Saenz v. Lovington Municipal School District (105 F. Supp. 3d 1271, 2015)

United States District Court for the District of New Mexico 2015-04-30

Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s [sic] Motion to Dismiss and for Qualified Immunity, filed January 12, 2014 (Doc. 8)(“Motion”). The Court held a hearing on April 8, 2015. The primary issues are: (i) whether Plaintiff Peggy Saenz sufficiently alleges that the Defendants created the danger that harmed her daughter, Peggy D. Saenz (“D. Saenz”); (ii) whether the Defendants’ conduct shocks the conscience; (iii) whether Saenz can maintain her failure to train or supervise cause of action without an underlying constitutional violation; (iv) whether Defendants Darin Manes and Chris Brattain violated a clearly established constitutional right; and (v) whether the Court should retain supplemental jurisdiction of Saenz’ state law claims. Saenz fails to allege that the Defendants’ affirmative conduct created a danger to D. Saenz or to allege that the Defendants’ actions shock the conscience. Accordingly, the Court will dismiss her substantive due-process claim. A failure-to-train- or supervise cause of action requires an underlying constitutional violation, and Saenz fails to allege how additional training or supervision would have - prevented D. - Saenz’ death. Consequently, the Court will dismiss Saenz’ failure-to-train or failure-to-supervise .claim. ■■ Because Manes and Brattain did not violate any clearly established constitutional rights, they are entitled to qualified immunity.. Finally, because the Court'will dismiss all of Saenz’ federal claims, it will decline to exercise supplemental jurisdiction over her state law claims and will dismiss them without prejudice to her filing them in state, court. The Court will, thus, grant the Motion.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint for Damages, filed November 5, 2014 (Doc. l)(“Complaint”), as it must, under rule 12(b)(6) of the Federal Rules of Civil Procedure. The case arises out of the death of a seventeen-year-old high-school student — D. Saenz — who was thrown from a vehicle that -was traveling in Defendant Lovington Municipal School District’s parking lot. See Complaint ¶ 3, at 2; id. ¶ 17, at 4.

D. Saenz was a high-school student at Lovington School District. See Complaint ¶ 3, at 2. Saenz is a resident of New Mexico and is the personal representative of D. Saenz’ estate. See Complaint ¶ 4, at 2. The Lovington School District and Defendant Board of Education are organized under the State- of New Mexico’s laws, and the Lovington Board of Education, the citizens of Lovington, Lea County, New Mexico elects, operates the Lovington School District. See Complaint ¶ 5, at 2. The Lovington School District and its school facilities are within the State of New Mexico. See Complaint ¶ 9, at 3. Manes is the Lovington School District’s ■ superintendent and is contracted through the Board of Education to operate the school district. See 'Complaint ¶ 6, at 2. Manes was in charge of, among other things, operating the Lovington' School District’s buildings and premises, and ensuring that they were “operated in a safe and secure manner.” Complaint ¶ 11, at 3. Brattain is the principal at Lovington High School. See Complaint ¶ 7, at 2. Brattain “was to operate the Lovington High School buildings and its premises in a safe and secure manner.” Complaint ¶ 12, at 3.

The Defendants “did not operate ... the Lovington High School and its premises in a safe and secure manner for the benefit of the public and the students of Lovington High School.” Complaint ¶ 13, at 3. The Defendants “allowed the negligent operation and maintenance of the Lovington High School parking lot which created a dangerous condition.” Complaint ¶ 14, at 3-4. The Defendants “failed to supervise and control the Lovington High School parking lot which created a'risk to the public and the students attending-the high school.” Complaint ¶ 15, at 4. The Loving-ton School District and the Lovington Board of Education were responsible for “maintaining the safety of its school personnel and its students” at Lovington High School and the premises of Lovington High School’s parking lot. Complaint ¶ 16, at 4.

On or about August 27, 2014, D. Saenz was thrown from a vehicle that was traveling in Lovington High School’s parking lot. See Complaint ¶ 17, at 4. The parking lot was “without supervision and control of the Lovington Municipal School District, its’ [sic] Board of Education, and its’ [sic] employees.” Complaint ¶ 17, at 4. Before August 27, 2014, the Defendants knew that the parking lot was in a dangerous condition, yet they did not' do anything “to prevent the dangerous condition created by the negligence of the school district and its employees.” Complaint ¶ 18, at 4-5. The Defendants ignored the dangerous condition and did nothing to prevent the August 27, 2014, accident. See Complaint ¶19, at 5. Students and citizens complained about the parking lot’s dangerous condition, but the Defendants ignored the complaints and did not remedy the situation. See Complaint- ¶25, at 6. Before August 27, 2014, Manes and Brattain informed the Lovington School District and the Lovington Board of Education “that a dangerous condition existed at the Loving-ton High School Parking lot.” Complaint ¶ 20, at 5. Lovington High School has video cameras that caught the accident on tape. See Complaint ¶ 21, at 5. At the time of the accident, the Defendants did not employ student resource officers, employees,' or security officers to supervise the parking lot and secure the students’ safety] See Complaint ¶ 22, at 5.

