Valdez v. Roybal (186 F. Supp. 3d 1197, 2016)

MEMORANDUM OPINION AND ORDER

James 0. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendants Bennie Placencio and the New Mexico Children, Youth, and Families Department’s Motion to Dismiss and Memorandum in Support Thereof, filed December 15, 2015 (Doc. 10)(“CYFD MTD”); and (ii) Defendant Joe Roybal’s Motion to Dismiss and Memorandum in Support Thereof, filed January 12, 2016 (Doc. 14)(“Roybal MTD”). The Court held a hearing on May 5, 2016. The primary issues are: (i) whether the New Mexico Children, Youth, and .Families- Department’s 2009 memorandum (“Memo”), which recommended that Synthia Varela’s children, Omaree Varela and his sister N.V., remain in family-friend Essie So-telo’s care, created a special relationship under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America; (ii) whether Defendants Joe Roybal and Bennie Pla-cencio created or enhanced a danger to O. Varela and N.V. when they transferred the children without following the New Mexico Children’s Code procedures; (iii) whether Roybal and Placencio abdicated their professional judgment in violation of the children’s constitutional rights; (iv) whether Roybal and Placencio violated the children’s rights to access the courts; (v) whether the Defendants are entitled to qualified immunity; and (vi) whether the Court should exercise supplemental jurisdiction over the Plaintiffs’ claim that the New Mexico Children, Youth, and Families Department (“CYFD”) violated the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to -30 (“NMTCA”). The Court grants the motions in part and denies them in part, because the Defendants are entitled to qualified immunity. The Court concludes that: (i) the Complaint plausibly alleges that the Defendants had a special, custodial relationship with the children; (ii) the Complaint plausibly alleges that Roy-bal and Placencio created or enhanced a danger to the children, but it does not state a danger-creation claim because Roy-bal’s and Placencio’s actions do not shock the Court’s conscience; (iii) the Complaint plausibly states a claim that the Defendants abdicated their professional responsibility and denied 0. Varela and N.V. their right to be free from violence under the Fourteenth Amendment; (iv) the Complaint plausibly states a claim that the Defendants denied the children meaningful access to the courts in violation of the First and Fourteenth Amendments; (v) the Defendants are entitled to qualified immunity on all of the federal claims; and (vi) the Court will not exercise supplemental jurisdiction over the state-law claim.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint for Civil Rights Violations and Violations of the New Mexico Tort Claims Act, filed November 13, 2015 (Doc. l-l)(“Complaint”). It accepts as true all non-conclu-sory factual statements. The Court will describe 0. Varela’s early life, the New Mexico Children, Youth, and Families Department’s (“CYFD”) investigations, 0. Varela’s move to Arizona and then back to New Mexico, and finally, his death.

1. 0. Varela’s Early Life

S. Varela used crack cocaine during her pregnancy and exposed 0. Varela to crack cocaine in útero. See Complaint ¶¶ 10-11, at 3-4. 0. Varela “was born prematurely in February 2004 with significant medical challenges.” Complaint ¶ 10, at 3. S. Varela gave birth to 0. Varela while she was in prison for drug trafficking. See Complaint ¶ 11, at 4. 0. Varela’s biological father, Christopher Clewis, was also incarcerated when 0. Varela was born. See Complaint ¶ 11, at 4. Shortly after 0. Varela’s birth, S. Varela gave power of attorney for 0. Varela to two female relatives while she finished her prison sentence. See Complaint ¶ 12, at 4.

Within one month, “there were allegations of physical neglect (inadequate food) and medical neglect (no weight gain since birth) against these care givers.” Complaint ¶ 12, at 4. The CYFD is a department of the New Mexico state government that provides “an array of prevention, intervention, and rehabilitative services to New Mexico children and their families.” Complaint ¶ 8, at 3. The New Mexico Children’s Code requires that the CYFD’s Protective Services Division “receive and investigate reports of children in need of protection from abuse and/or neglect by their parents, guardians or custodians, and to take action to protect those children whose safety cannot be assured in then.' home.” Complaint ¶ 8, at 3. The CYFD substantiated the allegations, but later dismissed the case after placing 0. Varela in the hospital for weight gain and referring the two female relatives “for parent building skills.” Complaint ¶ 12, at 4. Although the State never took 0. Varela into custody during this period, the CYFD placed him with a foster parent for approximately thirty days, then returned him to the same female relatives. See Complaint ¶ 12, at 4. In November 2004, S. Varela married Steve Casaus. See Complaint ¶ 13, at 4. Casaus, who had a criminal record for drug possession, also had numerous charges of “drug trafficking, assault, domestic violence, auto theft, and multiple parole violations.” Complaint ¶13, at 4. In June 2006, S. Varela signed another power of attorney for 0, Varela to a family friend: Sotelo. See Complaint ¶ 14, at 4-5.

2. CYFD’s Investigations for Physical Abuse and Neglect.

Defendant Joe Roybal worked as a social worker for the CYFD. See Complaint ¶ 4, at 2. As a CYFD social worker, Roybal was responsible for investigating allegations of physical abuse and physical neglect that 0. Varela and his siblings, minors N.V. and E.V., may have suffered. See Complaint ¶ 4, at 2. He was also responsible, in whole or in part, for preparing the Memo. See Complaint ¶4, at 2. This Memo: (i) declared that the CYFD was investigating S. Varela; (ii) recommended that 0. Varela and N.V. remain with Sotelo, S. Varela’s family friend; and (iii) stated that S. Varela should not take the children into her care. See Complaint ¶ 4, at 2.

Defendant Bennie Placencio also worked as a CYFD social worker. See Complaint ¶ 5, at 2. Like Roybal, Placencio was also responsible for investigating whether 0. Varela and his siblings were suffering from physical abuse and neglect. See Complaint ¶ 5, at 2. Additionally, Placencio was responsible, in whole or in part, “for threatening Essie Sotelo .with criminal prosecution for interstate kidnapping if she did not bring Omaree and his sister to New Mexico and for arranging their placement with Steve Casaus and Synthia Vare-la.” Complaint if 5, at 2. Defendants John Does 1-5 were also CYFD social workers. See Complaint ¶ 6, at 2. They were responsible, in whole or in part, for investigating whether 0. Varela and his sibling were suffering from physical abuse and neglect. See Complaint ¶ 6, at 2. They were also responsible for “threatening Essie Sotelo with criminal prosecution for interstate kidnapping if she did not bring Omaree and his sister to New Mexico, for arranging their placement with Steve Casaus and Synthia Varela and for monitoring that placement.” Complaint ¶ 6, at 2.

