Tapia v. City of Albuquerque (10 F. Supp. 3d 1323, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Dismiss by Defendant Paula Forney, filed May 3, 2013 (Doc. 43)(“MTD”). The Court held a hearing on November 1, 2013. The primary issue is whether the Court should dismiss the Plaintiffs’ claims against Defendant Paula Forney under rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court will grant the MTD. The Court concludes that the Plaintiffs do not assert Counts 2, 4, and 6 of the Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, filed in state court January 15, 2013, filed in federal court March 4, 2013 (Doc. l-l)(“Complaint”), against Ms. Forney; to the extent that the Plaintiffs assert those claims against Ms. Forney, the Court will grant the MTD. The Court will also grant the MTD as to Counts 1, 3, and 5, because none of the Counts states a claim against Ms. Forney for violating any provision of the Constitution of the United States of America.

FACTUAL BACKGROUND

To provide background for the MTD, the Court takes the following facts from the Complaint. The Complaint’s organization is unclear. Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.

1. The Parties.

Plaintiff “Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheelchair lift on a City van.” Complaint ¶ 1, at 1 (emphasis omitted). Plaintiff “Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011.” Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff “[t]he New Mexico Transportation Union (“NMT[U]”)> [sic] is the labor union that has represented City bus and van drivers since 1965; [Plaintiff] Ernest Lucero is the current NMTU Chairman.” Complaint ¶ 3, at 2 (emphasis omitted). “Defendant City of Albuquerque is the largest city in New Mexico; Albuquerque is in Bernalillo County, New Mexico.” Complaint ¶ 4, at 2 (emphasis omitted). Defendant “Richard Berry is the Mayor of Albuquerque; [Defendant] Robert J. Perry is the Chief Administrative Officer (CAO) of the City.” Complaint ¶ 5, at 2 (emphasis omitted). Defendant “[t]he City Personnel Board is supposed to be a neutral quasi-judicial hearing panel;” according to the Plaintiffs, “the current Personnel Board operates unlawfully under the control and direction of’ Perry. Complaint ¶ 6, at 2. Non-party “[t]he City Labor-Management Relations Board is supposed to be a neutral quasi-judicial hearing panel;” the current Labor Board operates under the control and direction of the City of Albuquerque,” Berry, and Perry. Complaint ¶ 7, at 2. Defendant Bruce Rizzieri is “Director of the City’s Transit Department.” Complaint ¶ 8, at 2. Defendant “Paula Forney is a former assistant City attorney.” Complaint ¶ 9, at 2. Defendant “Carmen Wagner-Mogle was Jessica Tapia’s physician.” Complaint ¶ 10, at 2.

2. Facts Related to the NMTU and City Government Actors.

The Plaintiffs assert that NMTU “petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and van drivers in March, 2011,” but “the City would not formally recognize its majority status until October 5, 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624.” Complaint ¶ 10, at 3. Although the City Labor Board conducted that election, neither the City nor its labor board supported “the NMTU in either its grievance or bargaining representation.” Complaint ¶ 11, at 3. “On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU.” Complaint ¶ 12, at 3. “However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded.” Complaint ¶ 13, at 3.

As a direct result of the City’s failure to acknowledge and support NMTU as the collective bargaining and grievance representative, NMTU and its officials were untrained, inexperienced, and without any office, staff, or operating funds. At the same time the union officers were attempting to represent drivers, the Transit Department unreasonably required them to fully perform their driving schedules.

Complaint ¶ 14, at 3-4. Tapia’s and Aragon’s grievances “were the first two grievances ever handled by NMTU’s new Chairman.” Complaint ¶ 15, at 4.

According to the Plaintiffs, the City Charter requires the mayor to administer and protect “the merit system,” and to appoint “an officer to administer the merit system.” Complaint ¶ 16, at 4. According to the Plaintiffs, “[t]he City has not appointed or hired” such an officer. Complaint ¶ 17, at 4. “[Moreover, the Merit System Ordinance states that the Mayor” shall designate the CAO — “the City’s highest appointed official and the person authorized to ‘reprimand, suspend, demote or discharge employees’ ” — to administer that system. Complaint ¶ 18', at 4 (quoting MSO § 3 — 1—2(c)(3)). “The City Personnel Board is neither fair nor neutral,” but instead, “whenever possible[, it] upholds and advances management policies and interests over the rights of City employees. In this case the City dictated the actions of the Personnel Board.” Complaint ¶ 19, at 4.

[U]nder the administration of Mayor Richard Berry the Current Personnel Board and its Personnel Hearing Officers and the Labor Board all act under the direction of Mayor Berry and Robert Perry, without oversight from the City Council, collusively, and in violation of the City Charter and the rights of Plaintiffs and other City employees.

Complaint ¶ 20, at 5.

3. Conflict Between Tapia and the City of Albuquerque.

Tapia’s wrist was injured on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. “Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver.” Complaint ¶ 22, at 5. -“Following her on-the-job wrist injury the Transit Department assigned Ms. Tapia to ‘monitor’ the public restrooms at the City’s Alvarado Transit Center. While ‘monitoring’ at the ATC, in November, 2010, Ms. Tapia was attacked by a homeless man who injured her shoulder.” Complaint ¶ 21, at 5. “By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do.” Complaint ¶ 23, at 5.

On December 27, 2010, counsel wrote to Transit Director Bruce Rizzieri and the Human Resources manager, to inquire about the City’s justification for putting Ms. Tapia in the cold Guard Shack with nothing to do. They did not respond. On January 21, 2011, counsel wrote again to further question and object to the City’s mistreatment of Ms. Tapia and to give notice of her tort claims.

