams and NMDOC because the Court should dismiss Counts I and II and liability cannot be imposed if there is no underlying liability. See Motion at 10-11. The State Defendants further argue that the claims of negligence in Counts III and IV must also fail, as the claims do not fall within the scope of any of the NMTCA’s immunity waivers of the NMTCA, nor do they fall within the scope of the Corrections Industries Act, NMSA 1978, § 33-8-3. See Motion at 17-18. 3. Arguments at the Hearing. At the hearing, Mr. Brown, Lymon’s attorney, conceded that Sanchez and Hernandez are public employees and that, to bring claims under the NMTCA against them, the Court must find an applicable waiver. See Transcript of Hearing at 24:24-25:14 (taken May 19, 2010)(“Tr.”) (Court, Brown). Javier Junco, attorney for the State Defendants, argued that Lymon’s asserted waivers— § 41-4-6 and § 41-4-12 — are inapplicable under the Supreme Court of New Mexico’s holding in Archibeque v. Moya, and the waiver provisions’ clear language. He argued that, under § 41^M5, the negligence of a public employee must cause the bodily injury alleged, and, contrary to the argument Lymon makes in his response, the Second Amended Complaint does not allege that Sanchez’ negligent misclassification caused bodily injury to more than one person. Lymon’s argument that the holding in Archibeque v. Moya is not applicable therefore fails. See Tr. at 6:14-19 (Junco). Mr. Junco further argues that Lymon’s attempt in his response to argue that Sanchez was not negligently misclassifying, but rather intentionally disobeying a doctor’s order, still does not bring Lymon’s claim within the scope of the sovereign-immunity waivers in § 41-4-6 or § 41-4-12. See Tr. at 9:9-21 (Junco). Whether framed as misclassification or disobedience, Mr. Junco argued that Sanchez’ task was still administrative and outside § 41-4-6’s scope. Further, he argued that the allegations in the Second Amended Complaint against Sanchez and Hernandez do not support a conclusion that they are law-enforcement officers for purposes of § 41-4-12’s waiver of immunity, but, even if they were, the conduct alleged does not fall within the list of wrongs in § 41-4-12. See Tr. at 10:18-11:5 (Junco). Mr. Brown responded that Archibeque v. Moya is not controlling, because its procedural posture was on a certified question from the United States Court of Appeals for the Tenth Circuit and was not addressing a rule 12(b)(6) motion to dismiss, in which facts asserted in the complaint must be taken as true. See Tr. at 12:17-18:4 (Brown). He also argued that the assault in this case was threats made by Benavidez to Lymon that he had to work in the kitchen, in contravention of his medical restrictions against heavy lifting. See id. at 13:20-25 (Brown). He further argued that this case involved premise liability because Lymon slipped and fell. See id. at 14:5-16 (Brown). Mr. Junco replied that the difference in procedural posture between Archibeque v. Moya and this case is not relevant to the Supreme Court of New Mexico’s discussion of § 41-4-6’s scope. See Tr. at 15:24-15:10 (Junco). Mr. Junco also argued that Mr. Brown contends Benavidez, who is an employee of Aramark, committed the assault and battery, and the State Defendants cannot be held responsible for that conduct. See id. at 17:9-14 (Junco). Mr. Junco further argued that Lymon lacks standing to bring Counts III, IV, VII, VIII, and XIV. See Tr. at 33:20-24 (Junco). He argued that broad allegations about general grievances are not appropriate, and that all of those Counts allege general grievances. See id. at 34:1-10 (Junco). Mr. Brown responded that further factual development is needed to determine what is wrong with the building and thus determining at this point whether Lymon has standing is premature. See id. at 34:24-35:15 (Brown). Mr. Junco replied that the hearing was the first time the State Defendants had heard anything about something being wrong with the building and argued that Mr. Brown is attempting to bring a new claim that the Second Amended Complaint did not allege. See Tr. at 35:20-36:3 (Junco). With regards to the due-process claims in Counts V, VII, and VIII, Mr. Junco argued that it was difficult for the State Defendants to determine from the Second Amended Complaint whether Lymon is alleging procedural due-process or substantive due-process violations. See Tr. at 39:3-8 (Junco). Mr. Junco contended that, if the claims are for violations of procedural due process, the Court should dismiss them, because Lymon “is not entitled to any liberty interests, because such interest arises upon release from confinement,” and further, there are no allegations in the Second Amended Complaint that a liberty or life interest was impacted in any way. Tr. at 39:8-17 (Junco). Mr. Junco argued that if, on the other hand, the claims are for substantive due-process violations, the allegations in Counts V, VII, and VIII do not rise to the level of shocking the conscience, as the Tenth Circuit requires. See Tr. at 40:6-41:11 (Junco). An inmate reinjuring his shoulder because of misclassification or denial of a grievance procedure, Mr. Junco argued, is not enough to meet the standard. See id. at 41:25-42:7 (Junco). Mr. Brown argued that it appears to him that Mr. Junco is bouncing back