In the Complaint, the Plaintiffs describe the CYFD’s investigations from 2006 through the summer of 2009:

A. In October 2006, CYFD investigated allegations of physical neglect against Synthia Varela regarding her care of Omaree. Although CYFD found the allegations to be unsubstantiated, as a result of this investigation, Synthia Varela signed yet another power of attorney for Omaree, this one to Om-aree’s maternal aunt and uncle.

B. CYFD investigated another allegation of physical neglect against Synthia Varela in February 2008 based on her continued drug use and lack of supervision of Omaree. CYFD closed this file when the social worker could not . locate the family.

C.In November 2008, Synthia Varela had a daughter' (N.V.) with a different father. N.V. is a minor child. To protect her privacy, she is designated in this Complaint by her initials. Soon after that, Steve Casaus was incarcerated with the New Mexico Department of Corrections for 1,397 days for repeated violations of a probation agreement..

■ D. PB&J Family Services (an organization that assists ‘at-risk children) noted in January 2009 that “Synthia feels overwhelmed with Omaree when he will not listen to her.”

E. In April 2009, an Albuquerque Public Schools Independent Education Program (“IEP”) evaluation found that Omaree had “significant delays.” The report found that he had made no progress on his goals since the last IEP report because of his frequent absences from school (he attended class only 28 of 69 days).

F. In June 2009, CYFD again investigated allegations of physical neglect and physical abuse of Omaree and allegations of physical neglect with respect to N.V. against Synthia Varela, all in relation to Synthia’s continued drug use. Again, CYFD found the allegations to be unsubstantiated. Defendant Joe Roybal performed this investigation. He determined that it was sufficient that the family was receiving in-home services through PB&J, and he took no other action.

Complaint ¶ 15, at 5-7.

Some time during the summer of 2009, S. Varela prepared a written statement that she wanted Sotelo to care for her children. See Complaint ¶ 15, at 5-7. Sotelo was not a licensed foster parent, a guardian appointed by the court, or authorized to care for 0. Varela and N.V. by a parental power of attorney. See Complaint ¶ 22, at 8. In mid-September 2009, Roybal again investigated allegations that S. Varela had been physically neglecting O. Varela and N.V. by using crack cocaine. See Complaint ¶ 15, at 6. Although Roybal did not locate S. Varela, Sotelo showed Roybal S. Varela’s written statement and explained that she had been caring for the children since late August 2009, because S. Varela was using drugs and had not been home. See Complaint ¶ 15, at 6. “Accepting this explanation, Defendant Joe Roybal again found that the abuse allegations were unsubstantiated, and recommended that the family continue to use PB&J Services. Defendant Joe Roybal also urged Essie So-telo to secure a formal power of attorney while caring for the children.” See Complaint ¶ 15, at 6-7. In September of 2009, S. Varela asked Sotelo to return the children. See Complaint ¶ 15, at 6-7. Sotelo relayed this information to Roybal, expressing her fear that S. Varela was incapable of caring for her children. See Complaint ¶ 15, at 6-7. Sotelo did not obtain a power of attorney from S. Varela to formalize her role as caretaker for O. Varela and N.V. See Complaint ¶ 16, at 7. On September 16, 2009, Roybal prepared the Memo on CYFD letterhead. It stated:

Re: Synthia Varela (DOB 6/08/75), Om-aree Varela DOB [ Q2/03/04), and [N.V.] (DOB [omitted])

To Whom It May Concern:

The Children, Youth and Families Department is currently investigating an open case regarding Synthia Varela and the above-named children. Essie Sotelo (DOB omitted) is the current caretaker for Omaree and [N.V.]. It is the Department’s recommendation that the children should remain in Essie Sotelo’s care pending the current investigation. Synthia Varela or Marnyle Barnes ( [N.V.] ’s biological father) should not take the children into their care until interviews and assessments of their caretaking ability can be completed. Synthia or Marnyle should not take Om-aree Varela out of school pending the Department’s findings of the current investigation.

If there are any questions regarding this matter, my contact information is listed below.

Complaint ¶ 16, at 7. In short, the Memo communicated that New Mexico had assumed the authority to place O. Varela and N.V. with Sotelo and to prevent anyone from removing the children from her care pending a determination that S. Varela was fit to parent her children. See Complaint ¶ 17, at 7-8. The Memo was “placed in CYFD’s files” and “forwarded to the Albuquerque Public Schools.” Complaint ¶ 18, at 8. “There is nothing in the CYFD file showing that Synthia Varela was aware of, or agreed to, this memorandum declaring Essie Sotelo to be the sole caretaker of her children.” Complaint ¶ 20, at 12. Sotelo retained custody of 0. Varela and N.V. during the next eighteen months. See Complaint ¶ 25, at 9.

Although no records document the communication, Sotelo informed Roybal that she had “moved back and forth between New Mexico and Arizona on at least two occasions with the children.” Complaint ¶25, at 9. Sotelo showed the Memo to health care providers and schools in New Mexico and Arizona to secure medical care for 0. Varela and N.V; and to enroll them in school. See Complaint ¶ 25, at 9-10. Furthermore, she showed the Memo to the Social Security Administration to “establish that she was Omaree’s guardian and to ensure that Omaree’s federal benefits were sent to him in care of her at her address.” Complaint ¶ 25, at 10. In December 2009, the CYFD closed its investigation into whether S. Varela posed a risk of harm and concluded that the allegations were unsubstantiated. See Complaint ¶ 25, at 10. The CYFD did not inform Sotelo of this finding and did not rescind the Memo. See Complaint ¶25, at 10. Instead, it allowed the children to remain out of state in So-telo’s home. See Complaint ¶25, at 10. There are no records indicating that the CYFD arranged for any “family preservation or support services to assist Synthia Varela with the skills needed to help the biological family remain intact and to assure that she was able to care for Omaree and his sister at home.” Complaint ¶ 25, at 10-11.

