Romero ex rel. Romero v. Board of County Commissioners (202 F. Supp. 3d 1223, 2016)

United States District Court for the District of New Mexico 2016-08-15

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendants’ Rule 12(c) Motion for Judgment on the Pleadings, filed May 5, 2016 (Doc. 97)(“Motion”). The Court held a hearing on August 8, 2016. The primary issues are: (i) whether Plaintiff Michelle Romero, as sister and next friend of Alejandro Romero, Jr., sufficiently states a claim under rule 12(c) of the Federal Rules of Civil Procedure for violation of A. Romero’s procedural due process rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America when she alleges that A. Romero was placed in segregation without a hearing or classification review and endured “inhumane” conditions of confinement; (ii) whether M. Romero may allege both a procedural due-process claim for confinement in segregation with no hearing and a substantive due-process claim for the Defendants’ deliberate indifference to A. Romero’s suffering in inhumane conditions; (iii) whether M. Romero plausibly states a claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), for discrimination or failure to accommodate A, Romero’s disability—paranoid schizophrenia— when the Defendants denied A. Romero access to the Curry County Curry Detention Center’s services and programs; and (iv) whether M. Romero may plead as a separate count her claim that Defendants Board of County Commissioners for the County of Curry, Gerry Billy, in his official capacity, and Tori Sandoval, in her official capacity, had a custom and policy that deprived the mentally ill of adequate medical care and humane conditions under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)(“MoneIl”). First, M. Romero adequately alleges a procedural due-process claim by asserting that the Defendants confined A. Romero in punishing conditions that were excessive in relation to any legitimate governmental interest without providing any hearings or reviews. Second, because the procedural due-process claim asserts a different injury against different Defendants than the substantive due-process claim, the substantive due-process claim is not precluded. Thud, although M. Romero alleges some factual allegations that do not constitute an ADA violation, she alleges other factual allegations which, if true, state an ADA claim. Finally, although Monell liability is not an independent, free-standing claim, the Defendants have not pointed to any law from the United States Court of Appeals for the Tenth Circuit that precludes plaintiffs from pleading it as a separate count for clarity. Accordingly, the Court denies the Motion.

FACTUAL BACKGROUND

M. Romero sues on behalf of her brother, A. Romero. See Amended Complaint for the Recovery of Damages Caused by the Deprivation of Civil Rights, filed March 14, 2016 (Doc. 83)(“Amended Complaint”). M. Romero alleges that A. Romero “has a long history of mental illness and has been diagnosed with paranoid schizophrenia.” Amended Complaint ¶22, at 3. She states that, when “un-medicated, Alex has experienced psychotic episodes that have led to several arrests for misdemeanors, such as assault on a household member and criminal damage to property of a household member.” Amended Complaint ¶23, at 3. Between 2009 and 2013, A. Romero was arrested and booked into the Curry County Detention Center four times. See Amended Complaint ¶ 24, at 4.

The Curry Detention Center administrators, including Billy, the Administrator of the Curry Detention Center until January, 2013, and Sandoval, the current Curry Detention Center Administrator, “routinely complete[ ] an ‘Initial Classification & Custody Assessment' Scale’ form when an inmate is booked that asks a series of questions about the inmate, and results in a scale score that indicates where the inmate should be placed.” Amended Complaint ¶ 117, at 12. For A. Romero, however, the “Defendants failed [to] complete the initial assessment form, failed to meaningfully classify Alex, and arbitrarily placed him into solitary confinement based solely on his mental health problems.” Amended Complaint ¶ 118, at 12. Moreover, the Defendants “failed to have any classification review thereafter.” Amended Complaint ¶ 118, at 12. Instead, the Defendants “placed Alex in a steel segregation cell due to his ‘mental problems.’ ” Amended Complaint ¶ 25, at 4. See Amended Complaint ¶¶ 4-7, at 2. “Alex spent eight months in solitary confinement without a hearing or reassessment.” Amended Complaint ¶ 121, at 12-18. A. Romero “had no access to the ordinary services provided to inmates in the jail” because of “his mental illness,” including “visitation, group therapy, religious services and recreation.” Amended Complaint ¶ 129, at 13.

