Manzanares v. Roosevelt Cnty. Adult Det. Ctr. (331 F. Supp. 3d 1260, 2018)

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Board of Commissioners of the County of Eddy's Amended Motion to Dismiss Plaintiff's First Amended Complaint and Memorandum in Support Thereof, filed November 22, 2016 (Doc. 9)("EC Motion"); (ii) the Motion to Dismiss Plaintiff's Amended Complaint on Behalf of Board of Commissioners of the County of Roosevelt, Larry Phillips, and Charlene Webb, filed December 2, 2016 (Doc. 10)("RC Motion"); (iii) Defendant Massingill's Motion to Dismiss Plaintiff's Complaint Based in part on Qualified Immunity and Memorandum in Support Thereof, filed April 12, 2017 (Doc. 24)("Massingill Motion"); and (iv) the Amended Motion to Dismiss Plaintiff's Amended Complaint on Behalf of Board of Commissioners of the County of Roosevelt, Larry Phillips, and Charlene Webb, filed May 5, 2017 (Doc. 33)("Amended RC Motion"). The Court held a hearing on September 22, 2017. The primary issues are: (i) whether Defendants Eddy County Detention Center and Roosevelt County Adult Detention Center may be properly sued under 42 U.S.C. § 1983 ; (ii) whether Defendant Board of Commissioners of the County of Eddy violated Plaintiff Leroy Manzanares' due process rights when a purported policy it had led to an inmate attacking Manzanares with a pickaxe; (iii) whether Defendant Board of Commissioners of the County of Roosevelt violated Manzanares' due process rights on a similar theory; (iv) whether Defendants Larry Phillips, Charlene Webbs, and Billy Massingill, as decisionmakers at Roosevelt County Detention and Eddy County Detention, are liable under due process for the same conduct; and (v) whether the Court should dismiss Manzanares' state claims. The Court concludes: (i) Eddy County Detention and Roosevelt County Detention are not persons, so cannot be sued under § 1983 ; (ii) Eddy County's purported policy does not shock the conscience, so there is no due process violation; (iii) Roosevelt County's purported policy likewise does not shock the conscience; (iv) Manzanares' allegations against Phillips, Webb, and Massingill are conclusory, but even if they were not, there is no due process violation and they are entitled to qualified immunity; and, (v) with no remaining federal claims, the Court will dismiss the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3) ("[T]he district courts may decline to exercise jurisdiction [if] ... the district court has dismissed all claims over which it has original jurisdiction."). The Court, accordingly, grants in part and denies in part the requests in the EC Motion, the RC Motion, the Massingill Motion, and the Amended RC Motion. The Court dismisses the Plaintiff's First Amended Complaint, filed November 11, 2016 (Doc. 5)("FAC" or "Amended Complaint"), without prejudice.

FACTUAL BACKGROUND

The Court takes its facts from the Amended Complaint. The Court accepts its factual allegations as true for the purposes of a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" Twombly"). The Court does not, however, accept as true the legal conclusions within the FAC. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").

Manzanares is a Roosevelt County employee and groundskeeper. See FAC ¶ 18, at 4; id. ¶ 21, at 5. On July 2, 2014, Manzanares was doing maintenance on the Roosevelt County Fairgrounds, when Roosevelt County Detention lent Manzanares an inmate -- Defendant Senovio Mendoza -- to aid Manzanares in his work. See FAC ¶ 19, at 5. Manzanares, as someone with no connection to Roosevelt County Detention, believed that such a facility would provide only "non-violent offender[s]" to aid him in his job. FAC ¶ 21, at 5. To the contrary, however, Mendoza had a history of violence and also faced first-degree murder charges. See FAC ¶¶ 20, 22 at 5. Indeed, according to the criminal complaint pending against Mendoza, Mendoza had impersonated a Drug Task Force Agent, broke into a drug dealer's home, and, moments after forcing that drug dealer to the floor, executed him with a bullet to the head. See FAC ¶ 29, at 6. Mendoza had also previously been convicted of armed robbery, aggravated battery, and had "violently beat another inmate" over a television. FAC ¶ 34, at 7. See id. ¶ 43, at 8. Roosevelt County Detention did not tell Manzanares any of those facts. See FAC ¶¶ 20, at 5.

