Citations
- 61 F. Supp. 3d 1085
Full opinion text
UNSEALED MEMORANDUM OPINION
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on Defendant J.M. Sharkey’s Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs’ Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed July 30, 2013 (Doc. 92) (“MSJ No. 1”). The Court held a hearing on September 6, 2013. The primary issue is whether the Court should grant summary judgment on the claim of Plaintiffs J.H., on behalf of her minor child, J.P., that Defendant J.M.. Sharkey violated the rights of J.P., an eleven-year-old girl, under the Fourth Amendment to the Constitution of the United States of America when he arrested her, handcuffed her, and transported her to the juvenile detention center following an altercation at Roosevelt Elementary School in Bernalillo County, New Mexico. The Court will grant the MSJ No. 1. Sharkey did not violate J.P.’s Fourth Amendment right to be free from unlawful seizure when he arrested her. Given J.P.’s recent attack on a student and on a school employee, Sharkey had probable cause to do so. Sharkey’s decision to transport J.P. to the juvenile detention center similarly did not violate any right that the Fourth Amendment secures. Moreover, even if Sharkey violated J.P.’s Fourth Amendment rights by either arresting her or transporting her to the juvenile detention center^ such rights were not clearly established. Accordingly, Sharkey is entitled to qualified immunity, and the Court will grant summary judgment as to the Plaintiffs’ Fourth Amendment unlawful seizure claim.
FACTUAL BACKGROUND
The Court will discuss the factual background in multiple parts. First, the Court needs to point out several formatting notes. Throughout their summary judgment briefing, the parties incorporated by reference most of the basic facts from MSJ No. 1, from the Plaintiffs Response to Defendant Sharkey’s Motion, for Partial Summary Judgment No. I: Plaintiffs Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103) (“Response to MSJ No. 1”), and from the Reply to Plaintiffs’ Response to J.M. Sharkey’s. Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs’ Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed September 3, 2013 (Doc. 115) (“Reply to Response to MSJ No. 1”). The Court separated out the facts from the briefing on MSJ No. 1 from the facts in other motions. The Court has below included only the facts in MSJ No. 1. Those facts are substantially identical to those that the Court used in its Unsealed Memorandum Opinion, filed July 8, 2014 (Doc. 152), on pages two through fifty-four.
Confusion over the parties’ names plagues the briefing. Sometimes the parties — including the Plaintiffs — refer to J.H. on behalf of her minor child J.P. as a singular Plaintiff, see, e.g., Response to MSJ No. 1 at 1 (“Plaintiff, J.H. on behalf of J.P., a minor, hereby responds to” MSJ No. 1), and sometimes the parties refer to J.H. and J.P. as plural Plaintiffs, see, e.g., Plaintiffs’ Response to Defendants’ Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V, and VI of Plaintiffs’ Second Amended Complaint at 2, filed August 16, 2013 (Doc. 102) (“Plaintiffs hereby respond to Defendants’ ‘undisputed’ numerical material facts.”). Given that even the Plaintiffs’ briefing does not clearly prefer one name over the other, the Court will refer to J.H., on behalf of her minor child, J.P., in the plural as Plaintiffs, because the caption refers to them in the plural. Where the Court quotes the briefings, however, it -will not change the parties’ naming conventions, because changing the parties’ naming conventions would confuse rather than enlighten the reader.
The facts proceed in seven parts. First, the Court provides background on J.P. Second, the Court discusses Sharkey’s background, his training, and his role at Roosevelt Middle School. Third, the Court discusses the procedure for handling a de-escalation event. Fourth, the Court discusses the September 26, 2011, events. Fifth, the Court discusses J.P.’s booking at the Bernalillo County Detention Center. Sixth, the Court discusses the arrest’s effects on J.P. Seventh, and finally, the Court discusses the charges against J.P., her competency evaluation,' and the circumstances surrounding the dropping of her charges.
1. Background on J.P.
“J.P. has qualified as emotionally disturbed since at least 2008.” Response to MSJ No. 1 at 9 (setting forth this fact). See Unidentified Report at 5-6 (taken July 19, 2013), filed August 16, 2013 (Doc. 103-1) (“Unidentified Report”). According to John King, Ph. D., who diagnosed J.P. after the incident underlying this case, her present condition is such
[s]he doesn’t think about the consequences. And she just kind of reacts, instead of thinks about it. So if some other child upsets her, instead of being able to step back and think about and analyze the situation, she just reacts right away. And her reaction is with anger and aggression.
Deposition of John H. King, Ph. D. at 36:25-37:6 (taken July Depo. at 36:25-37:6), filed August 16, 2013 (Doc. 103-1) (“King Depo.”). See Neuropsychological Evaluation Report at 1 (dated April 5, 2012), filed September 3, 2013 (Doc. 115— l).
J.P. received special education services because “she has the eligibility of Emotional Disturbance. She has difficulty regulating her emotions. Her mood can vary from one minute to the next. At her best, she can be a very cooperative, helpful girl who is a natural leader. However, she also has had episodes of violent verbal and physical acting out towards other students and adults. More commonly, J[.P.] can also shut down and refuse to interact with anyone for hours at a time.”
MSJ No. 1 ¶ 1, at 4 (setting forth this fact). See Response to MSJ No. 1 ¶ 1, at 2 (not disputing this fact); Individualized Education Program at 3, dated October 19, 2010, filed July 30, 2013 (Doc. 91-1) (“IEP”).
J.P. “requires specific, direct 1:1 or small group instruction in the area of academics and social emotional issues to compensate for social emotional deficits.
This instruction cannot be appropriately or adequately addressed in the regular education setting because J[.PJ is unable to maintain her emotions in the larger group setting and impedes the learning of herself and other[s].”
MSJ No. 1 ¶ 2, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 2, at 3 (not disputing this fact); IEP at 10. “J.P.’s IEP team also prepared a [Behavioral Intervention Plan (“BIP”) ] for J.P. because she exhibited frequent verbal and physical aggression towards fellow students and staff, and interventions were needed to redirect her behavior.” MSJ No. 1 ¶ 3, at 5 (setting forth this fact). See Response to MSJ No; 1 ¶ 3-7, at 3 (not disputing this fact); Behavior Intervention Plan' (dated March 3, 2011), filed July 30, 2013 (Doc. 92-3) (“BIP”). “J.P.’s behavior had resulted in physical harm to both peers and staff.” MSJ No. 1 ¶ 4, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3-7, at 3 (not disputing this fact); BIP at 1.
The BIP indicated that the following is the targeted behavior for J.P.: “J[.P.] will frequently lash out at peers and adults in the classroom. This behavior manifests as cussing, throwing objects and furniture with the intent to cause harm, as well as physical and verbal aggression to cause harm to peers and/or adults.”
