Abila v. Funk (220 F. Supp. 3d 1121, 2016)

MEMORANDUM OPINION AND ORDER

James 0. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiffs Motion and Memorandum in Support of Summary Judgment for Inhumane Conditions of Confinement, filed September 6, 2016 (Doc. 156)(“MSJ”); and (ii) the County Defendants’ Amended Motion for Partial Summary Judgment No. 1 — Dismissal of Plaintiffs Substantive Due Process Claims, filed September 9, 2016 (Doc. 162)(“Defendants’ MSJ”). The Court held a hearing on October 25, 2016. The primary issue is whether, as a matter of law, Defendant Shawn Funk, the warden at Eddy County Detention Center, and Defendant Todd Bannister, the health and services administrator in charge of medical , and mental health care at Eddy County Detention Center, violated Plaintiff George Abila’s rights to substantive due process protected by the Constitution of the United States of America, when — for more than six months — Funk and Bannister housed Abila in a small padded cell with no furnishings, no clothing, constant lighting, cold blowing air, and only a grated hole in the floor to use as a toilet. The Court concludes that, from January ' 3, 2012, until June 21, 2012, the time period following Abila’s return from the hospital after having attempted suicide, and during which Abila did not make any overt suicide attempts, the squalid conditions of Abila’s padded cell, combined with Abila’s lack of exercise and reception of only some, undocumented recreation, amounts to shockingly inhumane living conditions. These conditions were not rationally related to a legitimate nonpunitive purpose, and the imposition of these conditions amounted to punishment and violated Abila’s clearly established substantive due-process right to be confined in an environment that does not result in degeneration, or otherwise threaten his mental and physical well-being. Accordingly, the Court grants Abila’s MSJ, which seeks judgment only as to that timeframe. The Court thus denies the Defendants’ MSJ as it relates to that same time frame. In addition, because the Court determines that there are genuine issues of material fact pertaining to Abila’s confinement before January 3, 2012, precluding it from entering summary judgment in relation to that time frame, the Court will deny the Defendants’ MSJ in its entirety.

FACTUAL BACKGROUND

Abila, and Funk and Bannister, have filed Motions for Summary Judgment. See MSJ; Defendants’ MSJ. Funk and Bannister specifically incorporate the undisputed material facts that they proffer in the Defendants’ MSJ as part of their response to Abila’s MSJ. See County Defendants’ Response to Plaintiffs Motion and Memorandum in Support of Summary Judgment for Conditions of Confinement ¶¶ 1-2, at 2, filed September 26, 2016 (Doc. 172)(“Re-sponse”). Abila, in his Reply to Defendants’ Response to Plaintiffs Motion and Memorandum in Support of Summary Judgment for Inhumane Conditions of Confinement ¶ 3, at 3, filed October 12, 2016 (Doc. 182)(“Reply”), does not specifically dispute the proffer of undisputed material facts that Funk and Bannister make in Defendants’ MSJ and incorporate into their Response. In this scenario, however, the Court deems it appropriate to credit the arguments Abila makes in the Plaintiffs Response to Defendants’ Amended Motion for Partial Summary Judgment No. 1 — Dismissal of Plaintiffs Substantive Due Process Claims, filed October 7, 2016 (Doc. 174)(“Response to Defendants’ MSJ”). Further, because the Response to Defendants’ MSJ proffers its own additional facts, to which Funk and Bannister respond in the County Defendants’ Reply in Support of Amended Motion for Partial Summary Judgment No. 1 — Dismissal of Plaintiffs Substantive Due Process Claims, filed October 21, 2016 (Doc. 186)(“Reply in Support of Defendants’ MSJ”), the Court also deems it appropriate to credit the arguments that Funk and Bannister make in the Reply in Support of Defendants’ MSJ. As a result, the Court cannot completely consider Abila’s MSJ in the abstract of Defendants’ MSJ, and thus presents the following undisputed material facts drawn from the arguments made pursuant to both motions.

Abila was booked at Eddy County Detention Center in Carlsbad, New Mexico, on August 8, 2011, and housed in general population. See MSJ ¶¶ 1-2, at 3 (setting forth this fact); Response ¶¶ 1-2, at 2 (not disputing this fact); Defendants’ MSJ ¶ 1, at 2 (setting forth this fact); Response to Defendants’ MSJ ¶ 1, at 4 (not disputing this fact). About a month later, on September 6, 2011, Abila swallowed a razor blade. See MSJ ¶ 3, at 3 (setting forth this fact); Response ¶ 3, at 2 (not disputing this fact); Defendants’ MSJ ¶2, at 2 (setting forth this fact); Response to Defendants’ MSJ ¶2, at 4 (not disputing this fact). He remained in general population until October 24, 2011. See Defendants’ MSJ ¶ 1, at 2 (setting forth this fact); Response to Defendants’ MSJ ¶ 1, at 4 (not disputing this fact). On October 24, 2011, Abila cut his arms with a razor blade in a suicide attempt and needed stitches at the hospital. See MSJ ¶ 4, at 3 (setting forth this fact); Response ¶¶4, at 2 (not disputing this fact); Defendants’ MSJ ¶4, at 3 (setting forth this fact); Response to Defendants’ MSJ ¶4, at 4 (not disputing this fact). Abila was hostile with medical staff at the hospital and continued to threaten suicide. See Defendants’ MSJ ¶4, at 3 (setting forth this fact); Response to Defendants’ MSJ ¶4, at 4 (not disputing this fact). Although housed in “segregation” after the incident — and placed on a watch for his own safety, see Defendants’ MSJ ¶ 4, at 3 (setting forth this fact); Response to Defendants’ MSJ ¶ 4, at 4 (not disputing this fact) — on November 12, 2011, Abila again cut his arms, and needed medical attention and stitches at the Carlsbad Medical Center in Carlsbad, New Mexico. “Abila claimed he had managed to find and cut himself with a sharp piece of metal, despite the restrictions on what he could have in the segregation cell.” Defendants’ MSJ ¶ 8, at 3 (setting forth this fact). See Response to Defendants’ MSJ ¶8, at 5 (not disputing this fact). After he had cut his arms, “Abila resisted staffs attempts to save him, guarding his arms and refusing to allow them to staunch the bleeding.” Defendants’ MSJ ¶ 9, at 3 (setting forth this fact). See Response to Defendants’ MSJ ¶ 9, at 5 (not disputing this fact).