At some point while aiding Manzanares, Mendoza acquired a pickaxe and attacked Manzanares, "splitting part of his head open, instantly knocking him unconscious." FAC ¶ 23, at 5. Mendoza then stole a vehicle and sped away, leaving Manzanares for dead. See FAC ¶ 23, at 5. Manzanares survived but sustained an extensive head injury. See FAC ¶¶ 24, 37, 39, at 5, 7.

Before the pickaxe attack, Mendoza was housed at Eddy County Detention. See FAC ¶ 25, at 5. Eddy County Detention and Roosevelt County Detention maintain a detainee transfer agreement should one of the detention centers become overcrowded, but transfers between the two facilities are allowed only if the offender is non-violent. See FAC ¶¶ 26, 30 at 6. Despite this limitation, Eddy County Detention transferred Mendoza to Roosevelt County Detention. See FAC ¶ 25, at 5. In executing that transfer, Eddy County Detention knew of Mendoza's history and pending criminal charges but misrepresented those details to Roosevelt County Detention telling that facility that "Mendoza was merely a murder witness and not a murder suspect." FAC ¶ 28, at 6. See id. ¶ 27, at 6.

Although Eddy County Detention misrepresented Mendoza's history to Roosevelt County Detention, Roosevelt County Detention "should have done a background check" on Mendoza before accepting him. FAC ¶ 31, at 6. Roosevelt County Detention did not perform that background check, however. See FAC ¶¶ 31-32, at 6-7. Such a background check would have revealed that Mendoza had previously attacked another inmate and, thus, that Mendoza was a threat to society not fit for a work assignment on the Roosevelt County Fairgrounds. See FAC ¶¶ 34-35, 42, 44 at 7-9.

PROCEDURAL BACKGROUND

Manzanares sues, asserting negligence and that the Defendants violated his substantive due process rights. See FAC ¶¶ 60-80, at 12-15. On due process, he contends that the Defendants acted arbitrarily and capriciously, depriving him of the guarantee that he will not be deprived of life, liberty, or property. See FAC ¶ 61, at 12. He also contends that the Defendants failed to train their penitentiary personnel, and that they knew or should have known that Mendoza should not have been transferred to Roosevelt County Detention or assigned to help Manzanares on the Fairgrounds. See FAC ¶¶ 62-65, 68-70, at 12-14. Finally, he asserts that Eddy County Detention has a policy, practice, or custom of "dumping unwanted inmates onto other detention facilities" regardless of those inmates' safety classifications and Roosevelt County Detention was aware of that practice, but did nothing to stop it. FAC ¶ 66, at 13. See id. ¶ 67, at 13. On negligence, he argues that the Defendants owed a duty to Manzanares and breached that duty for failing to properly classify Mendoza, resulting in Manzanares' injuries. See ¶¶ 72-80, at 14-15.

1. The EC Motion.

Eddy County moves to dismiss. See EC Motion at 1. First, it argues that the Court should dismiss the FAC's claims against Eddy County Detention, because "governmental subunits," such as detention centers, "are not properly suable entities in § 1983 actions." EC Motion at 1, n.1 (citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) ). Eddy County asserts, moreover, that it cannot be liable for any conduct, because Manzanares asserts no constitutional violation and no county policy that "was the moving force behind the violation." EC Motion at 6 ("Indeed, it appears that the actions complained of would not be as a result of a policy, but rather necessarily would be due to a breach thereof."). Eddy County also argues that there are no allegations of the County's "deliberate conduct," which would give rise to a constitutional violation. See EC Motion at 7-8; id. at 8 n.4.

Eddy County avers that Manzanares' negligence claim fails too, because Eddy County has not waived its sovereign immunity. See EC Motion at 8-9. It also argues that Manzanares' tort claim is time barred, because it appears to have occurred more than two years before Manzanares filed his complaint. See EC Motion at 9. Eddy County requests the Court, accordingly, to dismiss the claims against Eddy County and Eddy County Detention with prejudice. See EC Motion at 9.