During this same time period, late 2009 to early 2011, S. Varela was incarcerated twice in the Bernalillo County Metropolitan Detention Center, once for . forty-eight hours and another time for ten days. See Complaint ¶ 26, at 11. After having served roughly twenty-four months in prison, Ca-saus returned to S. Varela’s home sometime after December 2010. See Complaint ¶26, at 11. In February 2011, S. Varela gave birth to a third child, E.V., who tested positive for cocaine at birth. See Complaint ¶ 26, at 11. “By this time, it appears that Defendant Joe Roybal no longer was assigned to this file.” Complaint ¶ 26, at 11. Placencio performed the investigation regarding physical neglect allegations about E.V. See Complaint ¶26, at 11. Placencio concluded that the allegations were “unsubstantiated,” and allowed the hospital staff to send the infant home on oxygen with S. Varela and Casaus. Complaint ¶ 26, at 11. Placencio referred the family to PB&J Services for family services; secured housing, furniture, and baby clothes from various agencies; and arranged for S. Varela to obtain parenting skills and substance abuse counseling. See Complaint ¶ 26, at 11. In all, between 2004 and February 2011, the CYFD “received at least seven allegations of abuse involving Synt-hia Varela.” Complaint ¶ 27, at 11. During several of these investigations, S. Varela reported that she took medication for epilepsy, diabetes and Attention Deficit Hyperactivity Disorder, and that she had a brain tumor for which she used oxygen. See Complaint ¶27, at 11. “There is no indication that CYFD sought medical documentation from Synthia Varela or her doctors to substantiate these claims, to learn the degree of their severity, or to evaluate what effect these conditions may have had on her parenting skills.” Complaint ¶ 27, at 11.

3. 0. Varela’s Move to New Mexico

Around February or March, 2011, S. Varela demanded that O. Varela and N.V. be returned to her. See Complaint ¶ 28, at 12. The CYFD helped S. Varela regain custody by ordering Sotelo to immediately transport the children to the CYFD office in New Mexico. See Complaint ¶ 31, at 13. The CYFD case worker, either Placencio or one of the John Does, “threatened and promised that if Ms. Sotelo did not immediately comply with this directive, she would be charged with interstate kidnapping.” Complaint ¶ 31, at 13. There is no record of these communications. See Complaint ¶ 32, at 13. Similarly, the CYFD files contain no records reflecting an analysis of the CYFD’s basis for requiring Sotelo to deliver the children to New Mexico or an analysis whether the move was in the children’s best interest. See Complaint ¶ 34, at 14.

Sotelo left Arizona and delivered the children to a CYFD office in Albuquerque, New Mexico in March 2011. See Complaint ¶ 33, at 13. “Defendant Bennie Placencio or John Does 1-5 immediately handed Omar-ee and N.V. over to Steve Casaus and Synthia Varela,” whom the children had not seen for at least the past eighteen months. Complaint ¶ 33, at 13. In 0. Vare-la’s CYFD files, there is no record of any investigation regarding S. Varela’s living conditions. See Complaint ¶34, at 14. In March 2011, she lived with Casaus, her husband. See Complaint ¶ 35, at 14. On February 23,2011, Placencio sent a memorandum on CYFD letterhead to the Social Security Administration, informing it that S. Varela “has legal and physical custody” of 0. Varela, even though 0. Varela lived with Sotelo in Arizona at that time. Complaint ¶ 37, at 14-15.

On at least two occasions, the CYFD instructed S. Varela to secure behavioral assistance for 0. Varela “at a non-profit agency that provides social and mental health services in the Albuquerque area.” Complaint ¶ 39, at 15. Although S. Varela did not fully comply with these orders, she underwent voluntary intake interviews with the agencies. See Complaint ¶ 40, at 15. She reported to the agency: (i) that she had bi-polar disorder and Posh-Traumatic Stress Disorder; (ii) that she had a difficult time getting out of bed each morning; (iii) that she could not stabilize her moods without medications; and (iv) that she was married. See Complaint ¶40, at 15-16. S. Varela never did with the agency’s recommended treatments, and the CYFD never monitored whether S. Varela did them. See Complaint ¶41, at 16. In mid-October, 2013, two months before 0. Varela died, S. Varela returned to the agency for another interview and told the agency that: (i) she was never married; (ii) she had been admitted to two psychiatric facilities; (iii) she suffered a traumatic brain injury as a result of sexual assault and had an aneurism in her brain; (iv) she had significant medical problems impacting her daily functioning; and (v) she had a hard time controlling her anger impulses. See Complaint ¶ 42, at 16.

In October,. 2012, the CYFD substantiated allegations that an “unknown person” was physically abusing 0. Varela. Complaint ¶ 46, at 17. He had a bruise on his right temple and marks on his leg. See Complaint ¶46, at 17. He told investigators various stories about how he was injured: (i) that S. Varela hit him with a telephone; (ii) that N.V. hit him with a toy telephone; (iii) that he hit himself while playing with a toy telephone; and (iv) that S. Varela hit him with a belt. See Complaint ¶ 46, at 17. S. Varela reported that he fell while playing outside. See Complaint ¶ 46, at 17. The University of New Mexico Hospital’s Child Abuse Response Team (“CART”) confirmed that 0. Varela’s injury “was consistent with being struck with a belt” and found that “Omaree continues to be at risk for abuse without preventive services.” Complaint ¶ 47, at 17.

After the CYFD performed a Child Safety Assessment, it determined that the children were “unsafe,” but listed the risk level as “moderate” and recommended that S. Varela continue working with the support services already in place. Complaint ¶48, at 17-18. Two months later, in December, 2012, the CYFD noted unsubstantiated allegations of physical abuse based on an incident where S. Varela allegedly punched 0. Varela in the stomach with a closed fist in a local store. See Complaint If 50, at 18. In June, 2013, “Albuquerque police responded to a 911 call regarding possible abuse” at S. Varela’s home. Complaint ¶ 52, at 18. The call’s recording contains “several minutes of profanity, screaming and verbal abuse focused on Omaree by an adult man and woman, seemingly arising from food that he spilled on the ground.” Complaint ¶ 52, at 18.

4. O. Varela’s Death.

On December 27, 2013, nine-year-old 0. Varela was found dead at home. See Complaint ¶ 53, at 18. Th'e autopsy report listed 0. Varela’s cause of death a blunt trauma and the manner uf death as homicide. See Complaint ¶54, at 18. The report states:

There were contusions (bruises) of the chest, arms, legs and tongue; abrasions (skin scrapes) of the face; a healing laceration (skin tear) of the scalp (left parietal scalp); and hemorrhage (bleeding) into’ the muscles between the ribs (inter-costal hemorrhage), into the soft tissues of the back, into the diaphragm (muscle that separates the ‘chest and abdominal organs), into an abdominal wall muscle (right internal oblique muscle), into the abdominal cavity (hemoperitoneum), into the soft tissues around the pancreas and left kidney; and on the outer surface (serosa) of the bowel. On the chest were discreet [sic] injuries .consistent with thermal injuries (burns).