Upon return to Eddy County Detention from the hospital, Captain Mike Ingram ordered Abila to be housed in a padded cell. See MSJ ¶ 7, at 3 (setting forth this fact); Response ¶7, at 2 (not disputing this fact). Padded cell 166, where Abila was housed, “had no furnishings, no sink, no mattress, and only a grated hole in the floor in which he was to defecate and urinate.” MSJ ¶ 8, at 3 (setting forth this fact). See Response ¶ 8, at 2 (not disputing this fact). During his transport into padded cell 166, Abila fought with staff and, in the process, blood was sprayed onto an officer’s face. Abila had pulled out his stitches, and thus he was again taken to the hospital. See MSJ ¶ 9,. at 3 (setting forth this fact); Response ¶ 9, at 2 (not disputing this fact); Defendants’ MSJ ¶ 12, at 4 (setting forth this fact); Response to Defendants’ MSJ ¶ 12, at 5 (not disputing this fact).

Upon Abila’s return to Eddy County Detention, Bannister ordered that Abila be placed in a restraint chair. See MSJ ¶ 10, at 4 (setting forth this fact); Response ¶ 10, at 2 (not disputing this fact); Defendants’ MSJ ¶ 13, at 4 (setting forth this fact); Response to Defendants’ MSJ ¶ 13, at 5 (not disputing this fact). Abila pulled off his bandages before he was placed into the restraint chair. See Defendants’ MSJ ¶ 13, at 4 (setting forth this fact); Response to Defendants’ MSJ ¶ 13, at 5 (not disputing this fact), Abila’s wounds began to bleed again as staff struggled to reband-age him and restrain him- in the chair. See Defendants’ MSJ ¶ 14, at 4 (setting forth this fact); Response to Defendants’ MSJ ¶ 14, at 5 (not disputing this fact). During the struggle Abila threatened to hurt the staff when he got out of his restraints. See Defendants’ MSJ ¶ 15, at 4 (setting forth this fact); Response to Defendants’ MSJ ¶ 15, at 5 (not disputing this fact). At 2:45 p.m. on November 18, 2011 — he had been released from the hospital on November 13, 2011 — Ingram and codefendant Kay Youngman, mental health nurse, agreed to downgrade Abila to a fifteen-minute “emotionally upset” watch. At 5:45 p.m. that day, Abila bit a chunk of flesh out of his own arm and required bandaging. See Defendants’ MSJ ¶ 19, at 5 (setting forth this fact); Response to Defendants’ MSJ ¶ 19, at 6 (not disputing this fact). In addition, later that day, Abila attempted to choke himself using his dinner and, after staff attended to him and stopped the choking, Bannister ordered that Abila be sedated.

Abila “was put into a restraint chair in padded cell 166,’ then remained in some kind of restraint continuously in the padded cell for ninetéen days.” MSJ ¶ 11, at 4 (setting forth this fact). Abila’s wrists developed sores from the restraints, causing Eddy County Detention Sergeant Carrie Patterson to email Funk a plea for help requesting that the restraints be loosened. See MSJ ¶¶ 12-13, at 4 (setting forth this fact); Response ¶¶ 12-13, at 3 (not disputing this fact). Funk denied Patterson’s request; “almost everything [Patterson] asked for [Abila] was a no.” MSJ ¶ 14, at 4 (setting forth this fact)(first alteration in original)(second alteration added). See Response ¶14, at 3 (not disputing this fact). “On November 18, twice on November 21 and twice on November 22, 2011, mental health staff from CHC (now CCS), ECDC’s contract mental health service provider, checked on Abila.” Defendants’ MSJ ¶ 21, at 5 (setting forth this fact). On November 22, 2011, Abila struck himself in his head with his suicide restraint belt. See Defendants’ MSJ ¶ 22, at 5 (setting forth this fact); Response to Defendants’ MSJ ¶22, at 7 (not disputing this fact). The following day, Abila began slamming his head into the wall until he bled. See Defendants’ MSJ 1123, at 5 (setting forth this fact); Response to Defendants’ MSJ ¶ 23, at 7 (not disputing this fact). At this point, “Sgt. Sarah Santana alerted a nurse, [and] then entered Abila’s cell with a protective helmet.” Defendants MSJ ¶ 24, at 5 (setting forth this fact). See Response to Defendants’ MSJ ¶ 24, at 7 (not disputing this fact). While Santana was putting the protective helmet onto Abila, Abila charged at “Sgt. Voldahl,” who “didn’t like Plaintiff and would often do things to upset him on purpose.”

Abila was removed from Padded Cell 166 into “segregation” on December 6, 2011. Defendants’ MSJ ¶26, at 6 (setting forth this fact). See Response to Defendants’ MSJ ¶ 26, at 8 (not disputing this fact). On December 24, 2011, Abila, while in his cell, swallowed screws and plastic. See MSJ ¶ 15; at 4 (setting forth this fact); Response ¶ 15, at 3 (not disputing this fact); Defendants’ MSJ ¶ 27, at 6 (setting forth this fact); Response to Defendants’ MSJ ¶27, at 8 (not disputing this fact). Abila was put on a fifteen-minute watch— instead of being immediately taken to the hospital — per orders that Bannister made over the telephone, until Abila started coughing up blood and was transported to the hospital. See MSJ ¶¶ 16, 17, at 4 (setting forth this fact); Response ¶¶ 16-17, at 3 (not disputing this fact); Defendants’ MSJ ¶28, at 6 (setting forth this fact); Response to Defendants’ MSJ 1127, at 8 (not disputing this fact). Abila’s extensive confinement in segregation could have contributed to his desire to harm himself. See MSJ ¶ 18, at 4(setting forth this fact); Reply ¶ 18, at 4 (restating this fact).

Abila remained at the hospital until January 3, 2012, and, upon his return to Eddy County Detention, he was placed in padded cell 169. See MSJ ¶ 19, at 5 (setting forth this fact); Response ¶ 19, at 4 (not disputing this fact). Padded cell 169 measured “5 feet, five inches by 7 feet, 7 inches,” and did not have furnishings, a sink, a mattress, or a toilet, and contained only a grated hole in the floor for Abila’s urination and defecation. MSJ ¶¶ 20-21, at 5 (setting forth this fact). See Response ¶¶ 20-21, at 4 (not disputing this fact). Funk ordered that “Inmate Abila is to have the following items only!!! ... 1. Green suicide suit 2. Green suicide blanket 3. Regular meals served in a rubber security tray, rubber cup, and rubber spork to be picked up 30 minutes after he is initially served his meals.” MSJ ¶ 22 (setting forth this fact). See Response ¶ 22 (not disputing this fact); Defendants’ MSJ ¶ 31, at 6 (referencing . this fact). Accordingly, Abila had only those items and was often left completely nude in his cell. See MSJ ¶ 23, at 5 (setting forth this fact). Funk also mandated that Abila “would use the toilet in the cell he was currently in.” MSJ ¶ 24, at 5 (setting forth this fact). See Response ¶24, at 5 (not disputing this fact). That “toilet” was a grated hole in the floor that needed to be flushed from the outside and, given the grate, was “difficult to get feces ... through the hole in[to] the ground.” MSJ ¶¶ 25-26, at 6 (setting forth this fact). See Response ¶¶ 25-26, at 6 (not disputing this fact). Sometimes the “bowel movements would stay on top of the grate.” Response ¶27, at 5 (setting forth this fact). The “toilet would have to be flushed several times to completely clear the contents.” Response ¶28, at 5 (setting forth this fact). See MSJ ¶ 28, at 6 (not disputing this fact). Abila was forced to eat in close proximity to the grated hole. See MSJ ¶29, at 6 (setting forth this fact); Response ¶ 29, at 5 (not disputing this fact). Furthermore, because there was no sink in his cell, Abila would eat without sanitizing his hands. See MSJ ¶ 30, at 6 (setting forth this fact). Funk even wrote in an email to staff that “[i]f [Abila] receives anything other than what has been authorized by this memo the cameras will be reviewed and the person or persons giving him the unauthorized items will receive disciplinary action up to and including termination.” MSJ ¶ 31, at 6-7 (setting forth this fact). See Response ¶ 31, at 6 (not disputing this fact).