Complaint ¶ 24, at 5.

On February 15, 2011, the Transit Department scheduled a Pre-Determination Hearing (PDH) for February 24, 2011, charging that Ms. Tapia ‘submitted a P-30 Request for Leave form with 68.270 hours of Absent Without Leave.’ Mr. Bird cancelled that ‘hearing’ after Ms. Tapia and her attorney appeared because, he said, he had forgotten to refer the case to the mediation office.

Complaint ¶ 25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶26,- at 6. When Tapia’s attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia “submitted a P30 Request for Leave form with 68.270 hours of Absent Without Leave. This type of leave is unauthorized leave and considered absent from work without authorization. Your AW absences totaling 68.270 hours have placed you in violation of City Rules and Regulations.” Complaint ¶ 26, at 6 (source of quotation unidentified). “Ms. Tapia had submitted the form on the instructions of Transit’s Personnel Manager. Nonetheless, on March 18, 2011, [t]he Transit Department gave Tapia a 3-day suspension.” Complaint ¶ 27, at 6.

On April 18, 2011, the Transit Department gave [Tapia] another Notice, scheduling a pre-determination hearing for May 9, 2011. Included in the allegations was the contention that on “April 11, 2011 Clarence Decker ‘witnessed you in the Security Building at approx. 12:30 p.m. At 3:00 p.m., ‘(y)ou were not at your assigned work area.’ ”

Complaint ¶ 27, at 6 (source of quotation unidentified).

On April 21, 2011, another Notice scheduled a hearing for June 3, 2011. Among the allegations were that “On April 18-20, 2011 you did not show up for work or call in to be absent from work ... [sic] Your AW absences totaling 24 hours have placed you in violation of City Rules and Regs.’ This was apparently also based on a complaint by Clarence Decker about Jessica Tapia’s ‘absents and failure to call in.’ ”

Complaint ¶ 28, at 6-7 (source of quotation unidentified). On May 18, 2011, in response to the hearing held on May 9, 2011, the Transit Department suspended Tapia without pay for eight work days, or sixty-four work hours, to be served from May 20, 2011 to May 31, 2011. See Complaint ¶ 29, at 7. On May 31, 2011, Maintenance Manager Dennis Stump gave Ms. Tapia notice of another Pre-determination Hearing scheduled for Thursday June 9, 2011. According to the City’s untrue account, Ms. Tapia had requested accommodation in October, 2010 ‘citing that you are unable to drive at night due to your medical condition.’ ” Complaint ¶ 30, at 31. “Without her knowledge the City had apparently paid a private investigator to follow her outside of work hours, with the result that she was accused of ‘driving at night’ and ‘purchasing liquor at a Walgreens establishment then attending what appeared to be a party.’ ” Complaint ¶ 31, at 7 (source of quotation unidentified).

Also, according to the Plaintiffs’ account, the City’s

FMLA Coordinator contacted your physician to inquire if your medical condition had changed ... physician stated you had not been under her care since the first part of April when she certified your FMLA for intermittent leave and that she did not have a medical explanation for why you have not been to work.

(Emphasis added.)

Complaint ¶ 32, at 7 (omission in Complaint).

“On June 8, 2011, Jessica Tapia received the ‘results of predetermination hearing’ that ‘on April 18-20, 2011, you did not show up for work or call in to be absent from work.’ The Transit department imposed a 15-workday, 120 hour suspension without pay.” Complaint ¶ 33, at 7. “Without further notice to Ms. Tapia or NMTU, the City terminated Ms. Tapia’s employment.” Complaint ¶ 34, at 8.

“On August 2, 2011, the City’s attorney, Paula Forney, drafted and issued a subpoena for Ms. Tapia’s medical records. Ms. Forney did that without informing Ms. Tapia or her attorney. Ms. Forney did not seek or secure a release.” Complaint ¶ 40, at 9. The subpoena, which Forney evidently issued to Dr. Wagner-Mogle, stated “that it was: ‘[f]or the medical records of patient, Jessica Tapia ... requires you to appear for a deposition on August 10, 2011 at 10:00 a.m. ... and bring with you: Any and all documents in your possession regarding Jessica Tapia ... beginning 01/01/2010 to the present.” Complaint ¶ 41, at 9. “In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that: ‘You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance.’ ” Complaint ¶ 42, at 9 (source of quotation not provided). On August 4, 2011, Dr. WagnerMogle sent Tapia’s records to Ms. Forney by facsimile transmission, without requesting or securing a release or other authorization, and without notifying Tapia. See Complaint ¶ 43, at 9. “On August 8, 2011, Ms. Forney wrote to counsel that she had received ‘A phone call from Ms. Tapia’s doctor acknowledging that she should not have sent Ms. Tapia’s records without a release.’ ” Complaint ¶ 44, at 10. “Ms. Tapia objected to the unauthorized release of her medical records, but on September 9, 2011, Personnel Hearing Officer Patrick Bingham issued the subpoena for medical records requested by Ms. Forney and granted the City attorney permission to serve discovery on Ms. Tapia.” Complaint ¶ 45, at 10.

After the hearing officer allowed “the City unlimited ‘discovery’ (including Ms. Tapia’s medical records), Ms. Forney propounded burdensome and offensive ‘discovery requests’ designed to embarrass Ms. Tapia and place pressure on the inexperienced NMTU officers who were attempting to represent her, rather than produce any actually useful information.” Complaint ¶46, at 10(source of quotations not provided). “The Hearing Officer signed an order dismissing Ms. Tapia’s case, but the Personnel Board objected that Mr. Bingham’s order did not give any reasons or include any ‘findings.’ The Personnel Board remanded the case to the Personnel Hearing Officer to make findings and issue a ‘correct’ order.” Complaint ¶ 47, at 10. “Instead of the Hearing Officer making findings and issuing a correct corder [sic], Paula Forney wrote a set of ‘findings and conclusions’ dismissing Ms. Tapia’s case.” Complaint ¶ 48, at 10. “The Hearing Officer merely changed the title of the document prepared by Ms. Forney and signed the ‘Order’ drafted by Ms. Forney, dismissing Ms. Tapia’s Personnel Board case without a hearing.’ ” Complaint ¶ 49, at 10. “At its December 14, 2011, meeting the Personnel Board gave its rubber-stamp ‘approval’ of Ms. Forney’s findings and conclusions.” Complaint ¶ 50, at 11.

Counsel for Ms. Tapia subsequently filed a motion for sanctions against the City, Ms. Forney and the Personnel Hearing Officer for their violations of Ms. Tapia’s right to privacy. The Board members denounced Tapia’s counsel for bringing the charges before the Personnel Board and the Board unanimously refused to consider the issue.

Complaint ¶ 51, at 11.

4. Conflict Between Aragon and the City of Albuquerque.

“The City has held an extraordinary number of pre-disciplinary hearings in this case, spanning the time between the first such action on December 26, 2006, and the last on June 1, 2011.” Complaint ¶ 35, at 8 (footnote omitted). The Complaint lists, without further explanation, a number of “Results of Pre-Disciplinary He[ar]ings” and states that “in addition the City has held two investigations ... and issued at least seven letters of investigation.” Complaint ¶ 35 n. 1, at 8.

The City has charged Ms. Aragon with very many infractions. On March 16, 2008, for example, the City charged Ms. Aragon with violating section 300, 301.1, 301.9, 302, 301.13, 401.11 (DI, E), 402.5(C), 902, 902.1 (C, D, G, J. [sic] L, Ml, 2, 3) and Sec. 12.34 (Major Policy Violations/Gross Misconduct, Transit SOP). Plaintiffs do not know what those charges are for or what happened to those charges.

Complaint ¶ 36, at 8. “On May 17, 2011, Deputy Operations Manager Annette Paez ordered Ms. Aragon to return to work, but Ms. Aragon was unable to comply because of her medical condition.” Complaint ¶ 37, at 8. “On June 1, 2011, Ms. Paez charged Ms. Aragon with violations of Section 300, 302, 402.5(c) and 902.1 (E. [sic] J, and M-3).” Complaint ¶ 38, at 8. “Although the record indicates an increasing concern over attendance and use of sick leave, the City has never explained the reasons for its disciplinary actions against Ms. Aragon.” Complaint ¶ 39, at 9.

“On October 17, 2011, Mr. Lucero wrote to Ms. Wardlaw to request Vanessa Aragon’s case and all other NMTU cases be stayed until the Union achieved the ability to represent the bargaining unit employees.” Complaint ¶ 52, at 11. “The City refused to agree to a continuance, claiming that Mr. Lucero had waited too long to request it.” Complaint ¶ 53, at 11. “Without any attempt to contact Ms. Aragon, the City’s Personnel Hearing Officer wrongly concluded that: ‘... it is more likely than not that Employee was aware of the hearing and did not appear so as to support the request for a continuance.’ ” Complaint ¶ 54, at 11 (omission in Complaint)(source of quotation not provided).

According to the City’s Personnel Hearing Officer, “Employee failed to establish good and sufficient cause for her untimely request for a continuance.”

The Hearing Officer therefore recommends that the Personnel Board deny Employee’s request for a continuance. The Employee having failed to appear or to otherwise prosecute her appeal, it is further recommended that the Personnel Board dismiss the appeal of Employee’s termination.

Complaint ¶ 55, at 12 (source of block quotation not provided).

Not knowing about the status of NMTU and its representational abilities and without inquiring or even asking Mr. Lucero, the Hearing Officer erroneously found that the request for a continuance was made because of “problems associated with the fact that NMTU was moving into new facilities.” In fact, there were no “new facilities” and Ms. Aragon was unaware of what was happening, but the Hearing Officer, acting in collusion with the City, recommended termination without a hearing anyway.”

Complaint ¶ 56, at 12.

PROCEDURAL BACKGROUND

The Court will discuss the procedural background in two parts. First, the Court will discuss the Plaintiffs’ Complaint and the Defendants’ removal to federal court. Second, the Court will discuss the proceedings that relate to the MTD.

1. The Plaintiffs File their Complaint; the Defendants Remove to Federal Court.

The Plaintiffs filed their Complaint in state court, stating that they “bring their claims under 42 U.S.C.Sec. 1983 [sic], and the laws and Constitutions of the United States and the State of New Mexico.” Complaint ¶ 9, at 2-3. The Plaintiffs allege six causes of action. See Complaint ¶¶ 57-84, at 12-16. Under “Count 1 Due Process and Equal Protection,” the Plaintiffs assert that Tapia and Aragon, “[a]s classified, full-time, City employees ... had legitimate expectations of continued employment absent just cause for disciplinary action. They had the right to a full and fair hearing to challenge their termination.” Complaint ¶ 57, at 12. “Similarly,” the Plaintiffs allege, “NMTU and its leadership had a due process right and an obligation to represent employees in the bargaining unit at post-termination grievance hearings that are fundamentally fair and procedurally correct.” Complaint ¶ 58, at 12. According to the Plaintiffs, the “Defendants denied the employees’ rights and hearings and dismissed their cases on pretextual grounds,” and, thereby, “the City Defendants have violated Plaintiffs’ rights to due process and equal protection of the laws.” Complaint ¶¶ 59-60, at 13.

