Citations
- 61 F. Supp. 3d 1176
Full opinion text
MEMORANDUM OPINION
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on Deputy Sharkey’s Motion to Dismiss No. II: Dismissal of Fourteenth Amendment Substantive Due Process Claim, filed January 16, 2013 (Doc. 53)(“MTD”). The Court held a hearing on April 25, 2013. The primary issues are: (i) whether Plaintiff J.H., on behalf of her developmentally disabled child, J.P., can simultaneously bring claims under the Fourth and Fourteenth Amendments of the Constitution of the United States for Defendant J.M. Sharkey’s alleged unlawful seizure of J.P.; (ii) whether Sharkey violated J.P.’s substantive due-process rights under the Fourteenth Amendment when, immediately after J.P. had an altercation with another student at school, he handcuffed J.P. and transported her to the Juvenile Detention Facility; and (iii) whether J.P.’s substantive due-process rights were clearly established. First, J.H. cannot simultaneously bring claims under the Fourth and Fourteenth Amendments for Sharkey’s alleged unlawful seizure of J.P. Second, even if J.H. could bring a separate Fourteenth Amendment claim, Sharkey did not violate J.P.’s substantive due-process rights. Third, even if Sharkey violated J.P.’s substantive due-process rights, those rights were not clearly established, and Sharkey is entitled to qualified immunity. Accordingly, the Court will grant the MTD.
FACTUAL BACKGROUND
Consistent with the Court’s duty to take the plaintiffs allegations as true when considering a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court takes its facts from J.H.’s complaint. See Plaintiffs’ Second Amended Complaint for Recovery of Damages Due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act, filed June 28, 2013 (Doc. 85)(“Complaint”). J.H. and J.P. live in Bernalillo County, New Mexico. See Complaint ¶¶ 1-2, at 1. Throughout the events that the Complaint alleges, J.P. was an eleven-year-old student at Roosevelt Middle School, in Albuquerque, New Mexico. See Complaint ¶¶ 2-5, at 1; id. ¶ 25, at 3.
Because J.P. had experienced significant emotional difficulty at school in the past, she was placed on an Individualized Educational Plan (“IEP”). Complaint ¶¶ 14-22, at 2-3. IEPs are designed to address a developmental!y disabled student’s behavior if such behavior will interfere with learning. See Complaint ¶21, at 3. As part of her IEP, J.P.’s IEP team issued a Behavioral Intervention Plan (“BIP”) that detailed procedures which school officials had to follow before and during the use of physical restraints on J.P.; the Complaint does not describe the procedures other than by alleging that they “did not include handcuffing as an appropriate intervention.” Complaint ¶¶ 20-22, at 3; id. ¶ 29-31, at 4.
In the fall of 2011, J.P. was placed in a special education class that regularly included approximately five developmentally disabled students. See Complaint ¶¶ 25-26, at 4. J.H. informed Sharkey — a Deputy Sherriff of the County of Bernalillo and the school resource officer assigned to Roosevelt Middle School — that either restraining her daughter in handcuffs or arresting her daughter would violate her daughter’s BIP. See Complaint ¶ 6, at 2; ¶38, at 5. On September 26, 2011, J.P. struck a student in her classroom. See Complaint ¶¶ 27-28, at 4. The classroom teacher, Alison Gonzalez contacted Shar-key. See Complaint ¶¶ 25-28, at 4. Gonzales tried to restrain J.P. by grabbing her around the waist. See Complaint ¶¶ 30-32, at 4. Sharkey grabbed J.P. “in violation of the proper method of restraint detailed in [J.P.’s] BIP.” Complaint ¶ 33, at 4. Having “decided to press charges against the child for kicking” her teacher, Sharkey “placed J.P. in handcuffs and walked her out of the classroom,” and then “transported the 11 year old disabled child to the Juvenile Detention Center in his patrol unit,” where she “was held ... for several hours.” Complaint ¶¶ 34-37, at 4-5. “Eventually, J.P.’s handcuffs were removed and she was placed in a small cell with only a floor mat to sit on.” Complaint ¶ 39, at 5. J.H. was informed of these events only after Shar-key placed J.P. in handcuffs and moved her to the Detention Center. See Complaint ¶ 38, at 4-5. “Defendant Sharkey never notified J.P.’s mother, J.H., that her daughter had been arrested, charged with battery and taken to the Detention Center in violation of her BIP.” Complaint ¶ 40, at 5.