and forth between the original complaint and the Second Amended Complaint, and contended that “anybody who think that this case is just about an injury to his shoulder is lost and lost without remission.” Tr. at 45:10-46:3 (Brown). Mr. Brown also represented to the Court that Lymon is asserting both procedural and substantive due-process violations, and argued that being a prisoner does not destroy the liberty interest. See Tr. at 48:9-21 (Court, Brown). Mr. Brown argued that Count VI should remain because oral contracts are permitted under New Mexico law. See Tr. at 57:4-19 (Brown). Mr. Junco argued that, even if there was an oral contract, there is no allegation that, within that alleged contract, prohibiting Lymon from lifting, and thus Sanchez could not have interfered with any contract, oral or otherwise. See id. at 59:17-60:5 (Junco). Mr. Brown argued that the Court should not dismiss Count XIII because an incarcerated individual cannot be subjected to involuntary servitude that forces him to do an action which causes him injury. See id. at 62:5-9 (Brown). Mr. Junco contended that the Thirteenth Amendment does not provide a remedy for one who injures himself during lawfully-compelled labor; it provides only prohibition from forced labor, and that Mr. Brown provided no authority that the Thirteenth Amendment has been extended to apply to his allegations. See id. at 63:14-22 (Junco). Mr. Junco also argued the Court should dismiss Count XIV, which alleges that there is a federal policy against any decision which places the public at risk from a health hazard, because Lymon’s Second Amended Complaint does not allege that Sanchez’ misclassification of inmates impacted any member of the general public. See Tr. at 65:8-66:9 (Junco). Moreover, Mr. Junco asserted that Lymon lacks standing because he is not alleging personal injury as a result of the alleged conduct. See id. at 65:8-66:9 (Junco). Mr. Brown argued that Lymon has standing because he has Hepatitis C and he alleges that the disease came from working in the kitchen. See id. at 66:17-25 (Brown). Mr. Junco argued that such an allegation is not in the Second Amended Complaint and thus the Court should not consider the assertion in ruling on a 12(b)(6) motion. See id. at 67:4-15 (Junco, Court). STANDARD FOR A MOTION TO DISMISS UNDER RULE 12(b)(6) Rule 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which it can grant relief. When ruling on a motion to dismiss, the court must accept as true well-pled factual allegations, but also consider whether “they plausibly give rise to an entitlement to relief.” Barrett v. Orman, 373 Fed.Appx. 823, 825 (10th Cir.2010) (quoting Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009)). Under rule 12(b)(6), a motion to dismiss “admits all well-pleaded facts in the complaint as distinguished from conclusory allegations.” Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976)(citing Jones v. Hopper, 410 F.2d 1323 (10th Cir.1969)). A motion to dismiss is a request to dismiss a case before discovery has taken place and thus permits only an assessment whether a complaint is sufficient on its face. In adjudicating a motion to dismiss, a court may neither grant the motion because it believes it is unlikely the plaintiff can prove the allegations, see Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir.2008), nor “weigh potential evidence that the parties might present at trial” in assessing the motion’s merit, Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir.2001)(quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999)). It is not the court’s role to weigh potential evidence that the parties might present a trial, but rather to determine whether the plaintiffs complaint states a legally sufficient claim upon which the court can grant relief. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d at 1236. A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint does not “suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 129 S.Ct. at 1949 (internal alterations, citations, and quotations omitted). See Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”)(quoting Ashcroft v. Iqbal, 129 S.Ct. at 1949). Dismissal is not appropriate, however, where the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “[T]he Supreme Court recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (internal citation omitted). “The [Supreme] Court explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 547, 127 S.Ct. 1955) (alterations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S.Ct. at 1949. “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (emphasis in original). The court is not required to accept the conclusions of law or asserted application of law to the alleged facts. See Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994); Olpin v. Ideal Nat’l Ins. Co., 419 F.2d 1250, 1255 (10th Cir.1969). Nor is the court required to accept as true legal conclusions that are presented as factual allegations. See Brooks v. Sauceda, 85 F.Supp.2d 1115, 1123 (D.Kan.2000)(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). In Bell Atlantic Corp. v. Twombly, the Supreme Court noted that the complaint provided “no clue as to which of the four [regional phone companies] (much less their employees) supposedly agreed, or when and where the illicit agreement took place.” 