M. Romero also sues Defendant Correct Care Solutions, the purchaser and successor in interest to Correctional Healthcare Companies, L.L.C. See Amended Complaint ¶20, at 3. Correct Care provided health care to inmates at the Curry Detention Center during the events material to the Amended Complaint. Amended Complaint ¶21, at 3. Correct Care employed Defendant John Doe # 1, who “was in charge of medical care at CCDC.” Amended Complaint ¶ 17, at 3. Defendant Andrew Fotopolus was “in charge of providing mental health counseling” at the Curry Detention Center. Amended Complaint ¶ 14, at 3. During A. Romero’s incarceration, the “Defendants failed to ensure Alex was consistently taking his antipsychotic medication,” even though they “knew how important it was for Alex to take his an-tipsychotic medication.” Amended Complaint ¶¶ 37-39, at 4. The “Defendants accepted Alex’s refusal to take his medication because it was ‘pink.’” Amended Complaint ¶40, at 5. M. Romero notes that courts have previously declared A. Romero “incompetent to stand trial due to his mental illness.” Amended Complaint ¶27, at 4. She explains that, when unmedicated, “Alex’s mental health deteriorated in his segregation cell.” Amended Complaint ¶ 42, at 5.

A. Romero “spent hours on the floor under his bed ‘rocking’, talking to himself, and naked,” and would “tear his bed mattress to pieces.” Amended Complaint ¶¶'42-44, at 5. M. Romero describes how the Defendants “denied Alex access to a mattress, forcing Alex to sleep on the metal bed frame or on the floor under the bed.” Amended Complaint ¶ 45, at 5. Jail documents indicate that A. Romero “smeared his feces in the cell on February 8, 2013, and again on February 16, 2013,” and “was forcibly restrained” on February 27, 2013. Amended Complaint ¶¶ 49-50, at 6. Sergeant Mary Lujan, who worked in the segregation pod where A. Romero was housed, described A. Romero “as being confined in a foul smelling cell for long periods of time without recreation, visitation, phone calls or other activities for long periods of time.” Amended Complaint ¶ 112, at 12. She described his “conditions of confinement as being inhumane.” Amended Complaint ¶ 113, at 12. One inmate “described how the whole segregation unit would fill with a disgusting odor whenever Alex’s door was opened.” Amended Complaint ¶ 101, at 11. Another inmate “remembers Alex being sprayed down with a water hose like a dog” and “seeing Alex lose a great deal of weight while he was incarcerated.” Amended Complaint ¶¶ 104-105, at 11. Curry Detention Center officers “would not let Alex out of his cell for recreation,” and “his cell would only be cleaned when the smell became so bad the guards could not take it anymore.” Amended Complaint ¶ 107, at 11. His cell was filled with “feces on the ceiling and urine everywhere.” Amended Complaint ¶ 109, at 11.

After Lucero asked a court to transfer A. Romero to the Department of Corrections, the court “ordered a thirty-day commitment to the New Mexico Behavioral Health Institute (NMBHI)” in Las Vegas, New Mexico. Amended Complaint ¶¶ 53-55, at 6. A. Romero “spent seven months in the segregation cell under inhumane conditions” before being transferred to the NMBHI. Amended Complaint ¶ 56, at 6. In his first two days at NMBHI, A. Romero “was not making sense in conversation, threatening doctors, talking to himself, and asked the nursing stall for ‘venom’ so the spiders would stop biting him.” Amended Complaint ¶59, at 7. During his stay at NMBHI, he “was reintroduced to human interaction and socialization,” helping him to become “cooperative, polite, and displaying appropriate hygiene.” Amended Complaint ¶¶ 63-64, at 7. “On May 14, 2013, Alex was released from NMBHI medication compliant and ‘happy.’ ” Amended Complaint ¶ 66, at 7.

PROCEDURAL BACKGROUND

M. Romero seeks damages for the alleged violation of A. Romero’s civil and constitutional rights under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Constitution of the United States. See Amended Complaint at 1. She sues the Board of the County Commissioners for the County of Curry, State of New Mexico (“Curry County”), Sandoval, Billy, Lucero, Correct Care, Andrew Fotopolus, and John Doe. M. Romero asserts four claims against the Defendants. In Count I, she alleges a violation of substantive due process under the Constitution of the United States based on the Defendants’ inhumane treatment and inadequate medical care against Sandoval, Billy, and Lucero. See Amended Complaint ¶¶ 67-95, at 7-10. In Count II, she asserts a claim for violation of procedural due process under the Constitution of the United States. See Amended Complaint ¶¶ 96-121, at 10-13. In Count III, she alleges an ADA violation against Curry County, Billy, and Sandoval in their official capacity. See Amended Complaint ¶¶ 122-139, at 13-14. In Count IV, she contends that Curry County, Billy, and Sandoval had a “custom and policy of violating constitutional rights” by depriving the mentally ill of “adequate medical care and humane conditions of incarceration.” Amended Complaint ¶¶ 140-156, at 14-16. Finally, in Count V, M. Romero alleges that Correct Care, Fotopolus, and John Doe provided inadequate medical care. See Amended Complaint ¶¶ 157-183, at 16-19.