Complaint ¶ 54, at 18-19. New Mexico indicted both S. Varela and Casaus for 0. Varela’s death. See Complaint ¶ 54, at 19.

In the criminal complaint against S. Varela, the Albuquerque Police Department (“APD”) reported that, after initially contending that 0. Varela fell off a toy horse, S. Varela confessed that she kicked 0. Varela “in the stomach causing him to fall to the ground. While falling, [0. Vare-la] struck his head on a dresser then struck his head on the ground. Once [0. Varela] was on the ground, Synthia began kicking him. She kicked him at least two times, near his stomach,” Complaint ¶ 55, at 19. S. Varela • pled guilty to second-degree murder, child abuse, and tampering with evidence and will receive a forty-year prison sentence. See Plea and Disposition Agreement at 1-3, filed in State of New Mexico v. Varela-Casaus, D-202-CR-201400203, Bernalillo County, Second Judicial District, filed May 6, 2016. .Although Casaus told inconsistent versions of his involvement in 0. Varela’s death, further investigation revealed that Casaus permitted 0. Varela “to be tortured, cruelly confined or cruelly punished,” which resulted in 0. Varela’s death, and that Casaus participated in the violent acts which led to 0. Varela’s death. Complaint ¶ 55, at 20. Forensic evidence presented at Casaus’; trial indicated that he “may have delayed calling 911 by roughly three hours as Omaree was dying.” Complaint ¶ 55, at 20. After a week-long trial, a jury found Casaus guilty of child abuse with reckless disregard resulting in. death, in addition to lesser charges of tampering with evidence and intimidation of a witness. - See Complaint ¶ 55, at 21.

The CYFD prepared a Child Protective Services Investigation Summary on the day 0, Varela died. See Complaint ¶ 56, at 21. It substantiates the allegations of physical abuse—death—and physical neglect— medical neglect—against S. Varela. See Complaint ¶56, at 21. The CYFD also substantiated physical neglect allegations— lack of supervision, drug abuse, and burns—against Casaus. See Complaint ¶ 56, at 21. The CYFD further concluded that: (i) S. Varela’s and Casaus’ behavior “is violent and/or out of control;” (ii) reasonable cause existed to suspect that a household member caused serious physical harm to the remaining children, N.V. and E.V.; and (iii) the caregiver’s impairment from drug or alcohol use “seriously affects his/her ability to supervise, protect or care for the children, placing the children in present or impending danger of serious harm.” Complaint ¶ 57, at 21. With respect to both S. Varela and Casaus, the CYFD investigator found that they did not demonstrate a protective role, were not emotionally able to intervene and protect, did not set aside their needs in favor of the children, did not demonstrate tolerance, did not have sufficient impulse and emotional control, and did not have a strong emotional bond with the children. See Complaint ¶ 58, at 21-22.

Following 0. Varela’s death, the CYFD assumed custody of N.V. and E.V. See Complaint ¶ 60, at 22. After removing the children in December, 2013, N.V. reported abuse against her by both S. Varela and Casaus. See’ Complaint ¶ 61, at 22. Specifically, she reported that she was: (i) hit with a belt buckle by S. Varela; (ii) punched in the forehead by Casaus; (iii) locked in a dark bedroom and in a closet; and (iv) choked by S. Varela. See Complaint ¶22, at 61.-After evaluating N.V., the CART found that N.V.’s reports were consistent with such abuse injuries, including “a scar resembling a cigarette burn, numerous healed linear scars, and abrasions.” Complaint ¶ 62, at 28.

PROCEDURAL BACKGROUND

The Court will first describe the Plaintiffs’ claims against the Defendants. Then it will describe the Plaintiffs’ and Defendants’ arguments regarding the CYFD MTD and Roybal MTD (“the motions”).

1. The Complaint.

The Plaintiffs allege four claims against the Defendants. See Complaint ¶¶ 65-133, at 24-43. First, the Plaintiffs allege a civil rights claim against Roybal, Placencio, and John Does 1-5 for failure to exercise professional judgment. See Complaint ¶¶ 65-89, at 24-32. They argue that Roybal “made the unilateral decision to remove five-year old Omaree and infant N.V. from the home of their biological parent and affirmatively place them under the exclusive care and control of a non-relative,” without following the New Mexico Children’s Code requirements. Complaint ¶¶ 67-69, at 24-26. The' Plaintiffs contend that Roybal’s Memo, which “admonished third parties such as the school system not to interfere with the placement—had the purpose and effect of taking Omaree and N.V. into the State’s custody.” Complaint ¶70, at 26. The Plaintiffs explain that, by unilaterally placing the children with a non-relative without any training or licen-sure, Roybal “intentionally and knowingly bypassed established professional and legal procedure, and substantially departed from accepted professional judgment, practice or standards in such a way as to abdicate reliance on professional judgment.” Complaint ¶71, at 26. Similarly, the Plaintiffs allege that, when Placencio or John Does 1-5 removed the children from Sotelo’s care and placed them with S. Varela and Casaus without following the New Mexico Children’s Code requirements and procedures, they likewise departed from professional judgment, practice, or standards and abdicated reliance on professional judgment. See Complaint ¶75, at 27. The Plaintiffs state that, as further evidence that Placencio or John Does 1-5 abdicated professional judgment, they did not investigate whether the new placement with S. Varela and Casaus would be more dangerous than their previous placement with Sotelo. See Complaint ¶¶ 79-81, at 28-30. The Plaintiffs assert that the Defendants breached their duty to exercise professional judgment, which violated the children’s fundamental right under the Fourteenth Amendment not to be placed in a potentially abusive environment and proximately caused physical and emotional abuse. See Complaint ¶¶ 82-83, at 30-31; id. ¶ 89, at 32.