2. The RC Motion.

Roosevelt County, Phillips, and Webb move to dismiss. See RC Motion at 1. They argue that the Court should dismiss Roosevelt County Detention, because "governmental subunits cannot be sued as a separate entity from the County itself in § 1983 cases." RC Motion at 2. See id. at 5. Roosevelt County, Phillips, and Webb argue that the Court should dismiss the claim against Roosevelt County, because Manzanares has not alleged a policy or custom that caused a constitutional injury. See RC Motion at 5-6. They also assert that Roosevelt County cannot be liable "for acts of its employees on a respondeat superior theory," which, according to Roosevelt County, Phillips, and Webb, is all that Manzanares has alleged. RC Motion at 6 (emphasis in original). Roosevelt County, Phillips, and Webb add that the Court should dismiss the individual capacity suits against Phillips and Webb, because all Manzanares has alleged is supervisory liability, which is not actionable under 42 U.S.C. § 1983. See RC Motion at 7-8. Roosevelt County, Phillips, and Webb argue that the negligence claims fails, because the New Mexico Workers' Compensation Act, N.M. Stat. Ann. §§ 52-1-1 to -70 ("WCA"), provides the exclusive remedy when a government employee is injured during the course of employment. See RC Motion at 8-10. Finally, they argue that the Court should dismiss the punitive damage claim, because counties and municipalities are "immune to punitive damages in § 1983 cases." RC Motion at 10. Accordingly, they request that the Court dismiss the action against Roosevelt County, Roosevelt County Detention, Phillips, and Webb. See RC Motion at 10.

3. EC Motion Response.

Manzanares responds to the EC Motion. See Plaintiff's Response to Defendant Eddy County Board of Commissioners' Amended Motion to Dismiss Plaintiff's First Complaint and Memorandum in Support Thereof at 1, filed December 8, 2016 (Doc. 12)("EC Motion Response"). He contends that Eddy County is liable, because it misrepresented Mendoza's criminal history to Roosevelt County Detention. See EC Motion Response at 5. According to Manzanares, that misrepresentation demonstrates that Eddy County was, at least, deliberately indifferent to Manzanares' safety, establishing a constitutional violation. See EC Motion Response at 6-8. He adds that, beyond mere deliberate indifference, however, Eddy County "deliberately created" the danger that led to Manzanares' harm, which, according to Manzanares, is actionable under § 1983 as a danger-creation claim. See EC Motion Response at 9.

Manzanares contends that there is no statute of limitations problem on his negligence claim, because the triggering event occurred on July 2, 2014, and he filed his complaint on July 1, 2016 -- within the two-year period. See EC Motion Response at 10. He also argues that he has a negligence claim's elements, because Eddy County breached its duty to prevent dangerous inmates from being transferred, which resulted in the pickaxe attack causing Manzanares harm. See EC Motion Response at 10-11. Accordingly, Manzanares requests that the Court deny the EC Motion. See EC Motion Response at 11.

4. RC Motion Response.

Manzanares responds to the RC Motion. See Plaintiff's Response to Defendant Board of Commissioners of the County of Roosevelt's Motion to Dismiss Plaintiff's First Amended Complaint at 1, filed December 8, 2016 (Doc. 12)("RC Motion Response"). Manzanares argues that, because Roosevelt County Detention failed to screen a violent inmate from working in the community, it violated Manzanares' due process rights. See RC Motion Response at 4. He adds that Roosevelt County's failure to train its employees to properly screen inmates demonstrates deliberate indifference to a potential constitutional violation, creating liability. See RC Motion Response at 5.

Manzanares argues that his state claim meets the WCA standards, because Roosevelt County Detention staff recklessly disregarded Mendoza's danger to the public, which was expected to result and resulted in an injury. See RC Motion Response at 7-8. He contends, accordingly, that the WCA does not provide immunity from his tort claim. See RC Motion Response at 8. Manzanares concludes by asking the Court to deny the RC Motion. See RC Motion Response at 8-9.

5. EC Reply.

Eddy County replies. See Defendant Board of Commissioners of the County of Eddy's Reply Memorandum for its Motion to Dismiss Plaintiff's First Amended Complaint at 1, filed December 14, 2016 (Doc. 15)("EC Reply"). It asserts that Manzanares fails to establish a constitutional violation, because "[t]here is no alleged policy, no alleged practice, no alleged failure to train or supervise, and no alleged decision by any final decision-maker." EC Reply at 6. Eddy County contends that Manzanares has not alleged a danger-creation claim, as he "fails to identify the alleged state actor or their purported actions." EC Reply at 7. Eddy County also argues that, even if some of the elements of a danger-creation claim are met, he has not alleged conduct that would "shock the conscience." EC Reply at 8. According to Eddy County, negligence is not conduct that would shock the conscience. See EC Reply at 8 (citing Glover v. Gartman, 899 F.Supp.2d 1115, 1135-36 (D.N.M. 2012) (Browning, J.) ). Eddy County avers that Manzanares has not even argued, let alone established, that the state waived its sovereign immunity for his tort claim. See EC Reply at 8.

6. RC Reply.

Roosevelt County, Phillips, and Webb reply. See Defendants' Reply Memorandum in Support of Their Motion to Dismiss Plaintiff's Amended Complaint at 1, filed January 6, 2017 (Doc. 20)("RC Reply"). They argue that Manzanares has not stated a plausible claim, because "[t]here is no reference in the allegations to any specific written policy promulgated by Roosevelt County which directly led to the damages claimed." RC Reply at 8. Roosevelt County, Phillips, and Webb contend that, "[a]t best," Manzanares "alleges a one-time occurrence" without any indication about "what training and supervision should have been carried out" and "by whom." RC Reply at 9. Roosevelt County, Phillips, and Webb aver that the Court should dismiss the claims against Phillips and Webb, because Manzanares' lone allegation against them that "they have final responsibility for training, supervision, and policy implementation" does not trigger § 1983 liability. RC Reply at 12 ("There is no allegation against these individuals of personal involvement in the alleged wrongdoing."). Finally, Roosevelt County, Phillips, and Webb contend that the Court should dismiss the negligence claim, because, under the WCA, the plaintiff must allege an intentional act, but, here, Manzanares alleges "deliberate indifference and/or reckless disregard." RC Reply at 13.

7. Massingill Motion.

Massingill moves to dismiss, arguing that he is entitled to qualified immunity. See Massingill Motion at 1. Massingill contends that he is entitled to qualified immunity, because he did not cause any constitutional harm. See Massingill Motion at 7 ("[T]he Plaintiff has failed to allege that Defendant Massingill authorized or approved the alleged misconduct."); id. at 11 ("Defendant Massingill submits that there is no well plead factual allegation that he personally violated Plaintiff's constitutional rights."). He argues that Manzanares, at best, asserts conclusory allegations about "inadequate supervision and training," which, according to Massingill, do not amount to a § 1983 violation. Massingill Motion at 7. Accordingly, he requests that the Court dismiss the claims in the FAC against him. See Massingill Motion at 11.

8. Massingill Motion Response.

Manzanares responds to the Massingill Motion. See Plaintiff's Response to Defendant Massingill's Motion to Dismiss Plaintiff's Complaint and Memorandum in Support Thereof [Doc 24] at 1, filed May 5, 2017 (Doc. 32)("Massingill Motion Response"). Manzanares contends that, as Eddy County Detention's warden, Massingill is "directly responsible" for overseeing "ECDC's involvement in all contractual arrangements, detention officer training, and proper classification of inmates." Massingill Motion Response at 4. Thus, according to Manzanares, Massingill's failure to take measures to prevent Mendoza's transfer or notify Roosevelt County Detention about Mendoza's violent history amounts to a constitutional violation. See Massingill Motion Response at 4; id. at 6-7 ("The fact that Defendant Massingill allowed for such a violent individual to be transferred with no warning is absolutely shocking to the conscious and was certainly committed with deliberate indifference."). Manzanares contends that Massingill is not entitled to qualified immunity, because the Supreme Court has clearly established the right that there is a due process violation when "state's affirmative actions either create or increase risk of private violence." Massingill Motion Response at 9-10 (citing Deshaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ). Accordingly, Manzanares requests that the Court deny the Massingill Motion. See Massingill Motion Response at 13.