550 U.S. at 565 n. 10, 127 S.Ct. 1955. The Supreme Court explained that “a defendant seeking to respond to plaintiffs’ conclusory allegations ... would have little idea where to begin.” Id. A court must convert a motion to dismiss into a motion for summary judgment if “matters outside the pleading are presented to and not excluded by the court,” and “all parties ... [must be] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(d). “[Federal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5C C. Wright & A. Miller, Fed. Prac. & Proc. Civ., § 1366, at 159 (3d ed. 2004). See Dobson v. Anderson, 319 Fed.Appx. 698, 702 (10th Cir.2008); Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir.1998)(“[C]ourts have broad discretion in determining whether or not to accept materials beyond the pleadings.”). LAW REGARDING 42 U.S.C. § 1983 Section 1983 of Title 42 of the United States Code provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights. Substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989)(“Section 1983 does not provide a remedy if federal law does not create enforceable rights.”). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant’s federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Broken down differently, a plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia. Martinez v. Martinez, No. CIV 09-0281, 2010 WL 1608884, at *11 (D.N.M. Mar. 30, 2010) (Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(Fourteenth Amendment); Griffin v. Breekenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)(civil-rights statute). The Supreme Court has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 129 S.Ct. at 1948 (“Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Further, the Tenth Circuit has held that supervisors are not liable under § 1983 “unless there is an affirmative link between the constitutional deprivation and the supervisor’s exercise of control or direction, his personal participation, or his failure to supervise.” Kiesling v. Troughton, 107 F.8d 880 (Table), 1997 WL 111256, at *2 (10th Cir. Mar. 13, 1997)(citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir.1988)). They can be held liable only for their own unconstitutional or illegal policies, and not for the tortious acts of their employees. Supervisory liability requires a showing that said policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations and internal quotations omitted). See Bd. of County Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”)(emphasis in original). These standards apply for allegations of liability based on failure to train and for “official de facto policies” that arise from “failing to adopt various policies to adequately protect” a class of persons. Barney v. Pulsipher, 143 F.3d at 1367, 1309 n. 8. “[W]hen the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm,” it is liable. Id. at 1307. In a “narrow range of circumstances,” however, deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations, thus presenting an obvious potential for constitutional violations. Id. at 1307-08. Most cases, however, will not fall within this “narrow range of circumstances” without “a pattern of violations.” Id. at 1308. LAW REGARDING PROCEDURAL DUE-PROCESS CLAIMS The Fourteenth Amendment protects citizens against state actions that deprive them of life, liberty, or property without due process of law. See U.S. Const. amend. XIV. “The right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.” Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)(citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). Persons in state custody have due-process rights to “reasonable care and safety.” Youngberg v. Romeo, 457 U.S. at 324, 102 S.Ct. 2452. “To set forth an actionable procedural due process claim, a plaintiff must demonstrate: (1) the deprivation of a liberty or property interest and (2) that no due process of law was afforded.” Stears v. Sheridan County Mem’l Hosp. Bd. of Trs., 491 F.3d 1160, 1162 (10th Cir.2007). See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)(“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.”). “A due process claim ... can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006). The Tenth Circuit has recognized two sources of liberty interests: (i) the due process clause of the Fourteenth Amendment; and (ii) state law. See Boutwell v. Keating, 399 F.3d 1203, 1211-12 (10th Cir.2005). 1. State-Created Liberty Interests. A state may create a liberty interest. The Supreme Court in Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), explained that “the most common manner in which a State creates a liberty interest is by establishing substantive predicates to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” 490 U.S. at 462, 109 S.Ct. 1904 (internal quotation marks and citation omitted). Before the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), when faced with a due-process claim based on state statutes or prison regulations, courts were required to determine whether language existed creating “substantive predicates” to guide official discretion and whether the regulations contained “explicitly mandatory language.