In Count II, the Plaintiffs allege that Roybal, Placencio, and John Does 1-5 violated 0. Varela’s and N.V.’s Fourteenth Amendment right not to be placed in or subjected to an injurious and unsafe environment. See Complaint ¶¶ 91-92, at 32-33. They argue that, by removing the children from S. Varela’s care—and later from So-telo’s care—and asserting “custody and control over them,” Defendants Roybal, Placencio, and John Does 1-5 “assumed an affirmative duty arising out of the special relationship among Defendants, the State of New Mexico, and children in the State’s custody—to protect and supervise”' the children. Complaint ¶¶ 95-97, at 33-34. They assert that this duty requires the Defendants to ensure the “safe and proper disposition of children.within their custody and control, to avoid placing any such children in situations of greater danger than those from which Defendants removed the children in the first place, and to refrain from enhancing the special dangers to which the children were already subject.” Complaint ¶ 93, at 33. The Plaintiffs allege that the Defendants “affirmatively created the danger” to 0. Varela and N.V. by: (i) assuming custody in an unreviewable manner that ignored the New Mexico Chib dren’s Code requirements; (ii) threatening Sotelo with felony criminal prosecution and demanding that she bring the children to New Mexico; (iii) placing the children with S. Varela and Casaus without following the New Mexico Children’s Code requirements. See Complaint ¶ 98, at 34-36.

In Count III, the Plaintiffs allege that Roybal, Placencio, and John Does 1-5 denied 0. Varela and N.V. the Fourteenth Amendment right to petition and have access to the courts, and to use . New Mexico’s legal remedies and procedures for assuring their health and safety. See Complaint ¶ 112, at 40. They argue that the Defendants assumed custody of 0. Varela and N.V. when Roybal removed the children from their biological parent, and placed them with a non-relative for an unlimited and unspecified time period. See Complaint ¶ 107, at 38. The Plaintiffs explain that, by failing to adhere to the New Mexico Children’s Code requirements, the Defendants deprived the children of numerous statutory protections and safeguards, including the right to access the court system. See Complaint ¶ 109, at 38-39. The Plaintiffs further explain that Placencio or John Does 1-5 similarly deprived the children of court access by removing them from Sotelo’s care and placing them in a new home without proper investigation. See Complaint ¶ 11, at 40.

Finally, in Count IV, the Plaintiffs allege that CYFD’s involvement in the above-described incidents violated the NMTCA. Complaint ¶¶ 117-133, at 41-43. They argue that the CYFD orchestrated the children’s placement with Sotelo, and continued its “complete control” over the children’s placement when it “forcibly place[d] them” with S. Varela and Casaus. Complaint ¶¶ 119-120, at 41-42. The Plaintiffs explain that the CYFD “operated and/or maintained the building,” because the CYFD “exclusively selected” S. Varela’s home as the place to locate the children. Complaint ¶ 121, at 42. They argue that the CYFD breached its duty to exercise reasonable care in operating and maintaining S. Vare-la’s residence and caused the children’s abuse. See Complaint ¶¶ 122-26, at 42. They note that the CYFD has waived liability “to the full extent provided by the New Mexico Tort Claims Act.” Complaint ¶ 132, at 43.

2. The CYFD MTD.

The CYFD and Placencio filed the CYFD MTD on December 15, 2015. See CYFD MTD at 1. They first argue that the Complaint fails to state a claim against Placencio. See CYFD MTD at 9-10. They explain that the Complaint does not allege how Placencio abdicated his professional responsibilities, because he never had custody of the children. See CYFD MTD at 10. The Defendants further state that Placencio did not abdicate this responsibility by neglecting to petition a court for custody. See CYFD MTD at 10. Next, the CYFD and Placencio explain that the Fourteenth Amendment’s Due Process Clause imposes duties upon state actors to protect citizens’ life, liberty, and property from deprivation by third parties only when: (i) a state has a special, custodial relationship with the victim; and (ii) the state created the danger that harmed the victim. See CYFD MTD at 12. They contend that neither the Memo’s recommendation that the children remain with Sotelo, nor Placencio’s order that Sotelo return the children to New México, created a special relationship between Placen-cio and the children. See CYFD MTD at 13-14. They further argue that Placencio’s actions did not create or enhance any danger to the children. See CYFD MTD at 15-16. They assert that the Plaintiffs must allege that the CYFD assumed custody of the children to prove any of their claims. See CYFD MTD at 16. They contend that the Plaintiffs do not allege sufficient facts to support their contention that the CYFD assumed custody of the children. See CYFD MTD at 16. They argue that the CYFD and Placencio did not remove the children from S. Varela’s custody; instead, the Plaintiffs state, S. Varela “voluntarily gave custody of Omaree Varela and N.V., without the intervention of CYFD, to Ms. Sotelo.” CYFD MTD at 17. The CYFD and Placencio argue that “there is no clearly established law that applies the danger creation theory of recovery to an entity that does not have custody and therefore cannot create the danger alleged.” CYFD MTD at 17. Finally, the CYFD and Placencio argue that the NMTCA does not waive liability for torts that public employees commit. See CYFD MTD at 20-23.

3. The Roybal MTD.

Roybal likewise contends that the Complaint does not state a claim against him. See Roybal MTD at 12. First, Roybal argues' that the Complaint does not allege that there was any basis for him to conclude that abuse allegations were substantiated. See Roybal MTD at 13. He contends that, because the Complaint does not present any facts showing that the investigative findings were incorrect, he did not abdicate his professional responsibility or otherwise violate the children’s constitutional rights by concluding that the abuse was unsubstantiated. See Roybal MTD at 13. Second, Roybal argues that the Memo does not “state that CYFD assumed or asserted custody over the children,” so it did not create a special relationship between Roybal and the children. Roybal MTD at 12-13. He explains that he was unaware that Sotelo used the Memo to obtain medical treatment, to enroll the children in school; or to procure social security benefits. See Roybal MTD at 12. He emphasizes that S. Varela “voluntarily placed” the children with Sotelo “before CYFD began its investigation of the referral,” so he “had no authority to dictate the placement of the children.” Roybal MTD at 17. He argues that the Memo did not create a custodial relationship, because it could not “deprive a biological mother of her rights to have custody of her children.” Roybal MTD at 18. He concludes that, without a custodial relationship, the Complaint does not sufficiently allege that he had a special relationship with the children, and therefore violated the children’s constitutional rights. See Roybal MTD at 16-18.