1. The Motion.

On May 5, 2016, Curry County, Sandoval, and Lucero moved the Court to dismiss Counts I, II, III, and IV with prejudice, or, in the alternative, grant qualified immunity to the individual capacity defendants. See Motion at 1. They explain that, when the police took A. Romero to the Curry Detention Center, detention staff transported A. Romero to Plains Regional Medical Center in Albuquerque, New Mexico. See Motion at 2. They assert that, because Plains Regional medically cleared A. Romero, “the defendants had no choice but to accept Mr. Romero into the facility,” where he “was placed into special management due to the danger he posed.” Motion at 2. The Jail Defendants argue that the Court must dismiss “the ADA, Monell, the substantive due process prong of the Fourteenth Amendment, [and] the procedural due process prong,” because M. Romero fails to state a claim under rule 12. Motion at 6.

Regarding the procedural due-process claim, the Jail Defendants explain that the claim requires “either an element of punishment or an illustration that the conditions of confinement were excessive in relation to the purpose assigned to them.” Motion at 6. The Jail Defendants argue that they had a “legitimate governmental purpose” for housing A. Romero in solitary confinement—-jail security—so they did not punish A. Romero. Motion at 10-11. Furthermore, the Jail Defendants assert that Lucero did not have authority to force A. Romero to take medications and did not participate in A. Romero’s initial classification to solitary confinement, so there “is no basis for any claim against Mr. Lucero.” Motion at 7. The Jail Defendants contend that, similarly, Sandoval arrived “five months after Mr. Romero was booked,” so the Amended Complaint does “not illustrate personal participation in any deprivation of a constitutional right.” Motion at 8. They explain that there “is no clearly established right to be housed in general population when suffering from a serious mental illness” or to “forced medications,” so the Jail Defendants are entitled to qualified immunity. Motion at 8. They note that, because many of the Amended Complaint’s factual allegations might have occurred at “times [ ] outside the statute of limitations,” the due-process claim lacks plausibility and the Court should dismiss it. Motion at 9.

Next, the Jail Defendants argue that M. Romero’s substantive due-process claim “failed to plausibly plead that these mov-ants deprived him of medical care.” Motion at 14. The Jail Defendants contend that there “is no clearly established right to forced medications” or “for detention staff to overrule medical professionals.” Motion at 15. They assert that, M. Romero therefore “fails to state a plausible claim against the movants related to medical care.” Motion at 15. Further, the Jail Defendants argue, “the fact that the [procedural due-process] claim is analyzed under that framework necessarily precludes his substantive due process claim,” because, “[w]here a plaintiff has recourse to an explicit textual source of constitutional protection, a more general claim of substantive due process is not available.” Motion at 15 (quoting Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1145 (10th Cir.2006)).

With respect to the ADA claim, the Jail Defendants argue that “claims for the failure to provide medical care are not actionable under the ADA.” Motion at 17. Finally, they contend that there is no separate claim for liability under Monell, so Count IV fails to state a claim. See Motion at 18. They explain that “Monell extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctionéd, led to an independent constitutional violation.”'Motion at 18. They argue, however, that because “Monell is not a separate cause of action,” A. Romero “may attempt to use the Monell theory, of illustrating official policy acts of the public body, to attach liability to his § 1983 claims, but he may not plead a separate cause of action for Monell style official policy liability.” Motion at 19. Accordingly, the Jail Defendants assert, “any available claim has been stated in Count I or II.” Motion at 20.

2. The Response.

M. Romero responded on May 24, 2016. See Plaintiffs Response to Jail Defendants’ Motion for Judgment on the Pleadings, filed May 24, 2016 (Doe. 100)(“Re-sponse”). Regarding her procedural due-process claim, she contends that the Amended Complaint makes clear that “the most disturbing allegations occur when Defendant Sandoval had responsibility over the facility.” Response at 12. She clarifies that M. Romero does not allege “that Defendant Lucero had the authority or power to provide classification reviews or give Plaintiff any procedural due process of law”; instead, “Plaintiff has alleged the responsibilities for procedural due process rest with the administrators of the facility, Wardens Billy and Sandoval.” Response at 11-12. She then explains that Tenth Circuit case law clearly establishes that, when the conditions of confinement are excessive in relation to their purpose, there is a procedural due process right at stake. See Littlefield v. Deland, 641 F.2d 729, 730 (10th Cir.1981). She argues that the Amended Complaint adequately asserts how A. Romero’s conditions of confinement were punitive, thereby violating his procedural due process rights. See Response at 6-10.

Regarding the substantive due-process claims, M. Romero contends that the Motion fails to “reference [] the case law governing the constitutional principles behind inhumane conditions of confinement and inadequate medical care.” Response at 14. M. Romero explains that, in “the context of a pretrial detainee in a jail, the Fourteenth Amendment applies” rather than, as the Defendants contend, the Eighth Amendment. Response at 14. She contends that the Jail Defendants deliberately disregarded A. Romero’s substantial medical need. See Response at 16-17. Finally, she asserts that the procedural due-process claim does not preclude the substantive due-process claim, noting that the claims use different facts and mention different Defendants. See Response at 18.