PROCEDURAL BACKGROUND

Saenz filed suit in federal court on November 5, 2014. She alleges four Counts. See Complaint ¶¶ 23-45, at 5-11. The first Count is titled:. “Wrongful Death-Failure to Protect Life.” Complaint at 5. Saenz alleges that the Defendants failed to supervise and control the Lovington High School parking lot, which caused D. Saenz’ death. See Complaint ¶ 24, at 6. She alleges that the Defendants knew of the dangerous condition and ignored complaints about it. See Complaint ¶¶ 25-26, at 6. Saenz contends that the Defendants’ actions and inactions deprived D. Saenz’ rights that the Fourteenth Amendment to the Constitution of the United States of America protects. See.Complaint ¶27, at 6. She also contends that the Defendants acted willfully and wantonly in violating D. Saenz’ rights, and that they “had a duty to respond and eliminate the dangerous condition prior to the death of the Decedent.” Complaint ¶¶ 28-29, at 6.

Saenz’ second Count is a state claim for the negligent “operation and maintenance of the Lovington High School building and its premises.” Complaint ¶¶ 30-33, at 7-8. Her third Count is for substantive due-process violations. See Complaint ¶¶34-39,. at 8-9. She alleges that the Defendants “were obligated to supervise, protect, and oversee the Lovington High School parking lot under the circumstances.” Complaint ¶ 36, at 8. Saenz alleges that the Defendants’ knowledge of the parking lot’s dangerous condition and their decision to do nothing about it “is shocking to the conscience,” and constituted a “willful disregard of the dangerous condition of the Lovington High School Parking prior to the Decedent’s death.” Complaint ¶¶ 37-39, at 8-9. Saenz’ fourth Count is for deliberate indifference in training and supervising. See Complaint ¶¶ 40-45, at 9-11. She alleges that the Lovington School District and the Loving-ton Board of Education violated her federal and state constitutional rights “by failing to maintain sufficient supervision and control of its’ employees to manage, supervise and control a dangerous instrumentality, that being the Lovington Municipal School’s High School parking lot.” Complaint ¶ 41, at 9-10.

1. The Motion and Briefing.

The Defendants filed the Motion on January 12, 2015. The Defendants contend that the Lovington School District is not a proper party in the case, because only the Board of Education has the capacity to be sued. See Motion at 2, n. 2 (citing N.M. Stat. Ann. § 22-5-4(E)). The Defendants assert that Counts 1 and 3 are both substantive due-process claims. See Motion at 2, n. 3. The Defendants argue that Saenz fails to state a valid claim, because she fails to allege that a state actor harmed D. Saenz. See Motion at 2. They contend that Saenz’ substantive due-process claims have several defects. See Motion at 2-3. First, they assert that they did not have a special relationship with D. Saenz that could trigger a constitutional duty to protect her from third parties’ harmful acts. See Motion at 3. Second, the Defendants contend that Saenz fails to allege facts that they created the danger which led to D. Saenz’ death and that Saenz has failed to allege facts showing that their failure to train employees rose to the level of deliberate indifference that is necessary to show a constitutional violation. See Motion at 3. The Defendants also argue that Saenz’ claims against Manes and Brattain, in them official capacities, are duplicative of her claims against the Lovington School District. See Motion at 3. They maintain that the Court should dismiss Saenz’ state law claims, because of sovereign immunity, and because the Complaint does not meet federal pleading standards. See Motion at 3. Finally, the Defendants argue that Manes and Brattain are entitled to qualified immunity. See Motion at 3.