Next, Roybal asserts that the Complaint does not sufficiently allege that he violated the children’s constitutional rights by creating or enhancing any danger to the children, See Roybal MTD at 18. He admits that the “CYFD has an obligation to not enhance the danger of children in its custody,” but maintains that 0. Varela and N.V. were not in the CYFD’s custody when they lived with Sotelo. Roybal MTD at 19. He further argues that the Complaint does not allege the facts necessary to show that he created a danger. See Roybal MTD at 19-20. Specifically, he asserts that the Complaint fails to allege that any risk to the children was obvious and known. See Roybal MTD at 19-20. He contends that “there is no clearly established law that applies the danger creation theory of recovery to an entity that does not have custody.” Roybal MTD at 20. Roybal therefore asserts that he is entitled to qualified immunity. See Roybal MTD at 22-23. Finally, Roybal contends that the NMTCA does not waive liability for torts that public employees commit. See Roybal MTD at 22-23.

4. The Response.

The “parties agreed that the response and reply to [the motions] will be combined.” Roybal MTD at 1. The Plaintiffs filed the Response to both motions on February 18, 2016. See Plaintiffs’ Consolidated Response to Motions to Dismiss Filed by Defendants Bennie Placencio and New Mexico Children, Youth and Families Department [Doc. 10] and Defendant Joe Roybal [Doc. 14], filed February 18, 2016 (Doc. 20)(“Response”). The Plaintiffs begin by arguing that the Complaint contains all necessary factual allegations. See Response at 2-3. They note that rule 8(a)(2) of the Federal Rules of Civil Procedure and case law from the United States Court of Appeals for the Tenth Circuit requires only that a Complaint give the defendant fair notice of the claim and the grounds on which it rests. See Response at 2. Furthermore, the Plaintiffs contend, the Defendants cannot “attempt to refute ■ the complaint or to present a different set of allegations” in their 12(b)(6) challenge. Response at 4. The Plaintiffs argue that the Defendants violate this rule by basing their argument on factual assertions outside of the Complaint “or directly contrary to Plaintiffs’ well-pled factual allegations.” Response at 4.

Specifically, the Plaintiffs point to the Defendants’ contention that S. Varela “voluntarily placed her children with Essie Sotelo.” Response at 4, They counter: “Plaintiffs nowhere make this allegation, and do not allege that, as of September 2009, Synthia Varela voluntarily transferred custody of her children.” Response at 5. The Plaintiffs assert that the Defendants’ allegations that the children’s placement with Sotelo was “voluntary” are “completely imaginary reconstructions of the factual allegations in the Complaint, and fly in the face of this Court’s obligation to accept Plaintiffs’ well-pleaded factual allegations as true.” Response at 7. Likewise, the Plaintiffs argue that the Defendants disregard the Plaintiffs’ factual assertions that Placencio ordered Sotelo to return' the children to New Mexico. See Response- at 8-9. The Plaintiffs argue that, instead, the Defendants “seek to replace it with a more favorable factual characterization” that Placencio’s contact with Sotelo was a mere benign, non-confrontational request. Response at 8. The Plaintiffs state that their “well-pleaded facts are assumed to be true, not the alternative versions of these events put forward by Defendants in their motions.” Response at 9.

Second, the Plaintiffs contend that they sufficiently allege that the Defendants abdicated- their professional judgment when the State had a special relationship with the children. See Response at 11. They argue that, because the CYFD effectively controlled the children’s fate and assumed responsibility for their welfare, the children were in state custody. See Response at 12-13. They explain that, even if the children were not in the state’s actual custody, they were in the state’s “functional custody.” Response at 14. The Plaintiffs state that, in either situation, precedent from the Tenth Circuit and the Supreme Court of the United States of America clearly establishes that “a reasonable official would [have] underst[oo]d ... that he had a duty to exercise professional judgment in- making decisions about the children’s care and custody.” Response at 15-16 (alterations in Response). The Plaintiffs further argue that they sufficiently alleged that the Defendants knew of the danger to the children or failed to exercise professional judgment to avoid danger. See Response at 16. They point to their allegation that Roybal’s Memo solidified Sotelo’s custody through the Memo instead of petitioning to the New Mexico Children’s Court, thereby abdicating the duty to act professionally in making the placements. See Response at 17. They assert that the Defendants’ “successful effort to skirt the dictates of New Mexico law is the very antithesis of an ‘exercise [of] professional judgment.’ ” Response at 18 (citing Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 890 (10th Cir.1992)(“Yvonne L.”)). The Plaintiffs then argue that the Defendants’ failure to secure the children’s custody through formal legal channels prevented the children from accessing “the full panoply of protections under the Children’s Code.” Response at 18.

Third, the Plaintiffs assert that the Complaint sufficiently alleges that the Defendants abdicated their professional judgment when the State subjected the children to a grave danger. See Response at 21-22. Conteary to the Defendants’ arguments, the Plaintiffs state that Tenth Circuit law clearly establishes that state actors can be liable under the danger-creation doctrine in the absence of a special or custodial relationship. See Response at 22. The Plaintiffs describe how the Complaint asserts all the elements necessary to establish a danger-creation theory of liability. See Response at 23-25.

Fourth, the Plaintiffs contend that the Complaint sufficiently alleges that the Defendants violated the children’s constitutional rights by denying them access to the courts. See Response at 25. They point to the Complaint’s allegations that the Defendants engineered the children’s living arrangements “without honoring any of the requirements of the Children’s Code,” which thereby deprived the children of court access. Response at 25-26. The Plaintiffs cite Tenth Circuit precedent establishing that prisoners and involuntarily committed individuals have a constitutional right to court access. See Response at 26. The Plaintiffs explain that “children in foster care are equivalent to persons who have been imprisoned or involuntarily committed,” meaning that they too “have a clearly established right of court access.” Response at 29. The Plaintiffs further assert that the Defendants “personally infringed the children’s court-access rights by failing to initiate Children’s Court actions to adjudicate the children’s best interests.” Response at 29 (emphasis in Response). Fifth, the Plaintiffs assert that the Complaint states a claim against the CYFD under the NMTCA. See Response at 30.