In defense of her ADA claim, M. Romero states that she plausibly alleges the elements of a Title II claim under Tenth Circuit law. See Response at 20-21 (citing Robertson v. Las Animas Cty. Sheriffs Dep’t, 500 F.3d 1185, 1193 (10th Cir.2007)). She explains that the Defendants excluded A. Romero from participating in the Curry Detention Center’s “typical programming and recreational facilities,” including “group therapy, commissary and visitation.” Response at 21. She argues that, if the “Defendants concede Plaintiff, in his complaint, has alleged a denial of visitation, recreation, commissary, group therapy, and religious services, then presumably they would have to concede the ADA claim remains tenable.” Response at 21. Finally, M. Romero observes that the Jail Defendants do “not dispute the existence of the potential for Monell liability for the procedural or substantive due process claims made in this case.” Response at 22. She contends that the Defendants argue only that the Monell claim should not be labeled as a new count. See Response at 22-23. M. Romero asserts that this claim plausibly alleges that the “custom and policy of isolating the mentally ill was the moving force behind the violation of Plaintiff’s procedural and substantive due process rights.” Response at 23.

3. The Reply.

The Jail Defendants replied on June 16, 2016. See Defendants’ Reply in Support of Their Motion for Judgment on the Pleadings, filed June 16, 2016 (Doc. 104)(“Re-ply”). They appear to concede that the Fourteenth Amendment—not the Eighth Amendment as they alleged in the Motion—may provide constitutional protection for M. Romero’s substantive due process allegations. See Reply at 1-2. They maintain, however, that the Tenth Circuit has not discussed “which prong of the ‘Due Process Clause’ applie[s].” Reply at 2. They therefore contend that M. Romero must seek relief through procedural due process, because it “provides an explicit textual source of constitutional protection.” Reply at 2.

With respect to the ADA claim, the Jail Defendants argue that the ADA claim is “based on the lack of medical care,” but that there is no basis for that claim under the ADA. Reply at 4. They appear to recognize that an ADA claim could be based on the exclusion from “group therapy, commissary, and visitation,” but state that the Amended Complaint “makes only passing formulaic mention of those assertions.” Reply at 4. They emphasize that, because these assertions are only formulaic, the Court should not consider, as part of the ADA claim, the allegations that the Jail Defendants excluded A. Romero from certain services. See Reply at 4-6. Finally, the Jail Defendants argue that Sandoval’s and Lucero’s actions “do not form the basis of any due process complaint, more less a conscious shocking substantive due process claim.” Reply at 7.

4. The Hearing.

The Court held a hearing on August 8, 2016. See Transcript of Hearing (taken August 8, 2016)(“Tr.”). The parties argued each of the claims in turn. First, they discussed whether the other claims precluded the substantive due-process claim. See Tr. at 3:16-13:25 (Court, Coyte, Huss). The Jail Defendants argued that M. Romero’s claims are “either procedural due process by the nature of the allegations ... or they’re alleged conscience-shocking violations brought under the substantive due process claim.” Tr. at 3:16-20 (Huss). They asserted that, if M. Romero alleges a procedural due-process claim because A. Romero was “subjected to punishing or atypical conditions without appropriate process,” then the procedural due-process claim “precludes his substantive due process claims.” Tr. at 5:9-16 (Huss). They recognized, however, that courts address “conditions of confinement claims under the substantive due process wing.” Tr. at 5:17-20 (Huss).

M. Romero observed that “defendant Billy is the one who failed as the complaint said to perform any classification review or provide Mr. Romero any process at all,” and he “has not joined this motion.” Tr. at 11:14-22 (Coyte). She argued that Billy deprived A. Romero of that initial classification review, and Sandoval deprived him of any interim review, thus depriving him of due process. See Tr. at 12:8-17 (Coyte). In contrast, M. Romero stated, the substantive due-process claim “goes against other defendants and incorporates other factual allegations, including a lack of medical care that are factually distinct and separate.” Tr. at 12:17-22 (Coyte). Billy acknowledged that M. Romero plausibly states claims for both procedural and substantive due process, and that one claim does not preclude the other. See Tr. at 30:22-31:8 (Autio, Court).

Regarding the procedural due-process claim in particular, the Court asked how the allegations failed to state a claim in light of , the fact that the Amended Complaint alleges that Billy and Sandoval “failed to make these classifications with the requisite due process hearing”? Tr. at 17:15-24 (Court). The Jail Defendants argued that the Amended Complaint fails to allege how Sandoval’s personal actions deprived A. Romero of process when state law prevented her from transferring A. Romero out of the facility. See Tr. at 19:1-12 (Huss). M. Romero explained that Sandoval deprived A. Romero of process, because she knew of A. Romero’s mental illness, yet failed to provide a classification review. See Tr. at 20:2-21:6 (Coyte).

