Glover v. Gartman (899 F. Supp. 2d 1115, 2012)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendants Christopher Collins and Bradley Rice’s Motion to Dismiss Plaintiffs Complaint, filed July 10, 2012 (Doc. 24)(“Motion to Dismiss”). The Court held a hearing on April 25, 2012. The primary issues are: (i) whether Defendant Bradley Rice violated Devon Edward Glover’s substantive due-process rights when Rice supplied D. Glover, a pretrial detainee, with two razor blades and left him for two hours; (ii) whether Rice violated D. Glover’s substantive due-process rights when he did not respond timely to D. Glover’s emergency calls for help; (in) whether Defendant Christopher Collins violated D. Glover’s substantive due-process rights when he did not respond timely to D. Glover’s emergency calls for help; and (iv) whether Rice’s or Collins’ alleged acts and omissions violated D. Glover’s state substantive due-process clause rights. The Court will grant Rice and Collins’ motion. Glover has failed to state, with sufficient specificity, a plausible claim under 42 U.S.C. § 1983 on which Rice and Collins are not entitled to qualified immunity, because their conduct did not violate any clearly established substantive due-process clause right of D. Glover; neither Rice nor Collins had any knowledge that D. Glover posed a suicide risk, and neither Rice nor Collins heard his calls for help. T. Glover has also failed in his Complaint to state facts sufficient to show that the conduct of either Collins or of Rice deprived Glover of his rights under the New Mexico Constitution for which New Mexico law has waived sovereign immunity pursuant to the New Mexico Tort Claims Act, N.M.SA.1978 §§ 41-4-1-30 (“NMTCA”).

FACTUAL BACKGROUND

Consistent with the Court’s duty to take the plaintiffs allegations as true under rule 12(b)(6), the Court takes its facts from T. Glover’s Complaint. The Hobbs, New Mexico police department arrested Devon Glover (“D. Glover” or “Decedent”) on April 10, 2011, and incarcerated him in the Hobbs Municipal Jail. See Complaint ¶ 14, at 3. Sometime thereafter, D. Glover was transported to the Lea County Detention Center (“LCDC”) in Lovington, New Mexico. See id.

On April 12, 2011, D. Rice, a LCDC officer, issued Glover razors and left Glover with the razors so that Glover could shave; Glover was left for over one hour without LCDC officer supervision. See id. ¶ 10, at 3; id. ¶ 15-16, at 3-4. D. Glover harmed himself with the razors by cutting his neck. See id. ¶ 17, at 4. D. Glover then “tried to communicate an emergency situation to the [LCDC] officers by pushing the emergency buttons for help.” Id. ¶ 19, at 4. “The Defendants actively ignored the emergency button and pleas for help by the Decedent for up to one (1) hour.” Id. ¶¶ 20-21, at 4. D. Glover died of his injuries at approximately 12:46 a.m. on April, 13, 2011. See id. ¶ 13, at 3.

Collins was “a guard employed by the [LCDC] and was on duty on April 12 and ... was charged with the responsibility of maintaining the safety of the inmates.” Id. ¶ 12, at 3. Defendant Jan Gartman was the Warden of LCDC. See Id. ¶ 9, at 3. Defendant Javier Rios was a lieutenant and supervisor of LCDC and was in charge of supervising Glover’s incarceration. See id. ¶ 11, at 3.

PROCEDURAL BACKGROUND

T. Glover (“Glover”), individually, and as personal representative over the Estate of D. Glover, filed his Complaint for Damages on August 23, 2011. See Doc. 1. T. Glover filed his Amended Complaint on October 17, 2011. See Doc. 4. T. Glover asserts three causes of action against Rice and Collins: (i) Count I — actively failing to protect D. Glover’s life; (ii) Count Il-deprivation of constitution rights resulting in death under state law; and (iii) Count Ill-substantive due-process. See Complaint at 5-9. T. Glover is seeking compensatory and punitive damages, in addition to attorneys’ fees, and costs. See Complaint at 10.

Rice and Collins filed a motion to stay discovery pending a ruling on the Defendants’ motion raising qualified immunity, filed January 10, 2012 (Doc. 23). The Court granted that motion on September 12, 2012. See Memorandum Opinion and Order, 2012 WL 5182923 (Doc. 44).