5. The Reply.

The Defendants submitted their joint reply on April 22, 2016. See Defendants Bennie Placencio, Joe Roybal and the New Mexico Children, Youth, and Families Department’s Consolidated Reply to Plaintiffs’ Response to Their Motions to Dismiss, filed April 22, 2016 (Doc. 22)(“Re-ply”). They explain that the motions do not rely on facts outside of the Complaint. See Reply at 4. Although the Plaintiffs allege in the Complaint that the Defendants had custody of the children, the Defendants argue that the “Complaint cannot and does not allege that CYFD took any action judicially or otherwise to assume custody of the Children,” because it does not allege that the Defendants followed the statutorily required procedures for taking children into custody. Reply at 4-5. In short, the Defendants argue that they could not have taken the children into custody without following the formal procedures for doing so. See Reply at 5 (arguing that the Defendants’ actions did not constitute a “voluntary placement outside of the home” that would give New Mexico custody over the children, because the children’s placement with Sotelo was not made pursuant to the New Mexico Children’s Code). They argue that, even though the Plaintiffs assert that S. Varela did not voluntarily give her children to Sotelo in September 2009, the motions’ assertions that S. Varela voluntarily gave her children to Sotelo are “warranted by the facts.” Reply at 6. The Defendants assert that, without such custody and in the face of S. Varela’s voluntary placement, “CYFD does not owe any duty to the Children.” Reply at 2. See Reply at 4 (“It is clear from the Complaint, that CYFD never assumed custody of the Children.”).

The Defendants next contend that, in the absence of a custodial relationship with the children, Placencio acted appropriately in returning the children to S. Varela. See Reply at 8. They explain that, as the children’s mother, S. Varela was entitled to custody unless the CYFD was investigating an abuse allegation. See Reply at 8-9. The Defendants further argue that Placen-cio had no need to investigate how S. Varela’s medical issues might affect her caretaking ability and had no need to evaluate the new home situation, because no abuse allegations had been. substantiated in the past. See Reply at 10.

The Defendants then turn their attention to the CYFD, arguing that it did not have a special relationship with the children, because it never obtained custody of the children. See Reply at 11; id. at 12 (“The Plaintiffs’ problem is that the Children were not in the custody of CYFD.”). They argue that the “special relationship exception depends on the state assuming custody of the children.” Reply at 13. Likewise, they maintain that without custody, “the Defendants could not create danger for the Children.” Reply at 12.

Finally, the Defendants argue that they did not violate the Plaintiffs’ right to court access, because “there is no clearly establish right violated by Defendants’ acts in failing to file a petition in the Children’s Court.” Reply at 15. They concede that children in foster care may be akin to imprisoned individuals with a right to court access. See Reply at 16. Nonetheless, they maintain that the children were not in state custody. See Reply at 16. They therefore argue that no law clearly establishes that “a person, not in state custody, can state a claim against Defendants for depriving the person of access to the courts.” Reply at 16. They conclude that the Defendants “had no obligation to provide the Children with court access.” Reply at 16.

6. The Hearing.

The Court held a hearing on May 5, 2016. See Transcript of Hearing, taken May 5, 2016' (“Tr.”). To begin, the Court asked the Defendants whether the CYFD frequently allows biological parents to informally give their children to relatives or to friends, like Roybal did with S. Varela and Sotelo. See Tr. 10:11-17 (Court). The Defendants stated that parents frequently leave their children with many different friends and relatives “when they’re not on the radar of CYFD.” Tr. at 10:17-22 (Williams)(“And I’m .sure that I can think of in my life several instances where that happens and CYFD is not involved.”). The Defendants argued that informal transfers “happen[] a lot,” and that the CYFD knows about these transfers, but does not insert itself into the situation unless the CYFD has custody of the child. Tr. at 12:21-24 (Williams). The Defendants explained that, because S. Varela transferred her children to Sotelo using this informal process, and because the Memo “never mentions custody,” the CYFD could not have formal custody over the children. Tr. at 13:6-17:2 (Williams). The Court agreed that no formal custody existed, but stated that the Complaint plausibly alleges that a functional custodial relationship could exist. See Tr. at 18:6-12 (Court). The Defendants agreed with the Court that, if the Court finds a special relationship exists between the children and the CYFD, the special relationship exists with Placencio and Roybal as well. See Tr. at 9:9-17 (Williams).

The- Defendants conceded that the Memo “acknowledges the custodial relationship for [Sotelo],” Tr. at 14:10-12 (Williams), and that a “vicarious custodial relationship” existed via Sotelo, Tr. at 17:24-18:3 (Williams). In other words, they conceded that Sotelo directly controlled the children and that the State had an indirect custodial relationship through So-telo. See Tr. at 17:24-18:3 (Williams). Nevertheless, they maintained that no custodial relationship could exist unless the State controlled Sotelo’s behavior. See Tr. at 16:6-9 (Williams)(“So she doesn’t acknowledge that CYFD has any Control over her relationship with those kids.”). They emphasized that the' State did not control Sotelo’s behavior, because she took the children to Arizona. See Tr. at 18:14-20 (Williams). In response, the Plaintiffs clarified that the Complaint alleges that Roybal knew about Sotelo’s move to Arizona and acquiesced. See Tr. at 29:16-30:1 (Schultz). The Court also noted that Sotelo’s absence from the State did not have constitutional significance. See Tr. at 25:14-19 (Court). The Plaintiffs then expressed their agreement with the Court’s undex-standing that a custodial relationship began when the CYFD refused to return the children to S. Varela and wrote the Memo. See Tr. at 29:2-10 (Schultz).

The Court then indicated that it did not think Roybal created any danger, a proposition with which the Defendants agreed. See Tr. at 37:14-38 (Court, Williams). Regarding Placencio, the Defendants noted that there were no substantiated abuse allegations in S. Varela’s file and stated that no red flags appeared that the children would be in danger. See Tr. at 38:11-13 (Williams). The Court observed that Placencio enhanced the risk that the children would be abused by conducting no inquiry or evaluation into S. Varela. See Tr. at 39:13-17. (Court). The Defendants maintained that the danger always existed, and Placencio did nothing to create or enhance that danger; he merely reinstated the status quo. See Tr. at 40:10-25 (Williams). They emphasized the balancing act between the children’s right to be free from danger and the mother’s rights to familial association. See Tr. at 41:1-8 (Williams).