M. Romero stated that Sandoval violated A. Romero’s substantive due process rights when she was deliberately indifferent to A. Romero’s inhumane confinement conditions and did nothing to ensure better conditions. See Tr. at 12:1-15:24 (Coyte). The Jail Defendants maintained that M. Romero could not allege both a procedural and a substantive claim against Sandoval, but conceded that the Amended Complaint contained sufficient factual allegations to state a substantive due-process claim against her. See Tr. at 30:5-13 (Court, Huss). The Jail Defendants asserted that the “complaint pleads insufficient facts” about Lucero to state a substantive due-process claim against him. Tr. at 29:8-16 (Huss). M. Romero clarified that “Lucero was present throughout the entire time of the incarceration, he was a high ranking member of state, had personal day-to-day contact” with A. Romero. Tr. at 32:10-15 (Coyte). Moreover, she explained, the factual allegations demonstrate that “a high-ranking member of staff’ who is participating in confining A. Romero in inhumane conditions “should do something about it. And he has failed to do anything,” revealing his deliberate indifference. Tr. at 32:19-24 (Coyte). The Jail Defendants conceded that, if a guard stood outside A. Romero’s cell and was responsible for cleaning the cell—thereby participating in the confinement—a substantive due-process claim could proceed. See Tr. at 43:1-15 (Court, Huss).

The parties then turned to the ADA claim. See Tr. at 45:1 (Court). The Jail Defendants argued that the Amended Complaint focuses on “the conditions of confinement as they related to that cell” and the “depriv[ation] of adequate medical care.” Tr. at 45:2-12 (Huss). They argued that the “plaintiff throws in essentially a couple ... conclusory allegations that he’s also deprived of similar instances of prison life,” but that these are conclusory allegations that the Court should disregard. Tr. at 45:12-18 (Huss). See id. at 46:8-10 (Huss)(noting that the Amended Complaint “says things like he was deprived of social interaction”); id. at 46:12-15 (conceding that the Amended Complaint contains “a couple” allegations “that may be protected by the ADA”).

M. Romero agreed that “medical care from the case law isn’t part of an ADA claim, but visitation in paragraph 129, group therapy, religious services, and recreation opportunities all be[ing] denied as a result of his mental illness” all form an ADA claim. Tr. at 48:1-5 (Coyte). She explained that “there’s a whole list of case law that supports” that “not being out to exercise for months” violates the ADA. Tr. at 48:8-14 (Coyte). Moreover, she argued, the Jail Defendants cannot “argue that they didn’t keep him in that cell because of his mental illness.” Tr. at 48:5-7 (Coyte).

Finally, the parties addressed the Mo-nell claim. See Tr. at 48:22-23 (Court). The Jail Defendants argued that “Monell is merely one way of proving other constitutional claims, but it’s not a separate claim. It’s not a separate count.” Tr. at 49:1-4 (Huss). The Court explained that many lawyers bring “substantive process, procedural due process ... against the individuals,” but “then as to the entities themselves that are often protected by the 11th Amendment, they often just have a separate Monell claim.” Tr. at 51:4-10 (Court). The Court asked whether there was “any case law that says that’s a wrong way to plead?” Tr. at 51:11-12 (Court). The Jail Defendants asserted that some district courts have stated that Monell claims are not separate claims, but noted that neither the Tenth Circuit nor the Supreme Court prohibits M.' Romero’s form of pleading. See Tr. at 52:1-14 (Huss).

The Court then questioned whether the Jail Defendants contended that the Monell claim fails to state a claim, or lacks factual allegations that a policy and custom existed. See Tr. at 52:15-19 (Court). The Jail Defendants clarified that they argue only that the Monell claim should not be labeled as a separate count: “I’m not arguing an insufficiency of the allegations about policy. He’s got those in there for sure. What I’m arguing is that you don’t get to take your one claim and multiply it into three or four claims.” Tr. at 52:20-25 (Huss). M. Romero asserted that she wrote the Mo-nell claim as a separate count “for ease and simplicity,” and “to give them notice.” Tr. at 53:19-23 (Coyte).

M. Romero then addressed the factual issues in the case one more time. See Tr. at 57:17-25 (Coyte). She explained that, hypothetically, if a prison guard stood outside of A. Romero’s jail cell, “smelling the odors and being there,” knowing what is happening,

that individual is responsible. The Nuremberg trials taught us that, if anything. You don’t—even if you passively engage in this behavior, humanity requires us to do more. And he can quit his job, he can yell from the tree tops, but he can’t continue to stand in front of that door and do nothing. Humanity expects us to do better than that, and we’ve learned that from those trials back in [the] 1940s.