PROCEDURAL BACKGROUND
J.H. 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, J.H. filed the Second Amended Complaint. See Complaint at 1. The Complaint alleges seven causes of action, only one of which is relevant to this Memorandum Opinion and Order: a claim that the Shar-key violated J.P.’s rights under the Due Process Clause of the Fourteenth Amendment. See Complaint ¶¶ 60-65, at 7-8. J.H. asserts that New Mexico statutes regulating the handling of a mentally disabled child create a constitutionally protected liberty interest. See Complaint at ¶ 63, at 7-8. J.H. argues that Sharkey violated that interest in two ways: first, by handcuffing J.P., and, second, by transporting her to the Juvenile Detention Center. See Complaint at ¶¶ 62-65, at 7-8.
1. The MTD.
On January 16, 2013, Sharkey moved the Court to dismiss J.P.’s substantive due-process claim. See MTD passim. Sharkey asserts the defense of qualified immunity, arguing that the Complaint does not allege that he violated a clearly established right that the Due Process Clause protects. See MTD at 7-14. In his view, only the Fourth Amendment’s prohibition on unreasonable searches and seizures protects any rights that he allegedly violated. See MTD at 7-14.
2. The Response.
J.H. responded to the MTD on February 11, 2013. See Plaintiffs Response to Deputy Sharkey’s Motion to Dismiss No. II: Fourteenth Amendment Due Process Claim, filed February 11, 2013 (Doc. 61)(“Response”). In J.H.’s view, “the restraint of a mentally ill child for transport to a jail was clearly a violation of the child’s right to be free of liberty deprivations through the use of restraints.” Response at 7. Citing cases involving restraints placed upon those with mental difficulties, J.H. argues that the proper standard for evaluating this claim is whether the state actor properly exercised “professional judgment.” Response at 3-4 (citing Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Santana v. Collazo, 714 F.2d 1172, 1182 (1st Cir.1983); M.H. v. Bristol Bd. of Educ., 169 F.Supp.2d 21, 31 (D.Conn.2001)). J.H. argue that “[t]he State of New Mexico has created a comprehensive statutory scheme that requires police officers to refrain from restraining mentally ill children and providing them with treatment or evaluation.” Response at 3. For example, J.H. points to various sections of the New Mexico Children’s Code that limit the circumstances in which law enforcement can physically restrain or detain a child. See Response at 4-6 (citing N.M. Stat. Ann. §§ 32A-2-2(A); 32A-2-3(B), (H), (J); 32A-2-10; 32A-6A-3). J.H. contends that New Mexico statutes restricting the restraint, transport, and confinement of a delinquent child give rise to a liberty interest that the Due Process Clause protects, and that “the restraint and transport of an eleven year old mentally ill child violated her Fourteenth Amendment rights to be free of restraints.” Response at 6. In sum, J.H. argues that Sharkey violated J.P.’s rights under both the Fourth Amendment and the Due Process Clause, and, because she “does not have to choose whether she vindicates one right or another, she may vindicate both constitutional rights simultaneously.” Response at 1.
3.The Reply.
Sharkey replied to the Response on February 20, 2013. See Deputy Sharkey’s Reply to Response to Motion to Dismiss No. II: Dismissal of Fourteenth Amendment Substantive Due Process Claim, filed February 20, 2013 (Doc. 64)(“Reply”). Sharkey reiterates that “controlling precedent requires analysis of Plaintiffs ... claims under the objective reasonableness and probable cause standard of the Fourth Amendment and not the substantive due-process clause of the Fourteenth Amendment.” Reply at 3. Sharkey further emphasizes other cases which hold that a state actor does not forfeit his qualified immunity defense merely because he has violated state statutory law, and that the issue for suits brought under 42 U.S.C. § 1983 is whether the conduct violates the standards of federal law, and not of state law. See Reply at 5-7. Sharkey argues that, even if he violated New Mexico law governing the treatment of developmentally disabled children, the state-law violations did not, alone, violate J.P.’s clearly established constitutional rights. See Reply at 6-11. Sharkey contends that he is, therefore, entitled to qualified immunity. See Reply at 6-11.