The Defendants contend that a substantive due-process violation requires such egregious conduct that it shocks the conscience, and that Saenz’ claim is based on the Defendants’ failure to “supervise, train, and otherwise prevent the accident via safety policies and procedures.” Motion at 6. They contend that the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States generally does not impose a duty to protect citizens from deprivations that private actors cause. See Motion at 6 (citing Maldonado v. Josey, 975 F.2d 727 (10th Cir.1992)). The Defendants assert that there are two exceptions to this general rule: (i) the special-relationship exception; and (ii) the danger-creation exception. See Motion at 6-7. They argue that a special relationship usually arises when the state incarcerates or institutionalizes a person and that the United States Court of Appeals for the Tenth Circuit has held that involuntary restraint is central to determining whether a custodial relationship triggers a duty to protect. See Motion at 7. The Defendants assert that, in Maldonado v. Josey, the Tenth Circuit considered whether New Mexico’s compulsory school attendance creates a special relationship between students and school officials. See Motion at 7. They maintain that the Tenth Circuit held that, unlike incarceration or institutionalization, a school does not have sufficient custody over a student to create a special relationship. See Motion at 7-8. The Defendants argue that, because they lacked a special relationship with D. Saenz, they had no constitutional duty to protect her from third parties’ harmful acts. See Motion at 8. They further argue that Saenz’ allegation that they knew about the parking lot’s dangerous conditions should not affect the Court’s analysis, because foreseeability does not create an affirmative duty to protect. See Motion at 8 (citing Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 994 (10th Cir.1994)).

The Defendants also argue that Saenz fails to allege danger creation. See Motion at 8. They contend that a danger-creation claim requires reckless or intentional state action that shocks the conscience. See Motion at 8. The Defendants assert that negligence is insufficient to shock the conscience, and that an official’s conduct must have “a high level of outrageousness and a magnitude of potential or actual harm.” Motion at 9. They maintain that, even if Saenz satisfies the other danger-creation requirements, she has not pled sufficient facts showing that they acted recklessly and in conscious disregard of a risk, or that their conduct shocks the conscience. See Motion at 9. The Defendants argue that Saenz does not allege that they created a danger or increased D. Saenz’ vulnerability to a danger. See Motion at 9. They contend that, although Saenz alleges'that D. Saenz was thrown from a vehicle in the parking lot while school officials were not supervising the lot, Saenz does not show how their lack of supervision created a danger or increased D. Saenz’ vulnerability to a danger. See Motion at 9. The Defendants assert that Saenz has not pled facts showing that they acted recklessly in conscious disregard to D. Saenz’ constitutional rights, and that not supervising the parking lot was, at most, negligence. See Motion at 9-10. They also contend that they did not disregard D. Saenz’ constitutional rights. See Motion at 10. •' The Defendants argue that their conduct does not shock the conscience and that Saenz’ claim is one that would ordinarily be a state tort claim. See Motion at 10.

The Defendants maintain that Saenz fails to allege a failure-to-train cause of action. See Motion at 10. They assert that a 42 U.S.C. § 1983 action for failing to train requires notice that an official’s action or failure to act is substantially certain to result in a constitutional violation, and that the official consciously disregarded the risk. See Motion at 10. The Defendants contend that notice may be established by showing the existence of a pattern of tortious conduct or by showing that the violation is highly predictable. See Motion at 10. They argue that an official’s failure to train must be so reckless or grossly negligent that the future misconduct is almost inevitable. See Motion at 10-11 (citing McDaniels v. McKinna, 96 Fed.Appx 575, 579 (10th Cir.2004)(unpublished)). The Defendants maintain that Saenz has not alleged that they were aware of the parking lot’s problems, that the problems could have been avoided through training, that Manes or Brattain were responsible for providing training, or that the Lovington School District or the Lovington Board of Education had a policy against providing training. See. Motion-at 11. They also argue-that, because none of D. Saenz’ constitutional rights were violated, they did not have a duty to provide training.- See Motion at 11. The Defendants contend that, because there was no underlying constitutional violation,, the lack of training did not result in a constitutional violation. See Motion at 12. The .Defendants argue that Manes and Brattain are entitled to qualified immunity. See Motion at 12. They maintain that D. Saenz did not suffer a constitutional violation and that, even if she did, the constitutional right could not have been clearly established. See Motion at 13.

The Defendants argue that Saenz has failed to plead a claim for which there is a waiver of the Defendants’ sovereign immunity under the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 (“NMTCA”). Motion at 13. They assert that Saenz merely alleges that they acted negligently. See Motion at 13. The Defendants contend that Saenz’ allegations do not fit within any of the NMTCA’s exceptions. See Motion at 13-14. They argue that the NMTCA is not waived for negligent supervision and that Saenz’, allegations do not amount to .anything more than negligent supervision. See Motion at 14.