9. Amended RC Motion.

Roosevelt County, Phillips, and Webb file the Amended RC Motion to raise one additional ground to dismiss Manzanares' negligence claim. See Amended RC Motion at 1. They argue that the Court must dismiss the negligence claim, because the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 - to -30 ("NMTCA"), provides the exclusive remedy for tort claims against public officials and governmental entities, and Manzanares does not identify a waiver of immunity in his Amended Complaint. See Amended RC Motion at 10. Accordingly, they request that the Court dismiss the negligence claim on those grounds. See Amended RC Motion at 10.

10. Massingill Motion Reply.

Massingill replies. See Defendant Warden Massingill's Reply Memorandum for his Motion to Dismiss Count I of Plaintiff's First Amended Complaint and for Qualified Immunity at 1, filed May 15, 2017 (Doc. 34)("Massingill Motion Reply"). Massingill contends that the Court should dismiss the § 1983 claim against him, because the Amended Complaint contains only "vague" allegations about Massingill's conduct, which does not meet the Twombly standard. Massingill Motion Reply at 4. See id at 5 ("There is simply not one fact in the amended pleading -- not one -- which could support imposition of individual liability in this context.")(emphasis omitted). Massingill also asserts that he is entitled to qualified immunity, because Manzanares "has not even attempted to assert that there is any Supreme Court or Tenth Circuit authority" on point to satisfy qualified immunity's clearly established prong. Massingill Motion Reply at 6. Accordingly, Massingill requests that the Court to dismiss the § 1983 claims against him. See Massingill Motion Reply at 7.

11. Amended RC Motion Response.

Manzanares responds to the Amended RC Motion. See Response to Defendant Roosevelt's Amend Motion to Dismiss Plaintiff's First Amended Complaint On behalf of Commissioners of Roosevelt County, Larry Phillips and Charlene Webb at 1, filed May 26, 2017 (Doc. 37)("Amended RC Motion Response"). For the first time, Manzanares argues that, under rule 17(b) of the Federal Rules of Civil Procedure, Roosevelt County Detention is the proper party to be sued -- at least for a claim under the NMTCA. See Amended RC Motion Response at 3 (citing Villa v. Dona Ana Cty., 2010 WL 11619163, at *5 (D.N.M. Sept. 14, 2010) (Black, J.) ). Manzanares contends that Phillips and Webb are liable under 42 U.S.C. § 1983, because they set in motion a chain of events leading to the pickaxe attack, namely that they "simply ignor[ed] the classification of inmates upon booking into the RCDC facility." Amended RC Motion Response at 8 (citing FAC ¶¶ 42-43, at 8-9). Manzanares asserts that his negligence claim is still viable, because, as an employee of Roosevelt County Fairgrounds, the WCA exclusion does not apply. See Amended RC Motion Response at 10. He also argues that the NMTCA does not preclude his § 1983 claim. See Amended RC Motion Response at 12.

12. Amended RC Reply.

Roosevelt County, Phillips, and Webb reply in support of the RC Amended Motion. See Reply Memorandum of Roosevelt County Defendants in Support of Their Amended Motion to Dismiss Plaintiff's Amended Complaint at 1, filed June 14, 2017 (Doc. 41)("RC Amended Motion Reply"). They argue that, although NMTCA does not preclude § 1983 claims, it precludes negligence claims. See RC Amended Motion Reply at 14. According to Roosevelt County, Phillips, and Webb, the Court should dismiss Manzanares' negligence claim, because the NMTCA precludes it. See RC Amended Motion Reply at 14.