Abila was then ordered to stay in padded cell 169 for the duration of his detention at Eddy County Detention. See MSJ ¶32, at 7 (setting forth this fact); Response ¶ 32, at 6 (not disputing this fact). Funk and Bannister were involved in a collaborative decision to keep Abila in padded cell 169 for the remainder of his time at Eddy County Detention. See MSJ at 12 (setting forth this fact). Funk “knew it was against ECDC policy to house an inmate in a padded cell without a written order from a physician.” MSJ ¶ 34, at 7 (setting forth this fact). A physician, Kim Lark, had contracted with Eddy County Detention and could write that requisite order. See MSJ ¶35, at 7 (setting forth this fact); Response ¶ 35, at 7 (not disputing this fact). Lark was not contacted “regarding any order to place Plaintiff in the padded cell.” MSJ ¶ 36, at 7 (setting forth this fact). “Defendant Funk understood it was in violation of ECDC policy to create a standing, or PRN order for an inmate to be housed in therapeutic seclusion.” MSJ ¶ 37, at 7 (setting forth this fact). “[Ljeaving an inmate in a padded cell for the length of time Plaintiff was subjected was inhumane,” and the decision to house Abila in the “padded cell for such an extended period of time was tragic .... ” MSJ ¶¶ 38-39, at 8 (setting forth this fact).

From January 3, 2012, until June 21, 2012, Youngman “saw Abila over eighty times and stated in every record she created that Abila remained a suicide risk.” Defendants’ MSJ ¶ 34, at 7 (setting forth this fact). Abila “received medication from the mental health staff in hopes of rehabilitating him, but in April, 2012, he began to hoard the medication and CHC had to discontinue it.” Defendants’ MSJ ¶ 35, at 7 (setting forth this fact). Young-man “never wrote a note recommending that security staff move Abila from the padded cell.” Defendants’ MSJ ¶36, at 7 (setting forth this fact). If Youngman had engaged in a conversation about moving Abila from the padded cell, she would have made a record of it. See Defendants’ MSJ ¶37, at 7 (setting forth this fact); Response to Defendants’ MSJ ¶ 37, at 10 (not disputing this fact). The contract healthcare service provider, “CHC,” and its employees “were required by their contract with the jail to ‘identify to the Warden those members of the jail population with medical or mental health conditions which may be worsened as a result of being incarcerated at the jail.” Defendants’ MSJ ¶ 38, at 7 (setting forth this fact). See Response to Defendants’ MSJ ¶ 38 (not disputing this fact). Youngman “never identified Abila as a member of the jail population who needed to be .moved from his conditions for his mental health.” Defendants’ MSJ ¶ 39, at 7 (setting forth this fact).

“[I]n the nine years [Eddy County Detention guard Christine Gallegos] had been at the jail, she had never seen any other inmate stay in the padded cell for a longer time than Plaintiff.” MSJ ¶ 40, at 8 (setting forth this fact). See Response ¶ 40, at 40 (not disputing this fact). Additionally,

[n]ow that Eddy County Detention guard Jeannie Santana actually knew how long [Abila] was in there, that’s terrible.... Because a padded cell is not a very comfortable place to be. And for that length of time, without communication with other inmates and somewhere to stretch out and walk around and watch TV, all that, that’s terrible.

MSJ ¶ 41, at 8 (setting forth this fact). See Response ¶41, at 8 (not disputing this fact). Patterson indicated that the “Plaintiffs treatment in the padded cell ‘[made her] feel bad for him. He went through a lot in there.” MSJ ¶ 42, at 8 (setting forth this fact). See Response ¶42, at 8 (not disputing this fact).

Abila stayed in padded cell 169 from January 3, 2012, until June 21, 2012. See MSJ ¶43, at 8 (setting forth this fact); Response ¶43, at 8 (not disputing this fact); Defendants’ MSJ ¶40, at 7-8 (setting forth this fact); Response to Defendants’ MSJ ¶ 40, at 11-12 (not disputing this fact. Padded cell 169 “was uncomfortably cold and smelled horrible, as the smell of feces would come up from the hole in the floor and permeated the walls of the padded cell.” MSJ ¶ 44, at 9 (setting forth this fact). See Response ¶44, at 8 (not disputing this fact). The “Plaintiff had been complaining that the air conditioner was constantly blowing cold air on him.” MSJ ¶ 45, at 9 (setting forth this fact). See Response ¶45, at 8 (not disputing this fact). For that period of time from January 3, 2012, until June 21, 2012, when he was in the padded cell, Eddy County Detention staff kept a watch log about- Abila. See MSJ ¶46, at 9 (setting forth this fact); Response' ¶ 46, at 8 (not disputing this fact).

With respect to the watch log, if Abila was “removed from his cell for recreation, that movement would be noted on the watch logs ....” MSJ ¶47, at 9 (setting forth this fact). See Response ¶47, at 8 (not disputing this fact). According to those watch logs, Abila received no exercise for 159 days — although, he did receive some amount of undocumented recreation in the form of television, reading on a bench, and card games. See MSJ ¶¶ 48-49, at 9 (setting forth this fact).

Further, Patterson “would often ask Defendant Funk and Chief of Security Michael Ingram if she could allow Plaintiff recreation, but the response was ‘always [ ] no, no, no, tomorrow, next week, next week.’ ” MSJ ¶ 50, at 9 (setting forth this fact). See Response ¶ 50, at 9 (not disputing this fact). Patterson let Abila out of his cell once during his detention and was disciplined. See MSJ ¶ 51, at 10 (setting forth this fact); Response ¶ 51, at 9 (not disputing this fact). It was Funk’s responsibility to ensure that inmates were allowed out for recreation. See MSJ ¶ 52, at 10 (setting forth this fact); Response ¶ 52, at 9 (not disputing this fact). On one occasion, Ingram told Patterson, in response to her request to take Abila out for recreation, that “he ain’t going to get shit and don’t be kissing the inmate[’]s ass.” MSJ ¶ 53, at 10 (setting forth this fact).