Saenz responded to the Motion on March 12,- 2014 (Doc. 20)(“Response”). She argues that the Defendants have conceded that, before D. Saenz’ death, they knew about the dangers in the parking lot. See Response at 3. She contends that Brattain made statements to the media that he knew about the dangerous conditions, and that he gave,the Lovington School District and the Lovington Board of Education notice about the dangers. See Response at 3. Saenz maintains that the Complaint’s allegations are sufficient to allege that the Defendants created a danger that caused D. Saenz’ death. See Response at 3. She contends that the Defendants failed to train school employees after learning-about the dangerous condition, which rose to the level of deliberate indifference to D. Saenz’ constitutional rights. See Response at 3. Saenz contends that, because the Complaint alleges that the ’Defendants knew .about the dangerous condition and failed to 'train employees, it sufficiently alleges a cause of action. See Response at 4. She maintains that she sufficiently alleges that the Defendants maintained policies that resulted in violating D. Saenz’ rights. See Response at 4. Saenz refers to her allegations that the Defendants’ “actions were a willfully and wonton and intentional, violation of the Decedents’ Civil rights,” and to her allegation that the Defendants’ “conduct was shocking to the conscious [sic] of the Cour,t by their willful intentional disregard of the dangerous condition.” Response at 5.

Saenz concedes that the Defendants did not have a special relationship with D. Saenz, but argues that the danger-creation doctrine applies. See Response at. 5-6. She contends that the Complaint sufficiently alleges the necessary elements to establish a creation-of-danger theory. See Response at 6-7. Saenz states: “What is the conduct, when viewed in total, shocks the conscience. Such conduct should be viewed with the intent of the Governmental Entity and the intent of the Individual Employee with use of the Governmental Entity.” Response at 7 (spacing altered for readability). Saenz asserts that a § 1983 action can be predicated on two forms of. wrongful intent; (i) “an intent to harm”; or (ii) “an intent to place a person unreasonably at risk or [sic] harm.” Response at 7. She contends that the second form of intent refers to reckless conduct and that she has alleged sufficient reckless conduct. See Response at 7.

Concerning the shocks-the-conscience requirement, Saenz argues:

What can be more shocking to the conscience than a School District, Board, Principal, and Superintendent, entrusted with protecting the health, security, and life of a student in their school district, ■ and Employees of the School District knowing that there was a dangerous condition that existed upon the premises, and intentionally, willfully, and wantonly disregarding the condition to the detriment of PEGGY D. SAENZ.

Response at 8. She asserts that the sh’ock-the-conscience standard has not been firmly defined and that it depends on each case’s facts, but that the Defendants’ conduct is more egregious than the defendant-officer’s conduct in Green v. Post, 574 F.3d 1294 (10th Cir.2009), where, according to Saenz, the defendant-officer drove through an intersection without activating his overhead emergency lights and collided with another vehicle, killing its occupant. See Response at 8. Saenz' contends that the Tenth Circuit held that, taking the facts most favorable to the plaintiff, the defendant-officer’s conduct shocked the conscience. See Response at 8-9.

Saenz argues that the NMTCÁ waives sovereign immunity for the negligent operation or maintenance of, among other things, buildings and furnishings. See Response at 9 (N.M.Stat.Ann. -§ 41-4-6). She asserts that, while the waiver does not extend to negligent supervision cases, it applies if the negligent operation or maintenance creates a dangerous condition that threatens the public or a class of people who use the facilities. See Response at 10. Saenz contends that, in Upton v. Clovis Municipal School District, 2006-NMSC-040, 140 N.M. 205, 141 P.3d 1259, the Supreme Court of New Mexico held that a school district’s failure to follow its safety policies fell within the NMTCA’s waiver of sovereign immunity. See Response at 10. She asserts that she has alleged that the Defendants were negligent in the operation of the Lovington High School premises, which created a dangerous condition that threatened students. See Response at 10-11. •

Saenz attaches to the Response a news article from the Hobbs News-Sun. See Associated Press, Family Files Lawsuit, Hobbs News-Sun (Nov. 7, 2014), filed March 12, 2015 (Doc. 20-l)(“Article”). The' Article states 'that D. Saenz’ family filed a lawsuit against the Defendants. See Article at 1. The Article states that, after the accident, Brattain told the Lov-ington Board of Education members that, at the beginning of the year, he and other school administrators attempted to direct the traffic in the congested parking lot. See Article at 1. The Article notes that the board members told Brattain that he could direct traffic at his own risk and that, if he were hit by a car,’ the school was not liable. See Article at 1. It further states that the board members were looking into proposals for the parking lot, including. stop signs, speed bumps, and parking bumpers. See Article at 1. It states that the school district hired a school resource .officer to help supervise the parking lot. See- Article at 1.