13. The Hearing.

The Court held a hearing. See Draft Transcript of Motion Proceedings at 1:1 (taken September 22, 2017)(Court)("Tr."). The Court began by noting that a plaintiff cannot sue detention centers under § 1983, so it is inclined to dismiss both Eddy County Detention and Roosevelt County Detention as parties. See Tr. at 5:11-6:1 (Court). Eddy County and Massingill argued that the Court should dismiss the § 1983 claims, because Manzanares has not alleged a constitutional violation, nor had he alleged a policy or practice that resulted in any constitutional violation. See Tr. at 7:13-16 (Martinez). They contend that Manzanares' allegation that Eddy County failed to tell Roosevelt County about Mendoza's classification cannot amount to a policy or practice leading to a constitutional violation, because "there is no allegation that this has ever occurred before or since." Tr. at 9:16-19 (Martinez). Eddy County and Massingill assert that, rather than arguing that Eddy County's policy violates the Constitution of the United States of America, Manzanares has alleged that Eddy County violated its policy, which led to the harm. See Tr. at 10:6-8 (Martinez)(citing FAC ¶ 69, at 13).

The Court posited that the FAC could be read to say that it is Eddy County's policy to dump dangerous inmates without a warning on Roosevelt County. See Tr. at 10:13-17 (Court). Eddy County and Massingill responded that the FAC lacks any such allegations. See Tr. at 10:18-24 (Martinez). They add that the only plausible claim in the complaint is possibly negligence, but negligence does not amount to a substantive due process claim. See Tr. at 11:1-13 (Martinez).

Manzanares responded that he is asserting that there was a custom or practice, which resulted in a substantive due process violation. See Tr. at 13:5 (Zebas). He conceded that he could not, without discovery, establish that there was a formal policy. See Tr. at 12:25-13:1 (Zebas). He asserts that the custom or practice in Eddy County is that, "in the event of overcrowding at one of their facilities, nonviolent offenders would be transferred." Tr. at 13:12-16 (Zebas). See id. at 14:7-23 (Court, Zebas)(identifying FAC ¶¶ 25-26, at 5-6, as the allegations that establish the custom or practice that he is asserting). Upon the Court's questioning, Manzanares conceded that the custom identified "doesn't violate the United States Constitution" and it does not "shock the conscience." Tr. at 14:14-15:4 (Court, Zebas). See id. at 15:2-3 (Court)("That's probably just prudent management between two facilities, right?"). Manzanares also admitted that he was alleging that some individual employed with Eddy or Roosevelt County violated their policies. See Tr. at 16:17-20 (Court, Zebas).

Manzanares then pivoted to argue that Eddy County and Roosevelt County did not train their staffs on the proper policies. See Tr. at 18:5-9 (Zebas). He also argued that Eddy County acted with deliberate indifference to others' safety by transferring Mendoza "who has a pattern and practice of violent offenses." Tr. at 19:23-20:2 (Zebas). He concluded that "it really is shocking to the conscience that Mr. Mendoza fell through the system and was transferred to Roosevelt County in violation of an agreement that only nonviolent offenders would be transferred." Tr. at 21:7-11 (Zebas).

Eddy County and Massingill responded that Manzanares' claim amounts to a respondeat superior theory, which cannot lead to liability under § 1983. See Tr. at 22:3-11 (Martinez). They added that, even if someone "at the frontline level ... made a mistake," there is no 42 U.S.C. § 1983 liability, because they would be entitled to qualified immunity. Tr. at 22:12-21 (Court, Martinez). Eddy County and Massingill contended that anyone failing to do a background check on a transferred inmate is, at best, negligent, so does not rise to the requisite conduct that "shocks the conscience." Tr. at 22:22-23:9 (Martinez). They added that, even if an employee "intentionally transported" a violent inmate, which is not alleged, such conduct does not "shock the conscience," because there are "so many procedural safeguards at Roosevelt County" to prevent harm that something else had to happen to lead to injury. Tr. at 24:1-16 (Martinez). See id. at 24:25-25:5 (Martinez).

Roosevelt County, Phillips, and Webb argued that the Court should dismiss the § 1983 claim against Roosevelt County, because "[t]here is no policy alleged." Tr. at 35:6 (Hatcher). They contended that the allegations here are that Roosevelt County was deliberately indifferent to Mendoza's violent/non-violent classification, which does not amount to liability under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (" Monell"). See Tr. at 35:6-22 (Hatcher). They also contended that there are failure-to-train, supervise, and failure-to-protect Manzanares allegations, but such allegations are conclusory, merely tracking the Monell language. See Tr. at 36:1-22 (Court, Hatcher). Roosevelt County, Phillips, and Webb argue that Manzanares' constitutional claim is ultimately a respondeat superior theory, which does not give rise to liability. See Tr. 38:1-14 (Hatcher).