The Plaintiffs responded that thé home that the children left when S. Varela divested herself of custody was not the same home that Placencio “forcibly required these children to return to.” Tr. at 44:7-12 (Schultz). Although the biological mother remained thé same, the home itself had significantly changed: (i) a cocaine-addicted baby; and (ii) Casaus lived in the home after being released from prison. See Tr. at 44:13-24 (Schultz). The Plaintiffs noted that the' sheer fact that eighteen months had passed was an additional factor: “It’s everything that transpired during those eighteen months, not the fact that eighteen months had passed.” Tr. at ' 46:4-6 (Schultz). Regarding Roybal, the Plaintiffs argued that once Roybal chose to intervene, he was under a duty to intervene in a way that would not enhance their exposure to a pre-existing danger. See Tr. at 49:16-22 (Schultz). When he bypassed the Children’s Code, the Plaintiffs explained, he removed the procedural safeguards that protected the children, which made the children more vulnerable to the danger that Placencio later created. See Tr. at 49:23-50:2 (Schultz),

The Court then asked the parties to address whether the Defendants violated the professional, judgment standard. The Defendants argued that the Complaint merely alleges that Roybal and Placencio “failed to follow the Children’s Code.” Tr. at 58:20-23 (Williams). As for. Placencio, the Defendants argue that he did not abdicate his judgment, because he did not know that he needed to use formal procedures to transfer the children to S. Varela. See-Tr. at 59:1-7 (Williams). The Court asked the Plaintiffs whether Roybal’s failure to use the Children’s Code constitutes a constitutional violation. See Tr. at 30:24-31:2 (Court). They explained that the question was not whether Roybal violated the Constitution by failing to use formal procedures, but whether Roybal violated the Constitution by denying S. Varela custody in September, 2009 based on his own judgment. See Tr. at 31:3-17 (Schultz). The Plaintiffs asserted that no record evidence demonstrates that the CYFD frequently allowed parents to accomplish such informal transfers, and that transfers could only be made pursuant to the Children’s Code. See Tr. at 62:24-25 (Schultz), They further explained that they needed to develop how Roybal’s actions varied from professional judgment through discovery. See Tr. at 31:3-18 (Schultz).

The Defendants next argued that Roy-bal’s and Placencio’s actions did not shock the conscience. See Tr. at 68:4-15 (Williams). The Defendants acknowledged that S. Varela’s actions were conscience-shocking, but they emphasized that Roy-bal’s and Placencio’s actions do not meet the Tenth Circuit’s outrageousness requirement. See Tr. at 67:23-68:3 (Williams). They stated: “One wrote a memo. One returned the children to their natural mother. Those are not things that would shock the conscience.” Tr. at 68:8-15 (Williams). In response, the Plaintiffs argued that what shocks the conscience is not clear and, “oftentimes, can only be determined in the context of discovery.” Tr. at 69:6-19 (Schultz). The Defendants cited several Tenth Circuit cases in which the Tenth Circuit stated, that the facts alleged could be conscience-shocking after discovery revealed that no CYFD social worker has ever performed the same actions as Roybal and Placencio. See Tr. at 69:20-70:20 (Schultz)(citing Schwartz v. Booker, 702 F.3d 573, 580 (10th Cir.2012); Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)).

Regarding qualified immunity, the Plaintiffs emphasized that they do not have to cite a case with identical facts to this one. See Tr. at 82:1-6 (Schultz). The Court observed that the Tenth Circuit has stated that defendants are entitled to qualified immunity when the case contains any facts different from prior cases that might have constitutional significance. See Tr. at 82:7-13 (Court). The Plaintiffs argued that the Supreme Court’s most recent qualified-immunity case, Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015), demonstrates that the Supreme Court requires a close factual connection only “in the Fourth Amendment context.” Tr. at 82:14-22 (Schultz). Accordingly, the Plaintiffs stated, the law was clear that a custodial relationship between the State and an involuntarily committed individual would be sufficient to require the State to protect the individual from private acts of violence, and that children are entitled to substantive due process to the same extent as the criminally convicted or mentally committed. See Tr. at 82:22-83:16 (Schultz).

The Court stated that it was likely stretching the law further than any case by finding functional custody existed. See Tr. at 83:17-22 (Court). The Plaintiffs admitted that no court had found functional custody in the child custody context. See Tr. at 83:23-24 (Schultz). The Court asked whether the Plaintiffs were suggesting that the Court use a different qualified-immunity test for substantive due process than it would for the Fourth Amendment. See Tr. at 86:2-6 (Court). The Plaintiffs responded that recent case law suggests that “the [Supreme] Court is developing a different qualified immunity standard under the Fourth Amendment that requires a higher level of factual [specificity] than in other contexts.” Tr. at 86:12-17 (Schultz). In short, the Plaintiffs asserted that the Tenth Circuit expanded the qualified-immunity protection under the Fourth Amendment, but not necessarily in other contexts. See Tr. at 87:2-9 (Schultz). The Plaintiffs concluded that the law was clearly established “that a state official has violated the substantive due process rights of a child in state custody when they fail to exercise professional judgment.” Tr. at 91:20-24 (Schultz).

The Defendants argued that Roybal and Plaeencio did not violate the children’s access to the court, because the children were not in formal, legal custody and were not entitled to formal process. See Tr. at 96:5-10 (Williams). Further, they explained, even if Roybal and Plaeencio violated the children’s right to court access, they are entitled to qualified immunity. See Tr. at 96:14-16 (Williams). As the functional custodians of these children, they explained, the law was not clear what was required of them. See Tr. at 97:3-99:6 (Williams). In response, the Plaintiffs said that Roybal and Plaeencio did nothing to access the Children’s Code’s procedural benefits, which would have given the children meaningful representation in court. See Tr. at 99:16-23 (Schultz). With regard to qualified immunity, the Plaintiffs stated that the right of access was not clearly established until 1985. See Tr. at 100:4-6 (Schultz). They asserted that foster children are entitled to the same rights as the developmental^ disabled and criminally committed, which includes a right to court access. See Tr. at 100:6-11 (Schultz). The Plaintiffs contended that the Fifth Circuit has held that “an abused child in a claim against social workers stated a claim for a violation of her constitutional right when the social workers disregarded Mississippi statutes that required allegations of child abuse to be reported to the Children’s Court.” Tr. at 101:17-24 (Schultz)(citing Chrissy F. v. Mississippi Department of Public Welfare, 925 F.2d 844 (5th Cir.1991)). They explained that, because the Fifth Circuit case applied in the foster care context at issue here, the law therefore clearly established, that Roybal and Placencio deprived the children’s of court access. See Tr. at 101:11-15 (Schultz).

LAW REGARDING MOTIONS TO DISMISS UNDER 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)(Brorby, J.). The complaint’s sufficiency 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)(Briscoe, J.)(“[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)(Seymour, J.). “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)(Kelly, J.)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:

“[P]lausibility” 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 assume