The Defendants replied on March 26, 2015. See Defendants’ Reply in Support of Motion to Dismiss and for Qualified Immunity, filed March 26, 2015 (Doc. 21)(“Reply”). They assert that Saenz fails to state what created the dangerous condition in the parking lot, state factual details about D. Saenz’ death, or establish a nexus between the two. See Reply at 1. They maintain that Saenz has not alleged a constitutional violation and that the NMTCA does not waive the Defendants’ sovereign immunity. See Reply at 1-2.

The Defendants argue that the Court should disregard the Article in ruling on -the Motion. See Reply at 2. They assert that, while the Court may consider documents attached to the Complaint, incorporated into the Complaint by reference, or for which judicial notice is appropriate, none of those exceptions apply to the Article. See Reply at 2-3. The Defendants further contend that the Court should exclude Brattain’s statements in the Article as double hearsay. See Reply at .3.

The Defendants maintain that Saenz fails to establish that they violated D. Saenz’ constitutional rights. See Reply at 4. They contend that the danger-creation exception requires affirmative acts and that Saenz has not alleged any affirmative act on the Defendants’ part which caused the danger. See Reply at 4. The Defendants argue that Saenz has alleged only omissions that created the harm. See Reply at 4-5. They also argue that Saenz has not alleged any action that shocks the conscience. See Reply at 5. They contend that the Complaint contains nothing more than legal conclusions. See Reply at 5. The Defendants argue that Saenz has alleged, at most, negligence. See Reply'at 5-6. They assert that the shocks-the-conscience test is an objective one and that § 1983 actions should not replace traditional state tort law. See Reply at 6. The Defendants address Saenz’ argument that the Tenth Circuit found that the defendant’s conduct shocked the conscience in Green v. Post by arguing that the Tenth Circuit held that the defendant’s conduct did not shock the conscience. See Reply at 7. The Defendants argue that, if an officer speeding through an intersection, without activating emergency lights, and killing another person does not shock the conscience, negligently supervising a parking lot also does not. See Reply at 7.

The Defendants maintain that Manes and Brattain are entitled to qualified im.munity, because they did not violate D. Saenz’ constitutional rights, and because neither the Supreme Court of the United States of America nor the Tenth Circuit has held that ordinary negligence can give rise to a constitutional violation. See Reply at 7-8. They assert that Upton v. Clovis Municipal School District and its progeny stand for the- proposition that, if a public entity is aware of a dangerous condition on the property, that entity must provide adequate safety policies and procedures. See Reply at 8. The Defendants contend that Upton v. Clovis Municipal School District does not hold that negligent supervision waives sovereign immunity, but that a pattern of violence or negligently operating a facility may waive sovereign immunity, because it is more than failing to supervise. See Reply at 8-9. The Defendants maintain that there are no such facts in this case. See Reply at 9.

The Defendants argue that, in Espinoza v. Town of Taos, 1995-NMSC-070, 120 N.M. 680, 905 P.2d 718, the Supreme Court of New Mexico held that § 41-4-6 did not waive a municipality’s sovereign immunity for failing to supervise a playground’s slide during a summer- camp. See Reply at 9. The Defendants maintain that Saenz has not identified what created the parking lot’s dangerous condition and that she alleges only conclusory allegations. See Reply at 9. They contend that § 41-4r-6 requires a plaintiff to identify specific dangerous conditions that created a dangerous condition. See Reply at 9.

2. The April 8, 2015, Hearing.

The Court held a hearing on April 8, 2015. See Transcript of Hearing (taken Apr. 8, 2015)(“Tr.”). The Defendants again argued that Counts 1 and 3 allege the same cause of action-substantive due process. See Tr. at 3:12-4:5 (Burnette, Court).. They maintained that none of Saenz’ claims meet the federal pleading standards and that Saenz has not alleged any facts that support a danger-creation theory. See Tr. • at 4:15-5:7 (Burnette). The Defendants asserted that, if the Court grants the Motion on Counts 1-3, it will also have to dismiss Count 4, because a failure-to-train cause of action requires an underlying constitutional violation. See Tr. at 5:8-24 (Burnette, Court). They clarified that, even though the Motion states that it is the “Defendant’s” Motion, all the Defendants brought the Motion, and that the apostrophe’s placement in the Motion’s caption is a typographical error. Tr. at 11:3-9 (Burnette, Court).