4. The April 25, 2013, Hearing.
The Court held a hearing on the MTD on April 25, 2013. See Transcript of Hearing (taken Apr. 25, 2013)(Doc. 105)(“Tr.”). Sharkey underscored that he acted as a law enforcement officer when he responded to what he believed to be criminal activity and that, regardless of the presence of a minor who suffers from a behavioral disorder, the Court should evaluate the claim that J.P.’s arrest was unlawful only under the Fourth Amendment rather than under the Fourteenth Amendment. See Tr. at 2:24-4:19 (Court, Robles). The Court asked Sharkey whether he is arguing that the Fourth and Fourteenth Amendment claims are mutually exclusive as a matter of law, or that the facts alleged do not satisfy the shocks-the-conscience standard for liability under the Fourteenth Amendment. See Tr. at 4:20-25 (Court). Sharkey indicated that he advances both arguments. See Tr. at 5:1-18 (Robles). The Court asked Sharkey to identify the best ease indicating the claims are mutually exclusive; Sharkey cited the decision of the Supreme Court of the United States in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), for the proposition that “the more specific amendment should be the one that controls and determines which cause of action should be brought.” Tr. at 5:19-6:13 (Court, Robles). Sharkey also pointed to the Court’s decision in James v. Chavez, 830 F.Supp.2d 1208 (D.N.M.2011) (Browning, J.), as evidence that whether the Fourteenth Amendment or the Fourth Amendment applies turns on whether there was a seizure. See Tr. at 6:14-7:15 (Court, Robles). Sharkey argued that, if there was a seizure, the Fourth Amendment applies; if there was no seizure, the Fourteenth Amendment applies. See Tr. at 6:14-7:15 (Court, Robles). Sharkey also pointed to cases cited in the MTD that analyze similar claims under Fourth Amendment law. See Tr. 7:16-9:9 (Robles).
The Court then asked Sharkey to clarify the “clearly established” prong of the qualified immunity analysis; specifically, the Court asked Sharkey to explain whether the officer must know what the specific cause of action will be or simply that there would be some sort of claim. See Tr. 9:10-21 (Court). Sharkey responded by reiterating his argument that “[t]he law is clearly established as to the type of claim that the plaintiff actually has.” Tr. 10:3-^1 (Robles). The Court further asked whether it could dispose of this motion by “simply say[ing] there is no cause of action there under the Fourteenth Amendment ... [b]ut not getting into the clearly established prong.” Tr. 10:17-21 (Court); id. at 10:23-24 (Court). Sharkey responded that the Court could so limit its decision. See Tr. at 10:22 (Robles).
Sharkey then turned the Court’s attention to cases that J.H. cites that touch on state actors’ treatment of mental health patients. See Tr. at 10:25-11:22 (Court, Robles). Sharkey emphasized that the standard applied under the Fourteenth Amendment in cases involving mental health patients differs from the reasonableness standard applied under the Fourth Amendment in cases involving law enforcement officers. See Tr. at 11:11-22 (Robles). According to Sharkey, a legal framework that permits both Fourteenth Amendment and Fourth Amendment claims given facts like those in this case would be illogical. See Tr. at 11:11-22 (Robles). Sharkey concluded by reiterating his qualified immunity argument. See Tr. at 12:7-13:3 (Robles). He emphasized that, although the relevant Fourth Amendment law is clearly established, the relevant Fourteenth Amendment law is not. See Tr. at 12:7-24 (Robles). He concluded: “The plaintiff will still have [her] day in court; [she] will just have to try their case under the Fourth Amendment standard.” Tr. at 13:1-3 (Robles).
J.H. first argued that the Fourth Amendment and Fourteenth Amendment rights differ, because, when an individual is restrained, a “special relationship” is created between the individual and the state. Tr. at 13:19-25 (Kennedy). J.H. reiterated her reliance on cases dealing with state actors taking care of the developmentally disabled. See Tr. at 14:1-17 (Court). The Court pointed out that none of those cases dealt with law enforcement officers and suggested that a different framework might apply in those cases. See Tr. at 14:18-25 (Court). J.H. disagreed, arguing that the activity in this case is not a traditional law enforcement activity, but that Sharkey was instead acting as a “community caretaker[ ]” with a “duty to recognize medical needs.” Tr. at 15:1-6 (Kennedy). The Court asked J.H. why it was necessary to impose this new framework when the Fourth Amendment provides a remedy for anything happening after a lawful arrest. See Tr. at 15:7-11 (Court). J.H. responded that the additional remedy was necessary, because probable cause might support the arrest and thus be lawful under the Fourth Amendment, which would leave disabled child J.H. in cases like this one without a remedy for violations of rights arising under the special relationship that New Mexico law arguably creates. See Tr. at 15:17-16:11 (Court, Kennedy).
The Court asked J.H. to clarify the role of state law in this case. See Tr. at 16:12-15 (Court). J.H. argued that the state statutory framework regulating the treatment of children creates a liberty interest that the Due Process Clause protects, and that law enforcement violates that interest when, as here, it arrests an eleven-year-old child and takes her to jail. See Tr. at 16:16-17:19 (Kennedy). The Court asked whether the shock-the-conscience standard applies in this case. See Tr. at 17:20-22 (Court). J.H. argued that the standard does not apply to special-relationship cases, but the Court recalled case law saying that the shock-the-conscience standard applies to all substantive due-process claims. See Tr. at 17:20-19:2 (Court, Kennedy). J.H. pointed out that, because Sharkey had not raised that argument in the MTD, they did not address it. See Tr. at 19:3-22 (Court, Kennedy, Robles). J.H. then clarified her position by stating that, once Sharkey arrested J.P., it became a special-relationship case, so the shock-the-conscience standard did not apply. See Tr. at 19:23-20:8 (Court, Kennedy).
The Court then asked J.H. to clarify her views of the issues in the case. See Tr. at 20:14-17 (Court). After some argument, the parties seemed to agree that the case implicates two issues: (i) whether J.H. could have both a Fourth Amendment claim and a Fourteenth Amendment claim; and (ii) whether the state statutes governing the treatment of children create a liberty interest that the Due Process Clause protects. See Tr. at 20:18-23:8 (Court, Kennedy, Robles). J.H. then sought to give hypotheticals where both the Fourteenth and the Fourth Amendments would apply. See Tr. at 13:12-20 (Kennedy). The Court asked J.H. to identify cases stating that “somewhere in this continuum it becomes a Fourteenth Amendment claim rather than a Fourth Amendment Claim”; J.H. was unable to do so. Tr. at 23:21— 24:1 (Court, Kennedy). J.H. insisted, however, that there are scenarios where the two claims overlap — for example, where an individual is arrested without probable cause and does not get appropriate medical care. See Tr. at 23:25-24:8 (Kennedy). In J.H.’s view, there are no cases directly on point, because such claims typically have proceeded without objection. See Tr. at 24:9-14 (Kennedy). J.H. also distinguished cases analyzing similar claims under the Fourth Amendment, arguing that this case is different from the run-of-the-mill adult-arrest case, because it involves the treatment of children with mental health issues. See Tr. at 24:15-25:2 (Court, Kennedy).
The Court asked Sharkey about J.H.’s argument that, if the Court dismisses the Fourth Amendment claim because Shar-key made the arrest with probable cause, J.H. would lack a claim for events after the handcuffing. See Tr. at 15:11-17 (Court). Sharkey argued that cases both from the Supreme Court of the United States and from the United States Court of Appeals for the Tenth Circuit mandate that outcome. See Tr. at 25:18-26:1 (Robles). The Court asked Sharkey when the claim converted from a Fourth Amendment claim to a Fourteenth Amendment claim. See Tr. at 26:2-7 (Court). Sharkey argued that, once he dropped off J.P. at the Juvenile Detention Center, his duties under the Fourth Amendment ceased, because Shar-key no longer had her in custody. See Tr. at 28:18-24 (Robles). At that point, according to Sharkey, employees of the Judicial Detention Center took responsibility for J.P., and they were “required by the Constitution to observe her Fourteenth Amendment rights.” Tr. at 28:24-29:3 (Kennedy).
The Court asked J.H. why it was necessary to have Fourteenth Amendment and Fourth Amendment claims. See Tr. at 30:22-31:2 (Court). J.H. suggested that the Fourteenth Amendment claim is necessary, because Sharkey could file a summary judgment motion regarding the Fourth Amendment claim on the basis that probable cause supported the arrest. See Tr. at 31:3-32:14 (Court, Kennedy). The Court asked J.H. how old a person must be to be considered a criminal defendant. See Tr. at 33:2-4 (Court). J.H. answered that a person must be eighteen years old to be considered a criminal defendant, and also indicated that, because New Mexico law does not permit a Juvenile Detention Center to accept a juvenile who has committed only a misdemeanor, such a person should not be taken to a Juvenile Detention Center. See Tr. at 33:2-33:16 (Court, Kennedy).
Sharkey reiterated his view that, under controlling precedent, the Fourth Amendment secures rights that “include liberty, property, and privacy interests, a person’s sense of security and individual dignity.” Tr. at 33:19-34:5 (Court, Robles). For this reason, Sharkey argued, the Fourth Amendment provides a sufficient remedy for J.H. See Tr. at 34:6-34:25 (Court, Robles). In Sharkey’s view, “[i]t is the Fourth Amendment that’s meant to protect not only [a] wrongfully charged criminal defendant, but also to protect those criminal defendants who have disabilities that are particular to them that make them more vulnerable than other criminal defendants.” See Tr. at 35:7-12 (Robles).
LAW REGARDING RULE(12)(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE
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.Sd 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all of the complaint’s well-pleaded factual allegations, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“[OJnly 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-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”) (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twom-bly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).
To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010) (“To determine whether a motion to dismiss was properly granted, we apply a plausibility standard to ascertain whether the complaint includes enough facts that, if assumed to be true, state a claim to relief that is plausible on its face.”). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007).
The Tenth Circuit has held that “Iqbal establishes the importance of context to a plausibility determination.” Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir.2010).
“[Plausibility” in th[e general pleading] context must refer to the scope of the allegations' in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (citations omitted).
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983
Section 1988 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 plaintiffs 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 has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 (“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.”); Bd. of Cnty. 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, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.)(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). 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 context of a public employee, 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 Veil settled that an otherwise private tort is not committed under color of law simply because the tort-feasor 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 & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (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 plaintiffs 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 v. Dep’t of Soc. Servs., 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 was not a superseding-intervening cause of a plaintiffs 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, 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, 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 hable 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, “[fjoreseeable 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)) (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 Cnty. 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 as follows: “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 did 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, 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 Cnty. 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 (in) 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, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). The Su preme 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). “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 in Currier v. Doran, 242 F.3d 905 (10th Cir.2001).
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 ... (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure 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, they 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 plaintiffs 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 plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011).
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). 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).
1. Procedural Approach to Qualifíed Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualifíed immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz—by which á court first decides if the defendant’s actions violated the Constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior mandato ry approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior case law “comports with our usual reluctance to decide constitutional questions unnecessarily”). Once the plaintiff establishes an inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the ... claim ... may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad decisionmaking,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808) (internal quotation marks omitted). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S.Ct. at 2031-32. See Kerns v. Bader, 663 F.3d at 1181. “Courts should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Pearson v. Callahan, 555 U.S. at 236-37, 129 S.Ct. 808). See Camreta v. Greene, 131 S.Ct. at 2032 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182.
2. Clearly Established Rights in the Qualiñed Immunity Analysis.
To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist. 473 F 3d 1323; 1327 (10th Cir.2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dep’t of Corr., 429 Fed.Appx. 707, 710 (10th Cir.2011) (unpublished) (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983)).
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in origi-nalXquoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131 S.Ct. at 2083. “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant' ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151.
The Tenth Circuit held in Kerns v. Bader that, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) (“The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.”). “[W]hen an officer’s violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning....” Hope v. Pelzer, 536 U.S. at 741, 122 S.Ct. 2508.
In Rivera v. Bates, No. CIV 12-0473 JB/RHS, 2014 WL 3421050 (D.N.M. June 21, 2014) (Browning, J.), the Court used the Kerns v. Bader qualified-immunity framework to determine if it was clearly established that arresting a suspect in his underwear and failing to retrieve his clothing to cover him up while he is transported from his house to a patrol car makes the arrest unreasonable. See 2014 WL 3421050, at *54. The Court stated:
Even if the Court could, on the record before it, conclude, as a matter of law, that the manner in which Hernandez effectuated the arrest was [un]reasonable, the Court finds that the law was not clearly established such that a reasonable officer in Hernandez’ position would have recognized that he needed to retrieve clothing for S. Rivera rather than escort him directly to the police vehicle. As the Tenth Circuit has emphasized, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader, 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Here, S. Rivera has relied on Cortez v. McCauley [478 F.3d 1108 (10th Cir.2007) ], to establish that his clearly established rights were violated, but the Tenth Circuit in that case stated that it had “little difficulty concluding that a small amount of force, like grabbing Rick Cortez and placing him in the patrol car, is permissible in effecting an arrest under the Fourth Amendment.” 663 F.3d at 1182. The Tenth Circuit only made one comment regarding Cortez’ clothing during the arrest:
Although the dignity aspects of this arrest are troubling, specifically hauling Rick Cortez (clad only in his shorts) into the patrol car in the middle of the night without any explanation, the police were investigating a serious felony and claimed a need for quick action to separate the accused from any other children that might be in the home.
478 F.3d at 1128-29. The Tenth Circuit did not explain what would have to be different about the “dignity aspects” for the arrest to violate the Fourth Amendment. More importantly, the Court emphasizes that Hernandez did not participate in any of the alleged wrongdoing inside S. Rivera’s house, nor did he refuse to allow S. Rivera to get dressed; instead, Hernandez was involved in the arrest only after S. Rivera was outside the house. S. Rivera has not pointed to, nor has the Court been able to identify, any cases that demand that an officer delay taking'the arrestee to a police vehicle so the officer can enter the ar-restee’s home to search for clothing or otherwise find some covering for an ar-restee on the way to the police vehicle. The Court will thus grant the MSJ on S. Rivera’s excessive and unreasonable force claim against Hernandez.
Rivera v. Bates, 2014 WL 3421050, at *54 (emphasis in original).
LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS
The Fourteenth Amendment’s Due Process Clause provides that “no State shall ... deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiffs due process rights and not for third parties’ acts. See Robbins v. Oklahoma, 519 F.3d at 1251 (citing DeShaney v. Winnebago Cnty., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). “[Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cnty., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney v. Winnebago Cnty., 489 U.S. at 195, 109 S.Ct. 998.
1. Exceptions to the General Rule.
There are, however, two exceptions to this general rale. The first— the special-relationship exception — arises when the state has a custodial relationship with the victim, which triggers an affirmative duty to provide protection to that individual. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-95 (10th Cir.1994). The second— the danger-creation exception — provides that a state may also be liable for an individual’s safety “only when ‘a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.’ ” Robbins v. Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). “If either the special-relationship or danger-creation exception applies, the conduct of the state actor must go beyond negligence to the point of ‘shocking the conscience.’ ” Glover v. Gartman, 899 F.Supp.2d 1115, 1135 (D.N.M.2012) (Browning, J.)(citing Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir.2006)). The Court’s decision in Glover v. Gartman was also consistent with a previous Tenth Circuit decision—Radecki v. Barela, 146 F.3d 1227 (10th Cir.1998)—in which the Tenth Circuit stated:
It is true, of course, that state actors are generally only liable under the Due Process Clause for their own acts and not private violence. There are, however, two exceptions to that rule. First