Abila “contested his confinement in the padded cell and asked Defendant Funk why he could not be moved to another cell.” MSJ ¶ 54, at 10 (setting forth this fact). See Response ¶ 54, at 10 (not disputing this fact). In response, Funk told Abila that he would “remain in the padded cell ‘until [he could] comply with any and all lawful orders and directions and when [he could] treat staff with the same respect [he was] given.” MSJ ¶ 53, at 10 (setting forth this fact). Funk understood that Eddy County Detention’s policy on padded cell use prevented staff from using the padded cell “to try to change the way they’re acting if they’re not being a physical threat of harm to themselves or others.” MSJ ¶ 56, at 10 (setting forth this fact). See Response ¶56, at 10 (not disputing this fact).

Abila’s “healthcare in ECDC was conspicuously inadequate, and inhumane.” Response to Defendants’ MSJ ¶ 1, at 2 (setting forth this fact). See Reply in Support of Defendants’ MSJ ¶1, at 1-2 (not disputing this fact). Bannister was not bothered that Abila had been in his cell for six months with the lights on for twenty-four hours a day. MSJ ¶¶ 57-58, at 11 (setting forth this fact). See Response ¶¶ 57-58, at 10 (not disputing this fact). Bannister was also not bothered, under the circumstances, by the fact that Abila had not stepped outside for six months. See Response ¶ 59, at 10 (setting forth this fact). Further, in hindsight, Bannister would not do anything differently, and he would “make the same decision again about Plaintiffs housing.” MSJ ¶¶ 60-61 (setting this fact forward). See Response ¶¶ 60-61 (not disputing this fact). Abila suffers from post-traumatic stress disorder. See Response to Defendants’ MSJ ¶ 8, at 3 (setting forth this fact); Reply in Support of Defendants’ MSJ ¶ 8, at 4 (not disputing this fact). Bannister is an author of the Eddy County Detention’s policies that were based on the National Commission on Correctional Healthcare standards regarding the use of restraints and seclusion. See MSJ ¶ 62, at 12 (setting forth this fact); Response ¶62, at 10 (not disputing this fact).

In sum, Abila was housed in a small, “41 square foot padded cell, with no furnishings, no sink, and only a grated hole in the floor for urination and defecation.” MSJ at 12 (setting forth this fact as a core undisputed fact). See Response at 11 (not disputing this fact). Abila was housed in padded cell 169, in particular, from January 3, 2012, through June 21, 2012. See MSJ at 12 (setting forth this fact as a core undisputed fact); Response at 11 (not disputing this fact). Funk and Bannister were involved in a collaborative decision to keep Abila in padded cell 169 for the remainder of his time at Eddy County Detention. See MSJ at 12 (setting forth this fact as a core undisputed fact). During his time in the padded cell, Abila received no exercise and only some, undocumented, amount of recreation. See MSJ ¶¶ 48-49, at 9. For a period of time during Abila’s housing in the padded cell, he was not actively suicidal. See Response to Defendants’ MSJ ¶ 10, at 3 (setting forth this fact); Reply in Support of Defendants’ MSJ ¶ 10, at 4 (not disputing this fact).

PROCEDURAL BACKGROUND

Abila brings this suit against Funk and Bannister for their alleged failure to provide him medical care during his detention at Eddy County Detention. See Third Amended Complaint for the Recovery of Damages Caused by the Deprivation of Civil Rights and Tortious Conduct, filed March 17, 2016 (Doc. 102)(“Third Amended Complaint”). The Complaint first alleges, as Counts I and II, a violation of substantive due process, under the Constitution of the United States of America and the Constitution of the State of New Mexico, because of the inhumane conditions of Abila’s confinement and because of inadequate medical care. See Third Amended Complaint ¶¶ 114-138, at 11-14. Count III then alleges a violation of procedural due process by Funk, and Count IV alleges that Funk, in his official capacity, maintained a custom and policy of violating constitutional rights. See Third Amended Complaint ¶¶ 139-160, at 14-16. Abila now moves for summary judgment, by his MSJ, requesting that the Court grant judgment in his favor with respect to Counts I and II, for inhumane conditions of confinement during the time period from January 3, 2012, until June 21, 2012. See MSJ at 1. In the alternative, Funk and Bannister move for summary judgment on Counts I and II, arguing that Abila’s substantive due process claims must be dismissed in accordance with Funk and Bannister’s qualified immunity.

1. The Plaintiffs Motion for Summary Judgment.

Abila’s MSJ argues that Funk and Bannister ordered Abila “housed in [ ] abusive conditions indefinitely. They were inhumane, punishing, and in violation of Mr. Abila’s Fourteenth Amendment, substantive due process rights.” MSJ at 2. Accordingly, Abila moves for summary judgment against Funk and Bannister on Counts I and II — for inhumane conditions of’ confinement — because (i) “ECDC’s denial of recreation to [Abila] was a clear violation of the constitution;” (ii) Abila’s “confinement in an incredibly small padded cell, without a bed, toilet, sink, or adequate heating for eight months is a clear violation of his rights;” and (in) although “[b]oth the denial of exercise and exposure to the deplorable conditions of the padded cells [Abila] was subjected to at ECDC are so sub-human that each, on its own, are [sic] violative of [Abila]’s constitutional rights ... the combination of these two conditions is undoubtedly unconstitutional.” MSJ at 14, 16, 20. Abila thus argues that he has met the burden under rule 56 of the Federal Rules of Civil Procedure and is entitled to summary judgment.

Abila first argues that Eddy County Detention’s “denial of recreation and exercise is unconstitutional as a matter of law.” MSJ at 14. Essentially, Abila argues that

there can be no doubt that total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment.... In fact, even when inmates are denied recreation of more than five hours per week, over a very short period of time, this denial raises serious constitutional questions.

MSJ at 14 (internal quotation marks omitted). Abila maintains that the standard in this context requires the Court to determine whether adequate exercise was enjoyed. See MSJ at 14. Abila explains that, in Campbell v. McGruder, 580 F.2d 521 (D.C. Cir. 1978),

[t]he Court reasoned that a “pretrial detainee is presumed innocent ... [and] a state cannot escape its caretaking responsibilities ... [or] use security classifications as a license to harm pretrial detainees.It therefore held the jail was required to provide an “opportunity for some form of recreation ... to protect the mental and physical health of all pretrial detainees.”

Campbell v. McGruder, 580 F.2d at 546.

Abila maintains that the watch logs provide evidence that he received constitutionally inadequate recreation. See MSJ at 16. In addition, the MSJ argues that “Sgt. Carrie Patterson testified that she had taken him out for recreation once and ‘had gotten in trouble for it.’ ” MSJ at 16. Accordingly, the MSJ argues that Abila’s “inadequate exercise over the course of six consecutive months is a clear violation of his substantive due process rights.” MSJ at 16.

The MSJ then turns to Abila’s argument that the “conditions [he] was subjected to in the padded cell are unconstitutional as a matter of law.” MSJ at 16. Abila essentially argues that “[t]he Tenth Circuit [has] found conditions similar to those imposed on Plaintiff to have amounted to punishment and violated the Fourteenth Amendment.” MSJ at 17 (citing Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981)). The MSJ also cites a case from the United States Court of Appeals for the Second Circuit which provides that “causing a man to live, eat and perhaps sleep in close confines with his own human waste is too debasing and degrading to be permitted.” MSJ at 17 (citing LaReau v. MacDougall, 473 F.2d 974, 977-78 (2d Cir. 1972)). With respect to the fact that Abila was being housed in the padded cell because of suicidal concerns, the MSJ contends: “If conditions of confinement are bad enough, they can be described as punishment regardless of the motivations of jail staff.” MSJ at 18. Moreover, pointing to Littlefield v. Deland once more, the MSJ asserts that “holding an inmate under conditions of detention this extreme for such an excessive period as fifty-six days is punishment and ... cannot be imposed in accordance with the due process clause of the fourteenth amendment.” MSJ at 18.

The MSJ then reiterates the poor living conditions to which Abila was subjected, amounting to eight months of being housed in “an unfurnished cell,” and being “forced to sleep on the cold floor, fully naked, or wearing only a suicide smock.” MSJ at 18. In addition, according to Abila, the “cell measured only 41 square feet,” the “air conditioner was constantly blowing,” and Abila was “forced to live, eat, and sleep in close confines with a grated hole in the floor in which he was supposed to defecate and urinate.” MSJ at 18-19. The MSJ also references the nineteen days for which Abila “was held in constant restraints.” MSJ at 20. Accordingly, the MSJ concludes that “the conditions Plaintiff was subjected to were so extreme they cannot be described as anything other than punishing .... Funk and Bannister have violated Plaintiffs Fourteenth Amendment rights.” MSJ at 20.

The third argument which the MSJ makes is that “the cumulative effects of the lack of recreation and conditions Plaintiff was subjected to in padded cell 169 are unconstitutional as a matter of law.” MSJ at 20. In support, the MSJ provides that “the denial of exercise and exposure to the deplorable conditions of the padded cells Plaintiff was subjected to at ECDC are so sub-human that each, on its own, are [sic] violative of Plaintiffs constitutional rights.” MSJ at 20. Abila refers to the Supreme Court of the United States of America’s guidance that “the Eighth Amendment of the Constitution is intended to protect and safeguard a prison inmate from the environment where degeneration is probable and self-improvement unlikely because of the conditions existing which inflict endless suffering, whether physical or mental.” MSJ at 20-21 (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).

Last, the MSJ contends that the conduct of Funk and Bannister amounted to deliberate indifference, which means that one has acted where he (i) “knew the inmate faced a substantial risk of harm” and (ii) “failed to take reasonable actions to abate that harm.” MSJ at 22 (citing Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The MSJ asserts that “deliberate indifference is a hard thing to prove, but the facts associated with this case are extreme and the indifference is stark.” MSJ at 24.

2. The Response to Abila’s Motion for Summary Judgment.

The Response begins by reminding Abi-la that Funk and Bannister have also “asserted the defense of qualified immunity,” and, thus, the “Plaintiff must first show that a specific constitutional right was violated .... and that there was clearly established law that would have put Defendants on notice that they were violating his rights when they placed him under suicide precautions following his multiple attempts to end his life.” MSJ at 12. The Response contends that “it is established that due process requires that a pretrial detainee not be punished prior to a lawful conviction”; that to decide “whether a particular restriction imposed on a pretrial detainee comports with due process, a court must determine whether the restriction is punitive or reasonably related to a legitimate and nonpunitive governmental purpose;” and that “[t]he Due Process Clause protects against deliberately wrongful government decisions rather than merely negligent government conduct.” Response at 12-13.

The Response then argues that the “Plaintiffs access to recreation and exercise was not constitutionally inadequate,” because “numerous witnesses testified that Plaintiff received recreation while housed in the padded cell, including playing card games with detention staff, writing letters, reading books, and watching television while outside of his cell.” Response at 15. In addition, the Response provides that “the Court must not only consider whether Plaintiffs recreation and exercise were limited, but also the justification for limiting them.” Response at 15. The Response argues that, because Abila was suicidal and “violent with staff on a number of occasions,” the MSJ has not “shown that his rights were clearly established.” Response at 16.

The Response next contends that, “here, Defendants were responding to serious and repeated attempts by Plaintiff to end his life,” and that “to ignore the inmate’s suicidality would have made the jail derelict in its duties.” Response at 17-19. Accordingly, the Response argues that the “Plaintiff cannot show that the measures were punitive in nature as opposed to a necessary response to Plaintiffs suicidal actions.” Response at 19. Thus, according to Defendants, “neither the conditions of the cell nor the amount of recreation provided to Plaintiff was constitutionally deficient.” Response at 19. In addition, accord-mg to Defendants, “their combination is not unconstitutional,” so the Response argues that the “Plaintiff has failed to demonstrate a constitutional violation ... that Plaintiffs rights to different conditions of confinement were clearly established” and that “the restrictions were motivated by punitive, rather than protective considerations.” Response at 23. The Response concludes that “Defendants are entitled to qualified immunity.” Response at 23.

3. The Reply to the Response to the Motion for Summary Judgment.

In his Reply, Abila provides that his MSJ

[rjelies on the depositional testimony of ECDC guards, former guards, or the defendants themselves to establish Plaintiff was subjected to extreme conditions of confinement and restraint for a prolonged period of time. Plaintiffs Motion demonstrates he was denied recreation and exercise for over six months in violation of the Fourteenth Amendment. It also asserts the conditions inside the padded cell were so extreme they amounted to the illegal punishment of a pretrial detainee. In one notable peiiod, Plaintiff was in some form of mechanical restraint continuously for 19 days. Finally, the Motion argues that the combination of the conditions and lack of exercise rose to the level of a due process violation.

Reply at 1. The Reply then generally repeats the undisputed facts, and explains that, “in attempting to dispute Plaintiffs facts, Defendants introduced the concept that Plaintiff was held for mental health reasons and security reasons.” Reply at 10 (citing Response ¶34, at 6). The Reply indicates that there is nothing in the record which may “provide a description of what those security concerns were and why they did not result in the normal disciplinary process found in jails.” Reply at 10. Accordingly, the Reply argues that the Defendants

do not adequately dispute the conditions Plaintiff was subjected to, which Plaintiff argues are so bad Defendants could cite no legitimate interest for him being housed in them. Further, Defendants dispute Plaintiff did not receive recreation because he was infrequently allowed out of his cell to be cuffed to a bench.

Reply at 14. The Reply then reiterates the import of Littlefield v. Deland, where a pretrial detainee spent “long periods of defecating into a hole in the floor, [had] no exercise, no substantive human interaction, cold meals, and no clothing,” the United States Court of Appeals for the Tenth Circuit concluded that the conditions the pretrial detainee endured “were punishing, regardless of the motivation behind them.” Response at 9-10. Accordingly, the Reply argues, “it has been clearly established that an inmate is entitled to be confined in an environment which does not result in his degeneration or which threatens his mental and physical well being.” Reply at 11.

The Reply then presents a new argument that Abila does not need to show that Funk and Bannister acted with deliberate indifference in order to succeed on his substantive due-process claim. Reply at 12. In support of such a lesser standard, Abila underscores the impact of the Supreme Court’s holding in Kingsley v. Hendrickson, — U.S. —, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), which described the state of mind required to demonstrate an officer’s use of excessive force on a pretrial detainee as being “an objective standard.” Reply at 12. Accordingly, Kingsley v. Hendrickson, provides that a pretrial detainee can prevail by showing that a jailor’s actions were not rationally related to a legitimate nonpunitive governmental purpose, or that the actions appear excessive in relation to that purpose. See Reply at 12. The Reply then argues that the Supreme Court had, on other occasions, maintained such an objective standard with respect to its review of prison conditions, in addition to excessive force claims. See Reply at 12. The Tenth Circuit, in Littlefield v. Deland, also applied an objective standard in finding that the “inmate’s conditions were so atrocious that they could not be rationally related to a legitimate interest, and were objectively punishing.” Reply at 13. The Reply thus argues that “the deliberate indifference standard associated with post convicted prisoners found in the Eighth Amendment context is, therefore not appropriately used here.” Reply at 14. The Reply concludes that the “Defendants did not dispute the crux of Plaintiffs motion— he was denied the ability to exercise for 159 days. The deplorable conditions of the padded cell and complete denial of recreation are, as a matter of law, unconstitutional and in violation of Plaintiffs substantive due process rights.” Reply at 14.

4. Defendants’ MSJ.

Funk and Bannister initially provide that Abila’s Complaint “alleges that his placement and housing in segregation represented a violation [of] his substantive and procedural due process rights.” Defendants’ MSJ at 2. Essentially, Funk and Bannister argue, “[t]he thrust of Abila’s complaint is that ECDC staff should have known that being placed in a padded safety cell, or what Abila calls ‘solitary confinement,’ was damaging to his mental health and that the conditions in the suicide cell amount to a constitutional violation.” Defendants’ MSJ at 2. In response to these allegations, Funk and Bannister move for summary judgment with respect to Abila’s substantive due-process claims, arguing that “[t]he defense of qualified immunity applies.... It was not clearly established that placing a suicidal inmate in a cell for his own protection, on the advice of a mental health professional, was a violation of Abila’s substantive due process rights.” Defendants’ MSJ at 2. Funk and Bannister characterize Abila’s claim as being that he was “over-supervised.” Defendants’ MSJ at 12.

Funk and Bannister begin their argument by explaining that “Abila’s housing was derived from his suicidal behavior and was a result of the jail’s duty to protect the inmates in its charge. During his months in the safety cell, Abila was constantly supervised and regularly saw the jail’s mental health providers.” Defendants’ MSJ at 8. Accordingly, the Defendants’ MSJ argues that “[a] due process claim turns on deliberate indifference, and as a matter of law, Defendants were not deliberately indifferent to Abila’s needs given the attention they paid him and the mental healthcare he received. Further ... Defendants are entitled to qualified immunity on that elaim.” Defendants’ MSJ at 8. Abi-la must thus demonstrate, the Defendants’ MSJ argues, “that a specific constitutional right was violated” and that the “Government official’s conduct violate[d] clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Defendants’ MSJ at 9 (citing Chavez v. Cnty. of Bernalillo, 3 F.Supp.3d 936, 974-75 (D.N.M. 2014)(Browning, J.)). The Defendants’ MSJ argues that, because “Abila’s conditions of confinement were a reasonable response to his repeated and varied attempts to end his own life, and do not meet the punishing standard required to create a constitutional violation,” Abila’s claim must fail. Defendants’ MSJ at 10.

Further, the Defendants’ MSJ provides that “the Due Process Clause protects against deliberately wrongful government decisions.” Defendants’ MSJ at 11 (internal quotations omitted). Thus, the standard is that “a prison official’s ‘deliberate indifference’ to a substantial risk of harm implicates the Eighth Amendment.” Defendants’ MSJ at 11. Here, then, the Defendants’ MSJ argues that “corrections facilities are required to take suicide threats and attempts seriously, and ECDC’s compliance with the law cannot be equated with deliberate indifference.” Defendants’ MSJ at 12. This balancing act, the Defendants’ MSJ explains, cuts in Funk and Bannister’s favor as to whether they were deliberately indifferent to Abila’s substantive due-process rights. See Defendants’ MSJ at 12-18.

Turning away from Funk and Bannister’s response to Abila’s suicide attempts, the Defendants’ MSJ next addresses “whether the conditions of confinement are unconstitutional for a pretrial detainee, the inquiry [being] whether the conditions amounted to punishment.” Defendants’ MSJ at 18 (citing Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Accordingly, the Defendants’ MSJ addresses Littlefield v. Deland, arguing that the standard against which the Tenth Circuit analyzes a pretrial detainee’s conditions of confinement involves:

[Determining whether the disabilities imposed on plaintiff during his detention constituted punitive measures implicating due process or, conversely, were permissible regulatory restraints, the trier of fact must first consider whether detention facility officials expressed an intent to punish the pretrial detainee. If they did not, the determination generally will turn on whether an alternative purpose to which (the restriction) may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned (to it).

Defendants’ MSJ at 19. Again, the Defendants’ MSJ provides Abila’s suicide attempts as the justification for his housing in the padded cell, which Funk and Bannister argue makes the conditions lawful. See Defendants’ MSJ at 19. Further, the Defendants’ MSJ distinguishes the facts of Littlefield v. Deland, where, for fifty-six days, prison officials placed

a non-violent, severely mentally ill inmate who had demonstrated nothing more than ‘bizarre behavior’ in a strip cell for punishment ... [which] had no windows, no lights, and no floor covering. He was not allowed any clothing at all, and no bedding, forcing him to lie entirely naked on a bare concrete floor, was never allowed out of his cell, and engaged in throwing urine and feces back and forth with other inmates without any opportunity for personal hygiene.