Addressing the substantive due-process claims, the Defendants argued that' Saenz has not alleged that they did anything to create the danger. See Tr. at 11:11-20 (Burnette). The Court asked what the dangerous condition was in the parking lot, and the Defendants stated that they were not sure, because Saenz did not allege in the Complaint what the dangerous condition was. See Tr. at 12:12-24 (Burnette). The Defendants contended that, because the Complaint does not state what the dangerous condition was, it fails to satisfy the federal pleading standards. See Tr. at 13:2-13 (Burnette). They argued that the danger-creation theory requires allegations that they either created the danger or enhanced it, and that the Complaint states only that they knew about the danger. See Tr. at 15:11-25 (Burnette, Court). The Defendants noted that, because knowledge is alleged in the Complaint, the Court must assume- that they knew about the danger, but that mere knowledge rises only to the level of negligence. See Tr. at 16:1-14 (Burnette, Court). They argued that Saenz must show that their conduct shocks the conscience and that the shocks-the-conscience standard requires more than negligence. See Tr. at 17:7-20 (Burnette). The Defendants stated that the Article is not attached to the Complaint and, for that reason, the Court cannot consider it in ruling on the Motion. See Tr. at 13:24-14:22 (Burnette, Court).

The Defendants argued that, even if the Court were to consider the additional facts that Saenz asserted and that were not alleged in the Complaint, her claim would boil down to the Defendants’ failure to supervise the parking lot. See Tr. at 26:18-6 (Burnette). They maintained that failure to supervise is not an affirmative act and that failing to supervise does not shock the conscience. See Tr. at 27:6-13 (Burnette).

Concerning the failure-to-train claim, the Defendants argued that Saenz has not pled any facts on how they failed to train subordinates or how additional training may have alleviated the parking lot’s problems. See .Tr. at 31:15-25 (Burnette). They contended that, while deliberate indifference may be sufficient to support a constitutional violation, Saenz does not allege sufficient facts to- show that they were deliberately indifferent in how they trained others. See Tr. at 31:25-32:8 (Burnette). The Court asked the Defendants if they had a case that says that, if a court dismisses all substantive due-prócess claims against individuals, a stand-alone failure-to-train claim must fail, aqd the Defendants stated that they did not find such a case, but that the same doctrinal framework from law, enforcement cases should apply here. See Tr. at 32:19-34:11 (Bur-nette, Court). The Defendants maintained that negligent failure to train is insufficient and that Saenz must show deliberate indifference, which they contended requires a showing that, without the training, there was an extremely high likelihood that something bad would happen. See Tr. at 34:19-35:8 (Burnette). They contended that a constitutional failure-to-train • claim requires awareness of a constitutional violation and not just awareness of a potential tort. See Tr. at 38:21-40:6 (Burnette, Court)(citing Barney v. Pulsipher, 143 F.3d 1299 (10th Cir.1998)). The Defendants stated that they estimate that around one hundred cars' park in the Lov-ington High School parking lot, but that they are not sure of the actual size. See Tr. at 40:7-41:2 (Burnette, Court).

The Defendants argued that Manes and Brattain are entitled to qualified immunity, because the law is not clearly established. See Tr. at 51:19-52:19 (Burnette, Court). They contended that Uhlrig v. Harder, 64 F.3d 567 (10th Cir.1995), is not on point, because it did not involve a parking lot, and because the court ultimately granted •qualified immunity. See Tr. at 55:8-20 (Burnette). In addressing Saenz’ state law claims, the Defendants argued that the conduct,in C.H. v. Los Lunas Schools Board of Education, 852 F.Supp.2d 1344 (D.N.M.2012) (Browning, J.), went beyond mere negligence, but here Saenz has alleged negligent supervision, which is insufficient to waive sovereign immunity. See Tr. at 41:19-42:13 (Burnette, Court). The Defendants maintained that a sovereign immunity waiver under § 41^4 — 6 requires a specific condition which the defendants knew or should have known would create a dangerous condition. See Tr. at 42:5-43:12 (Burnette). They argued that Saenz needs to show, prior incidents that would have placed them on notice of the parking lot’s dangerous condition. See Tr. at 43:1344:2 (Burnette, Court). They noted that, if Saenz had alleged prior incidents of which the Defendants were aware, the prior incidents may change the Court’s analysis, but that the prior incidents would need to include specific factual allegations describing the incidents. See Tr. at 45:547:25 (Bur-nette, Court). The Defendants argued that this case is more like Espinoza v. Town of Taos, because, like a playground slide, a parking lot is not inherently dangerous. See Tr. at 44:8-20 (Burnette). They argued that — unlike hazing in a football locker room, which is fairly common— reckless student conduct in a parking lot is not and that mere knowledge of an unsafe condition would, at most, create a negligence claim. See Tr. at 49:23-50:23 (Bur-nette).