On January 10, 2012, Rice and Collins filed the Motion to Dismiss. See Doc. 24. Rice and Collins move the Court, pursuant to rule 12(b)(6), for an order dismissing all claims against them and dismissing them as parties in the litigation. Rice and Collins assert that dismissal of all of T. Glover’s claims against them is appropriate, because: (i) qualified immunity bars the substantive due-process and Fourth Amendment claims against them in their individual capacities; and (ii) Glover’s claims for Fourth Amendment Violations in Count I, substantive due-process violations in Count III, and the state law claims-in Count II fail to state a claim upon which relief may be properly granted. See Motion to Dismiss at 1.

Rice and Collins argue that the doctrine of qualified immunity applies to shield the officers from liability under T. Glover’s 42 U.S.C. § 1983 (“§ 1983”) claims against them, because both Rice and Collins were acting in their official capacities as LCDC officers at all times relevant to T. Glover’s claims. See Motion to Dismiss at 3. Rice and Collins assert that the § 1983 claims fail to show that T. Glover is entitled to relief, as the claims do not set forth with sufficient specificity that Rice’s and Collins’ conduct violated Glover’s constitutional rights under the Fourth Amendment or the Due Process Clause of the Fourteenth Amendment, nor do the claims allege that any violated rights were clearly established. See Motion to Dismiss at 5.

Rice and Collins contend that T. Glover’s Complaint fails to sufficiently identify what acts or omissions are specifically attributable to either Collins or Rice, noting that the claims in T. Glover’s Complaint identify the actors in general terms rather than specifically identifying either Collins or Rice. See Motion to Dismiss at 6. Rice and Collins assert that, because the complaint fails to identify either Rice or Collins as the officer responsible for the acts or omissions, the Complaint fails to “explain ‘how they might be individually liable for deprivations of [D. Glover’s] constitutional rights.’ ” Motion to Dismiss at 7 (quoting Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1250 (10th Cir.2008)). Rice and Collins argue that, while two of the counts which T. Glover asserts against them “could include claims against Officer Collins and/or Officer Rice for violating [D.] Glover’s federal constitutional rights ... [,] neither of those counts contains any information that demonstrates or even suggests that Officer Collins or Officer Rice’s acts or omissions violated or implicated any of [D. Glover’s] federal constitutional rights.” Motion to Dismiss at 8-9.

Additionally, Rice and Collins argue that T. Glover’s Complaint fails to set forth sufficient facts to identify what constitutional violations T. Glover is attempting to allege. See Motion to Dismiss at 8. Regarding T. Glover’s claim in Count I, that Rice and Collins’ conduct constituted a deprivation of T. Glover’s “rights pursuant to the Fourth Amendment of the United States Constitution as incorporated in the due process clause of the Fourteenth Amendment,” Complaint ¶ 27, at 5, Rice and Collins argue that T. Glover has failed to state a claim which may serve as a legal basis under which relief may be properly granted, because the “Fourth Amendment, which protects citizens against searches and seizures, does not apply to the present case.” Motion to Dismiss at 9 (citing United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008)). Rice and Collins assert that the United States Court of Appeals for the Tenth Circuit has held that the Fourth Amendment is not implicated in the case of “the suicide of a pretrial detainee.” Motion to Dismiss at 9 (quoting Barrie v. Grand County, 119 F.3d 862, 870 (10th Cir.1997)(Briscoe, J., concurringXinternal quotations omitted)). Rice and Collins argue that Count III fails to “support or give rise to the conclusion” that Collins or Rice violated Glover’s federal constitutional rights, because Glover’s claim does not identify any particular substantive due-process rights allegedly violated. Motion to Dismiss at 10. They assert that, “[wjithout identifying any particular substantive due process right that may have been implicated or providing any specific facts that support such claims, Plaintiffs allegation that Defendants’ actions were ‘shocking to the conscience’ is nothing more than a conclusory statement, which the Court is not required to accept as true.” Motion to Dismiss at 11 (quoting Complaint ¶ 38, at 8). Finally, Rice and Collins argue that, because T. Glover failed to identify what constitutional rights Rice and Collins allegedly violated, he also failed to sufficiently allege that any constitutional rights violated were clearly established at the time of the conduct. See Motion to Dismiss at 11.