Defendants’ MSJ at 20 (alteration added). Essentially, then, the Defendants’ MSJ argues that “the undisputed facts of the case show that Abila was indeed subject to serious restrictions. However, the conditions of confinement do not rise to the level that has been generally accepted as unconstitutional by the Tenth Circuit.” Defendants’ MSJ at 19. Thus, Funk and Bannister argue, “Abila cannot show that he suffered a clearly established violation of his rights when ECDC staff placed him in a safety cell for six months at the express direction of mental health staff, even assuming he was required to use a floor toilet and have limited recreation for his safety.” Defendants’ MSJ at 24.

The Defendants’ MSJ also argues that “Abila did not receive inadequate access to medical care and defendants were entitled to rely on the judgment o[f] mental health professionals.” Defendants’ MSJ at 25. With respect to this argument, Funk and Bannister assert that they are entitled to qualified immunity, because they took Abi-la’s suicide attempts seriously and “relied on mental health’s staffs determination that he should remain in that cell.” Defendants’ MSJ at 27. The Defendants’ MSJ then concludes by requesting judgment as a matter of law with respect to Abila’s substantive due-process claims. See Defendants’ MSJ at 28.

5. Response to Defendants’ MSJ.

The Response to Defendants’ MSJ restates the arguments Abila made in his own MSJ: “The conditions endured were so bad Plaintiff has filed his own Motion for Summary Judgment.... Plaintiff has alleged looking at the facts most favorably to the Defendants, their conduct was so indifferent, and the conditions so bad that no valid penological purpose can be assigned to them.” Response to Defendants’ MSJ at 2. Accordingly, Abila argues that the Defendants’ MSJ

claims the conditions imposed were a valid way of trying to save Plaintiffs life. The central core of their motion, that the living conditions were acceptable for this purpose, ignores testimony from several expert witnesses that describe them as inhumane and in violation of both national standards and ECDC’s own policies.

Response to Defendants’ MSJ at 2.

The Response to Defendants’ MSJ then proceeds to argue that, essentially, Funk and Bannister’s conduct violated Abila’s clearly established rights to humane confinement as a pretrial detainee pursuant to the Due Process Clause. See Response to Defendants’ MSJ 14-15. A constitutional violation occurred, the Response to Defendants’ MSJ argues, because “the Tenth Circuit has held a prisoner is entitled to be confined in an environment which does not result in his degeneration or which threatens his mental and physical well being,” and “the use of a cell devoid of furnishings with a grate in the floor as the only toilet, for 56 days was said to violate the due process clause in the context of a pre trial detainee.” Response, to Defendants’ MSJ at 15. Funk and Bannister argue: “Any objectively reasonable officer or jail guard would know of their duties under the Fourteenth Amendment to make sure the people they detain are provided humane conditions and medical care if they are obviously suffering from a serious medical condition regardless of whether they knew exactly what that condition was.” Response to Defendants’ MSJ at 15.

The Response to Defendants’ MSJ then turns to the objective standard for making an inhumane conditions claim that Abila outlined in his Reply to his own MSJ. See Response to Defendants’ MSJ at 15. The objective standard’s application, in this context, as Kingsley v. Hendrickson explained, means that, where “the conditions are objectively bad enough, as Plaintiff has claimed they are, the court would not need to examine whether officials were deliberately indifferent to those conditions. It would be enough to hold the conditions were objectively punishing.” Response to Defendants’ MSJ at 16. Abila concedes, however, that the objective standard applies only “to the parts of [his] claims that do not reference medical care, such as the allegations he was housed in a tiny cell without access to recreation and with an open drain as a toilet.” Response to Defendants’ MSJ at 16. Because Abila relies, in part, on “the failure to provide medical care” as “one of the mutually enforcing conditions plaintiff was subjected to,” the Response to Defendants’ MSJ thus turns to the deliberate indifference standard that he must meet to show a failure to provide medical care. Response to Defendants’ MSJ at 16-17.

To make a showing of deliberate indifference with respect to the failure to provide medical care, the Response to Defendants’MSJ provides that the

Defendants will have violated this standard if their conduct disregards a known or obvious risk that is very likely to result in the violation of a prisoner’s constitutional rights ... or the prisoner must show that the defendants knew he faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it.

Response to Defendants’ MSJ at 17. Abila thus argues that he has met the standard, where there is clearly established law indicating that the conduct at issue violated Abila’s constitutional rights to humane confinement as a pre-trial detainee. See Response to Defendants’ MSJ at 18. In sum, the Response to Defendants’ MSJ concludes by arguing that “it is clear most of the horrifying conditions of confinement Plaintiff was subjected to are undisputed. The tiny cell, the open drain, the cold temperature, the cold food, the lack of clothing, (with the exception of a suicide smock), and the enormous amount of time spent in these conditions.” Response to Defendants’ MSJ at 23. Accordingly, the Response to Defendants’ MSJ requests that the Court deny Defendants’ MSJ.

6. The Reply In Support of the Defendants’ MSJ.

The Reply in Support of the Defendants’ MSJ begins with its argument regarding the undisputed facts. See Reply in Support of Defendants’ MSJ at 1-8. The Reply in Support of Defendants’ MSJ then returns to Funk and Bannister’s claim of qualified immunity. See Reply in Support of Defendants’ MSJ at 9. Funk and Bannister reiterate their argument that Littlefield v. Deland is inapplicable to these facts, and that Abila thus “bears the burden of showing- a Supreme Court or Tenth Circuit case on point to show the law is clearly established.” Reply in Support of Defendants’ MSJ at 9. Funk and Bannister then “reiterate that any time a condition is reviewed, the Court must look to the justification for the condition,” and that here, Abila has not overcome the fact that the “Defendants took” many lengths “to ensure that Plaintiff could not hurt himself, including medication, frequent review by mental health professionals, and housing conditions designed to eliminate access to potentially dangerous items in response to increasingly creative attempts to hurt himself.” Reply in Support of Defendants’ MSJ at 10.