Saenz stated that she did not think there was any difference between Counts 1 and 2, and that they both allege substantive due-process violations. See Tr. at 8:15-9:2 (Proctor, Court). Saenz argued that Manes and Brattain knew about the dangerous condition- in the parking lot, yet consciously did not do anything to address it. See Tr, at 7:14-25 (Proctor). She contended that their recklessness is sufficient to state a substantive due-process claim and to state a negligent-supervision claim. See Tr. at 6:25-7:20 (Proctor). Saenz maintained that the negligent-supervision claim can stand on its own. See 8:3-14 (Proctor). The Court asked her how her failure-to-train claim could survive if it dismissed her substantive due-process claims, and Saenz argued that it is brought against the Lovington Board of Education only, and not against Manes and Brattain. See Tr. at 9:3-17 (Proctor, Court). Saenz noted that, if the Court dismissed her federal claims, the Court should decline to exercise jurisdiction over her state claims, by dismissing the case. See Tr. at 9:18-25 (Proctor, Court).

Concerning substantive due process, Saenz argued that Brattain’s. statement that he told-, the Defendants about the parking lot’s dangerous condition -in addition to the Defendants’ failure to supervise the parking lot or to hire a resource officer rises to the level of a substantive due-process violation. See Tr. at 18:2-13 (Proctor). She stated that a resource officer is a police officer who controls students in the parking lot. See Tr. at 18:25-19:10 (Proctor, Court). . She asserted that the parking lot also lacked stop signs and painted lines telling students which way to drive. See Tr. at 19:11-14 (Proctor); id. at 20:19-21:15 (Proctor, Court). She contended that, because the parking lot was crowded with students and lacked supervision, the Defendants increased D. Saenz’ vulnerability to danger. See Tr. at 21:16-22:4 (Proctor).

Saenz described the accident by stating that D. Saenz stood on the running boards of a friend’s vehicle and that, when the friend drove away, D. Saenz fell off, hit her head, and died. See Tr. at 22:5-23:9 (Proctor, Court). Saenz stated that the' school was going to require students to have parking permits, which would have required every student to have a driver’s license, but that the school scrapped its parking permit plans. See Tr. at 23:9-24:3 (Proctor). She asserted that' the driver of the car did not have a driver’s license, but conceded that she did not allege any facts concerning the parking permits in the Complaint. See Tr. at 23:10-19 (Proctor). The Court stated that, because the students were “horsing around,” stop signs and painted lines would not have prevented the accident, which meant that Saenz’ important fact is the lack of adult supervision, and Saenz agreed that the important fact is the lack of adult or police supervision. Tr. at 24:4-15 (Proctor, Court).

Saenz argued that she does not need the Court to consider the Article, because the Complaint alleges that the Defendants knew about the dangerous condition and did nothing to remedy it. See Tr. at 19:14-20:17 (Proctor, Court). She maintained that, because the Defendants knew of the risks, but did not do anything to remedy them, the Defendants acted in reckless and conscience disregard. See Tr. at 24:16-25:1 (Proctor). Saenz asserted that, according to the Article, Brattain stated that he would be liable and that someone might get run over. See Tr. at 25:7-15 (Proctor). She argued that it is egregious that the Defendants knew about the parking lot’s dangerous condition, yet did nothing to remedy it. 'See Tr. at 26:7-9 (Proctor).

Saenz contended that the Court dealt with a failure-to-supervise claim in C.H. v. Los Lunas Schools Board of Education, where, according to Saenz, the Court dealt with a failure to supervise case even though it concerned only state law. See Tr. at 28:7-29 (Proctor, Court). She also contended that, in Uhlrig v. Harder, the Tenth Circuit considered whether a state shocked the conscience by placing dangerous criminals in a mental hospital where, a person was raped and another murdered. See Tr. at 29:10-30:12 (Proctor). Saenz stated that, outside Schaefer v. Las Cruces Public School District, 716 F.Supp.2d 1052 (D.N.M.2010) (Browning, J.), she could not find any substantive due-process eases involving high school facilities. See Tr. at 54:19-55:2 (Proctor, Court).