Under “Count 2 Breach of Employment Contracts,” the Plaintiffs allege that, “[a]s tenured public employees, Plaintiffs Tapia and Aragon were covered by a contract of employment that consisted of the Merit System Ordinance, the Personnel Rules and Regulations and applicable collective bargaining agreements.” Complaint ¶ 62, at 13. The Plaintiffs contend that they “were contractually entitled to notice and an opportunity to be heard, and to be disciplined only for just cause.” Complaint ¶ 62, at 13. The Plaintiffs submit that, thereby, the Defendants “have violated their contractual obligations and are liable for damages to be determined at trial.” Complaint ¶ 64, at 13.

Under “Count 3 Violation of Right to Privacy,” the Plaintiffs contend that Ms. “Forney used a misleading letter and an illegitimate subpoena that she issued herself to secure Jessica Tapia’s medical records from Dr. Carmen Wagner-Mogle,” and that Dr. “Wagner-Mogle sent Ms. Tapia’s medical records to Ms. Forney without any knowledge or authorization by Ms. Tapia.” Complaint ¶¶ 66-67, at 13-14. The Plaintiffs assert that “Dr. WagnerMogle communicated with Ms. Forney and other City representatives about Jessica Tapia and her medical condition and records on at least several occasions,” but “never contacted or attempted to contact Ms. Tapia or her attorney.” Complaint ¶ 68, at 14. The Plaintiffs state that “[t]he acts of Defendants, specifically Paula Forney, Dr. Carmen Wagner-Mogle and the Transit Department deliberately and willfully violated Jessica Tapia’s right to privacy in her medical records.” Complaint ¶ 69, at 14. The Plaintiffs contend that the “Defendants also hired a private investigator and followed Ms. Tapia, seeking and securing information about her personal life and activities entirely unconnected with her work.” Complaint ¶70, at 14. The Plaintiffs assert that the “Defendants are liable for their violations of Ms. Tapia’s right to privacy.” Complaint ¶ 71, at 14.

Under “Count 4 Negligence,” the Plaintiffs assert that, “[a]s described herein, Defendants have treated Jessica Tapia and Vanessa Aragon negligently and with deliberate indifference with respect to their employment.” Complaint ¶ 73, at 14. “In addition,” the Plaintiffs state, “Ms. Tapia sustained two injuries, the first resulting from operation of a wheelchair lift while on duty; the second of which was a result of her assignment to monitor the restroom facilities at the Alvarado Transit Center, a building managed and maintained by the City Transit Department.” Complaint ¶ 74, at 15. The Plaintiffs assert that “Tapia has given notice of her tort claim to the City of Albuquerque.” Complaint ¶ 75, at 15. The Plaintiffs maintain that “[t]he city and its Transit Department, as well as its Director, are liable for the damages proximately caused by their negligence in an amount to be determined at trial.” Complaint ¶ 76, at 15.

Under “Count 5 Conspiracy to Deny Constitutional Rights,” the Plaintiffs assert that “[t]he City Defendants, aware of Plaintiffs’ rights to due process and equal protection, acted deliberately to deny the right to a hearing, one of the most fundamental rights of public employees subjected to wrongful disciplinary actions.” ■Complaint ¶ 78, at 15. ’“In particular,” according to the Plaintiffs, “Paula Forney, the Personnel Hearing Officers, the Personnel Board, and Bruce Rizzieri and other City officials met, discussed, and arranged for the denial of Plaintiffs’ due process and equal protection rights.” Complaint ¶ 79, at 15.

Under “Count 6 Unfair Labor Practices,” the Plaintiffs state that, “[l]ong after the submission of NMTU’s majority petition for representation of the Transit drivers’ bargaining unit in March, 2011, and the expiration of the Collective Bargaining Agreement on June 30, 2011, the City and Transit Department continued recognizing AFSCME as the exclusive bargaining and grievance representative.” Complaint ¶ 81, at 15-16. According to the Plaintiffs,

[t]he City and its Labor Board have ignored and opposed the legitimate representational interests of NMTU, discarded NMTU’s prohibited practice complaints without hearings, insisted on an election when none was needed, and then did nothing to support or enable NMTU to represent employees after it prevailed in the election.

Complaint ¶ 82, at 16. The Plaintiffs maintain that “[t]he City’s misconduct and the Hearing Officers’ and Personnel Board’s lack of concern over — and engagement in — collusive tactics in this case, including biased hearing officers eager to dismiss rather than hear employee cases, and unethical and illegal conduct, clearly demonstrated the City’s policy and practice with respect to the rights of its employees and the obligations of City management towards those employees.” Complaint ¶ 83, at 16. The Plaintiffs assert that they “are entitled to compensatory, declaratory, and injunctive relief for the City’s failure to comply with its laws, failure to recognize and hear employee grievances, and collusive and conspiratorial conduct with respect to these and other employees’ rights and grievances.” Complaint ¶ 84, at 16.

The Plaintiffs ask for the following forms of relief:

A.Declaratory, injunctive and compensatory relief for denial of fair hearings and the rights to due process and equal protection of law;

B. Damages for breaches of contract;

C. Declaratory, injunctive, and compensatory relief and exemplary and punitive damages for violation of Jessica Tapia’s right to privacy.

D. Damages for negligence with respect to Ms. Tapia’s injuries;

E. Declaratory, injunctive, and compensatory relief for unfair labor practices and collusive misconduct between and among City officials and attorneys, the Personnel Board and its Personnel Hearing Officers and the Labor Board.

F. Declaratory and injunctive relief requiring the City to hire or appoint a person to oversee, administer, and protect the Merit System and ensure a fair, neutral and effective personnel hearing process for City employees.