Funk and Bannister then contend that, even if the Court applies the objective reasonableness test that Kingsley v. Hendrickson used, Abila has failed to overcome their claim to qualified immunity. See Reply in Support of Defendants’ MSJ at 10. Accordingly, Funk and Bannister first argue that the Court should apply the deliberate indifference standard, because the Tenth Circuit has not as of yet applied an objective reasonableness standard like that of Kingsley v. Hendrickson. See Reply in Support of Defendants’ MSJ at 10. In addition, Funk and Bannister argue that Kingsley v. Hendrickson was limited to its facts — that being an excessive force scenario. See Reply in Support of Defendants’ MSJ at 10. The Reply in Support of Defendants’ MSJ also contends that the case law Abila cites in favor of an objective inquiry also entails a subjective analysis. See Reply in Support of Defendants’ MSJ at 11. Last, Funk and Bannister argue that Abi-la’s reliance on the Defendants’ violations of their own Eddy County Detention policies .would require the Court to conclude that, even under the objective reasonableness standard, the allegations are “insufficient to create a constitutional violation.” Reply in Support of Defendants’ MSJ at 11. Thus, Funk and Bannister conclude that Abila’s substantive due-process claim must fail because: (i)- the conditions were suicide prevention measures; (ii) Abila was not denied medical care; (iii) even when viewed objectively, in the abstract of the state officials’ intent, Abila fails to demonstrate a violation of his rights; and (iv) Abila cannot show that it was clearly established under existing case law that taking “extreme precaution with a suicidal inmate was a violation of his substantive due-process rights, and Defendants are entitled to qualified immunity.” Reply in Support of Defendants’ MSJ at 11.

7. The October 25, 2016, Hearing.

The Court held a hearing on October 25, 2016. See Transcript of Hearing, taken October 25, 2016 (“Tr.”). The Court began the hearing with argument related to the MSJ. See Tr. At 3:22-23 (Court). Abila began by recapping the “simple uncontroversial facts” underlying his MSJ, as well as explaining that the MSJ relates to a very specific time period and does not seek to cover Abila’s full stay at Eddy County Detention. Tr. at 4:4-5:18 (Coyte). Regarding the possible time periods, Abila explained that there were a few specific time periods which the Court needed to consider: (i) when Abila was initially arrested and booked into Eddy County Detention, during which he was actively suicidal, spanning from July, 2011, until December, 2011; and (ii) when Abila returned from the hospital in January, 2012, and was housed in the padded cell. See Tr. at 4:15-5:10 (Coyte). Abila argued that “the conditions on his return from the hospital were extreme in a manner that would be considered torturous or excessive,” and that “those extreme conditions are undisputed.” Tr. at 5:12-16 (Coyte). The MSJ, Abila argues, relates only to that time period where Abila was not actively suicidal, from January, 2012, until June, 2012. See Tr. at 10:15-23 (Coyte).

Abila then conceded that, for the purposes of his MSJ:

I’m going to accept that he’s suicidal for a period of time. I’m going to accept that he has security issues they claim. But they don’t actually give those out in any specificity.... What I’m telling you is— that’s not disputed — is he is in a cell with the lights on 24 hours a day; a hole in the floor to defecate into; no clothes; it was cold; the air blew on him constantly. He didn’t get outside of his cell except on occasions that are noted in a log, and those occasions indicate that he didn’t get out for exercise at all. And this is where one disputed fact ... comes ... the dispute they say is that he got some form of recreation. And they claim he played cards and watched TV. We dispute that, because we, the testimony they use to say that is that in the middle of the night a guard would take pity on him and handcuff him to a bench in the booking area. Or in the middle of the night, a guard would, on a weekend shift, give him a candy bar. But he didn’t get cards in that period of time.... The cards, came in the other cell ... the normal cell that you talk about in October.

Tr. at 14:13-15:13 (Coyte). In sum, then, Abila’s argument is that, in the MSJ, “we talk about [how] the exercise .,. alone may get you” a constitutional violation, “the toilet on its own and the conditions in the cell,” like “the size of it, the toilet that is an open drain, the lack of bedding and all the rest, that might get you there,” and also, taking the lack of exercise and the conditions of the cell together, that “might get you there.” Tr. 8:1-6 (Coyte). Then, turning to the MSJ’s substance, Abila explained that “it is substantive due process.” Tr. at 26:8 (Coyte). Accordingly, Abila recapped the arguments that he makes in the MSJ with respect to a pretrial detainee’s substantive due-process rights. See Tr. at 26:1-31:16 (Coyte).

Funk and Bannister then took up argument on the MSJ, and conceded that they did not “see any factual dispute here that keeps the Court from getting to the legal issue.” Tr. at 32:5-9 (Court, Drennan). Funk and Bannister next argued that “the jail very carefully selected these restrictions based on Mr. Abila’s apparent] sui-cidality.” Tr. at 33:18-20 (Drennan). To that point, though, the Court posited that “you probably got conditions that wouldn’t survive the constitutional analysis for a violent prisoner, but they’re being imposed upon somebody because of their mental condition.” Tr. at 33:21-25 (Court). Bannister and Funk responded that, in this area of the law, the Court’s analysis in a given case “has to be ... based on its specific facts.” Tr. at 34:1-5 (Drennan). Regarding the standard that must be met to demonstrate a substantive due process claim, Funk and Bannister argued that it is “kind of a deliberate indifferent standard, and that, in the absence of an expressed intent to punish, a pretrial detainee must show that actions are not rationally related to a legitimate nonpunitive governmental purpose to succeed on that kind of substantive due process claim.” Tr. at 36:6-19 (Dren-nan).

Abila then said that he was going to use both of those prongs, “but I must recognize that deliberate indifference is hard to prove at summary judgment.” Tr. at 37:2-25 (Coyte). Abila then briefly provided that “you don’t get qualified immunity to torturing someone because it’s so shocking.” Tr. at 39:4-6 (Coyte). The Court indicated that “I’m troubled by the conditions here,” Tr. at 39:11-12 (Court), and that it was inclined to grant Abila’s motion as it related to the period of time beginning in January, 2012, see Tr. at 50:3-8 (Court).

Then turning to Defendants’ MSJ, the Court clarified that the difference between the MSJ and Defendants’ MSJ was that the Defendants’ MSJ covers the entire period of time, whereas the MSJ was confined to one period. See Tr. at 42:9-14 (Court). Funk and Bannister did not spend much time rehashing the argument that had already been made, except to address the issue of Abila’s medical care. See Tr. at 44:11-12 (Drennan). Regarding that issue, Funk and Bannister maintained that that the mental health care was satisfactory, and that Abila was seen by professionals who indicated that he presented an ongoing suicide risk. See Tr. at 45:1-16 (Dren-nan). Abila then took up argument, and stated that, regarding the issue of medical care, “the facts are clearly disputed,” “in the first period before January,” and that thus Defendants’ MSJ should be denied to the extent it relies on the provision of mental health care. Tr. at 46:8-19 (Coyte). The Court then indicated that it would take Defendants’ MSJ under advisement. See Tr. at 42:9-14 (Court).

LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the nonmoving party’s case.’ ” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Before the court can rule on a party’s motion for summary judgment, the moving party must satisfy its burden of production in one of.two ways: by putting evidence into the record that affirmatively disproves an element of the non-moving party’s case, or by directing the court’s attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an elem