MSJ No. 1 ¶ 5, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶3-7, at 3 (not disputing this fact); BIP at 1. “According to her BIP, J.P.’s behavior is a performance deficit, meaning she ‘knows how to perform the desired behavior, but does not consistently do so.’ ” MSJ No. 1 ¶ 6, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact); BIP at 1. “The presumed reason for J.P.’s behavior was ‘task/consequence avoidance.’” MSJ No. 1 ¶ 7, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact); BIP at 1.
J.P. was “categorized as emotionally disturbed for IEP purposes” at the time of the incident underlying this case. MSJ No. 1 ¶ 8 at 6 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 8, at 3 (not disputing this portion of the fact).
According to the BIP, “In the event that J[.PJ physically harms a peer or adult (by direct contact or by throwing an object with the intent to harm)[,][t]he crisis team will be called. If necessary, appropriate physical management may be employed by trained personnel to ensure the safety of J[.P.] and/or other persons involved in the crisis situation. J[.P.]’s Mother will be called. Administration will determine if the need for APS Police or other law enforcement is necessary.”
MSJ No. 1 ¶ 9, at 6 (quoting BIP at 3) (setting forth this fact). See Response to MSJ No. 1 ¶ 9, at 3 (not disputing this fact). “The crisis intervention team is comprised of members of Roosevelt Middle School staff ‘that have been trained in deescalation’ and ‘are called in to any situation where a ... teacher or staff member needs assistance.’ ” MSJ No. 1 ¶ 10, at 6 (quoting Deposition of Cee Kaye Nation at 32:6-11 (taken June 14, 2013), filed July 30, 2013 (Doc. 92-2) (“Sharkey’s Nation Depo.”)) (setting forth this fact). See Response to MSJ No. 1 ¶ 10, at 8 (not disputing this fact).
2. Sharkey’s Background and Training; His Role at Roosevelt Middle School.
Prior to becoming a School Resource Officer [ (“SRO”) ] Defendant Sharkey was a field training officer for cadets and detectives, a fi[el]d investigator, a firearms instructor, a crisis intervention officer, a special weapons and tactics (SWAT) officer on the entry team, a sniper, a crisis negotiator, a property crimes detective, a narcotics detective, a FBI fugitive and gang task force detee-tive, a civil deputy assigned to serve domestic violence orders and civil summonses, and has been assigned to execute mental health pick-up orders.
Response to MSJ No. 1 ¶ V, at 13. See Reply to Response to MSJ No. 1 ¶ V-W, at 12 (not disputing this fact); Deposition of John Matthew Sharkey at 12:13-13:5 (taken July 30, 2013), filed August 16, 2013 (Docs. 103 — 4, 103-5, 103-6, & 103-7 (“Plaintiffs’ Sharkey Depo.”)). “Defendant Sharkey has had the opportunity to interact with several citizens who had mental health challenges throughout the course of his career. When dealing with citizens dealing with mental health challenges Defendant Sharkey seeks voluntary compliance through de-escalation techniques.” Response to MSJ No. 1 ¶ W, at 13 (citation omitted) (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ V-W, at 12 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 13:13-15; id. at 14:7-12.
“Defendant Sharkey became a School Resource Officer because he wanted a ‘constructive, positive’ assignment where he could help people rather than targeting certain crimes.” Response to MSJ No. 1 ÍM, at 11 (quoting Plaintiffs’ Sharkey Depo. at 12:1-9) (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ M, at 10-11 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 19:10-20:2. Shar-key’s purpose is to keep his students safe and not to arrest his students; even so, on occasion, he gets involved in criminal investigations — for example, when the Children, Youth, and Families Department of the State of New Mexico (“CYFD”) contacts him, or when he must deal with those who. commit drug offenses or violent crimes — and he arrests students, particularly when an offense involves battery on students or staff, or a drug offense. See Response to MSJ No. 1 ¶ M, at 11 (setting forth this fact). See also Plaintiffs’ Shar-key Depo. at 19:10-20:2; id. at 28:1-5; Deposition of John Sharkey at 20:12-21:12 (taken July 30, 2013), filed September 3, 2013 (Doc. 115-3). “In pursuance of this goal, Defendant Sharkey claims to take into consideration the struggles that the children he works with [face]” — at least when he is aware of those struggles. Response to MSJ No. 1 ¶ M, at 11 (setting forth unmodified version of this fact). See Plaintiffs’ Sharkey Depo. at 34:4-6.
“Deputy Sharkey was hired by the Ber-nalillo County Sheriffs Office on January 30, 1989. Deputy Sharkey retired in March 2007. After being retired for approximately two years, Deputy Sharkey was rehired by the Bernalillo County Sheriffs Office in September 2009.” MSJ No. 1 ¶ 11, at 6 (setting forth these facts). See Response to MSJ No. 1 ¶¶ 11-12, at-3 (not disputing these facts); Affidavit of John M. Sharkey ¶¶ 1-3, at 1 (executed July 30, 2013), filed July 30, 2013 (Doc. 92-4) (“Sharkey Aff”). “For the 2011-2012 school year, Deputy Sharkey was assigned to be the school resource officer at Roosevelt Middle School.” MSJ No. 1 ¶ 12, at 6 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 11-12, at 3 (not disputing this fact); Sharkey Aff. ¶ 4, at 3.
“Deputy Sharkey did not have access to J.P.’s special education files.” MSJ No. 1 ¶ 13, at 6 (setting forth this fact). See Response to MSJ No. 1 ¶ 13, at 4 (not disputing this fact); Sharkey’s Nation Depo. at 25:13-16; id. at 26:56-28:34. “Deputy Sharkey was not part of Roosevelt Middle School’s crisis intervention team,” although he was generally aware when someone calls the team, and has witnessed the crisis team in action. MSJ No. 1 ¶ 14, at 6 (setting forth unmodi-fled version of this fact). See Response to MSJ No. 1 ¶ 14, at 3 (not disputing this fact); Sharkey’s Nation Depo. 32:3-4; Sharkey Aff. ¶ 21, at 3. Moreover, “Shar-key has personally seen the school’s Crisis Intervention Team deescalate students involved in screaming, yelling, and throwing desks around.” Response to MSJ No. 1 ¶?, at 12 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ P, at 11 (not disputing this fact); Plaintiffs’ Shar-key Depo. at 64:6-24. At the time of the event, “Deputy Sharkey’s main responsibility as a school resource officer at Roosevelt Middle School was to help keep the campus safe.” MSJ No. 1 ¶ 15, at 7 (setting forth unmodified version of this fact). See Sharkey’s Nation Depo. at 26:25-27:9; Sharkey Aff. ¶ 16, at 3. “Deputy Sharkey is ‘always extremely calm’[ and] ‘never raises his voice.’ ” MSJ No. 1 ¶ 16,, at 7 (setting forth unmodified version of this fact) (quoting Sharkey’s Nation Depo. at 29:8-16). See Response to MSJ No. 1 ¶ 16, at 5 (not disputing this portion of the fact).