G. Costs and attorneys’ fees; and

H. Such other and further relief as the Court deems just and proper.

Complaint ¶¶ A-H, at 16-17.

On March 4, 2013, the Defendants filed their Notice of Removal. See Doc. 1.

On March 8, 2013, the City Defendants filed their Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, Affirmative Defenses and Counterclaim. See Doc. 13 (“City Defendants’ Answer”). The City Defendants raise two counterclaims: (i) malicious abuse of process, contending, in essence, that the Plaintiffs’ claims are meritless and that they are abusing the legal process, see City Defendants’ Answer ¶¶ 48-56, at 16-17; and (ii) prima facie tort, contending that the Plaintiffs have intentionally brought a meritless claim to harm the City of Albuquerque, see City Defendants’ Answer ¶¶ 57-64, at 18-19.

On March 2018, Forney filed her Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices by Defendant Paula Forney and Counterclaim. See Doc. 15 (“Forney’s Answer”). Forney raises counterclaims for malicious abuse of process and prima facie tort, largely for the same reasons that the City Defendants give. See Forney’s Answer ¶¶ 1-13, at'19-21.

2. The MTD.

Ms. Forney moves the Court to dismiss the claims against her. See MTD at 1. She asserts that the law entitles her to qualified immunity and that, because she served as an opposing party’s counsel, she did not owe the Plaintiffs any duties. See MTD at 1. Accordingly, she- asserts that the Complaint does not state a claim against her, and she asks the Court to dismiss the claims against her with prejudice. See MTD at 1. After reviewing the familiar standard for motions to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure, see MTD at 1-2, .Ms. Forney sets out the following list of “material allegations” from the Complaint:

1. Plaintiff, Jessica Tapia- (“Tapia”), was a full-time, classified City Employee employed as a City para-transit van driver until June 2011. (Complaint, ¶ 1).

2. Plaintiff, Vanessa Aragon (“Aragon”), was employed as a City bus driver until July 2011. (Complaint, ¶ 2).

8. Plaintiff New Mexico Transportation Union (“NMTU”) was certified as the bargaining representative union for City of Albuquerque bus and van drivers on October 5, 2011. Plaintiff Ernest Lucero is its Chairman. (Complaint, ¶¶ 3,12).

4. Both Tapia and Aragon brought grievance proceedings as a result of their termination from employment with the City of Albuquerque. They were represented in the grievance proceedings by NMTU. (Complaint, ¶ 15).

5.- Although disputed by Paula For- ’■ ney, for purposes of this Motion, the Complaint contains the following allegations as to Defendant, Paula Forney:

a. On August 2, 2011, Paula Forney drafted and issued a subpoena for Tapia’s medical records from Defendant Dr. Wagner-Mogle without informing Tapia or securing a release. (Complaint, ¶ 40).

b. On August 8, 2011, Paula Forney informed Tapia’s counsel that she had received a telephone call from Tapia’s doctor that the records should not have been sent without a release. (Complaint, ¶ 44).

c. After returning the records, Paula Forney asked the Personnel Hearing Officer to issue a subpoena for the records, affording Tapia an opportunity to object. The Hearing Officer issued the subpoena and granted the City attorney permission to serve discovery on Tapia. (Complaint, ¶ 45).

d. Paula Forney propounded discovery requests to Tapia. (Complaint, ¶ 46).

e. Paula Forney wrote a requested set of “findings and conclusions” for the Hearing Officer dismissing Tapia’s case, which were adopted by the Hearing Officer without a hearing. (Complaint, ¶¶ 48, 49).

f. On December 14, 2011, the Personnel Board gave its “rubber stamp” approval of the Findings and Conclusions. (Complaint, ¶ 50).

g. Counsel for Tapia filed a motion for sanctions against Forney, the Hearing Officer' and the City over the subpoena for Tapia’s medical records, but the Personnel Board declined to consider the sanctions issue. (Complaint, ¶ 51).

6. The Complaint contains no factual allegations of any conduct by Paula Forney in connection with the grievance of Aragon.

MTD ¶¶ 1-6, at 2-4.

With respect to the Plaintiffs’ claims under 42 U.S.C. § 1983, Ms. Forney substantially relies on qualified immunity. See MTD at 4. After reviewing the familiar general legal standards for qualified immunity, see MTD at 4-5, Ms. Forney states that she worked for the City of Albuquerque, first as its employee and then as its contract attorney, and argues that, under the Supreme Court of the United States’ decision in Filarsky v. Delia, — U.S. -, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012), “a contract attorney is entitled to the same qualified immunity as an attorney employed by a governmental entity,” MTD at 5. Ms. Forney continues:

In Filarsky, [the] Supreme Court looked to the general principles of tort immunities and defenses applicable at common law, and the reasons the Court had afforded qualified immunity protection from suit under § 1983. See, e.g., Imbler v. Packtman, 424 U.S. 409, 418 [96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ].... The Court determined that immunity under § 1983 should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis. Filarsky, 132 S.Ct. at 1661-1665.

In holding that a contract attorney is entitled to qualified immunity, the Court articulated several reasons for affording that immunity. First, the government interest in avoiding unwarranted timidity on the part of those engaged in the public’s business — which has been called “the most important special government immunity-producing concern,” [sic] — is equally implicated regardless of whether the individual sued as a state actor works for the government full-time or on some other basis such as a contract. Filarsky, 107 [132] S.Ct. at 1665 (citing Richardson v. McKnight, 521 U.S. 399, 409 [117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) ] ...). Second, affording immunity to those acting on the government’s behalf serves to “ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.” Richardson, 521 U.S. at 408 [117 S.Ct. 2100]....

MTD at 6-7. Echoing these arguments, Ms. Forney contends that good policy reasons support extending qualified immunity to contract employees: acknowledging that government, “in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals,” she maintains that, given private individuals’ freedom to choose other forms of employment, “the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts.” MTD at 7.

In her third argument in favor of applying qualified immunity to her, she notes that, even if a private individual is performing a government duty, the public has an interest in ensuring that those individuals can carry out their duties without the distractions of litigation. See MTD at 7. She notes, moreover, that “distinguishing among those who carry out the public’s business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to reasonably anticipate when their conduct may give rise to liability for damages.” MTD at 7 (citing Filarsky v. De lia, 132 S.Ct. at 1665-66; Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

Accordingly, she asserts that Filarsky v. Delia entitles her to qualified immunity. See MTD at 7. Moreover, she asserts that, "even though the Complaint contains conclusory allegations of due process violations, the factual allegations ... fail to establish any violation of a constitutional right by Paula Forney in her actions as attorney for the City of Albuquerque.” MTD at 7-8. She asserts that, “[t]o the contrary, the allegations show that Paula Forney did no more than competently represent her client in the proceedings by propounding discovery, appearing for and representing the City at hearings, and drafting proposed findings and conclusions.” MTD at 8. She also asserts that,

[w]ith respect to the allegations involving the subpoena, the Complaint establishes that Tapia was ultimately afforded due process by being given the opportunity to object to production of her medical records, and it was the Hearing Officer’s decision to issue the subpoena and permit discovery of the records. (Complaint, ¶ 45). The issuance of the administrative subpoena for Tapia’s medical records did not violate any constitutional right. [See ] Becker v. Kroll, 494 F.3d 904, 917-918 (10[th] Cir.2007) (holding that issuance of administrative subpoena for medical records did not violate plaintiffs constitutional rights).

MTD at 8. Accordingly, she asserts that, “[e]ven viewing the allegations in the light most favorable to Plaintiffs, the record clearly establishes that Tapia has failed to satisfy his [sic] heavy two-part burden and Paula Forney is entitled to qualified immunity.” MTD at 8. She asks the Court to dismiss the § 1983 claims with prejudice. See MTD at 8. She also notes that, if she “is not a public actor entitled to qualified immunity, then, as a private actor, she cannot be held liable for any constitutional violations under 42 U.S.C. § 1983.” MTD at 8 n.l.

Ms. Forney then turns to the Plaintiffs’ state law claims and argues that the Complaint does not state a claim against her, because she did not owe the Plaintiffs any legal duties. See MTD at 8-9. Ms. Forney first states that, to her reading, Counts 2, 4, and 6 of the Complaint are not directed against her; she argues that, if they are asserted against her, they fail to state a claim, because all of their claims “arise out of [her] actions as an attorney for the adverse party in personnel board proceedings and litigation,” and, “as the opposing attorney, [she] had no duty to Plaintiffs.” MTD at 8-9. She asserts that, because she had no such duty, the Complaint fails to state a claim against her. See MTD at 9. She asserts that, under New Mexico law, litigants have no cause of action against opposing litigants’ attorneys for conduct and statements in legal proceedings. See MTD at 9 (citing Garcia v. Rodey, Dickason, Sloan, Akin & Robb, PA., 1988-NMSC-014, 106 N.M. 757, 750 P.2d 118; Gelinas v. Gabriel, 106 N.M. 221, 741 P.2d 443 (1987)). According to Ms. Forney, “[a]n attorney has no duty to protect the interests of a non-client adverse party,” because that party “is not the intended beneficiary of the attorney’s services and the attorney’s undivided loyalty belongs to the client.” MTD at 9. She also points out that, under New Mexico law, “[a]n adverse party cannot justifiably rely on the opposing lawyer to protect him from harm.” MTD at 9 (citing Leyba v. Whitley, 1995-NMSC-066, 120 N.M. 768, 907 P.2d 172). According to Ms. Forney, the facts that the Complaint alleges all focus on areas where she acted as the City of Albuquerque’s attorney, and, in that capacity, she owed duties only to her client and not the Plaintiffs. See MTD at 9-10. She asserts that, “[a]s a matter of law, Plaintiffs cannot maintain any of the asserted claims against Defendant for her conduct in representing her Client against Plaintiffs. Therefore, the claims asserted against Paula Forney fail to state a plausible claim for relief and should be dismissed.” MTD at 10.

Ms. Forney also argues that, to the extent that the NMTU and Lucero have sued her, “there is no basis for any claims by NMTU or Lucero against [her] and NMTU and Lucero lack standing to maintain the asserted claims.” MTD at 10. After rehearsing the familiar requirements for standing under Article III of the Constitution of the United States of America, Ms. Forney asserts that NMTU and Lucero lack standing to sue her,

because [they] allege no legally protected interest of theirs that has been invaded as a proximate result of any act or omission of Paula Forney. NMTU and Lucero do not allege and did not have any contractual relationship with Paula Forney. Further, Paula Forney owed no legal duty to NMTU or Lucero. Therefore, the claims by NMTU and Lucero fail to state a claim upon which relief can be granted against Paula Forney and the claims against Paula Forney should be dismissed.

MTD at 10-11. Ms. Forney asks the Court to dismiss all claims against her with prejudice, because the Complaint does not allege that she violated the Plaintiffs’ constitutional rights; because qualified immunity, therefore, insulates her from liability; and because she took any acts of which the Plaintiffs complain as an opposing party’s attorney, a capacity in which she owes the Plaintiffs no legal duties. See MTD at 11. Ms. Forney notes that she asked opposing counsel for concurrence, but opposing counsel did not respond. See MTD at 11.

The Plaintiffs did not file a response.

The Court held a hearing on November 1, 2013. See Transcript of Hearing, taken November 1, 2013, filed November 7, 2013 (Doc. 63)(“Tr.”). Ms. Forney began by reiterating her qualified immunity argument: the Court asked her to clarify her position, and she stated that, in Filarsky v. Delia, the Supreme Court extended qualified immunity to contract attorneys who represent government entities. See Tr. at 58:23-60:9 (Franke, Court). The Court asked whether it would go through the normal, two-pronged qualified immunity analysis; Ms. Forney submitted that the Court could analyze the claim that way, but asserted that, because she raised this objection in a motion to dismiss, the Court could decide the issue under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), “as to whether the allegations of the complaint plausibly show ... a violation of a clearly established constitutional right.” Tr. at 60:11-20 (Court, Franke). The Court asked Ms. Forney what she understood to be the allegations against her; Ms. Forney stated:

The complaint essentially sets out a series of actions by Ms. Forney, taken in her capacity as an attorney. These include conducting discovery, appearing before the Personnel Board, filing requested findings and conclusions on behalf of her client. The complaint is drafted very broadly. All of the counts go against all defendants, and there is really nothing — and this is part of the basis of our motion — that articulates in any way specifically how Ms. Forney violated a constitutional right, much less a clearly established one.

Tr. at 60:21-61:7 (Court, Franke). She argued that only the claim which relates to the subpoenas which she sent to Dr. Wagner-Mogle could deal with the Constitution, and that both the Complaint “and the record on the doctor’s motion to dismiss show that, regardless of the validity of the first subpoena that was issued, the matter was quickly remedied and an appropriate subpoena was issued.” Tr. at 61:10-16 (Franke). In her view, the Complaint did not describe a civil rights violation, but “simply procedural matters that occurred during the course of litigation.” Tr. at 61:16-19 (Franke). She contended that, because the Complaint does not “articulate any plausible violation of any constitutional right by” her, “she is entitled to qualified immunity.” Tr. at 61:20-23 (Franke). Ms. Forney also reiterated her briefs’ arguments that she had no duty to the Plaintiffs, see Tr. at 61:24-62:10 (Franke), and that the Plaintiffs have not alleged that she injured any legally protected right that the NMTU and Lucero held and thus lack “standing to maintain any claims in this action,” the Court should dismiss those claims, Tr. at 62:11-20 (Franke).

Ms. Forney also addressed the lack of a filed response: she noted that she filed the MTD on May 3, 2013, and that counsel for the Plaintiffs asked for an extension of time to respond, which was, in her view, “a clear demonstration of a recognition of the need to file a response to this motion.” Tr. at 62:21-63:1 (Franke). She pointed out that the Plaintiffs did not respond and that she “waited beyond the given extension by an additional 12 days before we ever filed our notice of completion on this. There was no response by the time of the notice of completion, and there has been no response to date.” Tr. at 62:2-6 (Franke). She noted that some parties had, earlier in the hearing, suggested that the Court should consider granting motions “based solely on the fact that there is no written response,” and noted that the Court need not have set a hearing, but could have decided the MTD and other motions heard based on written filings. Tr. at 63:7-14 (Franke). She stated, however, that she preferred the Court’s approach to the MTD and other motions— that is, to reach their merits, rather than to decide them based solely on the absence of a response — and asserted that she

would like the record to reflect that I believe the Court’s determination of these motions on the merits, while taking into consideration the fact that there is no response raising any issue to the motions, still reaches the merits of the motions and a determination of the sufficiency of the motions to support dismissal.

Tr. at 63:15-23 (Franke).

After no other Defendant took the Court’s invitation to speak, the Court invited the Plaintiffs to respond. See Tr. at 64:4-6 (Court). The Plaintiffs asserted that it was appropriate to address the motions on the merits. See Tr. at 64:7-12 (Livingston).- They stated that it was not, however, “fair or allowable to file a motion to dismiss along with a motion for summary judgment in the same motion, attach 38 exhibits”; the Court briefly interrupted, intending to remind Plaintiffs’ counsel that the Court was holding argument on the MTD and hot on the separate motion to which the Plaintiffs’ counsel referred, but the Plaintiffs’ counsel stated that “I know which motion we’re talking about, but we’re also talking about other motions, and this is all accumulation.” Tr. at 64:9-16 (Livingston, Court). The Plaintiffs’ counsel reiterated his frustration with the lack of a scheduling conference and with the other parties, given their unwillingness to discuss the MTD or other motions with him; he asserted that the Defendants “don’t ask for consent before they file the motion,” and argued that “the Court doesn’t hold them to that or anything else that is required in the interest of justice, not in the interest of technically allowing them to get their case dismissed, but in the interest of justice.” Tr. at 64:16-65:2 (Livingston). He asserted that justice prevents Ms. Forney from representing Perry, Berry, Rizzieri, the City of Albuquerque, “and herself and file a counterclaim on all their behalfs [sic] and still claim immunity.” Tr. at 65:3-6 (Livingston). He continued:

That is ridiculous, Your Honor. She’s entered the fray. She’s joined the battle. She’s made her affirmative defenses. She’s made her answers. She’s done everything she can to be offensive to my clients, and then says she’s entitled to immunity.

Well, that can’t be, Your Honor. She can’t file a counterclaim against them and then rest on her immunity and get out of the case somehow and leave her counterclaim valid.”

Tr. at 65:6-13 (Livingston). The Plaintiffs asserted that the case is a “mess of pleadings exactly the way they’re not supposed to be decided in the interest of justice in accordance with the” Federal Rules of Civil Procedure. Tr. at 65:15-17 (Livingston).