Manzanares argued that Roosevelt County never reclassified Mendoza as they accepted him into Roosevelt County Detention, which, according to Manzanares, demonstrates a failure to train, supervise, or adequately screen. See Tr. at 41:12-16 (Zebas); id. at 44:19-45:2 (Zebas). Manzanares concedes, however, that he has no discovery concerning Roosevelt County's training and supervision policies. See Tr. at 47:14-21 (Zebas). Roosevelt County, Phillips, and Webb countered that the only allegation against Phillips and Webb is a conclusory assertion that they had "the final responsibility for training and supervision" at Roosevelt County Detention, which, according to Roosevelt County, Phillips, and Webb, cannot create liability. Tr. at 52:1-16 (Hatcher)(citing FAC ¶ 78, at 15).

Eddy County and Massingill argued that Massingill is entitled to qualified immunity. See Tr. at 63:2 (Martinez). They contended that the only allegations against Massingill are conclusory assertions that, as Eddy County Detention's warden, he had "final responsibility for the training, supervision, management, and policy implementation" of Eddy County Detention. Tr. at 63:11-21 (Martinez). It follows, according to Eddy County and Massingill, that such bare allegations, with no factual meat, do not survive the Twombly standard. See Tr. at 63:22-64:1 (Martinez). Eddy County and Massingill also contended that there is no case law on point demonstrating that the law was clearly established, even if there is a constitutional violation. See Tr. at 65:6-13 (Martinez). Manzanares contended, to the contrary, that Massingill "had personal involvement," and that he caused harm to Manzanares, violating Manzanares' substantive due process right. Tr. at 68:19-69:1 (Zebas). He also argued that there is a case on point demonstrating that the law is clearly established. See Tr. at 73:6-8 (Zebas)(citing Yvonne v. New Mexico Dep't of Human Servs., 959 F.2d 883, 884 (10th Cir. 1992) ). According to Manzanares, in that case, the United States Court of Appeals for the Tenth Circuit ruled that, should there be a special relationship between the state and private citizens, there is a viable substantive due process claim. See Tr. at 73:16-24 (Zebas). The Court ended by stating its inclination that it would dismiss all of the federal claims and then dismiss the state claims without prejudice by declining to exercise supplemental jurisdiction. See Tr. at 96:6-12 (Court).

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ("[O]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss."); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) ("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.")(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006) ).

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

To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See 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 Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted). The Tenth Circuit has stated:

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

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). See Gallegos v. Bernalillo Cty. Board of Cty. Comm'rs, 278 F.Supp.3d 1245, 1258-59 (D.N.M. 2017) (Browning, J.).

"When a party presents matters outside of the pleadings for consideration, as a general rule 'the court must either exclude the material or treat the motion as one for summary judgment.' " Brokers' Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004) ). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; (ii) "documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity," Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) ; and (iii) "matters of which a court may take judicial notice," Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499. See Brokers' Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (holding that the district court did not err by reviewing a seminar recording and a television episode on a rule 12(b)(6) motion, which were "attached to or referenced in the amended complaint," central to the plaintiff's claim, and "undisputed as to their accuracy and authenticity"). "[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).

In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants "supported their motion with numerous documents, and the district court cited portions of those motions in granting the [motion to dismiss]." 627 F.3d at 1186. The Tenth Circuit held that "[s]uch reliance was improper" and that, even if "the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee's factual assertions and effectively convert the motion to one for summary judgment." 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, "[b]ecause the district court considered facts outside of the complaint, however, it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6)." Nard v. City of Okla. City, 153 F. App'x 529, 534 n.4 (10th Cir. 2005) (unpublished). In Douglas v. Norton, 167 F. App'x 698 (10th Cir. 2006) (unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of limitations -- and concluded that, because the requirement is not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and "because the district court considered evidentiary materials outside of Douglas' complaint, it should have treated Norton's motion as a motion for summary judgment." 167 F. App'x at 704-05.