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. at 463, 109 S.Ct. 1904 (requiring the language to contain “ ‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow, in order to create a liberty interest”); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)(“We are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.”). In Sandin v. Conner, however, the Supreme Court abandoned that approach. The Supreme Court reasoned it “created disincentives for States to codify prison management procedures in the interest of uniform treatment” and “led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone.” 515 U.S. at 482, 115 S.Ct. 2293. Consequently, the Supreme Court in Sandin v. Conner concluded that, while states may create liberty interests that the Due Process Clause protects, these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. 515 U.S. at 484, 115 S.Ct. 2293. See Cordova v. LeMaster, 136 N.M. 217, 222, 96 P.3d 778, 783-84 (2004)(“After Sandin, in order to find Petitioner has a constitutionally protected liberty interest in spousal visitation, we must first determine whether regulations exist that limit official discretion in indefinitely depriving Petitioner of spousal visitation, and if so, whether the indefinite deprivation of spousal visitation is an atypical and significant hardship.”). In Cordova v. LeMaster, the Supreme Court of New Mexico found that a prisoner has a liberty interest, which NMDOC regulations confers, to spousal visitation, “which if indefinitely deprived would impose upon him an atypical and significant hardship.” 136 N.M. at 223, 96 P.3d at 784. The Supreme Court of New Mexico looked to the NMDOC’s policies and found that regulations existed which limit prison officials’ discretion to bar visitation. See 136 N.M. at 223, 96 P.3d at 784. Under Sandin v. Conner, inmates have no liberty interest based on regulations regarding disciplinary measures unless those measures “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484, 115 S.Ct. 2293. In Alvarez v. McCormac, 15 Fed.Appx. 759 (10th Cir.2001), the Tenth Circuit affirmed the district court’s dismissal of a prisoner’s § 1983 procedural due-process claim because the prisoner “did not have a constitutionally-protected liberty interest under state law that would prevent his twenty-day segregation, since such a sanction did not impose an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” 15 Fed.Appx. at 760 (quoting Sandin v. Conner, 515 U.S. at 484, 115 S.Ct. 2293). 2. Prisoner Procedural Due-Process Claims. Prisoners do not shed all constitutional rights at the prison gate, see Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), but “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system,” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948)). In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court held that an injury arising from a prison officer’s negligent actions does not deprive an individual of life, liberty, or property under the Fourteenth Amendment’s due-process clause. The Supreme Court explained: We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate’s property, are quite remote from the concerns [about governmental power being used for purposes of oppression] just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law. 474 U.S. at 332, 106 S.Ct. 662. The Supreme Court found that “mere lack of due care by a state official [will not] ‘deprive’ an individual of life, liberty or property under the Fourteenth Amendment.” 474 U.S. at 330-31, 106 S.Ct. 662. See County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”). See also Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)(clariiying that Daniels v. Williams applies to substantive, as well as procedural, due process). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “ ‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States[.]’ ” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S. [527], 544, 101 S.Ct. 1908 [68 L.Ed.2d 420 (1981)]. Daniels v. Williams, 474 U.S. at 332, 106 S.Ct. 662. “Changing a prisoner’s classification generally does not deprive him of liberty under the due process clause alone.” Sparks v. Foster, 241 Fed.Appx. 467, 471 (10th Cir.2007) (citing Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). “A liberty interest may be implicated, however, when State laws and prison regulations create a liberty interest to which due process protections apply.” Sparks v. Foster, 241 Fed.Appx. at 471 (citing Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). In Sparks v. Foster, Sparks, a Colorado state prisoner, brought a § 1983 action against corrections officers and the correctional facility, asserting that the defendants violated his Fourteenth Amendment right to procedural due process because a corrections officer allegedly forced him to cross a prisoner strike to work in the kitchen, despite inmate threats to any prisoner who crossed the line. See 241 Fed.Appx. at 468. The Tenth Circuit noted that, in Colorado, “[classification decisions are within the discretion of the Department of Corrections and a particular classification does not implicate any liberty interest protected by the Fourteenth Amendment Due Process Clause.” Sparks v. Foster, 241 Fed.Appx. at 471 (quoting Green v. Nadeau, 70 P.3d 574, 577 (Colo.App.2003)(citing Deason v. Kautzky, 786 P.2d 420, 422 (Colo.1990) (en banc))). The Tenth Circuit therefore found that, because Sparks did not have a liberty interest in a particular classification, he could not maintain an action based on the classification under the Fourteenth Amendment, and thus the district court properly dismissed Sparks’ claim. See Sparks v. Foster, 241 Fed.Appx. at 471. LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS The 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 was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.” County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (internal quotations omitted). The Supreme Court has stated that “the substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’ ” 523 U.S. at 846, 118 S.Ct. 1708 (quoting Collins v. City of Darker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). The Supreme Court has made it clear that the guarantee of due process is not a “font of tort law” to be used to impose liability any time a government actor causes harm. County of Sacramento v. Lewis, 523 U.S. at 848, 118 S.Ct. 1708 (internal quotations omitted). “[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.” 523 U.S. at 848, 118 S.Ct. 1708 (citing Daniels v. Williams, 474 U.S. at 331, 106 S.Ct. 662). To establish a substantive due process claim, 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 1214, 1223 (10th Cir.2006)(quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995)). In general, state actors may be held liable under § 1983 only for their own acts and not for third parties’ acts. See DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. Generally, negligence does not trigger the Due Process Clause’s protections. See Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). 1. Danger-Creation Exception. The danger-creation theory provides that a state may be liable for an individual’s safety if it created the danger that harmed the individual. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003). The Due Process Clause protects against “deliberately wrongful government decisions rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The danger-creation exception to this rule applies only when “a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). Under a danger-creation theory, there will be no § 1983 liability absent “an intent to harm” or “an intent to place a person unreasonably at risk of harm.” Uhlrig v. Harder; 64 F.3d at 573. To state a prima-facie case, the plaintiff must show that his or her danger-creation claim for due-process violations meets a six-part test: (i) the state and individual actors must have created the danger or increased the plaintiffs vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) the defendant must have acted recklessly in conscious disregard of that risk; and (vi) such conduct, when viewed in total, must shock the conscience. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1126. The Tenth Circuit has focused on the deliberateness of the conduct at issue. See Christiansen v. City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk and intend to expose the plaintiff to such risks without regard to the consequences to the plaintiff. See id. at 573 n. 8. While “an intent to harm” follows the traditional tort-law concept of intentionality, the Tenth Circuit has defined “an intent to place a person unreasonably at risk,” as when a state actor “was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.” Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992). 2. What Shocks the Conscience. “It is well settled that negligence is not sufficient to shock the conscience. In addition, 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. The City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir.2006)(quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.2006)). “[T]he plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Uhlrig v. Harder, 64 F.3d at 574. “This is a ‘high level of outrageousness.’ ” Camuglia v. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574). 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. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574). 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 conclusion of the district court, 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, No. CIV 09-1119, 716 F.Supp.2d 1052, 2010 WL 2301141, 2010 U.S. Dist. LEXIS 52303 (D.N.M. Apr. 30, 2010)(Browning, J.), the plaintiffs alleged that the defendants — the school district, superintendent, principal, and vice principal of a middle school — violated the plaintiffs’ substantive due process rights when they did not take sufficient action to prevent a student at the school from “racking” the plaintiffs’ son. See 716 F.Supp.2d at 1072-73, 2010 WL 2301141, at *13, 2010 U.S. Dist. LEXIS 52303, at *43-44. The Court concluded that the defendants’ conduct did not shock the conscience. See id., at 1074-75, at *15, 2010 U.S. Dist. LEXIS 52303, at *49. 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 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 [the plaintiffs’ 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, 2010 WL 2301141, at **15-16, 2010 U.S. Dist. LEXIS 52303, at **49-52. LAW REGARDING 42 U.S.C. § 1981 42 U.S.C. § 1981 prohibits racial discrimination in the making and enforcement of private contracts: § 1981. Equal rights under the law (a) Statement of equal rights. All persons within the jurisd