The Plaintiffs maintained that the counterclaim is an important fact — in then-view, Ms. Forney has filed nearly identical counterclaims in multiple cases, without regard to the facts or the clients. See Tr. at 65:18-21 (Livingston). They also assert, without explanation, that Ms. Forney

said that they were trying to harass Mayor Berry’s election campaign, but I’ll bet you anything Mayor Berry doesn’t know that. He hasn’t given informed consent to the allegations raised by Ms. Forney in the complaints and in the pleadings here, and this is just dead wrong, Your Honor. It’s not right to require us to go through hoops of responding to things that are so totally premature, don’t lead to any effective resolution of the case, and only foretell years, months and years of delay in proceeding with the case on the merits.

Tr. at 65:22-66:6 (Livingston). The Plaintiffs underscored their desire to decide this case on its facts and on the merits, stating that, “once we’ve had a chance to discover what they’ve been hiding, then it would be ripe for decision perhaps by summary judgment, perhaps with 38 exhibits, but not now, Your Honor.” Tr. at 66:7-11 (Livingston). The Plaintiffs pointed out that this case is at a preliminary stage and that they had filed their action “in state court with state court pleading requirements”; they stated that the Defendants removed to federal court, “presumably with everyone’s consent, although I don’t believe there was anyone’s consent sought. I think the lawyers just did this.” Tr. at 66:12-16 (Livingston). They stated that, after removal, “we’re stuck ... arguing over every count and every issue as to whether there’s sufficient law to support it when we don’t even have an explanation of the facts.” Tr. at 66:16-19 (Livingston). They stated:

We need that discovery, we need that whole procedural issue that’s a roadblock in this court that says that defendants can file motions that are dispositive; therefore, stop discovery, stop the proceedings, and that can happen for months and years before you can proceed with your case. That has to stop, Your Honor, and if that’s being done by rule and if there are rules in effect here that are not written but are being interpreted by various people, then that’s not right also, and we need some resolution of this and we need it to be in accordance with law.

Tr. at 66:21-67:5 (Livingston).

The Court invited Ms. Forney to respond. See Tr. at 67:8 (Court). Ms. Forney noted that the counterclaim was “for tortious interference with contractual relations ... and prima facie tort, and as such, it’s completely severable and distinct from the primary claims.” Tr. at 67:9-14 (Franke). She stated that, “if all that stood between complete termination of this litigation was the counterclaim, I believe I’d certainly entertain dismissal of that counterclaim,” but stated that the counter claim is “very distinct and can clearly be separated from the” MTD. Tr. at 67:14-18 (Franke). She further asserted that the MTD should justify dismissing each claim against her, for the three reasons she has given. See Tr. at 67:19-22 (Franke). She also underscored the MTD’s point that the Complaint does not allege that Ms. Forney engaged in any conduct in connection with Aragon. See Tr. at 67:22-68:2 (Franke).

The'Court took the MTD under advisement. See Tr. at 68:9-10 (Court).

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. Ma-kor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“[Ojnly 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) (internal quotation marks omitted)(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 plaintiffs 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 complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, 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. Okla. ex rel. Dep’t of Human Servs., 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 FAILURE TO RESPOND TO A MOTION

“Failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.” D.N.M.LR-Civ. 7.1(b). The court cannot, however, grant a motion to dismiss :or a motion for summary judgment based solely on plaintiffs failure to respond and must consider the merits of the motion. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir.2003) (“[Ejven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiffs complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.”); Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.2002) (holding that a district court cannot grant an unopposed motion for summary judgment unless the moving party has first met its burden of production and demonstrates it is- legally entitled to judgment under rule 56). The requirement that a court consider the merits before granting an unopposed motion to dismiss is “consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test ‘the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.’ ” Issa v. Comp USA, 354 F.3d at 1177-78 (quoting Mobley v. McCormick, 40 F.3d at 340). Similarly, when a party fails to respond to a motion for summary judgment, a district court can properly grant the motion • only “if the - motion demonstrates no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Reed v. Bennett, 312 F.3d at 1196. Failure to respond does “not relieve the court of its duty to make the specific determination required by Fed.R.Civ.P. 56(c).” Reed v. Bennett, 312 F.3d at 1196. Accordingly, although the local rules provide that a party’s failure to respond to a motion for summary judgment or to a motion to dismiss for failure to state a claim is deemed consent to the Court granting the motion, the Court will nonetheless rule substantively on such motions and generally does not grant dispositive motions on procedural defaults . alone. See D.N.M.LR-Civ 7.1(b)(“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”); Sawyer v. USAA Ins. Co., 912 F.Supp.2d 1118, 1144 (D.N.M.2012) (Browning, J.)(“It is important that Sawyer filed no written response to BCBSKC’s motions and, under the rules, is deemed to have consented to the Court granting the motion.... The Court nonetheless carefully considered the merits of this motion and held a hearing, at which Sawyer presented no evidence.”).

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every pqerson who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) (“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”)(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 (“Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (“Bivens”),] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998).

1. Color of State Law.

“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. at 49, 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 326, 61- S.Ct. 1031, 85 L.Ed. 1368 (1941)). “The authority with which the defendant is allegedly ‘clothed’ may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to • find that an action was taken under color of state law, the court must find that “‘the conduct allegedly causing the deprivation of a federal right’ must be ‘fairly attributable to the State.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)).

In the context of a public employee, the Tenth Circuit has directed that, while “ ‘state employment is generally sufficient to render the defendant a state actor .... [,]’ at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’ ” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18,102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority