Pena v. Greffet (922 F. Supp. 2d 1187, 2013)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the CCA, Hickson and Vallejos’ Motion to Dismiss, filed Sept. 24, 2012 (Doc. 10)(“Motion to Dismiss”). The Court held a hearing on November 27, 2012. The primary issues are: (i) whether the Defendant Dale Greffet, a corrections officer at the New Mexico Women’s Correctional Facility (“NMWCF”) in Grants, New Mexico, was acting under color of state law when he allegedly violated Plaintiff Crystal Peña’s constitutional rights by sexually assaulting her; (ii) whether Peña alleges sufficient factual allegations to make plausible Defendants Corrections Corporation of America’s and Arlene Hickson’s personal involvement in practices and customs of suppressing inmate reports of sexual assault at NMWCF in violation of Peña’s constitutional rights; (iii) whether Peña’s allegations make plausible that CCA, owner and operator of the NMWCF, and Hick-son, the NMWCF warden, violated her First Amendment rights by placing her in segregated confinement in retaliation for reporting Greffet’s sexual assault and the alleged violations of her constitutional rights by Defendant Carlos Vallejos, CCA Chief of Security; (iv) whether Peña states a claim against Vallejos under 42 U.S.C. § 1988 or for the intentional tort of battery under New Mexico law when he allegedly grabbed her and slammed her into a wall in the hallway at NMWCF; and (v) whether Peña’s Complaint states a plausible claim under New Mexico law that CCA is vicariously liable for Greffet’s alleged sexual assaults of Peña, because his conduct was in the scope of his employment with CCA or he was acting pursuant to his implied authority as a CCA employee. The Court will grant in part and deny in part the Motion to Dismiss. Peña fails to provide sufficient factual allegations to support her argument that Greffet’s alleged sexual assault of her in Alamogordo, New Mexico, around Labor Day weekend, 2009, was done under color of state law, as she does not plausibly allege that Greffet used his position as a CCA corrections officer to improperly entice her to meet him at a motel room. Peña’s allegations that CCA and Hickson engaged in customs and practices suppressing reporting of inmate’s sexual assaults lead to the reasonable inference that both CCA and Hickson participated in conduct that caused Greffet’s violation of her Eighth Amendment rights. Because Peña alleges that her treatment in segregation, including being kept in segregation for eight months, was retaliation for her reporting Greffet’s alleged sexual abuse and/or Vallejos’ alleged battery of her, her allegations plausibly state a claim for retaliation in violation of her First Amendment Rights. Peña fails to make plausible her claims against Vallejos, because she fails to provide the Court with sufficient factual allegations to support her allegations of Vallejos’ violation of her civil rights and battery of her, providing only conclusory statements of the elements of those causes of action. Because Peña’s Complaint for Civil Rights Violations and Common Law Torts, filed June 29, 2012 (Doc. l)(“Complaint”), does not adequately allege that Greffet’s alleged sexual abuse of her at NMWCF is a basis on which she seeks to impose vicarious liability on CCA, she fails to adequately plead those claim against CCA. Because Greffet’s other alleged sexual assaults of Peña were at times when she was not an inmate subject to CCA’s authority and at times in which she could not have reasonably believed that Greffet was acting pursuant CCA’s authority, she fails to state a plausible theory for holding CCA liable for these acts.

The Court will grant Peña’s request to amend and grant her leave to amend her Complaint. As Peña stated at the hearing that she might have further factual allegations regarding whether Greffet improperly used his state-derived authority to coerce Peña to meet him at the motel in Alamogordo to show that he was acting under color of law, the Court will grant Peña’s request for leave to amend her pleadings to add such additional facts for this theory.. The Court will also grant leave to Peña to amend her causes of action against Vallejos so that she may be able to provide sufficient factual allegations beyond her conclusory restatements of the elements of a § 1983 cause of action for an Eighth Amendment Violation and the intentional tort of battery. Finally, because Peña provides additional factual allegations elsewhere in the Complaint regarding Greffet’s alleged sexual assault at NMWCF, the Court will grant Peña’s request to amend her pleadings as to CCA’s vicarious liability under New Mexico law for the assault at the NMWCF.

FACTUAL BACKGROUND

In July, 2009, Peña was a post-conviction prisoner at NMWCF. See Complaint ¶ 3, at 1-2. At all times material to Peña’s allegations, CCA operated and maintained NMWCF pursuant to a contract with the State of New Mexico, and was bound to comply with certain New Mexico Corrections Department (“NMCD”) policies. Complaint ¶ 4, at 2. CCA employed Hick-son as NMWCF warden, and as such she was the head supervisor of the facility. See Complaint ¶ 5, at 2. During portions of the time in which the underlying conduct took place, CCA employed Greffet and Vallejos as corrections officers at NMWCF. See Complaint ¶ 6, at 2.

Peña’s mother’s boyfriend raped Peña when she was a young child on two separate occasions. See Complaint ¶7, at 2. Peña, at a time before her allegations arose, was diagnosed with debilitating mental illnesses. See Complaint ¶ 8, at 2. In the spring of 2009, while Peña, was isolated in NMWCF’s segregation unit, she was befriended by Greffet, who initiated, cultivated, and encouraged an intimate relationship with her contrary to CCA’s and NMCD’s policies and procedures. See Complaint ¶ 9, at 2. The claims alleged in Peña’s Complaint arise from five distinct incidences of conduct: (i) Greffet’s alleged sexual abuse at NMWCF in July/August 2009; (n) Greffet’s alleged sexual abuse in Alamogordo, around Labor Day weekend, 2009; (iii) Greffet’s alleged sexual abuse in Albuquerque, New Mexico, around August, 2010; (iv) Vallejos’ alleged assault and battery in a hallway at NMWCF in June 2011; and (v) Peña’s being placed and kept in segregation following her sexual abuse report in 2011.

1. The July/August, 2009, Alleged Sexual Abuse at NMWCF.

Beginning in July of 2009, Greffet began to make advances and sexual comments to Peña about her physical appearance, which, for a period of time, Peña resisted. See Complaint ¶¶ 10-11, at 3. In July and August of 2009, Greffet began to sexually fondle Peña. See id. ¶ 12, at 3. During the same time frame, Greffet made numerous false statements to Peña, including expressing his intent to enter into a committed relationship with her and his desire that they raise children together after her release from custody. See Complaint ¶ 13, at 3. Peña, relying on these statements, came to believe that Greffet was committed to a monogamous relationship with her in which the two of them would raise children. See Complaint ¶ 14, at 3. Peña was particularly susceptible to these advances, because of her history of sexual victimization, her diagnosed mental illnesses, and her aspiration to live a life of love and normalcy. See Complaint ¶ 15, at 3. At some point during late July or early August of 2009, Greffet called Peña into the an office of the commanding officer in front of the master control area of NMWCF, and, sitting at the desk, revealed his' erect penis to Peña, and told her to look and see the effect that she had on him. See Complaint ¶¶ 16-17, at 3. With Peña under the desk, Greffet orally sodomized her. See Complaint ¶ 18, at 3.

2. The Labor Day weekend, 2009, Alleged Sexual Abuse in Alamogordo.

On or about late August of 2009, Peña paroled to Ruidoso, New Mexico, from NMWCF. See Complaint ¶ 19, at 4. After Peña paroled, Greffet obtained Peña’s telephone number from Peña’s aunt, who was incarcerated at NMWCF. Greffet contacted Peña and pressured her to meet him. On Labor Day Weekend of 2009, just before Peña entered into an in-patient treatment program in Alamogordo as a condition of her probation, Greffet rented a motel room for the two of them. See Complaint ¶ 21, at 4. During their stay in the motel room, Greffet raped Peña on four occasions. See Complaint ¶ 22, at 4. In the motel room, Peña resisted Greffefis efforts to orally and anally sodomize her, but relented when Greffet persisted. See id. ¶ 23, at 4.

On or .about October of 2009, Pena’s parole was revoked, and she returned to NMWCF, where Greffet continued to work. See Complaint ¶24, at 4. After returning from parole, Greffet. continued to falsely state his commitment to Peña and his intent to raise children with her, to make sexual advances toward her, and to sexually fondle her. See Complaint ¶ 25, at 4. On or around April of 2010, Greffet left his position at NMWCF. Before he left, however, Greffet again expressed his plans to live with Peña and raise children with her. See Complaint ¶ 26, at 4.

3. The August, 2010, Alleged Sexual Abuse in Albuquerque.

On or about August of 2010, Peña was again released from NMWCF on probation. A condition of her probation was that she enroll in an in-patient treatment program for her mental health as a condition of her release. See Complaint ¶ 27, at 4. Peña reported to and tried to qualify for the Maya’s Place treatment program in Albuquerque. See Complaint ¶ 28, at 5. During this time frame, Greffet raped Peña on three occasions, again notwithstanding her resistance to anal sodomy. Greffet conceived a child with Peña during this time frame. See Complaint ¶ 29, at 5. Eventually, Maya’s Place rejected Peña because, as she suffered from mental illness rather than drug dependence, she did not fit the criteria for admittance at the program. See Complaint ¶ 30, at 5.

Because she was unable to enter a treatment program and thereby satisfy her condition of probation, Peña turned herself into law enforcement in September of 2010. See Complaint ¶ 31, at 5. As she was surrendering to authorities, Peña fainted, was taken to the emergency room, and learned for the first time that she was pregnant. See Complaint ¶ 33, at 5. Greffet promised to bond her out from Doña Ana County Detention Center in Las Cruces, New Mexico, where she would be held, but never did so. See Complaint ¶¶ 32, 36, at 5. The next day, from jail, Peña told Greffet that she was pregnant. See Complaint ¶ 34, at 5. Greffet thought that aborting the baby was the best option, and, accordingly, Peña and the Doña Ana County Detention Center made arrangements for the abortion. Peña could not go through with the abortion, however, and returned to jail with the baby still in útero. See Complaint ¶¶ 34-35, at 5. Eventually, Peña, realized that Greffet was not going to bond her and that she was going to have to deliver the child while in jail. She discussed with ■ Greffet how to care for the child during the child’s first months of life, when she would still be incarcerated. See Complaint ¶ 36, at 5-6. Greffet said he would not care for the baby and that adoption was the best option. See Complaint ¶ 37, at 6. Before giving birth, and in large part because of her inability to find someone to care for the baby while she remained in prison, Peña felt compelled to relinquish her parental rights. See Complaint ¶ 38, at 6. She gave birth to her son on May 2, 2011, while incarcerated at NMWCF. See Complaint ¶ 39, at 6.

4. Vallejos’ Alleged Assault and Battery.

On or around early June of 2011, Peña was suffering from postpartum depression, in addition to her other mental illnesses, and was grieving her estrangement from her son in NMWCF hallway. See Complaint ¶40, at 6. When she failed to respond to a question by Vallejos, he grabbed her and slammed her against the wall of the hallway, causing bruising to her arms, and triggering severe symptoms of Peña’s chronic Post-Traumatic Stress Disorder. See Complaint ¶ 41, at 6. Because of Vallejos’ battery of Peña and his mistreatment of other inmates at the facility, CCA removed him from his position at NMWCF. See Complaint ¶ 42, at 6.

5. The Alleged Retaliation Against Peña.

CCA and Hickson placed Peña in isolated/segregated confinement in response to the incident with Vallejos. See Complaint ¶ 43, at 7. While Peña was in segregation at NMWCF, CCA and Hickson came to know that she was alleging that Greffet had raped her, and pressured her to provide them with a statement about the incident. See Complaint ¶ 44, at 7. When Peña refused to provide them with a statement about Greffet, and when it became clear she was alleging that Vallejos had assaulted and battered her, CCA and Hickson kept her in varying levels of segregated confinement for a period of approximately eight months in violation of CCA’s and NMCD’s policies. See Complaint ¶ 45, at 7. Her placement in segregated confinement severely aggravated her fragile mental condition, prevented her from contacting the outside world, including her mother and her son’s adoptive parents, and caused her to lose good time and to remain incarcerated for a longer period of time, resulting in severe mental and emotional distress. See Complaint ¶ 46, at 7.

PROCEDURAL BACKGROUND

Peña brings this action against Greffet and Vallejos in their individual capacities, against Hickson in her individual and official capacity, and against CCA pursuant to 42 U.S.C. § 1983, for their alleged violation of her civil rights arising under the Fourth, Eighth, and Fourteenth Amendments to United States Constitution. See Complaint at 1. Peña, in Count I, alleges that Greffet sexually fondled her while she was incarcerated in NMWCF, and orally sodomized her in NMWCF, in violation of her Eighth Amendment right to be free from cruel and unusual punishment, “including the right to be secure in her bodily integrity and free from sexual advances, sexual fondling, sexual intercourse, anal sodomy, and oral sodomy by prison personnel.” Complaint ¶48, at 7. Included within Count I is Greffet’s alleged rape of Peña in an Alamogordo hotel room while she was on parole — “on or about September 5-7 of 2009” — which she alleges “extended the pattern of sexually victimizing Plaintiff that began [when Greffet was] her captor in the NMWCF .... [and were done while] Greffet was acting under color of law....” Complaint ¶¶ 51-53, at 8. Peña alleges that Greffet’s sexual fondling, sodomy, and rapes proximately caused her damages and injuries, and she requests the Court grant “compensatory and punitive damages against Defendant Greffet, together with all costs and attorney’s fees.” Complaint ¶ 63, at 10. In Count II, Peña alleges that Vallejos’ conduct in “grabbing Plaintiff and slamming her against a wall” violated her Eighth Amendment right to be free from cruel and unusual punishment, and to be free from “unreasonable, unnecessary, and excessive force____” Complaint ¶¶ 65-66, at 10. Peña asserts that Vallejos’ use of “unreasonable, unnecessary, and excessive force against Plaintiff was intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard for Plaintiffs constitutional rights.” Complaint ¶ 67, at 10.

In Count III, Peña alleges that CCA and Hickson violated her Eighth and Fourteenth Amendment rights to be free from exposure to “unreasonable risks of harm or from exercising deliberate indifference toward her safety, security, and constitutional rights,” because CCA and Hickson “engaged in a custom of suppressing, denying or disregarding incidents of prison rape....” Complaint ¶ 71-72, at 11. The incidents of rape are alleged to include: placing inmates who reported sexual or other staff misconduct in segregation, or otherwise retaliating against them; violating internal and NMCD policies by failing to report allegations of prison rape to outside law enforcement; failing to conduct adequate internal investigations of rape allegations; and offering financial incentives for non-reporting. See Complaint ¶ 72, at 11. Count IV alleges that CCA and Hickson violated Peña’s First Amendment right to be free from retaliation for reporting sexual or physical assaults by prison officers, her Eighth Amendment right to be free from cruel and unusual punishment, and her Fourteenth Amendment right to procedural due process, and CCA and NMCD policies, when they placed and kept Peña in “segregated confinement following her reporting of Defendant Greffet’s rapes and Carlos Vallejos’ assault.” Complaint ¶¶ 76-77, ¶ 79, at 12, 13.

In Count V, Peña alleges that Greffet is liable for the intentional torts of battery and rape for his rapes of Peña in Alamogordo and in Albuquerque when she “lacked the capacity to consent thereto. [And] [i]n any case, [ ] did not consent to the sex.” Complaint ¶¶ 82-83, at 13. Peña alleges that CCA is legally liable under New Mexico law for Greffet’s tortious conduct under the doctrine of respondeat superior, as Peña “was directly informed and/or had reason to believe that Defendant Greffet was an agent and employee of the Corporation at all times material.” Complaint ¶¶ 85-86. Count VI alleges that Vallejos, in “violently grabbing [Peña] and slamming her against the wall,” committed an intentional offensive touching to Peña’s person, and Vallejos is thus liable for the intentional tort of battery. Complaint ¶¶ 88-91, at 14. Peña alleges that CCA is also liable for this intentional tort of Vallejos under the respondeat superior theory, as he was acting as an agent and employee of CCA at all material times. See Complaint ¶¶ 92-93, at 14.

On September 24, 2012, CCA, Hickson, and Vallejos (collectively “CCA Defendants”) filed the Motion to Dismiss, asking the Court to dismiss Peña’s Complaint as to them, and asserting that the “Plaintiff’s Complaint seeks to extend liability to an employer and supervisor, far further than any case has ever held.” Motion to Dismiss at 1. The CCA Defendants argue that Peña, in seeking to hold CCA and Hickson liable under a respondeat superi- or theory and under § 1983 for actions that occurred while Peña was not incarcerated, “seeks to create a completely new form of strict liability law related to employers and employees____” Motion to Dismiss at 1. They assert: “Plaintiffs theories are not supported by any case law, some of them bordering on frivolous, and should not be endorsed by this Court.” Motion to Dismiss at 1. Further, CCA Defendants contend that Peña’s allegations are insufficient to satisfy the federal standard required to state a claim as the Supreme Court of the United States articulated the standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The CCA Defendants note that, although CCA owns and operates NMWCF, where Peña was incarcerated post-conviction, “CCA does not perform. supervision duties, such as those that might be required by probation, once an inmate is released from NMWCF. Those duties are exclusively reserved to the State of New Mexico.” Motion to Dismiss at 2. They point out that, after Peña’s second incarceration at NMWCF, from January, 2009, to August 18, 2009, she was paroled to Ruidoso/Alamogordo, which they note is approximately 260 miles from the NMWCF in Grants, New Mexico. See Motion to Dismiss at 2. The CCA Defendants state that Peña alleges that it was during this time, over Labor Day weekend, 2009, that Greffet sexually assaulted her in an Alamogordo motel room, on which she bases her § 1983 claims against Greffet, her § 1983 claims against CCA and Hick-son for deliberate indifference and failure to protect, and her intentional tort claims against Greffet and against CCA under a respondeat superior theory. See Motion to Dismiss at 3. CCA Defendants note that Peña does not allege that, when she returned to NMWCF in October of 2009, she notified anyone at NMWCF that Greffet assaulted her while she was out of custody. See Motion to Dismiss at 3. As to Peña’s allegations that she was sexually assaulted a second time in Albuquerque in August of 2010, the CCA Defendants point out that Greffet had not been employed by CCA for between three and four months at that time. See Motion to Dismiss at 3.

The CCA Defendants argue that the Court should dismiss Peña’s Count' III, because it fails to satisfy Ashcroft v. Iqbal’s requirements. See Motion to Dismiss at 5. They assert that CCA may be sued pursuant to 42 U.S.C. § 1983

only where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers’ or visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the body’s official decision making- channels.

Motion- to Dismiss at 5 (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Herrera v. Cnty. of Santa Fe, 213 F.Supp.2d 1288 (D.N.M.2002)(Black, J.)). The CCA Defendants contend that, for Peña to state a valid claim, she must allege the specific policy or custom that was the moving force behind the constitutional violations of which she complains. See Motion to Dismiss at 5. The CCA Defendants argue that, for a prison claim specifically, “the complaint must also address Turner v. [Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ]’s core holding, relative to whether a challenged prison policy or regulation is ‘reasonably related to penalogical interest.’ ” Motion to Dismiss at 6 (quoting AV-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir.2012)). The CCA Defendants assert that Peña’s Complaint fails to meet these pleading requirements, because it “presents only limited meaningful information relative to the sexual assault allegations at issue.” Motion to Dismiss at 6. They point out that, “[w]ith respect to claims of assault allegedly occurring while Plaintiff was incarcerated, there is no information regarding where or what time of day the alleged incidents occurred. Indeed, there is not even a way to determine exactly how many incidents Plaintiff complains of.” Motion to Dismiss at 6-7. The CCA Defendants argue that, without these facts, their liability cannot be determined. See Motion to Dismiss at 7. The CCA Defendants also contend that, because Peña uses the term rape as it is defined in the PREA, rather than “the common definition of rape found in the criminal statute,” it is confusing “at best.” Motion to Dismiss at 7. They assert that, as “[t]he PREA definitions are fundamentally different from and far broader than these commonly used definitions,” this lack of specificity fails to meet Ashcroft v. Iqbal’s standards.

The CCA Defendants assert that Peña “continues by making conclusory allegations, unsupported by facts, relative to alleged policies and customs at NMWCF, which are actually contradicted by some of the ‘factual background’ of Plaintiffs Complaint.” Motion to Dismiss at 7. They point out that Peña concedes that CCA and NMCD had policies in place prohibiting staff sexual misconduct with inmates, which they contend defeat any “custom or policy type claim.” Motion to Dismiss at 7-8 (citing Complaint ¶ 9, at 2). They note that Peña does not allege that her allegations were not reported to law enforcement officers, because CCA did report her allegations. See Motion to Dismiss at 8.

The CCA Defendants also argue that, in light of there not being supervisory liability under § 1983, Peña has failed to state a federal law claim against Hickson for failure to protect, because she does not adequately allege in her complaint that any “deliberate, intentional act” of Hickson’s caused a violation of her rights. Motion to Dismiss at 9 (quoting Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992)). They assert that for Hickson, as a prison official, to be liable for failure to protect, Peña must show “that the entity’s officials had knowledge of prior incidents of misconduct and deliberately failed to take remedial action.” Motion to Dismiss at 9 (citing Barney v. Pulsipher, 143 F.3d 1299 (10th Cir.1998); Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir.2001)). The CCA Defendants contend that, because Peña has not alleged Hickson’s personal involvement in any conduct violating her civil rights, and because she has failed to plead facts related to Hickson’s knowledge or notice of constitutional violations, the Court should dismiss her Complaint against Hickson. They point out that many of the alleged unconstitutional acts of which Peña complains — the rapes that allegedly' occurred after April 2010 — occurred When Greffet was no longer a CCA employee, and thus, as a matter of law, she cannot be liable as a supervisor as she did not have any supervisory authority over a non-employee. See Motion to Dismiss at 10. They assert: “Likewise, while Warden Hickson could be considered Greffet’s supervisor in a general sense, she had no constitutional duty to supervise him when he was off duty.” Motion to Dismiss at 10.

The CCA Defendants argue that, to the extent Peña’s § 1983 claims stem from Greffet’s conduct while he was off-duty or no longer a CCA employee, or while Peña was not an inmate, the Court should dismiss the Complaint, because Greffet was not, as a matter of law, acting under color of law. See Motion to Dismiss at 10. They assert: “Plaintiff is attempting to turn § 1983 into a form of strict and unending liability. This must be rejected as it is not the law and has dangerous implications for other cases.” Motion to Dismiss at 10. The CCA Defendants contend that an essential component of a § 1983 claim is that the defendant was acting under color of law, and that this component is met only “if the defendant acted in an official capacity as a public employee or exercised responsibilities that were conferred under state law.” Motion to Dismiss at 11 (quoting West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). They assert:

Relevant to this inquiry is whether the defendant was on-duty or off-duty at the time of the alleged conduct. Actions taken by an individual to advance their personal pursuits, however, are plainly excluded from the definition of “under color of law.” Whether a defendant acted under color of state law is a question of law for the court.

Motion to Dismiss at 11 (internal citations omitted)(quoting Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)) (citing Haines v. Fisher, 82 F.3d 1503 (10th Cir.1996)). The CCA Defendants argue that Peña’s allegations preclude the Court from finding that “Greffet’s alleged actions were related to the performance of any of his duties as a current off-duty, or formal corrections officer.” Motion to Dismiss at 12. They assert that Greffet’s status as a corrections officer does not somehow transform all of his actions into acts taken under color of law. See Motion to Dismiss at 12 (citing Hill v. Barbour, 787 F.Supp. 146, 149 (N.D.Ill.1992)). The CCA Defendants assert that, once Greffet’s employment with CCA terminated, and he was no longer a corrections officer, at that point his “actions cannot be under color of law because he has no actual authority to act in his prior capacity.” Motion to Dismiss at 12 (citing Gibson v. Chicago, 910 F.2d 1510, 1516-19 (7th Cir.1990)). The CCA Defendants argue that, given the timeframes Peña alleges in her Complaint, compared with Peña’s time incarcerated at NMWCF and Greffet’s tenure as a CCA corrections officer, “there are no factual allegations that could even make such a claim [that he acted under color of law] plausible.” Motion to Dismiss at 12.

In regards to the alleged sexual abuse alleged to have occurred in Alamogordo, while Greffet was off-duty, CCA Defendants contend that, as Alamogordo is over 250 miles from NMWCF, “[t]he complete lack of geographical proximity to the facility, standing alone, makes a claim that Greffet was acting under color of law implausible.” Motion to Dismiss at 13. They point out that, in addition to the Complaint lacking any allegations that Greffet was wearing a uniform, or made any statements feigning his invocation of any official powers, Peña admits in the Complaint that she believed Greffet had a desire to engage in a personal relationship with her and that he did so over Labor Day weekend. See Motion to Dismiss at 13 (citing Complaint ¶ 13-14, 21). The CCA Defendants argue that these facts preclude the Court from finding that Peña could have reasonably believed that he was on duty during his alleged stay with her in the Alamogordo hotel. See Motion to Dismiss at 13. The CCA Defendants contend that Peña’s contention that she believes Greffet was acting under color of law when he allegedly sexually assaulted her in 2010, five months after she admits that she knew his employment with CCA had terminated, is “ineredulous[ ]” and that “no reasonable person could ever believe that Greffet had any authority as a correctional officer when he no longer worked in that capacity.” Motion to Dismiss at 13 (citing Complaint ¶ 26). The CCA Defendants assert that, because there are no facts that support Peña’s allegations that Greffet was acting under color of law during these alleged assaults while Greffet was off duty, and because Peña could not add any additional facts to address these deficiencies given the chance to amend her Complaint, the Court should dismiss the § 1983 claims against CCA and Hickson based on the violations during this time frame. See Motion to Dismiss at 13-14.

CCA Defendants argue that Peña’s § 1983 claims based on CCA’s and Hick-son’s alleged violations of her Eighth and Fourteenth Amendment rights when she was not incarcerated fail to state a claim upon which relief can be granted, because it is clear that “[a] person must be in the physical custody of the government to allege acts or omissions sufficient to establish a violation.” Motion to Dismiss at 14 (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

The CCA Defendants contend that Peña’s retaliation claim fails to satisfy the pleading standard set forth in Ashcroft v. Iqbal, because it fails to adequately plead a First Amendment retaliation claim’s five elements for the prison context: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Motion to Dismiss at 14 (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005)). They assert that Peña’s Complaint fails to show that the “alleged retaliation was a ‘substantial’ or ‘motivating’ factor in the decision resulting in the adverse action,” Motion to Dismiss at 14 (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1315 (9th Cir.1989)), because she fails to allege sufficient facts for the Court to determine whether her placement in segregation was retaliatory, rather than appropriate under Turner v. Safley. The CCA Defendants note that, as there is no respondeat superior theory of liability under § 1983, CCA and Hickson can be held liable only for ah unconstitutional policy or custom. See Motion to Dismiss at 15 n. 7. They point out that Peña fails to support her allegations that CCA and Hickson violated CCA and NMCD policies by referring the Court to any specific policies or facts about how they violated these policies. See Motion to Dismiss at 15. With regard to Hickson specifically, the CCA Defendants contend that Peña has failed to plead any facts connecting her personally to Peña’s alleged retaliation, and she thus cannot be liable for Vallejos’ alleged segregation of Peña as retaliation for exercising her First Amendment rights. See Motion to Dismiss at 15 n. 7. The CCA Defendants argue that the timing of Peña’s alleged report of Greffet to the prison officials is “critically important. She alleges that she did not report Greffet until after she was placed in segregation relative to the Vallejos incident. Thus, she could not have been placed in segregation for making a report against Greffet because she was ' already in segregation.” Motion to Dismiss at 17. They assert that, as Greffet’s employment with CCA had terminated over a year before she made the report, she cannot reasonably contend that the CCA Defendants retaliated against her. See Motion to Dismiss at 17.

The CCA Defendants argue that Peña’s § 1983 claim against Vallejos, for his alleged Eighth Amendment violation fails, because Peña pleads “scant facts” relating to this incident, and they do not support her allegation of an evil intent or motive, and the majority of her allegations are legal conclusions. Motion to Dismiss at 18. They contend that Peña’s Eight Amendment claim also fails, because she does no plead sufficient facts on which she can plausibly establish that Vallejos’ use of force was anything more than de minim-is — e.g., a bruise on her arm — and it is implausible to believe from the facts asserted that Vallejos’ use of force was “an unnecessary and wanton affliction of pain.” Motion to Dismiss at 17-18 (citing Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).

In regards to the state law claims, the CCA Defendants argue that Peña’s complaint lacks the requisite facts to state a claim for battery, because Peña’s allegations consist of “legal conclusions relative to Vallejos’ interaction with her, [] not facts.” Motion to Dismiss at 19. They assert that, although there is insufficient law in New Mexico on the intentional tort of assault and battery, the contact must at least be without justification, and, because Peña admits that she did not respond to Vallejo’s’ statement to her, she fails to plead sufficient facts to determine whether she was willfully refusing to follow an order. See Motion to Dismiss át 19-20.' The CCA Defendants assert that the Court should therefore find the Complaint fails to state a claim for the intentional tort of assault and battery. See Motion to Dismiss at 20. Further, the CCA Defendants argue that Peña’s claims against CCA for Greffet’s alleged intentional tort based upon respondeat superior also fail to state a claim upon which the Court can grant her relief, because, as Greffet was either off-duty or not employed by CCA during the alleged commissions of the torts, CCA cannot, as a matter of law, be liable for Greffet’s actions. See Motion to Dismiss at 20 (citing Miera v. George, 55 N.M. 535, 540, 237 P.2d 102, 107 (1951); U.J.I. Civ. 13-406 and 13-407, N.M.R.A.). They assert that “the test announced in this jurisdiction requires an employment relationship,” and thus CCA cannot, as a matter of law, be liable for Greffet’s conduct any time after Greffet’s employment ended. Motion to Dismiss at 22 (citing Madsen v. Scott, 128 N.M. 255, 992 P.2d 268 (1999); Cain v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, 142 N.M. 209, 164 P.3d 90). The CCA Defendants point out that all of the alleged wrongful conduct occurred while Peña was not an inmate and assert that “CCA has no business related to the supervision of inmates who are no longer incarcerated at NMWCF.” Motion to Dismiss at 21. They assert that there are no facts pled on which CCA can be liable to Peña for any of Greffet’s intentional torts, because CCA employees have no official duties related to non-inmates, and because Peña does not allege that CCA authorized Greffet to commit any of the alleged acts of sexual assaults. See Motion to Dismiss at 21-22. The CCA Defendants also contend that, as there are no facts to support any finding other than that Greffet was off-duty during the Alamogordo incident, CCA cannot be liable for Greffet’s acts at such a time. See Motion to Dismiss at 22. As to Peña’s1 allegation that CCA is liable under respondeat superior for Vallejos’ alleged commission of the intentional tort of battery against Peña, the-CCA Defendants assert that the Complaint fails to plead sufficient facts upon which the Court can make the required determination “that CCA authorized, commanded, or committed the act itself.” • Motion to Dismiss at 23 (citing Martin-Martinez v. 6001, Inc., 1998— NMCA-179, 126 N.M. 319, 968 P.2d 1182).

On October 11, 2012, Peña filed her Plaintiffs Response in Opposition to the CCA Defendants’ Motion to Dismiss. See Doc. 16 (“MTD Response”). Peña asserts that “she is entitled to relief from a pattern of sexual abuse that she suffered beginning while she was an inmate .... [and that] continued while Plaintiff went out from and back'into prison....” MTD Response at 1. .She “claims that sexual abuse was caused in part by specific practices that the [CCA] and Warden Hickson implemented in order to suppress the reporting of sexual abuse within the prison.” MTD Response at 1. This suppression of her reports of prison, Peña contends, constituted CCA’s and Hickson’s deliberate indifference to the known problem of sexual abuse ongoing at NMWCF. See MTD Response at 1-2. Peña contends: “The Motion to Dismiss represents a regressive approach toward prison rape and relies on an extreme reading of Ashcroft v. Iqbal.” MTD Response at 2. Peña notes that because a district court ruling on a motion to dismiss “ ‘may only consider the facts alleged within the complaint’ .... [she] does not respond to the superfluous factual assertions contained in the Motion’s ‘factual background’ regarding Mr. Greffet, Defendant CCA’s duties, or Plaintiffs history of incarceration.” MTD Response at 2 (quoting Cnty. of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir.2002)). Peña points out that her Complaint alleges three different occasions on which Greffet abused her: (i) when she was incarcerated-at NMWCF “and Mr. Greffet was employed by the [CCA] and ‘on-duty’ ” in the July-August 2009, time frame; (ii) in Alamogordo around Labor Day weekend, 2009, when Peña was out of NMWCF and Greffet was still a CCA employee, “but not ‘on-duty’”; and (ii) around August 2010, when Peña was out of NMWCF and Greffet was note employed by CCA. MTD Response at 2-3.

Peña asserts:

It is odd that Defendants object to .Plaintiffs reliance on the Prison Rape Elimination Act of 2003 ... as source for the definitions [of the term rape and other sex acts] since it is this very law with which the [CCA] must comply in effectuating a legal duty of exhibiting “zero tolerance” for prison sexual abuse.

MTD Response at 3. She contends that no matter what term it is given, sex between prison inmates and prison guards is contrary to the PREA and the Constitution. See MTD Response at 3 (citing Farmer v. Brennan, 511 U.S. 825, 857-58, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Peña argues that CCA Defendants’ contention that she admits that she consented to sexual acts with Greffet in her Complaint “is frivolous and wrong for three reasons.” MTD response at 3. Peña points out that, first, the Complaint specifically alleges that she did not consent. See MTD Response at 3-4 (quoting Complaint ¶¶ 49, 54, 59)(alleg-ing, with regard to all three alleged sexual abuse acts, that Peña “could not and did not consent”). She argues, second, that, as a matter of law, it is impossible for Peña, as an inmate, to consent to sex “with her captor in a jail or prison.” MTD Response at 4 (citing N.M.S.A.1978, § 30-9-ll(E)(2)(“Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated ... on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate____”); 28 C.F.R. Part 115).

Peña asserts that her Complaint satisfies the Ashcroft v. Iqbal plausibility standard. See MTD Response at 4. She argues that, while CCA Defendants attempt to construe Ashcroft v. Iqbal and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as a “blunt [ ] instrument” and to “require complaints to contain surplusage,” the “cumulative impact of Twombly and Iqbal has been to install a plausibility standard by which courts evaluating a motion to dismiss must grade the sufficiency of factual allegations contained in the complaint.” MTD Response at 4. She asserts that, “[i]n applying Iqbal’s plausibility standard, the Tenth Circuit ‘assume[s] the factual allegations are true and ask[s] whether it is plausible that the plaintiff is entitled to relief.’ ” MTD Response at 5 (quoting Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.2009)). Peña contends that the allegations against Greffet in the Complaint regarding the course of in-custody sexual abuse “would plausibly satisfy two of the three constitutional claims alleged .... ” MTD Response at 6. In regard to the July/August, 2009, alleged rape, Peña quotes paragraphs nine through eighteen, and twenty-four through twenty five, and asserts:

Plainly, accepting as true Plaintiff’s allegations that Mr. Greffet made sexual comments to her, sexually fondled her, and then orally sodomized her while at the prison, on duty in his capacity as a corrections officer and employee of the Corporation, her claim that Mr.. Greffet sexually abused her in violation of her Eighth Amendment rights is plausible.

MTD Response at 7. As to the Labor Day weekend, 2009, allegations, Peña quotes ¶¶ 19-23 and responds to CCA Defendants’ argument that, because Greffet was off-duty, he could not, as a matter of law, have acted under color of law, by pointing out the United States Court of Appeals for the Eleventh Circuit has held that “[a] state actor acts under color of law when he utilizes his authority to create the opportunity to facilitate the rape or sexual assault.” MTD Response at 8 (quoting Griffin v. City of Opa-Locka, 261 F.3d 1295, 1306 (11th Cir.2001)). Peña asserts that, “[h]ere, because Mr. Greffet was still employed by the [CCA] and was utilizing his authority to create an ongoing opportunity to sexually abuse Plaintiff, it is plausible that the [] Labor Day 2009 Abuse was committed under color of law----” MTD Response at 8. Peña concedes that the alleged August 2010 assault, when Greffet was no longer a CCA employee, “do[es] not, as Defendants rightfully argue, make a plausible claim that Mr. Greffet’s misconduct was undertaken under color of law ____ [and] do not plausibly establish a stand-alone claim under § 1983.... ” MTD Response at 9. Peña contends, however, that these allegations are relevant and admissible against them at trial “as damages proximately caused by the initial in-prison sexual abuse.” MTD Response at 9.

Peña argues that the Complaint lays out sufficient facts and specific practices that plausibly constitute deliberate indifference by CCA and Hickson to prison sexual abuse. See MTD at 9. Peña refers the Court to specific allegations at paragraph 72 in her Complaint; in which she describes CCA and Hickson engaging in a custom of “ ‘suppressing, denying, or disregarding,’ prison rape” and in which she lists four specific practices of which this custom consists: placing the inmates in segregation; failing to report sexual abuse allegations to outside law enforcement; failing to conduct adequate investigations of rape allegations; and offering financial incentives for non-reporting. MTD Response at 10. Such policies and practices, she contends, make a plausible claim against CCA and Hickson for engaging in official custom, policy, or practice of deliberate indifference toward the safety of female inmates from sexual abuse in prison. See MTD Response at 11.

Peña points out that CCA Defendants’ argument that Hickson cannot be liable as á supervisor “is moot because the Complaint does not include a claim of supervisory liability against Hickson.” MTD Response at 11. Rather, Peña’s allegations against Hickson are based on her personal participation in the deliberate indifferene,e.,toward the safety of female inmates from sexual abuse in prison and her participation in retaliating against Peña for exercising her First Amendment right to report her sexual abuse. See MTD Response at 11.

Peña contends that she does not bear the burden to prove that, in addition to the CCA Defendants’ actions being deliberately indifferent or retaliatory, they were unrelated to a legitimate penalogical interest. See MTD Response at 11. She argues that the case upon which CCA Defendants rely for this proposition, Alr-Owhali v. Holder, does not apply to her case, because the challenge in Al-Owhali v. Holder was to a regulation imposed at the prison, whereas Peña’s challenge is to CCA’s and Hickson’s unconstitutional policies or practices. See MTD Response at 11-12. Peña also asserts that CCA Defendants’ argument “the Complaint’s acknowledgement that the [CCA] and the NMCD promulgated policies prohibiting sexual abuse in the prison somehow undermines Plaintiffs deliberate indifference claims ... is unsupported by case law and it defies reason.” MTD Response at 12. Peña notes that a corporation defying its policy cannot somehow be insulated from liability merely .because the policy exists. See MTD Response at 12.

Peña also contends that the allegations against Vallejos are sufficiently pled to state a plausible claim for battery and excessive force, because, if Vallejos “grabbed Plaintiff and slammed her against the wall .... with one or more of the mens rea specifically alleged in the Complaint, namely ‘malicious,’ ” then, in addition to the tort of battery, he violated her right to be free from excessive force. MTD Response at 13 (quoting Complaint ¶ 67). She argues that CCA Defendants’ “logically untenable argument that bruising is de minimus injury misstates the standard,” because, although generally a de minimus use of force is not unconstitutional, in the Tenth Circuit, whether the use of force was excessive and in violation of the Eighth Amendment does not require that she suffer “a certain level or type of injury.” MTD Response at 13 (quoting United States v. LaVallee, 439 F.3d 670, 688 (10th Cir.2006)).

Taken as true, Peña asserts, her allegation that CCA, through and including Hickson, placed her in segregation because she reported Vallejos’ alleged battery or because she refused to speak to CCA about the abuse, states a plausible claim for retaliation. See MTD Response at 13. Peña contends:

If, as the Complaint specifically alleges, the Corporation and Defendant Hickson segregated Plaintiff immediately after she was assaulted by Mr. Vallejos and because Plaintiff reported the battery and the rape by Mr. Greffet, and if the Defendants violated applicable segregation policy at that time, or thereafter, it would be plausible that the segregation was retaliatory.

MTD Response at 14 (citing Lipton v. Cnty. of Orange, N.Y., 315 F.Supp.2d 434, 451 (S.D.N.Y.2004)).

In response to CCA Defendants’ argument that the Complaint does not provide sufficient facts upon which the Court can plausibly find that CCA is liable under respondeat superior, Peña points to her allegations that Greffet first orally sodomized her in 2009, in an office at NMWCF, and that Vallejos’ conduct of slamming her into the wall happened inside NMWCF’s hallway. See MTD Response at 15. Peña refers the Court to the Supreme Court of Oregon’s decision in Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), wherein the Supreme Court of Oregon rejected the argument that, because the alleged sexual abuse could not reasonably have furthered the employer’s interests, it could not have been in the scope of the employee’s duties. See MTD Response at 16 (citing Fearing v. Bucher, 977 P.2d at 1163 (Gilette, J.)). She asserts that, at the motion to dismiss stage, she has made out a plausible claim where

the question should be whether the Complaint alleges conduct by Mr. Greffet and Mr. Vallejos that could plausibly be described as being “done while the employee was engaged in the employer’s business with the view of furthering the employer’s interest” rather than arising from the employee’s “external, independent and personal motive.”

MTD Response at 16 (quoting U.J.I. Civ. 13^407 N.M.R.A. (2012)). Peña notes that, because rule 15(a) of the Federal Rules of Civil Procedure directs that the Court should grant leave to amend where justice requires, she will move to amend and seek the opportunity to add “any yet-unarticulated details that support the claim.” MTD Response at 16-17. For these reasons, Peña ask the Court to deny the Motion to Dismiss.

On October 24, 2012, CCA Defendants filed their CCA, Hickson and Vallejos’ Reply in Support of Their Motion to Dismiss. See Doc. 17 (“MTD. Reply”). CCA Defendants assert that Peña’s MTD Response, like her Complaint, “is internally inconsistent, contradictory, and is based upon conclusory assertions, unsupported by facts, which are in conflict with the status of the law related to the.claims she attempts to make.” MTD Reply at 1. They initially point out that Peña concedes that her § 1983 claims based on alleged August, 2010, conduct — when she was not an inmate and Greffet was no longer a CCA employee — lack merit. See MTD Reply at 2. They argue that Peña’s persistence in her argument that Greffet was acting under color of law during the Labor Day weekend, 2009, conduct in Alamogordo “implausibly concludes that Greffet was acting under color of law because he used some unknown ‘authority’ to create the opportunity to facilitate ... the alleged misconduct.” MTD Reply at 3. CCA Defendants note that Peña fails to point to any precedent with facts similar to her case and holding that such conduct was performed under color of law, and they assert that this failure stems from it being “unknown how Plaintiff can plausibly believe that Greffet had any ‘authority’ when she was not an inmate. Or, how any ‘policies and procedures’ alleged to have been in place at NMWCF, could apply to Plaintiff as a released citizen----” MTD Reply at 3.

The CCA Defendants argue that Peña’s reliance on the PREA and New Mexico criminal law to support her definition of rape and her allegation that Peña was unable to consent to the sexual encounter with Greffet, is without a sound basis in the law or the facts of her case. See MTD Reply at 4. They assert:

There is not, however, an independent right for an individual to seek redress under PREA----Plaintiff cites no case supporting such a proposition. Further, Plaintiffs utilization of the definition of “rape” set forth in PREA to describe the conduct alleged in her Complaint, leads to'confusion and undermines Ashcroft v. Iqbal’s holding. Additionally, this is not a criminal case, where Plaintiff can rely upon the provisions of the criminal statutes. There was no criminal prosecution of Defendant Greffet. Neither PREA, nor criminal law, apply where Plaintiff was not an inmate, or when Defendant Greffet was not a corrections officer.

PREA and criminal law simply have no application to the determination of whether Plaintiffs’ allegations are viable, or whether they are barred by factual allegations relating to consent.

MTD Reply at 4. The CCA Defendants argue that Peña’s Complaint fails to articulate “particular CCA policies and customs, supported by facts, which demonstrate that the constitutional violation at issue was the result of those alleged deficient policies and customs and was not reasonably related to legitimate penological interests.” MTD Reply at 5-6. They also assert that the Tenth Circuit’s requirement in Al-Owhali v. Holder, that a prisoner also show that any custom or policy is not reasonably related to a penological interest, applies to Peña’s case, because they contend the Tenth Circuit imposed the burden whether the defendant was challenging a regulatory restriction or other conditions of confinement. See MTD Reply at 6- n, 4. They contend that the broad date ranges and the conclusory allegations make her .claims that CCA Defendants are liable for a policy or custom that was the moving force behind her constitutional violation “are woefully insufficient,” and the Court should thus dismiss any such claims. MTD Reply at 7.

The CCA Defendants argue that Peña has not articulated a plausible claim for retaliation under Ashcroft v. Iqbal, because she fails to' account for how CCA and/or Hickson can be liable for retaliating by placing her in segregation, when she concedes in her Complaint that she was in segregation at the time that she reported Greffet’s actions, and when Greffet was no longer an employee at the time. See MTD Reply at 7. Additionally, they contend that there are reasonable penological reasons for placing an inmate in segregation, including maintenance of order and discipline, and that Peña has not plead sufficient facts to allow the Court to determine whether her being placed there furthered one of these legitimate goals. See MTD Reply at 7-8. The CCA Defendants assert that, because her Complaint omits such basic facts, the Court should dismiss her retaliation claim. See MTD Reply at 8. In regard to her excessive force and battery claims against Vallejos, they assert that Peña rests her claims “upon the conclusion that the force was wrongful and excessive,” but fails to present facts from which it can be determined whether Vallejos’ use of such force was in good faith. MTD Reply at 8 (emphasis in original). They contend that Peña’s argument that a bruise is not de minimis use of force is without support in case law and is without factual support in hér Complaint. See MTD Reply at 9. Additionally, in regard to Peña’s respondeat superior claims against CCA based on Greffet’s conduct in Alamogordo and in Albuquerque, CCA Defendants argue that Peña fails to address their arguments whether an employer can be liable under respondeat superior for alleged acts occurring between a non-inmate and an off-duty or non-employee, which they assert “should be deemed as waiver.” MTD Reply at 9. They assert that, rather than addressing their argument that Peña has waived her argument that the CCA is liable for Greffet’s alleged 2009 sexual assault at the NMWCF for failure to articulate that theory, Peña argues that dismissal is not appropriate based on Greffet’s conduct pertaining to allegations occurring when she was an inmate, which, they contend, is not found in or reasonably inferred from her Complaint. See MTD Reply at 10. As to the Complaint, the CCA Defendants reiterate their argument that there is no law to support that CCA can be liable under respondeat superior for conduct that allegedly occurred when Greffet was ■ off-duty and/or when Peña was not an inmate. See MTD Reply at 10.

The CCA Defendants argue that Peña’s allegations that CCA is liable for Vallejos’ alleged intentional tort also must fail as a matter of law, because Peña cannot point to sufficient facts set forth in the Complaint on which the Court can find that CCA authorized, commanded, or committed the tortious act. See MTD Reply at 10. They assert that Peña’s argument that she need only prove that Vallejos’ conduct was done in the course and scope of his employment fails, because the argument is based upon case law that is no longer good law. See MTD Reply at 10. The CCA Defendants therefore ask the Court to dismiss “these deficiently plead or legally insufficient claims.... ” MTD Reply at 10.

At the November 27, 2012, hearing on the CCA Defendants’ Motion to Dismiss, the Court asked whether the CCA Defendants agreed- that there are three alleged wrongful incidents of conduct regarding Greffet, and whether they would agree that, if the Court draws a hard line that when Peña was not an inmate there is no state action, many of her allegations fail to plausibly allege state action sufficient for a § 1983 action. See Transcript of Hearing at 3:12-6:8 (taken Nov. 27, 2012)(Court, Retts)(“Tr.”). The CCA Defendants agreed that, should the Court make that distinction, Peña appears to be alleging three incidents, and there is not sufficient state action where Peña is not an inmate, and/or where Greffet is off-duty or not a CCA employee. See Tr. at 6:9 (Retts). Peña stated that the Court’s understanding as to the three separate incidents is correct. See Tr. at 6:25 (Fine). Peña asserted that, should the Court find that either of the two incidents that they argue are actionable under § 1983 do not plausibly show sufficient state action, and that the third incident, after CCA no longer employed Greffet, is not actionable under § 1983, which they concede, Peña will argue that the incident or incidents in which the Court finds sufficient state action exists proximately caused the damages of the third incident. See Tr. at 7:1-15 (Fine, Court)- In response to the Court’s inquiry whether Peña was drawing a bright line that, when she was out of prison or when Greffet was not employed by CCA, there was insufficient state action and that all the conduct during those times goes to damages, she responded that she was not drawing that line. See Tr. at 7:17-8:14 (Court, Fine). Peña responded that, rather, her argument is that, as to the Alamogordo incident that took place around Labor Day weekend, 2009, Greffet was acting under color of law, because he used his authority as a prison official “to create the [] opportunity to facilitate the rape or sexual assault.” Tr. at 8:17-22 (Fine). In response, the Court asked Peña whether there are any additional facts that the Court should take into consideration in deciding whether state action was present during the Labor Day conduct. See Tr. at 9:9-14 (Court). Peña’s attorney, Mark Fine, responded that that Peña believes the facts need to be developed on the matter, and that to dismiss the claim is thus inappropriate, because, based on conversations which Mr. Fine was not comfortable disclosing in light of attorney-client privilege, Peña believed that she would return shortly to CCA custody, and so she still felt like she was in a vulnerable or subservient position to Greffet as a CCA prison officer. See Tr. at 9:15-12:1 (Fine, Court). In response to the Court’s questioning Peña whether she conceded that the third incident, the August, 2010, incident, had insufficient state action for a § 1983 claim, she stated that she concedes insufficient state action and will use that incident for damages purposes only. See Tr. at 12:12:4-8 (Court, Fine).

The Court asked Peña, in regards to the color-of-law argument for the Labor Day weekend incident, what her best precedent cases are to which she would refer the Court in support of her argument. See Tr. at 12:9-13 (Court). Peña responded that she could not find a case that was on point with her situation. See Tr. at Tr. at 12:13-19 (Fine). The Court then asked, if the fact that she believed she might return to CCA’s custody were set aside, and all the facts were that she was released from custody, whether in that situation she believed she would still have sufficient state action to support her § 1983 claim. See Tr. at 12:20-13:2 (Court). Peña responded that it is a very close question; on the one hand, she thinks there is sufficient state action, because unique to her facts is Greffet’s leveraging his authority as a CCA officer when CCA had custody of Peña to create the opportunity that led to the subsequent sexual assaults; on the other hand, however, she believes that her belief that she was going to return to CCA’s custody shortly likely influenced her willingness to meet Greffet. See Tr. at 18:3— 22 (Fine, Court).

The CCA Defendants asserted that Peña’s subjective belief regarding her returning to CCA’s custody is irrelevant, because whether there was state action turns on whether Greffet could have reasonably been acting pursua