“Defendant Sharkey ‘get[s] to know the students very, very well, because [he] know[s] them from elementary school all the way until they get ... to middle school.’ ” Response to MSJ No. 1 ¶ N, at 11 (setting forth unmodified version of this fact) (quoting Plaintiffs’ Sharkey Depo. at 74:12-15). Sharkey gets to know his students and, sometimes, sees what their struggles are, and takes those struggles of which he knows into account when he interacts with them. See Plaintiffs’ Sharkey Depo. at 34:4-6. Sharkey likes his students and cares about his students very much; he does not want to arrest them and does not take that decision lightly. See Response to MSJ No. 1 ¶ N, at 11 (setting forth a similar fact); Plaintiffs’ Sharkey Depo. at 74:23-25.
“Defendant Sharkey ... knows that there are different teachers associated with different special education challenges,” and knows that certain teachers, including Gonzales, who have special education students. Response to MSJ No. 1 ¶ 0, at 11-12 (setting forth unmodified version of this fact). See Plaintiffs’ Sharkey Depo. at 62:24-63:10. Sharkey did not know, however, whether J.P. had a disability within the ADA’s meaning before he arrested her; further, he had no reason to find out whether she had a disability, because whether a person that he is investigating has a disability plays no role in his investigation or in his decision to arrest that person. See Response to MSJ No. 1 ¶ R, at 12 (setting forth a similar fact); Plaintiffs’ Sharkey Depo. at 7:5-21. Sharkey was aware, or should have been aware, that J.P. suffered from some educational and behavioral limitations; he did not, however, know or have reason to know that she was disabled within the ADA’s definition of that term, or that any disability which she had would deprive her of the capacity to form general criminal intent. See Plaintiffs’ Sharkey Depo. at 33:24-34:15 (“I get to know my students, and sometimes I’ll see what their struggles are.”); Plaintiffs’ Sharkey Depo. at 62:24-63:5 (“Ms. Gonzales, she has special stu-dents_[S]he has special classes.”); Deposition of John Sharkey at 75:9-12 (taken July 30, 2013), filed September 3, 2013 (Doc. 115-2) (“Sharkey Depo. Vol. Ill”) (“And her mom and her boyfriend arrived on scene, and mom was of the opinion of, “You can’t do this, you can’t even be here;’ that there’s a plan, and they have to handle the plan.”).
“Defendant Sharkey [was] trained in the Americans with Disabilities Act when he was trained to become a School Resource Officer in 2010.” Response to MSJ No. 1 ¶ S, at 12 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ S-T, at 12 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 7:22-8:6. “Defendant Sharkey knows ‘that there are certain accommodations that are made for students that have a disability.’ ” Response to MSJ No. 1 ¶ T, at 12 (setting forth this fact) (quoting Plaintiffs’ Sharkey Depo. at 8:10-13). See Reply to Response to MSJ No. 1 ¶¶ S-T, at 12 (not disputing this fact). Sharkey has been trained as follows: “If I remember correctly it was discussed as to we will have students that we interact with who have disabilities, whether it’s a learning disability or behavioral disabilities, challenges that young people have that go to school and to realize that not every student would be the same.” Plaintiffs’ Sharkey Depo. at 9:2-12. See Response to MSJ No. 1 ¶ U, at 12 (setting forth similar facts); Reply to Response to MSJ No. 1 ¶ U, at 12 (not disputing this fact). “Defendant Sharkey was a Crisis Intervention Officer and has been trained in de-escalation techniques” in general, though not in de-escalation techniques as they relate to special needs or students with mental-health issues. Response to MSJ No. 1 ¶ U, at 12-13 (setting forth unmodified version of these facts). See Plaintiffs’ Sharkey Depo. at 10:20-11:22. “Defendant Sharkey has never been trained on the possible psychological effects on children being restrained.” Response to MSJ No. 1 ¶ EE, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ EE, at 14 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 71:24-72:4.
During his deposition, “Defendant Shar-key agreed that there’s always a question of whether a child has the ability to form criminal intent.” Response to MSJ No. 1 ¶ CC, at 14 (setting forth this fact). See Plaintiffs’ Sharkey Depo. at 59:ll-23. “Defendant Sharkey determined that J.P., an emotionally disturbed eleven-year-old child, had the requisite criminal intent to commit the crime of [b]attery.” Response to MSJ No. 1 ¶ DD, at 14 (setting forth this fact). See Plaintiffs’ Sharkey Depo. at 56:2-57:20.
Defendant Sharkey has no knowledge of whether a child he arrests will be housed at the Juvenile Detention Center and is not fully aware of the booking process for juveniles or how a risk assessment is employed to determine whether a child is subject to custody. Defendant Sharkey believes that taking a child to the detention center, even if they will not be housed there, is appropriate because it accomplishes the purpose of stopping law breaking behavior. According to Defendant Sharkey, if a child is “at the detention center, then they’re — it’s controlled.”
Response to MSJ No. 1 ¶¥, at 13 (setting forth this fact) (citations omitted). See Reply to Response to MSJ No. 1 ¶ Y, at 13 (not disputing this fact); Plaintiffs’ Shar-key Depo. at 42:24:44:10. “Defendant Sharkey proffered that even if law-enforcement purposes are fulfilled by direct release to a child’s parent, transporting a child to the Detention Center is appropriate because a child’s angry parent could pose a threat to the safety of the school or its personnel.” Response to MSJ No. 1 ¶66, at 14 (setting forth this fact). See Plaintiffs’ Sharkey Depo. at 50:11 — 52:5.
3. Procedure for Handling a De-Es-calation Event.
“A de-escalation event usually involves a student who is being aggressive.” MSJ No. 1 ¶ 17, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey’s Nation Depo. at 62:3-10. “At Roosevelt Middle School, when a special education classroom calls the office via intercom [or on the office telephone] requesting assistance from the crisis intervention team, office staff contacts the principal ‘or the admin’ on the walkie-talkie.” MSJ No. 1 ¶ 18, at 7 (setting forth this fact) (quoting Sharkey Nation Depo. at 34:21-35:3). Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact). “Deputy Sharkey also has a walkie-talkie so when a call goes out for the crisis intervention team, he hears it as well and responds to the area.” MSJ No. 1 ¶ 19, at 17 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey’s Nation Depo. at 35:11-18; Sharkey Aff. ¶ 18, at 3. “Deputy Sharkey allows the crisis intervention team ‘to do what they need to do’ and ‘he’s there if it escalates to a point where [the team] can’t contain it.’ ” MSJ No. 1 ¶20, at 7 (setting forth this fact) (quoting Sharkey’s Nation Depo. at 35:11— 18). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey Aff. ¶¶ 22-25, at 3. “It is a safe practice to have Deputy Sharkey close at hand because a situation can get out of hand very quickly.” MSJ No. 1 ¶ 21, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey’s Nation Depo. at 61:12-62:2; Sharkey Aff. ¶23, at 3. “Deputy Sharkey is generally expected to take immediate control of the situation if he arrives on scene first and sees somebody being struck, in danger of being battered, or a situation quickly escalating.” MSJ No. 1 ¶ 22, at 8 (setting forth this fact). See Sharkey’s Nation Depo. at 36:15-19; Sharkey Aff. ¶¶ 25-26, at 3.
4. The Incident on September 26, 2011.
“In the fall of 2011, J.P. was placed in Ms. Allison Gonzales’s sixth grade special education class at Roosevelt Middle School.” MSJ No. 1 ¶ 23, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Plaintiffs’ Second Amended Complaint for Recovery of Damages due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act, ¶ 5, at 1, filed June 28, 2013 (Doc. 85) (“Complaint”); id. ¶ 25, at 4. “Ms. Gonzales was employed as a teacher with the Albuquerque Public Schools.” MSJ No. 1 ¶ 24, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Deposition of Allison Gonzales at 13:6-17 (taken June 13, 2013), filed July 30, 2013 (Doc. 92-5) (“Sharkey’s Gonzales Depo.”); Complaint ¶ 5, at 1; id ¶ 25, at 4. “There were [sic] a total of seven (7) students in Ms. Gonzales’s class, including J.P.” MSJ No. 1 ¶ 25, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Sharkey’s Gonzales Depo. at 14:20-22. “Ms. Gonzales also had a teaching assistant, Gwendoline Zamora.” MSJ No. 1 ¶ 26, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Sharkey’s Gonzales Depo. at 17:22-18:3. “Deputy Sharkey was aware that J.P. was assigned to a class that provided special education services, but he was not aware of the reason for her placement in that class as children receive special education services for a variety of reasons.” MSJ No. 1 ¶27, at 8 (setting forth this fact). See Sharkey Aff. ¶ 8, at 2.
“On September 26, 2011, J.P. was disrupting the classroom after arriving late to school.” MSJ No. 1 ¶ 28, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement by Allison Gonzales at 2 (dated September 26, 2011), filed July 30, 2013 (Doc. 92-6); Sharkey’s Gonzales Depo. at 54:19-56:13. “When asked to participate in the lesson she responded, ‘I’m not doing shit.’ ” MSJ No. 1 ¶ 29, at 9 (setting forth this fact) (quoting Statement by Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact). “J.P. then began to disrupt the class by loudly tapping a metal type marble.” MSJ No. 1 ¶ 30, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-56:19. “J.P. ignored repeated requests from Ms. Gonzales and peers to stop bouncing the marble.” MSJ No. 1 ¶ 31, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-56:19; id. at 58:19-59:11. “Ms. Zamora asked J.P. if she wanted some help and she said, ‘no.’ ” MSJ No. 1 ¶ 32, at 9 (setting forth this fact) (quoting Statement of Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact). “Ms. Gonzales then asked J.P. if she wanted to talk to her mom or maybe her mom could come back to school in an effort to ‘change the environment, change the action, that might be a support as well.’” MSJ No. 1 ¶ 33, at 9 (setting forth this fact) (quoting Sharkey’s Gonzales Depo. at 60:13-19). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. “J.P. responded that her mother was at work and could not come to the school.” MSJ No. 1 ¶34, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. “J.P. then called another [sic] male student a ‘butt head’ which elicited a response from him, and they exchanged words.” MSJ No. 1 ¶ 35, at 9 (setting forth this fact) (quoting Statement of Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-56:19. “The other student then returned to his seat to work with Ms. Gonzales.” MSJ No. 1 ¶36, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28^42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2.
“J.P. could not see her peers from her study carrel, so no eye contact took place from the time the other student took his seat.” MSJ No. 1 ¶ 37, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Shar-key’s Gonzales Depo. at 61:23-62:11. “J.P. then came around her study carrel and forcefully threw the metal marble across the room where it hit the wall hard, bounced back and rolled to the other side of the classroom.” MSJ No. 1 ¶ 38, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-56.T9. “J.P. then punched the other student in the back of the head with her fist.” MSJ No. 1 ¶ 39, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-56:9; id. at 63:8-19.
“Ms. Gonzales stood up and placed her body between both students to stop the altercation.” MSJ No. 1 ¶ 40, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-57:4; id. at 63:20-23. “As J.P. attempted to strike the male student again, Ms. Gonzales moved J.P. toward the side of the room and immediately instructed the male student to leave the classroom.” MSJ No. 1 ¶ 41, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-57:4. “Ms. Gonzales directed Ms. Zamora to call the office on the intercom to request assistance from the crisis intervention team.” MSJ No. 1 ¶ 42, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 65: 1-11.
“A staff member from the Roosevelt Middle School administrative office requested that Deputy Sharkey respond to classroom # 11 in response to an unknown request by Ms. Gonzales.” MSJ No. 1 ¶ 43, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 43 -44, at 6 (not disputing this fact); Sharkey Aff. ¶ 27, at 4. “The administrative staff person was unable to explain to Deputy Sharkey why he was needed.” MSJ No. 1 ¶ 44, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 43-44, at 6 (not disputing this fact).
“Back in the classroom, the male student may have made eye contact with J.P. when he was walking out as instructed by Ms. Gonzales though this is not certain.” MSJ No. 1 ¶ 45, at 10-11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-57:4. “Ms. Gonzales had a hold of J.P.’s arms just above the wri[s]ts.” MSJ No. 1 ¶ 46, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at' 66:6-18. “Ms. Gonzales did not think it would be a good plan for her to put J.P. in a body hold because J.P. is ‘a fairly good-sized girl.’” MSJ No. 1 ¶47, at 11 (setting forth this fact) (quoting Sharkey’s Gonzales Depo. at 47:65-66:50). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact). “While Ms. Gonzales tried to hold her back, J.P. attempted to heád butt, hit and bite Ms. Gonzales” to free herself from Gonzales’ hold. MSJ No. 1 ¶ 48, at 5 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 48, at 6 (not disputing this portion of the fact); Statement of Allison Gonzales at 2; Shar-key’s Gonzales Depo. at 66:24-5. “J.P. was eventually able to scratch Ms. Gonzales’ hand and drew blood.” MSJ No. 1 ¶49, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 49-50, at 6 (not disputing this fact); Sharkey’s Nation Depo. at 46:9-17; Sharkey’s Gonzales Depo. at 66:24-67:5; Statement of Allison Gonzales at 2. “J.P. was able to free herself from Ms. Gonzales’ hold.” MSJ No. 1 ¶ 50, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 49-50, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 67:10-11. “J.P. ran at the other student, hitting him once again on the head.” MSJ No. 1 ¶51, at 11 (setting forth this fact). See Sharkey’s Gonzales Dt?po. at 67:12-68:5; Statement of Allison Gonzales at 2. “As the other student exited the classroom, J.P. ran out [of] the classroom in pursuit of him.” MSJ No. 1 ¶52, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 68:6-8; Statement of Allison Gonzales at 2.
“Ms. Zamora grabbed J.P. by her left arm and Ms. Gonzales grabbed her right arm.” MSJ No. 1 ¶ 53, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. “While Ms. Gonzales and Ms. Zamora were attempting to restrain her, J.P. kicked Ms. Gonzales in the leg, leaving a footprint.” MSJ No. 1 ¶ 54, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 68:16-17; Statement of Allison Gonzales at 2. “The incident was a rapidly evolving situation.” MSJ No. 1 ¶ 55, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 57:13-15.
“As he approached the classroom on foot, Deputy Sharkey saw Ms. Gonzales holding J.P.” MSJ No. 1 ¶ 56, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶29, at 4. “Deputy Sharkey heard raised voices and saw J.P. kick Ms. Gonzales in the right upper leg.” MSJ No. 1 ¶ 57, at 12 (setting forth this fact). See Sharkey Aff. ¶ 31, at 4; Shar-key’s Gonzales Depo. 71:2-6; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “Other school personnel had not arrived.” MSJ No. 1 ¶ 58, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 32, at 4; Sharkey’s Gonzales Depo. 69:4-6.
“Deputy Sharkey ordered J.P. to stop.” MSJ No. 1 ¶ 59, at 12 (setting forth this fact). See Sharkey Aff. ¶33, at 4; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “When J.P. saw Deputy Sharkey coming around the corner, she immediately stopped kicking.” MSJ No. 1 ¶ 60, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 34, at 4; Sharkey’s Gonzales Depo. at 69:18-21. “J.P. began moving away from Deputy Sharkey, taking Ms. Gonzales and Ms. Zamora with her as they were still trying to keep a hold on J.P.” MSJ No. 1 ¶ 61, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 35; Sharkey’s Gonzales Depo. at ^68:20-69:3. “Deputy Sharkey removed his handcuffs from his duty belt.” MSJ No. 1 ¶ 62, at 12 (setting forth this fact). See Sharkey Aff. ¶ 36; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “J.P. re-entered Ms. Gonzales’s classroom.” MSJ No. 1 ¶ 63, at 12 (setting forth this fact); Sharkey Aff. ¶ 37, at 4, ¶ 37. See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “Ms. Zamora let go of J.P. and escorted the other students outside the classroom and remained with them.” MSJ No. 1 ¶ 64, at 12 (setting forth this fact). See Sharkey’s Gonzales Depo. at 70:6-8; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “J.P. scooted herself into a small room without a door within the classroom, sat on the floor, and locked her hands together to resist being handcuffed.” MSJ No. 1 ¶ 65, at 12 (setting forth this- fact). See Sharkey Aff. ¶ 38, at 4; Sharkey’s Gonzales Depo. at 70:16-71:1; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). She remained in that room on the floor crying for approximately fifteen minutes before Sharkey handcuffed her. See Response to MSJ No. 1 ¶ Q, at 12 (setting forth a similar fact); Plaintiffs’ Sharkey Depo. at 5:3-16.
“Shortly thereafter, the principal and head special education teacher arrived at Ms. Gonzales’s classroom.” MSJ No. 1 ¶ 66, at 12 (setting forth this fact); Shar-key Aff. ¶ 39, at 4. See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 70:16-71:1. “Deputy Sharkey’s demeanor toward J.P. was very calm and professional.” MSJ No. 1 ¶ 67, at 12 (setting forth this fact). See Sharkey Aff. ¶ 40, at 4; Shar-key’s Gonzales Depo. at 71:10-72:1. “When Defendant Sharkey arrested J.P. he did not ask anyone present whether she had a disability, even though she was arrested in a special education classroom.” Response to MSJ No. 1 ¶ FF, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ FF-GG, at 14 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 76:22-77:2.
“Deputy Sharkey became concerned that J.P. might resist if he forcibly attempted ■ to handcuff her by himself.” MSJ No. 1 ¶ 68, at 12-13 (setting forth this fact). See Responsé to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 41, at 4-5. “Deputy Sharkey therefore requested an additional deputy be dispatched to the scene because he believed two deputies would be better able to quickly and safely control ... J.P. if she resisted.” MSJ No. 1 ¶ 69, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 44, at 5. “While waiting for an additional deputy, Ms. Gonzales advised Deputy Sharkey about the events that occurred in the classroom involving J.P. pri- or to his arrival.” MSJ No. 1 ¶ 70, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 45, at 5. “Ms. Gonzales then left the room to call J.P.’s mother and inform her of the incident.” MSJ No. 1 ¶ 71, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey’s Gonzales Depo. at 72:23-25; Sharkey Aff. ¶ 47, at 5. “The principal also attempted to contact J.P.’s mother.” MSJ No. 1 ¶ 72, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey’s Nation Depo. at 42:7-18. “When the other deputy arrived, Deputy Sharkey briefed him on the situation.” MSJ No. 1 ¶ 73, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 48, at 5.
“Deputy Sharkey then informed J.P. she was under arrest and directed her to stand up.” , MSJ No. 1 ¶ 74, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 47:18-48:8. “Deputy Shar-key told J.P., “You will stand up and do this calmly.’ ” MSJ No. 1 ¶ 75, at 13 (setting forth this fact) (quoting Sharkey’s Nation Depo. at 48:7-8). “J.P. complied and Deputy Sharkey gently handcuffed her behind her back.” MSJ No. 1 ¶ 76, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing these facts); Sharkey’s Nation Depo. at 48:3-8; id. 50:17-51:6; Sharkey Aff. ¶ 51, at 5. “The other deputy observed but did not intervene.” MSJ No. 1 ¶ 77, at 13 (setting forth this fact); Sharkey Aff. ¶ 53, at 4. See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing these facts); Sharkey’s Nation Depo. at 50:9-14. “Deputy Shar-key ensured that he double locked the handcuffs to prevent them from tightening and ensured that there was a thumb-width of space, or approximately one inch, between the handcuffs and J.P.’s wrist.” MSJ No. 1 ¶ 78, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing this fact); Sharkey Aff. ¶ 54, at 5-6. “Deputy Sharkey determined that handcuffing J.P. was appropriate because of his concern that J.P. might attempt to strike him or others, and because he needed to secure J.P. to transport her to the Bernalillo County Juvenile Detention Center.” MSJ No. 1 ¶ 79, at 14 (setting forth this fact). See Sharkey Aff. ¶ 55, at 6 “Defendant Sharkey did not make an evaluation of whether J.P. needed mental healthcare prior to transporting her to the Juvenile Detention Center even though he admitted that J.P.’s behavior on the subject date was something that he had never seen.” Response to MSJ No. 1 ¶ GG, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ FF-GG, at 14 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 81:8-82:15.
“Deputy Sharkey calmly explained to J.P. that he would be walking her out to his patrol car.” MSJ No. 1 ¶ 80, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact); Sharkey’s Nation Depo. at 50:17-21; Sharkey Aff. ¶ 56, at 7. “Deputy Sharkey escorted J.P. from the class while school was in session in an effort to avoid embarrassing her in front of her peers or any other individuals who might be present between passing periods.” MSJ No. 1 ¶ 81, at 13. See Sharkey’s Nation Depo. at 51:21-52:7; Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact). “The principal followed Deputy Sharkey and J.P. out to his patrol car.” MSJ No. 1 ¶ 82, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact); Sharkey’s Depo. at 51:19-20. “There was nothing that happened on September 26, 2011 that would have indicated to the principal that law enforcement was not needed.” MSJ No. 1 ¶ 83, at 14 (setting forth this fact). See Sharkey’s Nation Depo. at 59:11-15. “Deputy Sharkey left the school immediately to avoid interacting with J.P.’s mother as his past interaction had been unpleasant due to her mistaken belief that a BIP takes precedence over state law when a student or teacher is assaulted or battered.” MSJ No. 1 ¶ 84, at 14. See Response to MSJ No. 1 ¶ 84, at 7 (not disputing this fact); Sharkey Aff. ¶ 58, at 14.
5. J.P.’s Booking at the Bernalillo County Detention Center.
“Deputy Sharkey transported J.P. to the juvenile detention center in his patrol unit.” MSJ No. 1 ¶ 85, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 60, at 6. “On the way to the juvenile detention center, Deputy Sharkey asked J.P. what would happen if she assaulted another student or teaching staff at Roosevelt Middle School, and J.P. responded that she would be handcuffed and arrested again.” MSJ No. 1 ¶86, at 14 (setting forth these facts). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 61, at 6. “J.P. then volunteered that she would not hit anyone anymore but would use words when she was upset.” MSJ No. 1 ¶ 87, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 62, at 6. “J.P. did not give Deputy Sharkey any indication that the handcuffs were causing her pain.” MSJ No. 1 ¶ 88, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 63, at 6-7. “J.P. cleared the medical examination and was booked into the juvenile detention center without incident.” MSJ No. 1 ¶ 89, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 64, at 7. “Deputy ■ Sharkey charged J.P. only with battery upon a school employee in violation of N.M.S.A. (1978), § 30-3-9(E).” MSJ No. 1 ¶ 90, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 67, at 7; Statement of Probable Cause-Juvenile (dated September 26, 2011), filed July 30, 2013 (Doc. 92-7). “Deputy Sharkey submitted the incident report to the district attorney and juvenile probation office for review, ending his participat[ion] in the incident.” MSJ No. 1 ¶ 91, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 68, at 7.
“After booking J.P. into the juvenile detention center, Deputy Sharkey left J.P.’s mother a voice message on her personal cell phone informing her that J.P. had been arrested and was in custody.” MSJ No. 1 ¶ 92, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 69, at 7. “J.P.’s mother did not return Deputy Sharkey’s call.” MSJ No. 1 ¶ 93, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 70, at 7.
“The juvenile detention center released J.P. to her mother.” MSJ No. 1 ¶ 94, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey’s Nation Depo. at 68:4-9. “Deputy Sharkey did not make the determination as to whether the juvenile detention center would accept J.P. for housing or release her to her mother.” MSJ No. 1 ¶ 95, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 71, at 7. “Deputy Sharkey was not aware that the juvenile detention center was going to release J.P. to her mother instead of accept her for housing at the facility.” MSJ No. 1 ¶ 96, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 72, at 7. “The determination to release J.P. to her mother was made by a juvenile probation and parole officer with the Children, Youth and Families Division by conducting a detention risk assessment to determine whether J.P. posed a significant threat to herself, a significant threat to others, or posed a flight risk.” MSJ No. 1 ¶ 97, at 16 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Deposition of Jeannie Masterson at 57:8-14 (taken June 10, 2018), filed July 30, 2013 (Doc. 92-8) (“Masterson Depo.”); id. at 63:25-65:13; id. at 64:7-65:13; id. at 66:22-25; id. at 72:6-20. “The risk assessment guidelines do not indicate that a law enforcement officer or a probation and parole officer should consider a child's age and mental health status in determining whether a juvenile should be transported to or housed at the juvenile detention center.” MSJ No. 1 ¶ 98, at 16 (setting forth this fact). See Masterson Depo. 91:6-62:12.
6. J.P. Was Not Physically Injured as a Result of the Arrest, Hand-cuffiny, or TranspoH to the Juvenile Detention Center.
“J.P. was not physically injured as a result of the arrest, handcuffing, or transport to the Juvenile Detention Center.” MSJ No. 1 ¶ 100, at 16 (setting forth this fact). See Deposition of [J.H.] at 205:1-7 (taken July 17, 2013), filed July 30, 2013 (Doc. 92-9) (“Sharkey’s J.H. Depo.”). “At most, J.P. had small red marks on the inside of her wrists from the handcuffs.” MSJ No. 1 ¶ 101, at 16 (setting forth this fact). See Sharkey’s J.H. Depo. at 202:11-25. “There were no indentations on JJP.’s wrists.” MSJ No. 1 ¶ 102, at 17 (setting forth this fact). See Sharkey’s J.H. Depo. at 203:13-21. “The small red marks on J.P.’s wrists faded away before that evening.” MSJ No. 1 ¶ 103, at 17. See Sharkey’s J.H. Depo. at 203:13-21. “J.P. did not complain about any physical effects from the handcuffs.” MSJ No. 1 ¶ 104, at 17 (setting forth this fact). See Sharkey’s J.H. Depo. at 204.T7-25. “J.P.’s mother did not take J.P. to the Doctor as a result of the handcuffing.” MSJ No. 1 ¶ 105, at 17 (setting forth this fact). See Sharkey’s J.H. Depo. at 204:6-9. “Being arrested by a police officer at school is a significant” event for any child, and was traumatic for J.P. Response to MSJ No. 1 ¶ C, at 9 (setting forth unmodified version of this fact). See King Depo. at 10:24-11:5.
7. Charges Against J.P.; J.P.’s Competency Evaluation; Dismissal of Charges Against J.P.
Juvenile Probation and Parole Officer (“JPPO”) Angela Opperman completed a Preliminary Inquiry Determination for J.P., which indicated that “[a] Preliminary Inquiry has been completed regarding the above child. It is the recommendation of the undersigned JPPO that, pursuant to the Preliminary Inquiry, it has been determined that it is in the best interest of the child and the public that a petition be filed.”
MSJ No. 1 ¶ 106, at 17 (quoting Preliminary Inquiry Determination at 1 (dated October 25, 2011), filed July 30, 2013 (Doc. 92-10)). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts). “On January 26, 2012, Children’s Court Attorney Alesia Cappon filed a four count Petition, charging J.P. with the following crimes: Battery on School Personnel (Count I); Battery (County II); Interference with Educational Process (Count III); and Disorderly Conduct (Count IV).” MSJ No. 1 ¶ 107, at 17 (setting forth this' fact). See Petition at 1-2, filéd in state court in JR2012-0129 January 26, 2012, filed in federal court July 30, 2013 (Doc. 92-11). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts). “Deputy Sharkey did not prepare the Petition.” MSJ No. 1 ¶ 108, at 17. See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts); Sharkey Aff. ¶¶ 74-75, at 8. “Deputy Sharkey did not make the decision to or have any role in adding the charges of battery, interference with educational process or disorderly conduct which were brought for the first time against J.P. in the Petition.” MSJ No. 1 ¶ 109, at 17-18 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts); Sharkey Aff. ¶ 76, at 8.
“During the pendency of the charges, J.P. underwent a competency evaluation.” MSJ No. 1 ¶ 110, at 18 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 106— 115, at 8 (not disputing this fact); Report of Evaluation for Adolescent/Children Competency Evaluation from Clinton E. Rhyne, Ph. D., to The Honorable Judge Zamora (dated March 20, 2012), filed July 30, 2013 (Doe. 92-12) (“Competency Evaluation”). “The psychologist who conducted the competency evaluation could only provide his ‘provisional’ ‘impressions’ of J.P. because she did not cooperate with the evaluation.” MSJ No. 1 ¶ 111, at 18 (setting forth this fact) (quoting Competency Evaluation at 4). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). “The psychologist’s provisional impressions were ‘anxiety disorder NOS’ and ‘oppositional defiant disorder.’” MSJ No. 1 ¶ 112, at 18 (setting forth this fact) (quoting Competency Evaluation at 4) (emphasis in MSJ No. 1). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). “The psychologist further stated that J.P.’s ‘mute posture and complete refusal to engage the examiner is suggestive of developmental immaturity combined with underlying mental health issues that cannot be adequately assessed under the current circumstances.[’]” MSJ No. 1 ¶ 113, at 18 (setting forth this fact) (quoting Competency Evaluation at 5) (emphasis in MSJ No. 1, but not in Competency Evaluation). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact).
The psychologist opined the following regarding J.P.’s competency to stand trial:
The results of the current evaluation ... did not result in sufficient information to render an opinion relative to her understanding of duties and functions of the various officers of the court or her appreciation of the various options that are available to her in her defense. Her understanding of the nature of the charges pending against her and her appreciation of the range of penalties that could be [ijmposed against her in the event of a guilty finding likewise could not be assessed. Her instant ability to effectively track courtroom proceedings, to assist counsel in her[ ] own defense, to effectively challenge witnesses against her, and to testify relevantly are felt to be compromised as of the date of this evaluation. Accordingly, it is felt that [J.P.] may not have a present sufficient understanding of the nature and significance of the instant proceedings and that she is presently unable to assist her attorney in a factual and rational manner. It is my opinion that [J.P.] is likely not presently competent to proceed in the matter of the instant charges. She is further not competent to enter into a plea bargain arrangement with the court.
MSJ No. 1 ¶ 114, at 18 (quoting Competency Evaluation at 5-6). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). “The charges against J.P. were dismissed because the juvenile court found her incompetent to stand trial.” MSJ No. 1 ¶ 115, at 19 (setting forth this fact). See Amended Order Finding the Child Incompetent and Dismissal of the Charges Nunc Pro Tunc to May 2, 2012 at 1, filed in JR 2012-0129 May 21, 2012, filed in federal court July 30, 2013 (Doc. 92-13); Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact).
PROCEDURAL BACKGROUND
J.H., acting on J.P.’s behalf, commenced this lawsuit in New Mexico state court on December 5, 2011; Sharkey’s co-Defendants removed the case to federal court on February 9, 2012. See Notice of Removal (Doc. 1). On June 28, 2013, the Plaintiffs filed the Plaintiffs’ Second Amended Complaint for Recovery of Damages due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act ¶ 48, at 6, filed June 28, 2013 (Doc. 85) (“Second Amended Complaint”). The Second Amended Complaint alleges, among other things, that Sharkey violated J.P.’s Fourth Amendment right to be free from unlawful seizure when he arrested her and transported her to a juvenile detention facility on September 26, 2011. See Second Amended Complaint passim.
1. MSJ No. 1.
Sharkey filed the MSJ No. 1 on July 30, 2013. See MSJ No. 1 at 1. In the MSJ No. 1, Sharkey asks the Court to grant summary judgment on Count I of the Second Amended Complaint, which alleges that Sharkey violated the Fourth Amendment by unlawfully seizing J.P. See MSJ No. 1 at 1. Sharkey argues that the Court should grant summary judgment on Count I for two reasons: (i) he lawfully arrested J.P.; and (ii) even if he unlawfully arrested J.P., it was not clearly established that his actions were unlawful. See MSJ No. 1 at 1, 20.
Sharkey argues that he lawfully arrested J.P., because he had probable cause to believe that she “had committed the fourth degree felony of battery on a school employee.” MSJ No. 1 at 20. Sharkey explains that probable cause exists “where the facts and circumstances within the arresting officer’s knowledge and of which they [sic] had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to have the belief that the offense has been or is being committed by the person to be arrested.” MSJ No. 1 at 20 (quoting United States v. Alonso, 790 F.2d 1489, 1496 (10th Cir.1986)) (internal quotation marks omitted). Sharkey states that the crime of battery upon a school employee is “ ‘the unlawful, intentional touching or application of force to fhe person of a school employee while [he or she] is in the lawful discharge of [his or her] duties, when done in a rude, insolent or angry manner.’ ” MSJ No. 1 at 21-22 (alteration in Motion but not source) (quoting N.M. Stat. Ann. § 30-3-9). Sharkey contends that the following facts established probable cause that J.H. had committed battery on a school employee: (i) Gonzales was a “school employee” under N.M. Stat. Ann. § 30-3-9(A)(2), because she was a teacher with the Albuquerque Public Schools when the incident occurred; (ii) after J.P. struck one of her classmates, Gonzales and Zamora tried .to restrain J.P. to prevent her from doing it again; (iii) while trying to get away from Gonzales and Zamora, J.P. scratched Gonzales’ hand, causing Gonzales to bleed, and then kicked Gonzales in the thigh; (iv) Sharkey witnessed J.P. kick Gonzales; (v) when J.P. saw Sharkey she immediately stopped kicking Gonzales and retreated to the classroom; and (vi) all of these events occurred during school hours while Gonzales was lawfully discharging her duties as a teacher. See MSJ No. 1 at 22.
Sharkey next addresses the Plaintiffs’ argument that he should not have arrested J.P., because J.P. “lacked the mental capacity to commit a delinquent act.” MSJ No. 1 at 24 (quoting the Second Amended Complaint ¶ 48, at 6). Sharkey explains that, when he arrested J.P., he knew that she was receiving special education services, but was not aware of her diminished mental .capacity. See MSJ No. 1 at 24 (citation omitted). Sharkey states that, “[e]ven assuming for purposes of this motion only that J.P. lacked the mental capacity to commit a delinquent act, it does not negate a finding of probable cause.” MSJ No. 1 at 24 (citation omitted). In support of this contention, Sharkey cites S.A.S. ex rel. W.S. v. Hibbing Public Schools, CIV. 04-3204 JRT/RLE, 2005 WL 2230415 (D.Minn. Sept. 13, 2005). See MSJ No. l’at 23. Sharkey points out that, in that case, officers arrested two disabled students for being disruptive in class and fighting with other students. See MSJ at 23 (citing S.A.S. ex rel. W.S. v. Hibbing Pub. Sch., 2005 WL 2230415, at *3). Quoting from the opinion, which the' Honorable John R. Tunheim, United States District Judge for the District of Minnesota authored, Sharkey states: “[W]hile it is possible that S.A.S.’s disability might be considered in attempting to fashion an appropriate sentence ... that any of the officers may have known S.A.S. was disabled is not relevant to whether they appropriately determined that probable cause existed to bring criminal charges against S.A.S.” MSJ No. 1 at 23 (quoting S.A.S. ex rel. W.S. v. Hibbing Pub. Sch., 2005 WL 2230415, at *3) (internal quotation marks omitted). Sharkey contends that it was reasonable for him to believe that J.P. had intentionally kicked Gonzales and knew that what she had done was wrong, because she immediately stopped kicking Gonzales and retreated to the classroom when she saw Sharkey. See MSJ No. 1 at 24.
Sharkey next turns to the Plaintiffs’ argument that he unlawfully arrested J.P., because he “ ‘knew or should have known that the juvenile detention center would not accept J.P. for housing.’ ” MSJ No. 1 at 24 (quoting Second Amended Complaint ¶ 51, at 6). Sharkey argues that “Plaintiffs’ assertions are factually erroneous and immaterial to a Fourth Amendment probable cause determination.” MSJ No. 1 at 24. Sharkey points out that the CYFD probation and parole officers, and not police officers, determine whether to accept a juvenile at the juvenile detention center. See MSJ No. 1 at 24-25. Sharkey argues, however, that, even if he knew or should have known that the detention center would not house J.P., there is no legal authority indicating that a detention facility’s decision not to house a suspect negates a probable cause finding. See MSJ No. 1 at 25.
Sharkey argues that, even if he unlawfully arrested J.P., he is entitled to qualified immunity, because it was not clearly established that his actions were unlawful. See MSJ No. 1 at 20, 26. Sharkey points out that, “to be clearly established, ‘the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” MSJ No. 1 at 26 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Sharkey contends that the Plaintiffs cannot point to a Supreme Court or Tenth Circuit case “which states that an officer would lack probable cause for an arrest for battery on a school employee in these circumstances.” MSJ No. 1 at 26. To the contrary, Sharkey states, “authority from other jurisdictions establish[es] that there was in fact probable cause in similar factual circumstances.” MSJ No. 1 at 26 (citing Allen v. Elbert County, No. CIV 09-0066(CDL), 2010 WL 1257568 (M.D.Ga. Mar. 25, 2010) (holding that deputies had arguable probable cause to arrest eleven-year-old student for battery for getting into a fight with another student and hitting a teacher as he struggled to get free from her grasp)). Sharkey concludes his qualified immunity argument by stating that, “[bjecause it was not clearly established that [he] lacked probable cause to arrest J.P. for battery on a school employee under these circumstances, [he] is entitled to qualified immunity on Plaintiffs’ Fourth Amendment illegal seizure claim (Count I).” MSJ No. 1 at 26.
2. The Plaintiffs ’ Response.
The Plaintiffs responded to the MSJ No. 1 on August 16, 2013. See Plaintiffs Response to Defendant Sharkey’s Motion for Partial Summary Judgment No. I: Plaintiffs Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103) (“Response”). The Plaintiffs ask the Court to deny the MSJ No. 1. See Response at 1. The Plaintiffs argue that Sharkey lacked probable cause to believe that J.P. committed battery on a school employee, because J.P.’s age and diminished mental capacity prevented her from forming the general intent necessary to commit battery. See Response at 18-22. The Plaintiffs argue that, at common law, a child between seven and fourteen was presumed to be incapable of committing a criminal act. See Response at 18-19 (citations omitted). In the Plaintiffs’ view, because J.P. was eleven years old when the incident occurred,. Sharkey should have presumed that she was incapable of committing a crime. See Response at 18-19.
The Plaintiffs argue, moreover, that J.P.’s mental disability “exacerbates her inability to commit a criminal act.” Response at 19. ■ The Plaintiffs assert that, because J.P. was ultimately found incompe