Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on Defendant Tomas Montoya’s Renewed Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, filed January 30, 2012 (Doc. 94)(“Jan. 30, 2012 MSJ”). The Court held a hearing on April 5, 2012. The primary issues are: (i) whether Defendant Tomas Montoya is entitled to summary judgment on the basis of qualified immunity under the facts presented; (ii) whether the Court should permit Plaintiff Byron Todd to have additional discovery under rule 56(d) of the Federal Rules of Civil Procedure to challenge Montoya’s assertion of qualified immunity; (iii) whether the Court should enter summary judgment on Todd’s tort claims under the New Mexico Tort Claims Act, N.M.S.A.1978, §§ 41-4-1 to -30 (“NMTCA”); and (iv) whether the Court should permit Todd to have additional discovery under rule 56(d) to show the existence of a genuine issue of material fact regarding Montoya’s liability under the NMTCA. The Court will grant the Jan. 30, 2012 MSJ. The Court concludes that, on the facts presented, Todd has not met his burden to overcome Montoya’s qualified-immunity defense. Likewise, Todd has not satisfied the standards under rule 56(d) to obtain additional discovery to overcome Montoya’s qualified-immunity defense. Todd has also not met his burden to show the existence of a genuine issue of material fact regarding Montoya’s liability under the NMTCA. Lastly, Todd has not met the requirements under rule 56(d) to merit additional discovery regarding his NMTCA claim against Montoya. FACTUAL BACKGROUND Todd attempts to dispute many of Montoya’s asserted facts. In contravention of D.N.M.LR-Civ. 56.1(b), however, Todd does not distinguish between Montoya’s asserted facts which he intends to dispute and additional asserted facts he intends to present. D.N.M.LR-Civ. 56.1(b) provides in relevant part: The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant’s fact that is disputed. All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted. The Response may set forth additional facts other than those which respond to the Memorandum which the non-movant contends are material to the resolution of the motion. Each additional fact must be lettered and must refer with particularity to those portions of the record upon which the non-movant relies. D.N.M.LR-Civ. 56.1(b). While the Court does not believe that any sanction is appropriate for Todd’s failure to comply with this local rule, the Court notes that it may have some difficulty in determining whether Todd intends to present additional asserted facts or intends to dispute Montoya’s asserted facts. There have been two summary judgment motions filed in this case, with the most recent motion being the Jan. 30, 2012 MSJ and the earlier motion being the motion for summary judgment filed on April 13, 2011. See Defendant Tomas Montoya’s Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, and Supporting Memorandum (Doc. 61)(“Apr. 13, 2011 MSJ”). Because the parties incorporate their factual sections from their previous filings regarding the Apr. 13, 2011 MSJ, the Court will present both sets of facts in chronological order. Todd also provides two separate affidavits under rule 56(d) asserting that he needs additional discovery to have the ability to properly dispute Montoya’s asserted facts. In his most recent response to Montoya’s motion for summary judgment, Todd asserts that he has sufficient evidence to show the existence of a genuine issue of material fact to avoid the entry of summary judgment and requests, as an alternative ground, that the Court permit him to have additional discovery. See Plaintiffs Response to Defendant Montoya’s Renewed Motion for Summary Judgment at 3 [Doc. No. 94], filed February 27, 2012 (Doc. 96)(“Response to Jan. 30, 2012 MSJ”). Specifically, he states: “Although Plaintiff does not believe it is necessary, should the Court believe that additional discovery is necessary to rule on Defendant’s Motion, the Court should defer ruling until said discovery can be completed.” Response to Jan. 30, 2012 MSJ at 3. Consequently, the Court will evaluate Todd’s requests for additional discovery under rule 56(d) in the analysis section of this Memorandum Opinion and Order once it has determined, on the facts presented, whether entry of summary judgment is appropriate. This course of action is also the more practical one given that Todd, in response to the significant majority of Montoya’s asserted facts, has asserted that he “is without sufficient knowledge to admit or deny these allegations, and is in need of further discovery.” E.g., Response to Defendant Tomas Montoya’s Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, and Supporting Memorandum ¶ 2, at 2, filed May 23, 2011 (Doc. 67)(“Re-sponse to Apr. 13, 2011 MSJ”). It will be more efficient for the Court to address this argument one time rather than each time Todd makes it — particularly given that Todd makes this argument over fifty times. If Todd makes this argument in response to an asserted fact, the Court will consider the fact undisputed for purposes of deciding the Jan. 30, 2012 MSJ, but will separately consider whether additional discovery under rule 56(d) is appropriate such that the Court should deny the motion for summary judgment. See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.”). This dispute revolves around a fight between several inmates in which an inmate named Patrick Wilks and an inmate named Joseph Armijo attacked Todd. The Bernalillo County Metropolitan Detention Center (“MDC”) hired Montoya as a detention center or corrections officer, where he began working on October 19, 2007. See Apr. 13, 2011 MSJ ¶ 1, at 2 (setting forth this fact); Affidavit of Defendant Tomas Montoya ¶ 3, at 1, filed April 13, 2011 (Doc. 61)(“Montoya Aff.”); Response to Apr. 13, 2011 MSJ ¶ 1, at 2 (not disputing this fact). On January 13, 2008, Montoya was assigned to oversee the inmates in the Fox-7 housing unit (“F-7”) at the MDC. See Apr. 13, 2011 MSJ ¶ 2, at 2 (setting forth this fact); Montoya Aff. ¶ 4, at 1; Response to Apr. 13, 2011 MSJ ¶ 2, at 2 (not disputing this fact). Inmates in the F-7 on January 13, 2008 consisted of general population inmates. See Apr. 13, 2011 MSJ ¶ 3, at 2; Montoya Aff. ¶ 5, at 1; Response to Apr. 13, 2011 MSJ ¶ 3, at 2 (not disputing this fact). General population inmates are free to move about F-7 among other general population inmates, except that they cannot enter the cells of other inmates and must remain at all times at least arm’s length apart from the staff station area that the corrections officer on duty occupies. See Apr. 13, 2011 MSJ ¶4, at 2-3 (setting forth this fact); Montoya Aff. ¶ 7, at 2. Montoya had no authority or discretion to determine which inmates were classified as general population inmates and which were permitted to be in F-7. See Apr. 13, 2011 MSJ ¶ 5, at 3 (setting forth this fact); Montoya Aff. ¶ 6, at 2; Response to Apr. 13, 2011 MSJ ¶ 5, at 3 (not disputing this fact). On January 13, 2008, and on other dates when Montoya worked in F-7, his work post consisted of the staff station. See Apr. 13, 2011 MSJ ¶ 6, at 3 (setting forth this fact); Montoya Aff. ¶ 6, at 2. In front of the staff station is a large brick wall in a half oval, and there is access to the staff station by walking up three steps and then entering around the sides of the half oval brick wall; this wall is about six feet high from the floor level on the inmates’ side of the wall. See Apr. 13, 2011 MSJ ¶ 7, at 3 (setting forth this fact); Montoya Aff. ¶ 9, at 2; Response to Apr. 13, 2011 MSJ ¶ 7, at 3 (not disputing this fact). The staff station consists of a top desk with a drop-down computer terminal with a telephone on the top desk and a chair located behind the desk. See Apr. 13, 2011 MSJ ¶ 8, at 3 (setting forth this fact); Montoya Aff. ¶ 10, at 2; Response to Apr. 13, 2011 MSJ ¶ 8, at 3 (not disputing this fact). Generally, Montoya, during his shift in F-7, would be at the staff station observing inmates from an elevated position. See Apr. 13, 2011 MSJ ¶ 9, at 3 (setting forth this fact); Montoya Aff. ¶ 11, at 2; Response to Apr. 13, 2011 MSJ ¶ 9, at 4 (not disputing this fact). Corrections officers use the drop-down computer terminal located at the staff station desk to look for an open cell for a new inmate who was already classified to be in F-7, to look up account balances of inmates with Canteen Services, and to review the legal and criminal history of inmates within MDC’s files. See Apr. 13, 2011 MSJ ¶ 10, at 3 (setting forth this fact); Montoya Aff. ¶ 12, at 2; Response to Apr. 13, 2011 MSJ ¶ 10, at 4 (not disputing this fact). Montoya’s review of inmates’ legal or criminal history as stated in their MDC files was as a precaution for his safety as a corrections officer. See Apr. 13, 2011 MSJ ¶ 11, at 4 (setting forth this fact); Montoya Aff. ¶ 13, at 3. The computer terminal screen was always located down between the knees of the corrections officer sitting at the staff station desk; the corrections officer could raise the computer keyboard to a higher level, but not the computer screen itself. See Apr. 13, 2011 MSJ ¶ 12, at 4 (setting forth this fact); Montoya Aff. ¶¶ 14-15, at 3; Response to Apr. 13, 2011 MSJ ¶ 12, at 5 (not disputing this fact). A corrections officer, such as Montoya, would always be looking at a downward angle at the computer screen. See Apr. 13, 2011 MSJ ¶ 12, at 3 (setting forth this fact); Montoya Aff. ¶¶ 14-15, at 3; Response to Apr. 13, 2011 MSJ ¶ 12, at 5 (not disputing this fact). The computer screen was covered with a plexi-glass shield “that made it difficult even for the corrections officer to view the information on the computer screen.” Apr. 13, 2011 MSJ ¶ 13, at 4 (setting forth this fact). Accord Montoya Aff. ¶ 16, at 3; Response to Apr. 13, 2011 MSJ ¶ 13, at 5 (not disputing this fact). The drop-down computer was situated such that no one other than a person sitting in the chair at the staff station desk could view the information on the computer screen. See Apr. 13, 2011 MSJ ¶ 14, at 4 (setting forth this fact); Montoya Aff. ¶ 17, at 3; Response to Apr. 13, 2011 MSJ ¶ 14, at 5 (not disputing this fact). Both Todd and Wilks were inmates in F-7 on January 13, 2008. See Apr. 13, 2011 MSJ ¶ 15, at 4 (setting forth this fact); Montoya Aff. ¶¶ 18-19, at 3; Response to Apr. 13, 2011 MSJ ¶ 15, at 5 (not disputing this fact). Wilks was at the MDC during the time period his fight with Todd occurred. See Jan. 30, 2012 MSJ ¶ 1, at 3 (setting forth this fact); Deposition of Patrick Wilks at 14:10-12, 15:2-6 (dated September 23, 2011), filed January 30, 2012 (Doc. 94-l)(“Wilks Depo.”); Plaintiffs Amended Response to Defendant Montoya’s Renewed Motion for Summary Judgment [Doc. No. 94] ¶ 1, at 1, filed February 28, 2012 (Doc. 97)(“Amended Response to Jan. 30, 2012 MSJ”). Wilks testified in his deposition that the fight occurred in 2006 rather than 2008. See Amended Response to Jan. 30, 2012 MSJ ¶ 1, at 1 (setting forth this fact); Wilks Depo. at 11:17-13:3; Reply to Plaintiffs Response and Amended Response to Defendant Tomas Montoya’s Renewed Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, filed March 22, 2012 (Doc. 104)(“Reply to Response to Jan. 30, 2012 MSJ”)(not disputing this fact). Wilks remembers that Montoya was the guard on duty the day the fight that involved Todd and Wilks took place. See Jan. 30, 2012 MSJ ¶ 2, at 4 (setting forth this fact); Wilks Depo. at 44:20-45:1; Amended Response to Jan. 30, 2012 MSJ ¶ 2, at 1 (not disputing this fact). Before the day of the fight, Todd and Wilks had never fought one another, had not argued with one another, or otherwise had any problems. See Jan. 30, 2012 MSJ ¶ 3, at 4 (setting forth this fact); Wilks Depo. at 24:2-5; Amended Response to Jan. 30, 2012 MSJ ¶ 3, at 1 (not disputing this fact). On the day the fight occurred, Todd and Wilks did not have any conversations with one another before the fight broke out. Before and at the time of the fight, Wilks had no knowledge of Todd’s criminal or legal background, except that Todd had told Wilks that he had been in the penitentiary. See Jan. 30, 2012 MSJ ¶ 9, at 4 (setting forth this fact); Wilks Depo. at 48:20-49:7. Armijo was at the MDC at the time of the fight. See Jan. 30, 2012 MSJ ¶ 29, at 6 (setting forth this fact); Deposition of Joseph Armijo at 5:14-22, 14:3-10 (taken November 29, 2011), filed January 30, 2012 (Doc. 94-5)(“Armijo Depo.”); Amended Response to Jan. 30, 2012 MSJ ¶ 29, at 5 (not disputing this fact). Todd was a mentor in “God’s pod,” a place for religious studies for inmates. Jan. 30, 2012 MSJ ¶ 30, at 6 (setting forth this fact). Accord, Armijo Depo. at 16:1-11; Amended Response to Jan. 30, 2012 MSJ ¶ 30, at 5 (not disputing this fact). According to Armijo, Todd was acting “like he was a bad ass” and let being a mentor “go to his head.” Jan. 30, 2012 MSJ ¶ 31, at 7 (setting forth this fact). Accord Armijo Depo. at 23:10-21; Amended Response to Jan. 30, 2012 MSJ ¶31, at 5 (not disputing this fact). “Inmates wanted to know why Todd ‘was acting like he was a bad ass,’ i.e., what charges he was in prison for.” Jan. 30, 2012 MSJ ¶32, at 7 (setting forth this fact). Accord Armijo Depo. at 23:10-25; Amended Response to Jan. 30, 2012 MSJ ¶ 32, at 5 (not disputing this fact). “Armijo found out from an ‘an outside source’ that Plaintiff had ‘rape charges.’ ” Jan. 30, 2012 MSJ ¶ 33, at 7 (setting forth this fact). Accord Armijo Depo. at 24:9-20; Amended Response to Jan. 30, 2012 MSJ ¶ 33, at 5-6 (not disputing this fact). The outside source was someone’s relative who was not in the MDC. See Jan. 30, 2012 MSJ ¶ 34, at 7 (setting forth this fact); Armijo Depo. at 24:9-20; Amended Response to Jan. 30, 2012 MSJ ¶ 34, at 6 (not disputing this fact). The outside source was not an MDC employee. See Jan. 30, 2012 MSJ ¶ 35, • at 7 (setting forth this fact); Armijo Depo. at 64:1-7; Amended Response to Jan. 30, 2012 MSJ ¶ 35, at 6 (not disputing this fact). The outside source informed Armijo that Todd was on a sex-offender website. See Jan. 30, 2012 MSJ ¶ 36, at 7 (setting forth this fact); Armijo Depo. at 55:12-21; Amended Response to Jan. 30, 2012 MSJ ¶ 36, at 6 (not disputing this fact). At some point during the shift on January 13, 2008, Wilks approached Montoya while both men were standing on the floor level of the area below and outside the confines of the staff station. See Apr. 13, 2011 MSJ ¶ 16, at 4 (setting forth this fact); Montoya Aff. ¶ 20, at 3. Wilks asked Montoya if Todd was a “Chester.” Apr. 13, 2011 MSJ ¶ 17, at 4 (setting forth this fact). Accord Montoya Aff. ¶ 21, at 3; Response to Apr. 13, 2011 MSJ ¶ 17, at 5 (not disputing this fact). Montoya interpreted Wilks’ use of the phrase Chester to mean that Wilks was asking if Todd was a child molester. See Apr. 13, 2011 MSJ ¶ 17, at 4-5 (setting forth this fact); Montoya Aff. ¶ 22, at 3; Response to Apr. 13, 2011 MSJ ¶ 17, at 5 (not disputing this fact). Montoya told Wilks “that he did not know.” Apr. 13, 2011 MSJ ¶ 17, at 5 (setting forth this fact). Accord Montoya Aff. ¶ 22, at 3. Wilks then walked away from and departed the staff station area. See Apr. 13, 2011 MSJ ¶ 18, at 5 (setting forth this fact); Montoya Aff. ¶ 24, at 4; Response to Apr. 13, 2011 MSJ ¶ 18, at 5 (not disputing this fact). Other than Todd’s statement to him, Wilks had no other knowledge of Todd’s criminal history. See Jan. 30, 2012 MSJ ¶ 10, at 4 (setting forth this fact); Wilks Depo. at 49:5-7. Other than to tell Wilks that he did not know if Todd was a Chester, Montoya did not verbally tell Wilks about any charges or other information regarding Todd. Other than to ask Montoya if Todd was a Chester, Wilks did not ask Montoya about Todd’s criminal charges. After Wilks left the staff station area, Montoya began to attempt to access the MDC records on Todd on the staff station computer. See Apr. 13, 2011 MSJ ¶ 19, at 5 (setting forth this fact); Montoya Aff. ¶25, at 4. A few minutes later, while Montoya was sitting down attempting to access the MDC records on Todd on the staff station computer, Wilks used his arms to raise his upper torso over the six-foot wall for about ten seconds; Wilks was peering over the six-foot wall on the right side of the staff station trying to view the computer terminal screen. See Apr. 13, 2011 MSJ ¶20, at 5 (setting forth this fact); Montoya Aff. ¶ 26, at 4. Montoya “quickly scooted back his chair a little and told Wilks, ‘You need to get off the staff station.’ ” Apr. 13, 2011 MSJ ¶ 21, at 5 (setting forth this fact). Accord Montoya Aff. ¶ 27, at 4. After a few seconds, Wilks complied and left the staff station area. See Apr. 13, 2011 MSJ ¶ 21, at 5 (setting forth this fact); Montoya Aff. ¶ 28, at 4. From his vantage point or angle on top of the wall, Wilks had a limited view of the information contained on the computer screen. See Apr. 13, 2011 MSJ ¶ 22, at 5 (setting forth this fact); Montoya Aff. ¶ 29, at 4. Wilks looked at the computer located on the desk of the corrections officer. Wilks came close to the desk of the corrections officer. When Wilks was on the staff station wall, Montoya had not yet viewed any MDC records for Todd related to Todd’s legal or criminal history. See Apr. 13, 2011 MSJ ¶23, at 5 (setting forth this fact); Montoya Aff. ¶ 30, at 4. Wilks did not see or view information on Todd from the computer screen. See Jan. 30, 2012 MSJ ¶24, at 6 (setting forth this fact); Wilks Depo. at 45:20-46:ll. Montoya did not show Wilks any charges or other information regarding Todd. See Jan. 30, 2012 MSJ ¶ 24, at 6 (setting forth this fact); Wilks Depo. at 46:12-14. Montoya did not communicate to Wilks any information about Todd’s criminal or legal history. See Apr. 13, 2011 MSJ ¶ 24, at 5 (setting forth this fact); Montoya Aff. ¶ 31, at 4. Wilks’ actions on January 13, 2008, in trying to view the computer terminal screen from atop the six-foot wall was the only time during Montoya’s employment at MDC that an inmate had tried to view the computer terminal screen located in the staff station. See Apr. 13, 2011 MSJ ¶ 25, at 6 (setting forth this fact); Montoya Aff. ¶ 32, at 4. Before Wilks’ actions in trying to view the computer terminal screen from atop the six-foot wall, Montoya had no concerns about any inmate attempting to view the computer screen while he was attempting to access Todd’s MDC records. See Apr. 13, 2011 MSJ ¶ 26, at 6 (setting forth this fact); Montoya Aff. ¶ 33, at 4-5. Before the altercation involving Todd, Armijo did not see Wilks speaking to Montoya. See Jan. 30, 2012 MSJ ¶ 44, at 8 (setting forth this fact); Armijo Depo. at 46:6-9; Amended Response to Jan. 30, 2012 MSJ ¶44, at 6 (not disputing this fact). Armijo did not see anyone looking at the computer on the corrections officer’s desk on the day of the fight. See Jan. 30, 2012 MSJ ¶ 45, at 8 (setting forth this fact); Armijo Depo. at 46:16-18; Amended Response to Jan. 30, 2012 MSJ ¶ 45, at 6 (not disputing this fact). Armijo did not see or view any information regarding Todd on the computer at the guard station at any time. See Jan. 30, 2012 MSJ ¶ 46, at 8 (setting forth this fact); Armijo Depo. at 64:24-65:4. The corrections officer on duty on the date of the fight did not show any charges or other information regarding Todd to Armijo. See Jan. 30, 2012 MSJ ¶47, at 8 (setting forth this fact); Armijo Depo. at 65:10-13. The corrections officer on duty on the date of the fight did not verbally tell Armijo about any charges or other information regarding Todd. See Jan. 30, 2012 MSJ ¶48, at 8 (setting forth this fact); Armijo Depo. at 65:14-17. The corrections officer on duty on the date of the fight did not instruct or direct Armijo to attack Todd. See Jan. 30, 2012 MSJ ¶48, at 8 (setting forth this fact); Armijo Depo. at 65:14-17. A couple of minutes after Wilks left the staff station area, a physical altercation took place involving Todd and Wilks; Montoya observed Todd and Wilks exchanging punches with their fists, and then saw them on the floor wrestling with one another. See Apr. 13, 2011 MSJ ¶ 27, at 6 (setting forth this fact); Montoya Aff. ¶¶ 34-35, at 5; Response to Apr. 13, 2011 MSJ ¶ 27, at 6 (not disputing this fact). During the fight, Wilks hit Todd in the face, wrestled with him, and put him in a headlock on the floor. See Jan. 30, 2012 MSJ ¶ 6, at 4 (setting forth this fact); Wilks Depo. at 24:22-25:2, 47:3-6; Amended Response to Jan. 30, 2012 MSJ ¶ 6, at 3 (not disputing this fact). Before the fight, neither Wilks nor Armijo said anything to Todd, and Todd did not say anything to them; Wilks and Armijo attacked Todd without provocation. During the altercation between Todd and Wilks, Montoya saw another inmate, Armijo, enter the altercation by kicking Todd in the facial area. See Apr. 13, 2011 MSJ ¶28, at 6 (setting forth this fact); Montoya Aff. ¶ 36, at 5; Response to Apr. 13, 2011 MSJ ¶ 28, at 6 (not disputing this fact). Armijo and another inmate did not confront Todd before Wilks attacked Todd. Todd and Armijo threw punches at one another. “Within seconds after the physical altercation began, Defendant Montoya called a ‘Code 32’ on his radio communicator, indicating that an altercation or ‘inmate fight’ was taking place.” Apr. 13, 2011 MSJ ¶ 31, at 6 (setting forth this fact). Accord Montoya Aff. ¶ 39, at 5; Response to Apr. 13,- 2011 MSJ ¶31, at 7 (not disputing this fact). Guards did not come immediately to break up the fight between Todd and Wilks, and the fight lasted for two to three minutes before guards arrived. When the guards arrived, “MDC Sgt. Chris Sanchez and five (5) MDC-corrections officers entered F-7 and the altercation was broken up.” Apr. 13, 2011 MSJ ¶31, at 6-7 (setting forth this fact). Accord Montoya Aff. ¶ 40, at 5; Response to Apr. 13, 2011 MSJ ¶ 31, at 7 (not disputing this fact). These guards placed Todd and Wilks in restraints, and escorted them out of F-7 for medical treatment. See Apr. 13, 2011 MSJ ¶ 32, at 7 (setting forth this fact); Montoya Aff. ¶ 41, at 5; Response to Apr. 13, 2011 MSJ ¶ 32, at 7 (not disputing this fact). After the guards took Wilks for medical treatment, they placed him in a segregation unit. See Jan. 30, 2012 MSJ ¶ 8, at 4 (setting forth this fact); Wilks Depo. at 47:20-22; Amended Response to Jan. 30, 2012 MSJ ¶ 8, at 4 (not disputing this fact). During the time he was in segregation, Wilks did not speak with anyone regarding Todd’s criminal or legal background. See Jan. 30, 2012 MSJ ¶ 11, at 4 (setting forth this fact); Wilks Depo. at 48:20-23. Montoya did not instruct or direct Wilks to attack Todd. See Jan. 30, 2012 MSJ ¶ 27, at 6 (setting forth this fact); Wilks Depo. at 46:19-21. The fight between Wilks and Todd had nothing to do with Montoya. See Jan. 30, 2012 MSJ ¶ 28, at 6 (setting forth this fact); Wilks Depo. at 46:22-47:6, 57:6-13. Armijo was not near the staff station at any time on January 13, 2008, including when Montoya was trying to access Todd’s MDC files. See Apr. 13, 2011 MSJ ¶ 29, at 6 (setting forth this fact); Montoya Aff. ¶ 37, at 5; Response to Apr. 13, 2011 MSJ ¶ 29, at 6 (not disputing this fact). Montoya never communicated to Armijo any information about Todd’s criminal or legal history. See Apr. 13, 2011 MSJ ¶ 30, at 6 (setting forth this fact); Montoya Aff. ¶ 38, at 5. After the fight, Armijo was taken to segregation. See Jan. 30, 2012 MSJ ¶ 40, at 7 (setting forth this fact); Armijo Depo. at 61:4-6; Amended Response to Jan. 30, 2012 MSJ ¶40, at 6 (not disputing this fact). Armijo did not talk to Montoya on the date of the fight involving Todd. See Jan. 30, 2012 MSJ ¶ 42, at 7 (setting forth this fact); Armijo Depo. at 32:5-6. Before the physical altercation on January 13, 2008 took place, Montoya had never witnessed, nor was he aware of, any contacts or communications between Todd and Wilks. See Apr. 13, 2011 MSJ ¶ 38, at 7 (setting forth this fact); Montoya Aff. ¶ 45, at 6. Before the physical altercation on January 13, 2008 taking place, Montoya had never witnessed, nor was he aware of, any contacts or communications between Todd and Armijo. See Apr. 13, 2011 MSJ ¶ 39, at 8 (setting forth this fact); Montoya Aff. ¶46, at 6. Throughout his employment with MDC, Montoya had never allowed any inmate to have access to the staff station area — including never allowing any inmate access to the computer terminal or computer screen. See Apr. 13, 2011 MSJ ¶ 40, at 8 (setting forth this fact); Montoya Aff. ¶ 47, at 6. Before the altercation on January 13, 2008, took place, Montoya was not aware of any excessive risk to the health or safety of Todd, and was not aware of any risk of physical harm to Todd. See Apr. 13, 2011 MSJ ¶ 41, at 8 (setting forth this fact); Montoya Aff. ¶¶ 48-49, at 6. Wilks initially refused to give a statement regarding the incident. See Apr. 13, 2011 MSJ ¶ 33, at 7 (setting forth this fact); Voluntary Statement at 1 (dated January 15, 2008), filed April 13, 2011 (Doc. 61-2)(“Wilks’ Refusal to Give Statement”). Wilks did not write the handwritten statement in the Voluntary statement that states: “I found out his charges by a CO Montoya I saw them on the computer.” Jan. 30, 2012 MSJ ¶ 12, at 5 (setting forth this fact). Accord Wilks Depo. at 26:9-12; Voluntary Statement at 1 (dated January 15, 2008), filed January 30, 2012 (Doc. 94-2)(“Second Copy of Voluntary Statement”). The handwritten statement in the Second Copy of Voluntary Statement is not in Wilks’ handwriting. See Jan. 30, 2012 MSJ ¶ 13, at 5 (setting forth this fact); Wilks Depo. at 26:9-12. The handwritten statement of “I found out his charges by a CO Montoya I saw them on the computer” is untrue. Jan. 30, 2012 MSJ ¶ 14, at 5 (setting forth this fact); Wilks Depo. at 49:20-24. Wilks signed the back page of another document also entitled ‘Voluntary Statement.” Jan. 30, 2012 MSJ ¶ 15, at 5 (setting forth this fact). Accord Wilks Depo. at 50:12-15; Voluntary Statement at 2 (dated January 15, 2008), filed January 30, 2012 (Doc. 94-3)(“Signed Copy of Wilks’ Refusal to Give Statement”); Amended Response to Jan. 30, 2012 MSJ ¶ 15, at 4 (not disputing this fact). An MDC employee presented the Signed Copy of Wilks’ Refusal to Give Statement when he “was in segregation following the fight with Todd.” Jan. 30, 2012 MSJ ¶ 16, at 5 (setting forth this fact). Accord Wilks Depo. at 50:24-51:11; Amended Response to Jan. 30, 2012 MSJ ¶ 16, at 4 (not disputing this fact). Wilks refused to give a written statement, but signed the document upon the request of the MDC employee. See Jan. 30, 2012 MSJ ¶ 16, at 5 (setting forth this fact); Wilks Depo. at 50:24 — 51:11. At some point, Wilks made his only handwritten statement about the fight to Lieutenant Jason Ellis at MDC. Jan. 30, 2012 MSJ ¶ 17, at 5 (setting forth this fact); Wilks Depo. at 52:16-53:20. The Statement to Jason Ellis from Patrick Wilks (dated January 21, 2008), filed January 30, 2012 (Doc. 94-4), is the only written statement Wilks made that he provided to MDC personnel regarding his fight with Todd. See Jan. 30, 2012 MSJ ¶ 19, at 5 (setting forth this fact); Wilks Depo. at 54:7-10. In his only handwritten statement about the fight, Wilks wrote: “Me and Todd were fighting because he got in my face.” Jan. 30, 2012 MSJ ¶ 18, at 5 (setting forth this fact). Accord Wilks Depo. at 52:16-53:20; Statement to Jason Ellis from Patrick Wilks at 1; Amended Response to Jan. 30, 2012 MSJ ¶ 18, at 5 (not disputing this fact). The written statement contained in the Statement to Jason Ellis from Patrick Wilks is an accurate and true statement to the extent that it states that Todd and Wilks did not have any interactions before the fight. Armijo also refused to give a statement regarding the incident. See Apr. 13, 2011 MSJ ¶ 34, at 7; Voluntary Statement at 1 (dated January 15, 2008), filed April 13, 2011 (Doc. 61-3)(“Armijo’s Refusal to Give Statement”); Response to Apr. 13, 2011 MSJ ¶ 34, at 7 (not disputing this fact). “Armijo signed the back page (Page 2 of 2) of a document entitled ‘Voluntary Statement,’ in which Armijo refused to give a written statement.” Jan. 30, 2012 MSJ ¶ 43, at 8 (setting forth this fact). Accord Voluntary Statement at 1-2 (dated January 15, 2008), filed January 30, 2012 (Doc. 94-6); Amended Response to Jan. 30, 2012 MSJ ¶ 43, at 6 (not disputing this fact). Sanchez later directed Montoya to provide a written report on the incident. See Apr. 13, 2011 MSJ ¶ 35, at 7 (setting forth this fact); Montoya Aff. ¶ 42, at 5; Response to Apr. 13, 2011 MSJ ¶ 35, at 7 (not disputing this fact). Montoya provided Sanchez with a written report on the incident. See Apr. 13, 2011 MSJ ¶ 36, at 7 (setting forth this fact); Inter-Office Correspondence from Corrections Officer Tomas Montoya to Sergeant Chris Sanchez at 1 (dated January 13, 2008), filed April 13, 2011 (Doc. 61-4)CTnter-Office Correspondence”); Response to Apr. 13, 2011 MSJ ¶36, at 7 (not disputing this fact). “Subsequently, Defendant Montoya was called into the Deputy Chiefs office and told to resign or he would probably be terminated during his probationary period.” Apr. 13, 2011 MSJ ¶ 37, at 7 (setting forth this fact). Accord Montoya Aff. ¶ 44, at 6; Response to Apr. 13, 2011 MSJ ¶ 37, at 7 (not disputing this fact). Montoya resigned because of this incident. See Response to Apr. 13, 2011 MSJ ¶ 37, at 7 (setting forth this fact); Transcript of Hearing at 54:3-12, filed January 4, 2011 (Doc. 38)(Johnson, Montoya); Reply to Response to Apr. 13, 2011 MSJ at 1-10 (not disputing this fact). Todd is suing Montoya solely in his individual capacity. See Apr. 13, 2011 MSJ ¶ 42, at 8 (setting forth this fact); Complaint for Civil Rights Violations, Tort Claims and Damages ¶ 6, at 2 (dated January 11, 2010), filed February 8, 2010 (Doc. 2-l)(“Complaint”)(admitting this fact); Response to Apr. 13, 2011 MSJ ¶ 42, at 8 (not disputing this fact). Todd makes no tort claims against Montoya on the basis of vicarious liability under the tort principle of respondeat superior. See Apr. 13, 2011 MSJ ¶ 43, at 8 (setting forth this fact); Complaint ¶¶ 59-65, at 9-10 (admitting this fact); Response to Apr. 13, 2011 MSJ ¶ 43, at 8 (not disputing this fact). PROCEDURAL BACKGROUND On January 11, 2010, Todd filed his Complaint against Montoya, Defendant Ron Torres, the Director of the MDC, and Defendant Board of County Commissioners of Bernalillo County in the Second Judicial District Court. See Doc. 2-1. Todd asserts the following counts against Montoya: (i) Count I — a cause of action under 42 U.S.C. § 1983 for cruel and unusual punishment in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and (ii) Count III — a cause of action under the NMTCA for negligence, gross negligence, and recklessness. Complaint at 6-10. On February 8, 2010, the Defendants filed their Notice of Removal to remove this case to federal court. See Notice of Removal at 1-2 (Doc. 2). On April 13, 2011, Montoya filed his Apr. 13, 2011 MSJ. See Doc. 61. He “moves for summary judgment on all claims ... on the basis of qualified immunity and other grounds.” Apr. 13, 2011 MSJ at 1. Montoya contends that Todd cannot establish that he acted with deliberate indifference in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution— which, given Todd’s pre-trial detention, he argues is coterminous with the requirements imposed by the Eighth Amendment to the United States Constitution. See Apr. 13, 2011 MSJ at 12. Montoya concedes that prison officials have a duty to protect prisoners from violence at the hands of other prisoners, but argues that they have no obligation to “prevent all inmate-on-inmate violence.” Apr. 13, 2011 MSJ at 13. Montoya asserts that Todd cannot show the existence of a genuine issue of material fact whether he acted with deliberate indifference while Todd was incarcerated in a way that resulted in Todd’s injuries. See Apr. 13, 2011 MSJ at 13-14. Montoya contends that Todd can satisfy neither the objective prong nor the subjective prong of the Eighth Amendment analysis given that: (i) Todd cannot show that he, or the inmates who beat him, were wrongly classified within the prison population as general-population prisoners; (ii) Montoya had no involvement in the beating; and (iii) there is no competent evidence that Montoya acted with deliberate indifference to Todd’s safety. See Apr. 13, 2011 MSJ at 14-18. Montoya also argues that no competent evidence supports a conclusion that he committed any tort against Todd, specifically, that he acted in a negligent, grossly negligent, or reckless manner. See Apr. 13, 2011 MSJ at 18-19. On April 13, 2011, Montoya filed his Defendant Tomas Montoya’s Motion to Stay Discovery Pending Determination of His Motion for Summary Judgment on Basis of Qualified Immunity. See Doc. 62 (“Motion to Stay”). Montoya seeks a stay of discovery in this proceedings pending a determination of his Apr. 13, 2011 MSJ. See Motion to Stay at 2. On May 23, 2011, Todd filed his Response to Apr. 13, 2011 MSJ. See Doc. 67. Todd asserts that genuine issues of material fact exist whether Montoya showed the inmates who beat him information regarding Todd’s “convictions for offenses that are sexual in nature.” Response to Apr. 13, 2011 MSJ at 1-2. Todd requested additional discovery under rule 56(d) of the Federal Rules of Civil Procedure so that he could properly rebut the Apr. 13, 2011 MSJ. See Response to Apr. 13, 2011 MSJ at 10-11. Todd notes that the United States Court of Appeals for the Sixth Circuit rejected a qualified-immunity defense in a similar case where a guard told other inmates about the plaintiffs charges for a sex offense that resulted in the plaintiffs beating. See Response to Apr. 13, 2011 MSJ at 12-13 (citing Leary v. Livingston Cnty., 528 F.3d 438, 442 (6th Cir.2008)). He asserted that there is a clearly established duty for prison officials to protect prisoners from violence. See Response to Apr. 13, 2011 MSJ at 13-14. On June 20, 2011, Montoya filed his Reply to Response to Apr. 13, 2011 MSJ. See Doc. 80. Montoya asserts that Todd has alleged for the first time in his response brief that Montoya instructed Wilks to attack Todd. See Reply to Response to Apr. 13, 2011 MSJ at 5. Montoya objects to various evidence Todd has presented as hearsay evidence or as otherwise inadmissible. See Reply to Response to Apr. 13, 2011 MSJ at 2. At the hearing on August 19, 2011, Montoya noted that Wilks’ testimony “does appear to be a focal point for plaintiffs claims.” Transcript of Hearing at 5:21-22 (taken August 19, 2011)(Quinones)(“Aug. 19, 2011 Tr.”). Montoya then stated that, if Wilks testifies that he never received any information on Todd’s charges or criminal history from Montoya, then this case should be dismissed either voluntarily or by the Court. See Aug. 19, 2011 Tr. at 5:22-25 (Quinones). Montoya asserted that if, on the other hand, Wilks testifies that Montoya informed him or showed him anything about Todd’s past criminal charges, then the case can go forward. See Aug. 19, 2011 Tr. at 6:1-4 (Quinones). Todd agreed with the Court that he needed to refute Montoya’s sworn assertions that he had never shown this information to Wilks to create an issue of fact so that the case could proceed. See Aug. 19, 2011 Tr. at 10:15-11:2 (Court, Villa). Todd acknowledged that he needed to have some evidence that Montoya communicated in some way to Wilks — either via the computer screen or orally — that Todd should be beaten. See Aug. 19, 2011 Tr. at 10:15-11:5 (Court, Villa). On October 4, 2011, 2011 WL 5238900 the Court filed its Memorandum Opinion and Order granting in part and denying in part the Motion to Stay. See Doc. 88 (“MOO”). The Court recounted that, “[a]t the August 19, 2011 hearing, the parties agreed that the viability of Todd’s case turned on inmate Wilks’ sworn testimony.” MOO at 7. The Court held that “Todd has shown, as best he can without using the Court’s subpoena power, that there may be evidence to keep his case alive if he is allowed to take Wilks’ deposition.” MOO at 8. The Court further stated: The Court will allow Wilks’ deposition to go forward. This testimony is possibly] determinative of Todd’s case, and this limited amount of discovery is narrowly crafted to get to the heart of the motion for summary judgment without allowing a lot of potentially unnecessary discovery. Montoya has said he did not show Wilks or Armijo his computer screen, or tell them Todd’s crimes; if Wilks says othexwise, there will likely be a genuine issue of fact requiring .the Court to deny the motions and allow the parties to proceed to trial. It seems fundamentally unfair to dismiss Todd’s case when a deposition of Wilks may make his case. Further, this deposition will not burden any government employees or entities. Accordingly, the Court finds that this limited discovery falls within the exceptions to disallowing discovery once the defense of qualified immunity has been raised. See Garrett v. C.A. Stratmen [Stratman], M.D., 254 F.3d at 953 (recognizing that a discovery order in the context of qualified immunity is not immediately appealable “when the defendant’s immunity claim turns at least partially on a factual question; when the district court is unable to rule on the immunity defense without further clarification of the facts; and which are narrowly tailored to uncover only those facts needed to rule on the immunity claim are neither avoidable or overly broad.”). The Court does not believe this one deposition defeats the important purposes of qualified immunity that recognize the need for barring most, if not all, discovery when the defendant raise the defense. The Court may also allow Armijo’s deposition to be taken, depending upon Wilks’ testimony. See Tr. at 14:17-25 (Court). The Court will not authorize Armijo’s deposition at this time. If Wilks does not give Todd what he needs and wants to defeat summary judgment, however, the parties are advised that the Court will be strongly inclined to allow Todd to take Armijo’s deposition; perhaps this inclination will help the parties as they discuss whether to allow Armijo’s deposition after assessing Wilks’ deposition. MOO at 9-10. After the Court issued its MOO, the parties conducted a deposition for both Wilks and Armijo. See Certificate of Service at 1, filed November 1, 2011 (Doc. 92); Certificate of Service at 1, filed November 23, 2011 (Doc. 93). Wilks’ Deposition took place at the Penitentiary of New Mexico. See Wilks Depo. at 1. Armijo’s deposition took place at the MDC. See Armijo Depo. at 4:10-14. On January 30, 2012, Montoya filed his Jan. 30, 2012 MSJ. See Doc. 94. Montoya seeks summary judgment on qualified-immunity grounds on all claims that Todd has asserted against him. See Jan. 30, 2012 MSJ at 1. Montoya incorporates by reference his Apr. 13, 2011 MSJ and his reply brief as it relates to that motion. See Jan. 30, 2012 MSJ at 1 n. 1. Montoya argues that Todd has not shown the existence of a genuine issue of material fact whether he acted with deliberate indifference. See Jan. 30, 2012 MSJ at 9. Montoya contends that he “cannot be expected to prevent a spur-of-the-moment fight between inmates.” Jan. 30, 2012 MSJ at 10. On February 27, 2012, Todd filed his Response to Jan. 30, 2012 MSJ. See Doc. 96. Todd asserts that, “[although Plaintiff does not believe it is necessary, should the Court believe that additional discovery is necessary to rule on Defendant’s Motion, the Court should defer ruling until said discovery can be completed.” Response to Jan. 30, 2012 MSJ at 3. He asks the Court, if additional discovery is necessary, for depositions from “the two MDC employees who spoke to Mr. Wilkes after the incident, Sgt. Sanchez and CO Gallardo.” Response to Jan. 30, 2012 MSJ at 3. He contends that these individuals will have information regarding a statement Wilks made “that Montoya did show him Plaintiffs charges.” Response to Jan. 30, 2012 MSJ at 3. Todd asserts that “[i]t is undisputed that eight days after Wilks purportedly made a statement that he found out Plaintiffs charges from Defendant Montoya, Defendant Montoya resigned in lieu of termination.” Response to Jan. 30, 2012 MSJ at 10. Todd argues that this resignation supports a determination that there is a genuine issue of material fact regarding Montoya’s liability. See Response to Jan. 30, 2012 MSJ at 10-11. Todd contends that Montoya arranged for Wilks and Armijo to attack Todd by showing them his criminal history. See Response to Jan. 30, 2012 MSJ at 11. Todd asserts that Armijo testified that the altercation arose when he and Wilks discovered that Todd is a sex offender.' See Response to Jan. 30, 2012 MSJ at 11-12. Todd argues that “a jury could infer that the reason Armijo attacked Plaintiff along with Wilks is because either Wilks, Montoya or another inmate relayed the information about Plaintiffs status to Armijo.” Response to Jan. 30, 2012 MSJ at 12. On February 28, 2012, Todd filed his Amended Response to Jan. 30, 2012 MSJ to correct his statement of facts. See Doc. 97. Todd asserts that “[a]ll of the Argument section of the original Response remains unchanged.” Amended Response to Jan. 30, 2012 MSJ at 1. On March 9, 2012, Montoya filed a notice of withdrawal to withdraw his Apr. 13, 2011 MSJ. See Defendant Tomas Montoya’s Notice of Withdrawal of Defendant Montoya’s Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds Filed April 13, 2011 (Doc. # 61) and Agreement on Consideration of Content of Original Motion for Purposes of Defendant Montoya’s Renewed Motion for Summary Judgment (Doc. # 94), filed March 9, 2012 (Doc. 102). On March 22, 2012, Montoya filed his Reply to Response to Jan. 30, 2012 MSJ. See Doc. 104. At the hearing on April 5, 2012, Montoya emphasized that, while depositions for Wilks and Armijo may have been appropriate, Todd did not request, in response to the Apr. 13, 2011 MSJ, further discovery beyond depositions of those two individuals. See Transcript of Hearing at 6:10-25 (taken April 5, 2012)(Quinones)(“Apr. 5, 2012 Tr.”). Montoya contended that, in light of the burden he faces in participating in further discovery and the piecemeal nature of Todd’s discovery requests, further discovery is not appropriate at this time. See Apr. 5, 2012 Tr. at 7:1-8:16 (Quinones); id. at 23:16-23 (Quinones). Montoya emphasized that no competent evidence supports Todd’s assertions that Montoya provided Wilks or Armijo with information about Todd’s criminal history. See Apr. 5, 2012 Tr. at 8:8-9:21 (Quinones). Montoya argued that, on the issue of his liability in this lawsuit, it is not relevant that he has been discharged from his position given that he was an at-will employee. See Apr. 5, 2012 Tr. at 10:13-11:19 (Quinones). Montoya asserted that the references to fraternization in some of the documents related to his discharge implicate Montoya’s interactions with his brother, whom he represents was incarcerated while he was working at the MDC. See Apr. 5, 2012 Tr. at 12:17-13:9 (Quinones). Montoya argued that the written statement allegedly attributable to Wilks that Montoya showed him Todd’s criminal history is hearsay and that Wilks denies ever having written that statement. See Apr. 5, 2012 Tr. at 13:25-14:11 (Quinones). Montoya asserted that the Court should not consider statements that appear in Todd’s affidavit which are speculative or which are not based on personal knowledge. See Apr. 5, 2012 Tr. at 23:2-15 (Quinones). Todd responded that there are cases establishing that a constitutional violation occurs when a prison official shows a prisoner another inmate’s criminal history in such a way that other prisoners beat the inmate. See Apr. 5, 2012 Tr. at 30:21-31:5 (Villa). The Court noted that, in its MOO granting Todd some ability to conduct discovery, it was pushing the limit of what it felt comfortable giving in light of the qualified-immunity defense. See Apr. 5, -2012 Tr. at 31:13-32:2 (Court). Todd conceded that both Wilks and Armijo denied in their depositions that Montoya communicated to them any information about Todd’s criminal history. See Apr. 5, 2012 Tr. at 34:10-12 (Villa). The Court stated that it was more concerned about entering summary judgment previously when there was a possibility that Montoya showed Wilks or Armijo this information, but noted that there now does not appear to be any disagreement on that issue in light of their deposition testimony. See Apr. 5, 2012 Tr. at 24:13-20 (Court). Todd stated that it is often necessary to prove intent circumstantially. See Apr. 5, 2012 Tr. at 36:5-14 (Villa). Todd represented that he is asserting alternative theories regarding Montoya’s conduct, specifically that Montoya either, in an unintentional but constitutionally improper manner, allowed Wilks to see Todd’s criminal history, or that Montoya intentionally provided Wilks and/or Armijo with this information. See Apr. 5, 2012 Tr. at 40:12-20 (Villa). Todd asserted that he has pled both of these theories in his pleadings. See Apr. 5, 2012 Tr. at 43:5-44:18 (Villa). Todd contended that a deposition for Abraham Gallardo and/or Chris Sanchez, individuals whom he asserted interviewed Wilks about the fight, would be appropriate to clear up the origin of the statement that Montoya communicated Todd’s criminal history to Wilks that is allegedly attributable to Wilks. See Apr. 5, 2012 Tr. at 44:19-45:12 (Villa). Todd asserted that he never conceded that only depositions for Wilks and Armijo would be necessary. See Apr. 5, 2012 Tr. at 46:9-47:5 (Villa). LEGAL STANDARD FOR 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 “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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.” Ap plied 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). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. 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) (“However, ‘once 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 omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Natl Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “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. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)). 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When reviewing a motion for summary judgment, the court should keep in mind three 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 Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505. LAW REGARDING RULE 56(d) Rule 56(d) of the Federal Rules of Civil Procedure states: (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain'affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed.R.Civ.P. 56(d). The United States Court of Appeals for the Tenth Circuit reviews a district court’s denial of a rule 56(d) motion for abuse of discretion. See Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992). “A prerequisite to granting relief ... is an affidavit furnished by the nonmovant.” Comm. for First Amendment v. Campbell, 962 F.2d at 1522 (citing Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 832 (10th Cir.1986)). “Unless dilatory or lacking in merit,” a party’s rule 56(d) application “should be liberally treated.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir.1993) (internal quotation marks omitted). “The general principle of Rule 56(f) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000) (internal quotation marks omitted). “Rule 56(f) does not require, however, that summary judgment not be entered until discovery is complete.” Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., Nos. 02-1146, 03-1185, 2007 WL 2461629, at *3 (D.N.M. June 5, 2007) (Browning, J.)(citing Price v. W. Res., Inc., 232 F.3d 779, 784 (10th Cir.2000)). To invoke the shelter that rule 56(d) provides, a party must (i) file an affidavit, see Pasternak v. Lear Petroleum Exploration Inc., 790 F.2d at 832-33; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; (iii) explain why facts precluding summary judgment cannot be presented, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment, see Comm, for the First Amendment v. Campbell, 962 F.2d at 1522. “Rule 56( [d]) may not be invoked based solely upon the assertion that discovery is incomplete or that the specific facts necessary to oppose summary judgment are unavailable.” Schaefer v. Antill, No. 06-0460, 2007 WL 709046, at *9 (D.N.M. Jan. 31, 2007) (Browning, J.). “Rule 56( [d]) is not a license for a fishing expedition.” Lewis v. Ft. Collins, 903 F.2d 752, 759 (10th Cir.1990). 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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (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, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). 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 unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009). 1. Procedural Approach to Quáliñed Immunity. The Supreme Court of the United States recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting a mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” Pearson v. Callahan, 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that a mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted) (internal quotation marks omitted). Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified-immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993). The Supreme Court recognized seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: [W]hen (1) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (5) tackling the first element “may create a risk of bad decisionmaking” due to inadequate briefing; (6) discussing both elements risks “bad decisionmaking” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (7) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a