Tr. at 57:17-58:3 (Coyte).

LAW REGARDING RULE 12(c)

“After the pleadings are closed— but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A rule 12(c) motion is designed to provide a means of disposing of cases when the material facts are not in dispute between the parties. See Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 54 (3d Cir.1994)(“Under Rule 12(c), we will not grant judgment on the pleadings unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.”)(internal quotation marks omitted). A “judgment on the pleadings should not be granted ‘unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.’” Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, Pa., 442 F.3d 1239, 1244 (10th Cir.2006)(citing United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000)). “Any party may move for judgment on the pleadings if no material facts are in dispute and the dispute can be resolved on both the pleadings and any facts of which the Court can take judicial notice.” Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. 303, 304 (D.N.M.2000)(citing Fed. R. Civ. P. 12(c)).

A motion pursuant to rule 12(c) is generally treated in the same manner as a motion to dismiss under rule 12(b)(6). See Brown v. Montoya, 662 F.3d 1152, 1160 (10th Cir.2011); Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir.1998)). The court will grant a motion for judgment on the pleadings if the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304. A court considering a motion for judgment on the pleadings should “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.” Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, Pa., 442 F.3d at 1244. The court must view the facts presented in the pleadings and draw the inferences therefrom in the light most favorable to the nonmoving party. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir.2009); Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304. All of the nonmoving party’s allegations are deemed to be true, and all of the movant’s contrary assertions are taken to be false. See Nat’l Metro. Bank v. United States, 323 U.S. 454, 456-57, 65 S.Ct. 354, 89 L.Ed. 383 (1945); Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th Cir.2000); Freeman v. Dep’t of Corr., 949 F.2d 360, 361 (10th Cir.1991).

The same standards that govern a motion to dismiss under rule 12(b)(6) also govern a motion for judgment on the pleadings under rule 12(c). See Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir.2000). Under rule 12(b)(6), a court may 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 and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).

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. See Brown v. Montoya, 662 F.3d at 1163 (stating that the “plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully”). “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, 560 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 United States Court of Appeals for the Tenth Circuit stated:

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

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

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). When a defendant asserts qualified' immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged that: (i) the defendant’s ' actions violated his or her constitutional or statutory rights; and (ii) the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).

In evaluating whether the right was clearly established, the court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In determining whether the plaintiff has met his or her burden, the court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as .to be “indisputable” and “unquestioned.” Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). See Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court of the United States has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001)(quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted in Pearson v. Callahan that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See 555 U.S. at 241, 129 S.Ct. 808. Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified-immunity defense generally fails. See Cannon v. City & Cty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).

LAW REGARDING PROCEDURAL DUE PROCESS

The Fourteenth Amendment states: “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See Reid v. Pautler, 36 F.Supp.3d 1067, 1136 (D.N.M.2014)(Browning, J.)(citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “Under either form of protection, however, a person must have a protected interest in either life, liberty, or property.” Chavez-Bodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s procedural due-process rights were violated: (i) “Did the individual possess a protected property [or liberty] interest to which due process protection was applicable?”; and (ii) “Was the individual afforded an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006)(quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999)(inter-nal quotation marks omitted)).

“[T]o determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “ ‘Liberty’ and ‘property’ are broad and majestic terms. They are among the ‘(g)reat (constitutional) concepts .. purposely left to gather meaning from experience.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571, 92 S.Ct. 2701. The Supreme Court has “made clear that the property interests protected by the procedural due process clause extend well beyond actual ownership of real estate, chattels, or money. By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571-72, 92 S.Ct. 2701. “Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it.has at the same time observed certain boundaries” for “the words ‘liberty’ and ‘property’ in the Due Process Clause of the Fourteenth Amendment must be given some meaning.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572, 92 S.Ct. 2701.

Regarding the meaning of the “liberty” guaranteed by the Fourteenth Amendment, the Supreme Court has stated the following:

Without a doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness of free men. In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty must be broad indeed.

Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572, 92 S.Ct. 2701 (citations omitted).

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 576, 92 S.Ct. 2701. These property interests, as already explained, clearly can include “real estate, chattels, or money,” but they “may take many forms.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571-76, 92 S.Ct. 2701.

Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 [ (1970) ]. See Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 [ (1960) ]. Similarly, in the area of employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Bd. of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 [ (1956) ], and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 [ (1952) ], have interests in continued employment that are safeguarded by due process.

Bd. of Regents of State Colls. v. Roth, 408 U.S. at 576-77, 92 S.Ct. 2701.

Based upon these decisions, “[t]o have a property. interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have .a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Such an interest arises not from the Due Process Clause. of the Constitution itself, but is created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.” Teigen v. Renfrew, 511 F.3d 1072, 1079 (10th Cir.2007). See Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(“[Lib-erty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”).

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. See Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (“Rather, property interests, which are the subject of the present litigation, ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701)).

“[0]nce it is determined that the Due Process Clause applies, the question remains what process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)(citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citation omitted). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. at 334, 96 S.Ct. 893. The Supreme Court has explained that

the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest. This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment.

[T]he pretermination hearing, though necessary, need not be elaborate. We have pointed out that [t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (footnote omitted)(citations omitted)(internal quotation marks omitted).

The United States Court of Appeals for the Second Circuit has stated:

The Supreme Court ... explained that procedural due process is a flexible standard that can vary in different circumstances depending on “‘the private interest that will be affected by the official action’ ” as compared to “the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, [529], 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)(quoting Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893). A court must carefully balance these competing concerns, analyzing “ ‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and the ‘probable value, if any, of additional or substitute safeguards.’ ” Id. (quoting Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893).

United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir.2004). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government’s interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 385, 96 S.Ct. 893. For example, “[w]here ... the state must act quickly, a meaningful postdeprivation hearing is adequate.” Clark v. City of Draper, 168 F.3d at 1189. See Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.1989)(removal of a child from parents’ custody requires pre-deprivation hearing “except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”).

LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS

The Fourteenth Amendment’s Due Process Clause provides that “no State shall ... deprive any person of life, liberty, or property without due process of law.” U.S. Const, aménd. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiffs due process rights and not for third parties’ acts. See Robbins v. Oklahoma, 519 F.3d at 1251 (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)(“DeShaney”)). “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney, 489 U.S. at 195, 109 S.Ct. 998. In other words, the Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney, 489 U.S. at 195, 109 S.Ct. 998.

1. Exceptions to the General Rule.

There are, however, two exceptions to this general rule. The first exception—the special-relationship doctrine— “exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.” Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003)(quoting Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1260 (10th Cir.1998)). See Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-95 (10th Cir.1994). The second exception—the danger-creation theory—provides that a state may also be liable for an individual’s safety “only when ‘a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.’ ” Robbins v. Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). “If either the special-relationship or danger-creation exception applies, the conduct of the state actor must go beyond negligence to the point of ‘shocking the conscience.’ ” Glover v. Gartman, 899 F.Supp.2d 1115, 1135 (D.N.M.2012) (citing Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir.2006)(“The shocks the conscience standard applies to both types of suits.”)).

2. The Special-Relationship Doctrine.

The first exception to the general principle that a state’s negligent failure to protect an-individual cannot trigger liability under the Due Process Clause is the special-relationship doctrine. A plaintiff must show: (i) that the state has restrained his or -her “freedom to act to protect himself or herself through a restraint on that individual’s personal liberty”;'and (ii) that the restraint was involuntary. Christiansen v. City of Tulsa, 332 F.3d at 1280 (quoting Armijo v. Wagon Mound Public Schools, 159 F.3d at 1261). See A.M. ex rel. Youngers v. N.M. Dep’t of Health, 65 F.Supp.3d 1206 (D.N.M.2014)(Browning, J.)(“[T]he Tenth Circuit has concluded that whether an individual is involuntarily committed to the state—and is, therefore, entitled to substantive due-process protections—‘turn[s] on the dependent and involuntary nature of the custodial relationship.’ ”)(quoting Schwartz v. Booker, 702 F.3d 573, 580 (10th Cir.2012)). “Absent involuntary restraint, however, no duty to protect arises under the special-relationship theory.” Christiansen v. City of Tulsa, 332 F.3d at 1280. See Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir.1996)(finding no special relationship existed in a consensual employment relationship); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995) (“A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual —”). Notably, the State must impose the limitation on the individual’s freedom. See Christiansen v. City of Tulsa, 332 F.3d at 1280. Mere knowledge of the individual’s predicament is insufficient. See Christiansen v. City of Tulsa, 332 F.3d at 1280 (noting that the State’s “affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament ... but from the limitation which it has imposed on his freedom to act on his own behalf’).

The Tenth Circuit does not determine whether the special-relationship doctrine applies using only formalistic distinctions. See Maldonado v. Josey, 975 F.2d 727 (10th Cir.1992). It analyzes the nature and effect of the restraint on the individual’s freedom. See Christiansen v. City of Tulsa, 332 F.3d at 1280 (concluding that the police had no special relationship with a quarantined individual, not because the police had not taken the individual into custody, but because the policy had not sufficiently restrained the individual’s freedom to leave the area or make calls). Accordingly, whether an individual is in “custody” is not sufficient to determine whether the restraint on the individual rises to such a level that it creates a special relationship with the state. See Maldonado v. Josey, 975 F.2d at 732-33 (noting that the special relationship does not apply to school officials, even though they may have “custody” of the children during school hours). Instead, the restraint must restrict an individual’s liberty to such a degree that it makes the individual involuntarily dependent upon the state to meet the individual’s basic needs. See Maldonado v. Josey, 975 F.2d at 732-33. Accordingly, “[although a child may well be in the ‘custody* of the school authorities during school hours, this custody does not amount to a restraint that prohibits the child and his parents from caring for the basic needs of the child.” Maldonado v. Josey, 975 F.2d at 732-33. In contrast, when a foster child is in the state’s custody, the child depends on the state to meet his or her basic needs. See Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 885 (10th Cir.1992); Maldonado v. Josey, 975 F.2d at 732-33 (noting that children in foster homes “depend completely on the state to satisfy their basic human needs”).

3. The Danger-Creation Exception.

The Due Process Clause protects against “deliberately wrongful government decisions rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The danger-creation exception to this rule applies only when “a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.” Currier v. Doran, 242 F.3d at 923. See Estate of B.I.C. v. Gillen, 702 F.3d 1182, 1187 (10th Cir.2012) (“[S]tate officials can be liable for the acts of private parties where those officials created the very danger that caused the harm.”); Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 916 (10th Cir.2012)(“‘[Ijnaction by the state in the face of a known danger is not enough to trigger the obligation’ unless the State has ‘limited in some way the liberty of a citizen to act on his own behalf.’ ”). Under a danger-creation theory, there is no § 1983 liability absent “an intent to harm” or “an intent to place a person unreasonably at risk of harm.” Uhlrig v. Harder, 64 F.3d at 573. A plaintiff must show “suffieient[ ] ‘affirmative conduct on the part of the state in placing the plaintiff in danger.’ ” Estate of B.I.C. v. Gillen, 702 F.3d at 1187 (quoting Gray v. Univ. Colo. Hosp. Auth., 672 F.3d at 916).

To state a prima facie case, the plaintiff must show that his or her danger-creation claim for due-process violations meets a six-part test: (i) the state and individual actors must have created the danger or increased the plaintiffs vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) the defendant must have acted recklessly in conscious disregard of that risk; and (vi) the defendant’s actions shock the conscience. See Pena v. Greffet, 922 F.Supp.2d 1187, 1227 (D.N.M.2013)(Browning, J.)(citing Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir.2008)). Additionally, a plaintiff “must allege a sufficient causal link between the danger created by an affirmative act of the State and the harm inflicted upon the victim by a private party.” Gray v. Univ. Colo. Hosp. Auth., 672 F.3d at 917 (emphasis in original).

In determining whether the danger-creation exception applies, the Tenth Circuit has focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v. City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk of the conduct and act “with an intent to place a person unreasonably at risk.” Medina v. City & Cty. of Denver, 960 F.2d 1493, 1496 (10th Cir.1992), overruled on other grounds by Morris v. Noe, 672 F.3d 1185 (10th Cir.2012). The intent to place a person unreasonably at risk is present where the defendant “is aware of a known or obvious risk” creating a high probability that serious harm will follow, and the defendant nonetheless proceeds with a “conscious and unreasonable disregard of the consequences.” Medina v. City & Cty. of Denver, 960 F.2d at 1496.

4. What Shocks the Conscience.

A government actor’s official conduct intended to injure in a way that cannot reasonably be justified by any government interest most likely shocks the conscience. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(“[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”). “[A] plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir.2006)(quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.2006))(internal quotation marks omitted). “The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d at 1222-23 (quoting Uhlrig v. Harder, 64 F.3d at 574)(internal quotation marks omitted).

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

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

“Whether the conduct shocks the conscience is an objective test, based on the circumstances, rather than a subjective test based on the government actor’s knowledge.” Pena v. Greffet, 922 F.Supp.2d at 1227 (citing James v. Chavez, 830 F.Supp.2d 1208, 1276 (D.N.M.2011)(Browning, J.)(finding that the use of deadly force did not shock the conscience even if the suspect did not have an intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate a [government actor’s] conduct objectively”), aff'd, 511 Fed.Appx. 742 (10th Cir.2013)).

In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir.2001), the widow of a corrections officer sued the director, deputy director, warden, and deputy wardens of the department of corrections, alleging that the defendants deliberately failed to ensure proper training and supervision of penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective action to protect her husband, all of which resulted in him being killed during the escape of three inmates. See 265 F.3d at 1132. The district court found that the plaintiff failed to state a § 1983 claim for violation of the Due Process Clause under a danger-creation theory, because the defendants’ actions were “not of such a magnitude that the Court is able to conclude they shock the conscience.” 265 F.3d at 1134. The Tenth Ci