With respect to the state law claims in Count II of T. Glover’s Complaint, Rice and Collins argue that the court should dismiss these claims, because: (i) the claims fail to meet the requirements set forth in the NMTCA; (ii) the claims fail to state a claim under rule 12(b)(6) upon which relief can be granted; and (iii) the claims fail to satisfy the notice requirements set forth in rule 8. See Motion to Dismiss at 13-19. Rice and Collins argue that T. Glover’s allegations in the Complaint fail to meet the requirements for a cognizable action under the NMTCA; therefore, Rice and Collins are entitled to sovereign immunity as public employees. See Motion to Dismiss at 14. They assert that T. Glover’s Complaint fails to comply with the requirements for bringing a claim under the NMTCA, because he “has not explicitly stated that he brings his state claims pursuant to the NMTCA” and “has not pleaded any specific section of the NMTCA.” Motion to Dismiss at 14.

Rice and Collins argue that, should the Court find that Glover’s Amended Complaint complies with the NMTCA sufficient for a waiver of sovereign immunity, the Court should dismiss the claim under rule 12(b)(6) for failure to state a claim upon which relief may be properly granted, because T. Glover does not state any legal grounds grounded in Article II, § 10 or § 18 of the Constitution of New Mexico for which he seeks relief, nor does his Complaint contain any facts establishing that Collins or Rice violated Glover’s state constitutional rights. See Motion to Dismiss at 16-18. Rice and Collins assert that these same deficiencies in Glover’s Complaint merit dismissal under rule 8, because “[tjhe brief and conclusory” statements alleging Collins’ and Rice’s violations of Glover’s rights fail to satisfy the notice requirements of rule 8. Motion to Dismiss at 19.

On February 2, 2012, T. Glover filed Plaintiffs Response to Defendants’ Motion to Dismiss Plaintiffs Complaint, as Against Christopher Collins and Bradley Rice. See Doc. 33 (“MTD Response”). T. Glover notes that, when deciding a motion under rule 12(b)(6), the Court must accept as true the complaint’s well-pled' factual allegations. MTD Response at 1 (citing Seamons v. Snow, 84 F.3d 1226, 1231-1232 (10th Cir.1996)). He contends that Rice and Collins are not entitled to qualified immunity, because at the time of the facts underlying his claim, T. Glover “was not a convicted prisoner, he was a pretrial Detainee [sic],” and that “the right to protection” as a detainee was clearly established at the time under the Due Process Clause of the Fourteenth Amendment. MTD Response at 3 (citing Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Bell v. Wolfish, 441 U.S. 520, 536, n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir.1999) Berry v. City of Muskogee, 900 F.2d 1489, 1499 (10th Cir.1990)).

T. Glover argues that Claims I and III should withstand a rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, because the Amended Complaint “clearly sets forth ... [Rice’s and Collins’] individual participation in the alleged activities.” MTD Response (citing Amended Complaint ¶¶ 10, 12, at 3). He asserts that his Complaint specifically identifies a legal basis for the claim that Rice and Collins violated a particular constitutional right, because “even if the Fourth Amendment is not applicable to the facts as alleged herein, the general Fourteenth Amendment claim may properly serve as a legal basis for a violation of the protected constitutional rights.” MTD Response at 6. With regard to the argument that Count III fails to plead facts showing that Rice’s and Collins’ actions “shocked the conscience,” T. Glover asserts that he has made out a “plausible claim,” because he alleges that LCDC officers “actively ignored the [emergency] call buttons,” that Rice and Collins were on duty at the time, and he incorporates those allegations in his statement of relief in Claim III. MTD Response at 7 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

T. Glover argues that his state law cause of action in Claim II should withstand a motion to dismiss, because governmental immunity from tort liability does not apply to injuries caused by law enforcement officers while acting within the scope of their duties. See MTD Response at 9 (citing N.M.S.A.1978, § 41-4-12; Weinstein v. City of Santa Fe, 121 N.M. 646, 916 P.2d 1313 (1996)). He contends that his allegations that Rice gave D. Glover the razor blades, and that both Rice and Collins failed to adequately supervise and protect him from harm, make out a sufficient claim under N.M.S.A.1978, § 41-4-12 to withstand a motion to dismiss. See MTD Response at 9. In response to Rice and Collins’ argument that he fails to adequately establish a deprivation of his state constitutional rights under the Constitution of New Mexico, T. Glover asserts that the Amended Complaint adequately states that Rice’s and Collins’ conduct deprived D. Glover “of his right be incarcerated without fear or loss of his life,” as protected under Article II, § 18 of the Constitution of New Mexico. MTD Response at 10.

On February 14, 2012, Rice and Collins filed Defendants Christopher Collins and Bradley Rice’s Reply in Support of Their Motion to Dismiss Plaintiffs Complaint. See Doc. 38 (“MTD Reply”). Rice and Collins assert that T. Glover cites and relies upon the incorrect legal standard in responding the Motion to Dismiss:

All of the cases Plaintiff cited in his legal standard section reflect the Supreme Court’s iterations of the Conley v. Gibson, 355 U.S. 41 [78 S.Ct. 99, 2 L.Ed.2d 80] (1957), standard that governed a court’s review on a motion to dismiss before it was retired by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 [127 S.Ct. 1955, 167 L.Ed.2d 929] (2007), and Ashcroft v. Iqbal, [556 U.S. 662] 129 S.Ct. 1937 [173 L.Ed.2d 868] (2009). Specifically, Plaintiff asserts that “[a] Motion to Dismiss should not be granted unless it appears beyond a doubt, that the Plaintiff cannot prove a set of facts to justify relief.” (Resp. at 2.) The Supreme Court explicitly rejected this standard when it decided Twombly ....

MTD Reply at 2. They argue that, under the correct standard for ruling on a motion to dismiss on the basis of qualified immunity, “a plaintiff ‘must make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations.’ ” MTD Reply at 3 (quoting Robbins v. Okla., 519 F.3d 1242, 1250 (10th Cir.2008)). Rice and Collins contend that T. Glover’s statements fail to meet this standard, because his Amended Complaint lacks “any allegations against [Collins or Rice] that demonstrate or even suggest that [Collins or Rice] violated the Decedent’s constitutional rights by taking specific actions.” MTD Reply at 5.

Rice and Collins also assert that T. Glover, in his MTD Response, “concedes that the Fourth Amendment of the Constitution of the United States and Article II, Section 10 of the Constitution of New Mexico apply to the facts of this case,” and that the Court should dismiss Counts I and III to the extent either rely on those constitutional provisions. MTD Reply at 6 (citing MTD Response at 5-6). Regarding T. Glover’s substantive due-process rights argument, Rice and Collins argue that T. Glover’s MTD Response shows that the Complaint fails to specifically assert that the conduct of either Collins or Rice violated Glover’s rights. See MTD Reply at 7. They state that the allegations to which T. Glover refers in his MTD Response only “refer to ‘Lea County Detention Center and its Officers’ and to ‘Lea County Detention Center officers and employees’ ... [and that] these general allegations cannot overcome Officer Collins and Officer Rice’s qualified immunity defense, as they are the very kind that have been expressly rejected by this Court.” MTD Reply at 7-8 (citing Two Old Hippies, LLC v. Catch the Bus, LLC, 784 F.Supp.2d 1200 (D.N.M.2011)(Browning, J.)). Regarding the state law claims set out in Count II of Glover’s Complaint, Rice and Collins assert that T. Glover’s MTD Response argument, that Rice and Collins are not entitled to immunity, must fail:

[B]ecause simply asserting that Officer Collins and Officer Rice are not entitled to immunity against Plaintiffs claims is in no way tantamount to correctly pleading the specific section of the New Mexico Tort Claims Act under which Officer Collins and Officer Rice are deemed to have waived their immunity as public employees.

MTD Reply at 9-10.

The Court held a hearing on April 25, 2012. Rice and Collins argued that the Complaint fails to show that T. Glover is entitled to relief, and that the Court should dismiss because his Complaint fails make clear who is “alleged to have done what to whom.” Transcript of Hearing at 6:4 (April 25, 2012)(Heflick)(“Tr.”). The Court asked Rice and Collins whether the Complaint, taken as a whole, did not adequately “give the contours,” and make reasonably clear that Officer Rice provided D. Glover with the razor blades, while Officer Collins did not respond quickly enough to D. Glover’s emergency call button. See Tr. at 6:17-22 (Court). Rice and Collins contended that T. Glover must “identify in each count of their Complaint, exactly which defendant took what action.” Tr. at 7:25-8:1 (Heflick). They contend that T. Glover’s Complaint fails to meet the qualified immunity pleading requirements, because it fails to provide them with “notice about what claims are being alleged against them and why.” Tr. at 9:17-18 (Heflick).

In regards to the § 1983 claims, T. Glover clarified that he has abandoned his Fourth Amendment claim, Claim I, leaving the alleged substantive due-process violations in Count III as the only federal issue. Tr. at 10:9-10:13 (Court, Proctor). Rice and Collins argued that the substantive due-process clause claim in Count III also fails, because, rather than stating sufficient factual allegations to state a plausible claim for relief, T. Glover provides “a bare statement” that the “conduct of the defendants is shocking to the conscience.” Tr. at 11:24-12:3 (Heflick). As to the state law claims in Claim II, Rice and Collins argued that, even if the Court found that Rice and Collins were acting as law enforcement officers within the scope of their duties, the Complaint still fails, because Glover fails to plead any state constitutional rights Rice and Collins are alleged to have violated. See Tr. at 14:4-10 (Heflick). The Court asked Rice and Collins whether they had any authority addressing the issue whether LCDC employees meet the definition of law enforcement officers under N.M.S.A.1978, § 41-4-12. See Tr. at 14:12-13 (Court). Rice and Collins Responded that they did not have any such authority, but that T. Glover has not affirmatively shown that they meet the definition under New Mexico law. See Tr. at 14:20-21 (Heflick). Rice and Collins reiterated their argument that the state law claims also cannot withstand a motion to dismiss, as they fail to identify the particular NMTCA section and the claim fails to state sufficient facts to show that T. Glover is entitled to relief. See Tr. at 15:12-25 (Heflick, Court). Rice and Collins then asked that the Court dismiss the claims against them with prejudice. See Tr. at 16:3-5.

T. Glover then argued in opposition to Rice and Collins’ motion, asserting that the claims against Rice and Collins are for failing to protect D. Glover from committing suicide with the razor blades provided to him while he was a pretrial detainee — a right, he contends, that is guaranteed under the substantive due-process clause. See Tr. at 16:23-17:12 (Proctor, Court). The Court asked Glover whether he has any more facts at this stage of the proceeding as to Collins or Rice’s specific involvement or actions in the incidents leading to D. Glover’s death than what he pled. See Tr. at 16:10-14 (Court). T. Glover conceded that he does not have any more facts that he can plead. See Tr. at 16:15-22 (Proctor, Court). T. Glover clarified that his theory against Rice is that he gave D. Glover two razor blades, he did not supervise him, and he did not return until one hour later. See Tr. at 16:23-17-4. His theory against Collins, he stated, is that Collins was charged with the responsibility for “maintaining the safety of the inmates and he didn’t do it.” Tr. at 18:18-20 (Proctor).

The Court asked whether T. Glover had information that LCDC, Collins, or Rice knew D. Glover was mentally unstable, had mental problems, or was suicidal. See Tr. at 18:22-24 (Court). T. Glover responded that, on D. Glover’s prison intake sheet, obtained via a public information request, the blank provided to check yes or no for psychological problems had been left blank. See Tr. at 18:25-19:8 (Proctor). He stated that this omission is significant, because whoever performed D. Glover’s intake “checked all the other questions.” Tr. at 19:12-13 (Proctor). T. Glover, concedes, however that he cannot allege that either Collins or Rice ever saw the intake form or were in any way involved in D. Glover’s intake process. Tr. at 20:18-25 (Proctor). When the Court asked whether he can point the Court to any authority that has found a substantive due-process clause violation in the context of prisoner or detainee suicide, T. Glover conceded that he cannot. See Tr. at 21:1-7 (Court, Proctor). T. Glover stated that the prisoner suicide eases are normally discussed in the context of an Eighth Amendment violation, but under Tenth Circuit precedent, although the analysis is the same as the Eighth Amendment, a pretrial detainee’s rights are classified as substantive due-process clause rights under the Fourteenth Amendment. See Tr. at 21:7-16 (Proctor). T. Glover argued that Collins’ and Rice’s actions violated his substantive due-process rights, because Rice’s conduct in providing razor blades without supervision, and Collins’ conduct in not coming to his aid when Glover pressed the alarm button, shock the conscience. See Tr. at 22:18-23:19 (Proctor).

In regards to the state law claims in Claim II, T. Glover asserted that he was indeed bringing his' action under N.M.S.A. 1978, § 41-4-12, and contended that, because LCDC houses detainees, Rice and Collins are law officers for NMTCA’s purposes. See Tr. at 29:10-30:15 (Proctor, Court).

The Court then asked Rice and Collins whether they had anything further on the motion. See Tr. at 37:11 (Court). Rice and Collins asserted that T. Glover’s contention that Collins was charged with maintaining the safety of the detainees was false. See Tr. at 37:14-15 (Heflick). Rice and Collins maintain that he was in a different area of the prison and that his duty as an officer at LCDC did not include any responsibilities with regards to D. Glover. See Tr. at 37:16-22 (Heflick). Rice and Collins also contended that neither had knowledge of any information that may have been on the intake forms because neither of them were involved in D. Glover’s intake into LCDC. See Tr. at 28:18-39:1 (Heflick). Finally, Rice and Collins contended that T. Glover’s Complaint, based on his explanation that the general allegations at the beginning are incorporated by reference into the rest of the Complaint, does not meet the standard required for pleadings that survive a rule 12(b)(6) motion to dismiss for failure to state a claim upon which. relief can be granted. See Tr. at 39:3-6 (Heflick).

On May 25, 2012, Rice and Collins filed Defendants Christopher Collins and Bradley Rice’s Notice of Supplemental Authorities on Document 24, see Doc. 43, bringing Estate of Hocker v. Walsh, 22 F.3d 995 (10th Cir.1994), to the Court’s attention in response to the Court’s inquiry whether Collins or Rice had any Tenth Circuit opinions on pretrial detainee suicide.

LAW REGARDING RULE(12)(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) (“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)).

A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “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, 127 S.Ct. 1955 (citation omitted).

To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant 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, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(emphasis omitted). The Tenth Circuit stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955)(internal citations omitted).

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 Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir.2002)(“[S]ection 1983 did create any substantive rights, but merely enforces existing constitutional and federal statutory rights ... ”). Section 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). The Court has noted:

[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.

Schaefer v. Las Cruces Public School Dist., 716 F.Supp.2d 1052, 1063 (D.N.M.2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Supreme Court has made clear, that in alleging a § 1983 action against a government agent in the agent’s individual capacity, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft, v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS

The Fourteenth Amendment’s Due Process Clause provides that “no State shall ... deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiffs due process rights, and not for third parties’ acts. See Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir.2008) (citing 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. “As a general matter, ... a state’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 197, 109 S.Ct. 998. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1125 (10th Cir.2008). 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. Exceptions to the General Rule.

There are, however, two exceptions to this general rule. First, the special-relationship doctrine arises when the state has a custodial relationship with the victim, which triggers an affirmative duty to provide protection to that individual. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-995 (10th Cir.1994). Second, the danger-creation theory provides that a state may also be liable for an individual’s safety “only when ‘a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.’ ” Robbins v. Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)).

2. Special-Relationship Doctrine.

The first exception to the general principle that a state’s negligent failure to protect an individual cannot trigger liability under the due-process clause is the special-relationship doctrine. A plaintiff must show the government’s involuntary restraint to establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep't. 73 F.3d 274, 276 (10th Cir.1996). “A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995). A pretrial detention is one such relationship. See Lopez v. LeMaster, 172 F.3d 756, 759 n. 2 (10th Cir.1999); Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 277 (10th Cir.1996)(“it [is] clearly established that state officials had a duty to protect individuals whom they had taken involuntarily into their physical custody and control.”).

a. Due-Process Clause Rights of Pretrial Detainees.

The special-relationship doctrine imposes upon prison officials the responsibility to take “reasonable measures to insure the safety of the [detainees].” Lopez v. LeMaster, 172 F.3d at 759. “In fact, the due process rights of a person in [this] situation are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979. In the Tenth Circuit, a pretrial detainee’s due-process clause rights parallel that of an inmate’s Eight Amendment rights: “Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment. In determining whether appellant’s rights were violated, however, we apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.” Lopez v. LeMaster, 172 F.3d at 759 n. 2 (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Accord Luckert v. Dodge County, 684 F.3d 808 (8th Cir.2012)(“Under the Fourteenth Amendment, pretrial detainees are entitled to at least as great protection as that afforded convicted prisoners under the Eighth Amendment.”).

b. Prison Officials’ Duty to Insure the Safety of Inmates and Detainees.

The Supreme Court has held that “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm” implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners,” but “[t]hey are ... responsible for taking reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the “denial of the minimal civilized measure of life’s necessities”; and (ii) the official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970 (internal quotation marks omitted). The second condition represents the functional application of the deliberate indifference standard. See Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.2006)(holding that prison officials violate detainees’ due-process clause rights when the officials’ “acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs.”)(quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).

Analyzing whether the plaintiff has satisfied the first element, the objective element, “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Courts should also consider “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475 (emphasis in original). “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475. The Eighth Amendment does not protect against “de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)(internal quotation marks omitted)(“That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action.”).

The second element regarding the government official’s state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Courts apply this subjective inquiry whether the allegations are that a “short-term” or “one-time” violation occurred, or that “continuing” or “systemic” violations occurred. Wilson v. Seiter, 501 U.S. at 299, 111 S.Ct. 2321. A defendant has the requisite culpable state of mind under the subjective inquiry only where the defendant’s conduct evidences conscious disregard of a substantial risk of harm. See Self v. Crum, 439 F.3d at 1231.

A prison official cannot be liable “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

Self v. Crum, 439 F.3d at 1231 (quoting Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970). The Supreme Court has stated: “With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S. at 836, 114 S.Ct. 1970. For the purpose of Eighth Amendment analysis, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 Fed.Appx. 821, 823-24 (10th Cir.2007)(unpublished)(quoting Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir.2006)).

c. Detainee Suicide.

For a detainee suicide, a plaintiff must prove the prison official was deliberately indifferent to the detainee’s risk of suicide:

Claims arising from a failure to prevent prisoner suicide are considered and treated as claims based on the failure of jail officials to provide medical care for those in their custody. Thus, a plaintiff bringing such a claim must prove that his jailer was “deliberately indifferent to a substantial risk of suicide.”

Gaston v. Ploeger, 229 Fed.Appx. 702, 709-710 (10th Cir.2007) (unpublished opinion)(quoting Barrie v. Grand County, 119 F.3d 862, 869 (10th Cir.1997)). In Gaston v. Ploeger, the Tenth Circuit held that the objective component of the test is always satisfied in the case of suicide, because the harm suffered is “[ojbviously” sufficiently serious. 229 Fed.Appx. at 710. For the subjective component to be met, however, the Tenth Circuit held that there must be evidence either that the prison official had “knowledge that an inmate is suicidal” or the inmate must have been “an obvious suicide risk.” Gaston v. Ploeger, 229 Fed. Appx. at 712. “[T]he threshold for obviousness is very high.” Gaston v. Ploeger, 229 Fed.Appx. at 710 (citing Perez v. Oakland County, 466 F.3d 416, 435-36 (6th Cir.2006), and Collins v. Seeman, 462 F.3d 757, 761 (7th Cir.2006)).

3. Danger-Creation Exception.

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 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) and the defendant must have acted recklessly in conscious disregard of that risk. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir.2008).

The Tenth Circuit has focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v. City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk of the conduct and act “with an intent to place a person unreasonably at risk.” Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992). The intent to place a person unreasonably at risk is present where the defendant “is aware of a known or obvious risk” creating a high probability that serious harm will follow, and the defendant nonetheless proceeds with a “conscious and unreasonable disregard of the consequences.” Medina v. City & County of Denver, 960 F.2d at 1496.

4. What Shocks the Conscience.

If either the special-relationship or danger-creation exception applies, the conduct of the state actor must go beyond negligence to the point of “shocking the conscience.” See Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir.2006)(“The shocks the conscience standard applies to both types of suits”). “[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)). “The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Camuglia v. the City of Albuquerque, 448 F.3d at 1222-23 (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995))(internal quotations omitted).

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

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

Whether the conduct shocks the conscience is an objective test, based on the circumstances, rather than a subjective test based on the government actor’s knowledge. See James v. Chavez, 830 F.Supp.2d 1208, 1276 (D.N.M.2011) (Browning, J.)(finding that the use of deadly force did not shock the conscience even if the suspect did not have intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate a [government actor’s] conduct objectively.”). Even where a government acts with sufficient culpability for tort liability, perhaps warranting even punitive damages, the Court has found that the government’s conduct still failed to rise to the level of shocking the conscience. See Schaefer v. Las Cruces Pub. Sch. Dist., 716 F.Supp.2d 1052, 1074-1075 (D.N.M.2010) (Browning, J.)(finding that school’s failure to act after three complaints about conduct that could “arguably be characterized as sexual assault,” and then pointing out the plaintiff as the victim at a school assembly regarding the conduct, “may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages,” but did not shock the conscience.)

Because “the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner,” see County of Sacramento v. Lewis, 523 U.S. 833, 849-50, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(quoting City of Revere v. Massachusetts Gen. Hospital, 463 U.S. at 244, 103 S.Ct. 2979), a finding of deliberate indifference in a claim for failure to provide for a detainee’s serious medical needs shocks the conscience as a matter of law:

Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls. To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239 ... (1983), that the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner. Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, ... it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial.

Cnty. of Sacramento v. Lewis, 523 U.S. at 849-50, 118 S.Ct. 1708 (internal citations and quotations omitted).

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. at 232, 129 S.Ct. 808 (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, the plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).

1. Procedural Approach to Qualifted Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 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.” 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.” 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). Once the plaintiff establishes an 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 recognizes 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 recurring fact pattern where guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified immunity context. Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2031-32 & n. 5, 179 L.Ed.2d 1118 (2011). See Kerns v. Bader, 663 F.3d at 1181. “Courts should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’ ” Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Camreta v. Greene, 131 S.Ct. at 2032 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the qualified immunity issue. See Kerns v. Bader, 663 F.3d at 1182.

2. Clearly Established Rights in the Qualifted Immunity Analysis.

In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and ‘unquestioned.’ ” Lobozzo v. Cobrado Dept. of Corrections, 429 Fed.Appx. 707, 710 (10th Cir.2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir. 1983)). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).

The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, -U.S.-, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). While a case directly on point is not required, the Supreme Court held that “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. at 2083. “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151.

The Tenth Circuit held in Kerns v. Bader, that although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader, 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” Kerns v. Bader, 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) (“The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation”). If the law is clearly established, “when an officer’s violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning... Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

RELEVANT LAW REGARDING PLEADING ALLEGATIONS IN THE CONTEXT OF QUALIFIED IMMUNITY

A plaintiff must plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). The “degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context: ... Fair notice under Rule 8(a)(2) depends on the type of case.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir.2008)(citing Phillips v. County of Allegheny, 515 F.3d 224, 231-232 (3d Cir. 2008)). Although the same standard applies “in evaluating dismissals in qualified immunity cases as to dismissals generally, complaints in § 1983 eases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically include complex claims against multiple defendants.” Robbins v. Oklahoma, 519 F.3d at 1249 (quoting Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007))(internal quotations omitted). The Tenth Circuit has articulated the standard required to give adequate notice to government actors sued in their individual capacities under § 1983:

In § 1983 cases, defendants often inclu