The Court has previously ruled that, when a plaintiff references and summarizes the defendants' statements in a complaint, the Court cannot rely on documents containing those statements that the Defendant's attach in their briefing. See Mocek v. City of Albuquerque, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013) (Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff's allegations in the complaint, because the plaintiff cited the statements only to attack the Defendant's reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion to dismiss, which show that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012) (Browning, J.)(" Crabtree"). The Court, in Crabtree, determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23 ; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not "central to [the plaintiff's] claims").

On the other hand, in a securities class action, the Court has ruled that a defendant's operating certification, to which plaintiffs refer to in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant's motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.'Retirement Sys. v. Thornburg Mortg. Secs. Trust 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M. 2011) (Browning, J.); Mata v. Anderson, 760 F.Supp.2d 1068, 1101 (D.N.M. 2009) (Browning, J.)(relying on documents outside of the complaint because they were "documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute"); S.E.C. v. Goldstone, 952 F.Supp.2d 1060, 1217-18 (D.N.M. 2013) (Browning, J.)(considering, on a motion to dismiss, electronic mail transmissions referenced in the complaint as "documents referred to in the complaint," which are "central to the plaintiff's claim" and whose authenticity the plaintiff did not challenge).

LAW REGARDING 42 U.S.C. § 1983 LIABILITY

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

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012) ("The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.")(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006) ). The Supreme Court of the United States of America has stated that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Because vicarious liability is inapplicable to Bivens [ v.Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("

Bivens") ] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor." Garcia v. Casuas, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.)(citing Monell, 436 U.S. at 689, 98 S.Ct. 2018 ). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).

1. Color of State Law.

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

In the public employee context, the Tenth Circuit has directed that, while " 'state employment is generally sufficient to render the defendant a state actor ... [,]' at the same time, it is 'well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.' " Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n.18, 102 S.Ct. 2744 ; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) ). Thus, "before conduct may be fairly attributed to the state because it constitutes action 'under color of state law,' there must be 'a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

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

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

2. Individual Liability.

Government actors may be liable for the constitutional violations that another committed, if the actors "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights," thus establishing the "requisite causal connection" between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006). The Tenth Circuit has explained that § 1983 liability should be " 'read against the background of tort liability that makes a man responsible for the natural consequences of his actions.' " Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell, 436 U.S. at 663, 98 S.Ct. 2018 ). "Thus, Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046 ). As the Court has previously concluded, "a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles -- including principles of causation ...." Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M. 2009) (Browning, J.).

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

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

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

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

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

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

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

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is " 'an affirmative link ... between the constitutional deprivation and either the supervisor's personal participation, ... exercise of control or direction, or ... failure to supervise.' " Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) )(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cty. Comm'rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." (emphasis in original) ).

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

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

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

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

Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002) ). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." Dodds v. Richardson, 614 F.3d at 1200 n.8. Relying on the Supreme Court's opinion in Board of County Commissioners v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.

Dodds v. Richardson, 614 F.3d at 1200 n.8 (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382 )(internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "an 'affirmative' link ... between the unconstitutional acts by their subordinates and their 'adoption of any plan or policy ... -- express or otherwise -- showing their authorization or approval of such misconduct.' " Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) ).

4. Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.

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, 2009 WL 1329834, at *10 (D.N.M. April 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). See Bivens, 403 U.S. at 392, 91 S.Ct. 1999. "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized by Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Under § 1983 and Bivens, a plaintiff may seek money damages from government officials who have violated his or her constitutional or statutory rights. To ensure, however, that fear of liability will not "unduly inhibit officials in the discharge of their duties," Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the officials may claim qualified immunity; so long as they have not violated a "clearly established" right, the officials are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

That means a court can often avoid ruling on the plaintiff's claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Greene, 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011).

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. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727 ). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) ; see also Pueblo of Pojoaque v. New Mexico, 214 F.Supp.3d 1028, 1079 (D.N.M. 2016) (Browning, J.).

1. Procedural