Addressing the Defendants’ argument that a failure-to-train' claim requires an underlying constitutional violation by an individual, Saenz argued that, in Glover v. Gartman, 899 F.Supp.2d 1115 (D.N.M.2012) (Browning, J.), the Court dismissed the individual claims but permitted the failure-to-train claim to survive against the state entity. See Tr. at 35:13-23 (Proctor); id. at 36:8-23 (Proctor, Court). She contended that the Defendants knew about the dangerous condition, but were consciously indifferent by failing to implement policies, procedures, or training. See Tr. at 35:23-36:7 (Proctor). Saenz stated that she alleges conscious indifference by incorporating into Count 4 her preceding allegations in the Complaint. See Tr. at 37:3-12 (Proctor, Court). Even though Saenz stated earlier that her failure-to-train cause of action is against only the Loving-ton School District and the Lovington Board of Education, see Tr. at 9:3-17 (Proctor, Court), she argued that Manes and Brattain also failed to train others and made a conscious decision not to implement policies, training, or supervision, see id. at 37:13-25 (Proctor, Court).

Saenz argued that she sufficiently alleges a state law cause of action, because the Complaint states that the Defendants knew that the parking lot was inherently dangerous. See Tr. at 48:7-22 (Proctor). She asserted that she cannot provide facts from prior incidents showing the parking lot’s dangerous condition, because she has not been allowed to interview school personnel or conduct discovery. See Tr. at 48:23-49:6 (Proctor, Court). Saenz argued that the Complaint contains sufficient allegations — specifically that Brattain complained about the parking lot’s condition— for the Court to infer that prior incidents occurred in the parking lot. See Tr. at 49:7-20 (Proctor, Court).

The Court informed the parties that it was inclined to grant the Motion and dismiss Saenz’ substantive due-process claims. See Tr. at 30:16-23 (Court). The Court stated that it was inclined to dismiss Saenz’ failure-to-train claim as well. See Tr. at 41:3-18 (Court). The Court told the parties that it would likely dismiss the federal claims and then dismiss the state claims without prejudice. See Tr. at 55:21-56:8 (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-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) (“[F]or purposes of resolving a Rule 12(b)(6).motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))).

A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

To survive a motion to dismiss, a 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 complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (emphasis omitted). The Tenth Circuit stated:

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

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

Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense — the courts handle these eases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d at 1137-39, 1141 (citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Robbins v. Oklahoma, 519 F.3d at 1242); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965) (“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense that is most likely to be established by the uncon-troverted facts in the complaint. See 5 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure: Civil § 1277, at 643 (3d ed.2004). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 273-75 (10th Cir.1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir.1945); Andrew v. Schlumberger Tech. Corp., 808 F.Supp.2d 1288, 1292 (D.N.M.2011) (Browning, J.). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Gf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir.1954) (holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from case law in several circuits, that the plaintiff may avoid this problem altogether — at least at the motion-to-dismiss stage — by simply refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir.2007); Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir.2006); Harris v. New York, 186 F.3d 243, 251 (2d Cir.1999); Honeycutt v. Mitchell, No. CIV-08-0140 W, 2008 WL 3833472 (W.D.Okla. Aug. 15, 2008) (West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the Court has permitted this avoidance practice, see Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1208-09, 1234-38 (D.N.M.2014) (Browning, J.).

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

Section 1983 provides:

Every person 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 Coprt 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[] 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 at 1307-08.

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 as a public employee, and the violation allegedly committed by the ‘defendant.” Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has' stated, whether there is a real nexus in a particular case depends on the circumstances:

The under color of. law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the' nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”

David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (internal citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).

2. Individual Liability.

Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d at 1046. The Tenth Circuit has explained that § 1983 liability should be “‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep’t of Soc. Servs., 436 U.S. at 663, 98 S.Ct. 2018), “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights, actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles— including principles of causation....” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009) (Browning, J.).

The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant],” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately or ‘legally caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir.1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:

Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside,.they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, “[foreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If

the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).

3. Supervisory Liability,

The Tenth Circuit has held that supervisors are not liable under § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s personal participation, ... exercise of control or direction, or ... failure to supervise.’ ” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009)(quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations-omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the .‘moving force’ behind the injury alleged.” (emphasis in original)).

The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010))., The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:

Whatever else can be said about Iqbal, and certainly much can be said,, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows á plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution....”

614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as .we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated ' § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

A plaintiff may ... succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state'of mind required to establish the alleged constitutional deprivation.

Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement’independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to- prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes t