Young v. City of Albuquerque (77 F. Supp. 3d 1154, 2014)

United States District Court for the District of New Mexico 2014-12-24

Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant Albuquerque Police Department’s Motion to Dismiss Plaintiffs Claims Against the Albuquerque Police Department, filed April 7, 2014 (Doc. 17)(“MTD 1”); and (ii) Defendant City of Albuquerque’s Motion and Memorandum to Dismiss Plaintiffs Municipal Liability Claims Against City of Albuquerque, filed April 7, 2014 (Doc. 18)(“MTD 2”). The Court held a hearing on October 28, 2014. The primary issues are: (i) whether Defendant Albuquerque Police Department (“APD”) is a suable entity under 42 U.S.C. § 1983; (ii) whether Young may hold the City of Albuquerque, New Mexico, vicariously liable under § 1983 for alleged torts that City of Albuquerque employees committed without alleging that the City of Albuquerque has an official policy, unwritten custom, pattern or practice that caused such torts; and (iii) whether the Court should remand the Plaintiffs’ state-law claims to state court if it dismisses all of the federal claims. The Court will grant both motions to dismiss in part and deny them in part. First, the Court will dismiss Young’s § 1983 claims against the APD, because the APD is not a suable entity under § 1983. Second, the Court will dismiss Young’s § 1983 claims against the City of Albuquerque, because she has not plausibly alleged that a municipal policy, custom, or practice caused her alleged constitutional injuries. Third, the Court will deny the Defendants’ requests in the MTD 1 and the MTD 2 to dismiss the Plaintiffs’ state law claims. The Court will give the Plaintiffs until 5:00 p.m. MST on December 31, 2014, to amend the Complaint for Replevin, Conversion, Deprivation of Due Process, Negligence, and Negligence Per Se, filed October 28, 2013 (Doc. l-l)(“Complaint”), to allege causes of action against APD Detective John Dear and any other individuals. If the Plaintiffs fail to do so, however, the Court will decline to exercise supplemental jurisdiction over the Plaintiffs’ state-law claims and will remand those claims to state court.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint, as it must when considering a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(b)(6). This case arises out of Dear’s alleged seizure of the Plaintiffs’ Harley Davidson motorcycle. See Complaint ¶¶ 7-36, at 2-8.

On or about August 24, 2014, Plaintiff Sharissa Young purchased a 1975 Harley Davidson motorcycle (“Motorcycle”) from Plaintiff James Lochhead in Albuquerque, New Mexico. Complaint ¶ 7, at 2. The Motorcycle is a red and gray customized FX model with a shovelhead engine and VIN number 2C22898H5. See Complaint 118, at 2. Lochhead had lawfully purchased the motorcycle from the widow of his friend, Joel Null, on or about October 25, 1997. See Complaint ¶ 9, at 2. Lochhead had also secured the required Arizona inspections and registrations at regular intervals between when he purchased the Motorcycle from Null and sold it to Young. See Complaint ¶ 10, at 2.

When she purchased the Motorcycle from Lochhead, Young obtained the Motorcycle’s valid Arizona title, insurance for the Motorcycle, and had a VIN inspection done at the New Mexico Motor Vehicle Division to register the Motorcycle in New Mexico. Complaint ¶ 12, at 2. On or about September 11, 2012, Dear performed an additional inspection on the Motorcycle. See Complaint ¶¶ 13-14, at 3. During this time, Dear was working in his capacity as an APD detective and a City of Albuquerque employee. See Complaint ¶ 20, at 20. When Dear inspected the Motorcycle, he told Young that three numbers in the VIN number stamped on the aluminum engine case on top of the Motorcycle’s motor appeared to be in a different font than the rest of the numbers. See Complaint ¶ 14, at 3. Dear also informed Young that, when he removed the skid plate under the engine, he discovered a different VIN number that matched a 1979 Harley Davidson motorcycle that was stolen in 1980. See Complaint ¶ 14, at 3.

According to Dear, police never recovered that stolen motorcycle and there was no record of it being reported as a loss to an insurance company. See Complaint ¶ 15, at 3. Consequently, Dear refused to return the Motorcycle or any of its parts to Young. See Complaint ¶ 16, at 3. Dear also refused to return the Plaintiffs’ personal property that was in the Motorcycle, which included a leatherman tool bag. See Complaint ¶ 17, at 3. Dear had no legal basis for seizing' the Motorcycle. See Complaint ¶ 24, at 4. There was never any notice of seizure, impoundment, or anything else sent to either Lochhead or Young about Dear’s seizure of the Motorcycle. See Complaint ¶ 18, at 3. Neither Young nor Lochhead stole or otherwise unlawfully obtained the Motorcycle or any of its parts. See Complaint ¶ 19, at 3. The Plaintiffs were, and are,' lawful, innocent owners and bona fide purchasers. See Complaint ¶ 19, at 3.

“Despite many demands from Plaintiff and plaintiffs counsel for the return of the vehicle, Defendants refused.” Complaint ¶ 34, at 5. The Defendants have not filed a petition in a District Court for the State of New Mexico requesting the Motorcycle be declared contraband. See Complaint ¶ 29, at 5. No New Mexico court has declared the Motorcycle or any of its parts to be contraband. See Complaint ¶ 30, at 5. On July 10, 2013, the City of Albuquerque notified Young’s attorney via electronic mail transmission, and without any citation to law, that it would not release the Motorcycle or any of its parts without a court order. See Complaint ¶ 36, at 6.

PROCEDURAL BACKGROUND

Young alleges three counts against the Defendants: (i) replevin, see Complaint ¶¶ 37-41, at 6 (Count I); (ii) conversion, see Complaint ¶¶ 42-46, at 6-7 (Count II); and (iii) violations of her substantive and procedural due-process rights under the Fourteenth Amendment to the Constitution of the United States of America and the Constitution of the State of New Mexico, see Complaint, ¶¶ 47-54, at 7 (Count III). Young and Lochhead together allege one count against the Defendants: negligence and negligence per se (Count IV). See Complaint ¶¶ 55-59, at 7-8. Regarding the replevin claim, Young asserts that the Defendants wrongfully seized the Motorcycle, that she lawfully owns the Motorcycle, and that the Court should grant her an Order of Replevin requiring the Defendants to return the Motorcycle to her. See Complaint ¶¶ 38-41, at 6. Regarding the conversion claim, Young alleges that the Defendants converted her Motorcycle intentionally, willfully, and with gross and deliberate disregard for her rights. See Complaint ¶¶ 43-44, at 6.

As to her due-process claim, Young argues that the Defendants acted under color of state law and caused her to be deprived of her rights under the Constitutions and laws of the United States and the State of New Mexico. See Complaint ■¶ 48, at 7. Young asserts that the Defendants have deprived her of her property rights without due process of law — by, for example, failing to give her proper notice and an opportunity to be heard before seizing her property. See Complaint ¶¶ 50-51, at 7. Young alleges that the Defendants conduct violated her “rights to procedural and substantive due process under the United States Constitution and New Mexico Constitution.” Complaint ¶ 52, at 7.

Regarding their negligence and negligence per se claim, the Plaintiffs argue that the Defendants owed them a duty to exercise ordinary care. See Complaint ¶ 56, at 8. The Plaintiffs contend that the Defendants breached this duty by negligently seizing and then converting the Motorcycle. See Complaint ¶ 57, at 58. The Plaintiffs assert that the Defendants also breached their duty of care by violating N.M. Stat. Ann. § 66-3-507. See Complaint ¶ 57, at 8.

1. MTD 1.

The APD filed the MTD 1 on April 7, 2014. See MTD 1 at 1. In the MTD 1, the APD asks the Court to dismiss the Plaintiffs’ claims against it, because it is not a suable entity. See MTD 2 at 2. The APD asserts that it is an administrative department of the City of Albuquerque, which is a municipal corporation. See MTD 2 at 2. According to the APD, administrative departments of municipal corporations lack legal identities apart from the municipality, and, therefore, are not suable entities. See MTD 2 at 2 (citing, e.g., Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.1992); Stump v. Gates, 777 F.Supp. 808 (D.Colo.1991) aff'd 986 F.2d 1429 (10th Cir.1993); Post v. City of Fort Lauderdale, 750 F.Supp. 1131 (S.D.Fla.1990)). The APD also states:

In a non-precedential opinion, the Tenth Circuit indicated that APD is not a “suable entity under Section 1983” because it lacks a legal identity apart from the municipality. Ketchum v. Albuquerque Police Department, 958 F.2d 381 (table, 1992 WL 51481 (10th Cir. March 12, 1992)). The Ketchum decision is consistent with decisions reached in the New Mexico District Courts which conclude that APD is not a suable entity. See Maxwell v. City of Albuquerque Police Department et al., CIV No. 02-0568 LH/LFG (D.N.M. Memorandum Opinion and Order filed August 1, 2001); and Montoya v. City of Albuquerque et al., CIV No. 96-341 JC/DJS (D.N.M. Memorandum Opinion and Order filed October 4, 1994). Thus, Plaintiffs’ cause of action against APD is improper because the police department, as an administrative department of the City of Albuquerque, is not a suable entity.

MTD 1 at 3.

The Plaintiffs responded to the MTD 1 on May 23, 2014. See Plaintiffs’ Response to Defendant Albuquerque Police Department’s Motion and- Memorandum to Dismiss [Doc. 17], filed May 23, 2014 (“MTD 1 Response”). The Plaintiffs advance two arguments in the MTD 1' Response. See MTD 1 Response at 2-3. First, the Plaintiffs argue that the United States Courts of Appeals cases that the APD relies on hold only that municipal police departments are not suable entities for § 1983 claims — they say nothing about whether APD can be sued under state law. See MTD 1 Response at 2. The Plaintiffs point out that APD cited a case in which the United -States Court of Appeals for the Ninth Circuit held that a police department could be sued under California law. See MTD 1 Response at 2 (citing Shaw v. State of Ca. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 605 (9th Cir.1986) (“We conclude that the courts of California would hold that the Police Department is a public entity under section 811.2. Thus, under Fed.R.Civ.P. 17(b) the Police Department may be sued in Federal Court”)). The Plaintiffs say that the Complaint alleges “distinct actions that APD made as a public entity to deprive Plaintiffs of their property, and other employees at the City of Albuquerque who separately refused to return Plaintiffs’ property.” MTD 1 Response at 2. According to the Plaintiffs, because the APD has not explained why the Court should dismiss their replevin, conversion, or negligence claims, the Court should deny the MTD 1 on those claims. See MTD 1 Response at 3. Second, the Plaintiffs assert, without further explanation, that “[e]ach public entity should be held accountable under Section 1983 for its actions.” MTD 1 Response at 3. The Plaintiffs also request that, in the alternative, the Court allow them to amend the Complaint to include claims against the individual detective instead of dismissing their claims against APD. See MTD Response at 3.

2. MTD 2.

The City of Albuquerque filed the MTD 2 on April 7, 2014. See MTD 2 at 1. In the MTD 2, the City of Albuquerque asks the Court to dismiss the Plaintiffs’ § 1983 claims against it. See. MTD 2 passim. The City of Albuquerque argues that the Plaintiffs may not hold it vicariously liable for a City of Albuquerque employee’s allegedly tortious acts, but must instead show that the employee acted pursuant to a municipal custom or policy. See MTD 2 at 4-5 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The City of Albuquerque contends that the Plaintiffs cannot establish such a policy “merely by identifying a policymaker’s conduct that is properly attributable to the municipality.” MTD 2 at 5. Instead, according to the City of Albuquerque, the Plaintiffs must show that the City has a “ ‘custom’ of engaging in conduct which is unconstitutional, Vide-spread,’ ‘permanent and well-settled.’ ” MTD 2 at 5 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). The City of Albuquerque also asserts that the Plaintiffs must show that a history of widespread prior abuse put it on notice that it must take corrective action to prevent similar occurrences in the future. See MTD 2 at 5 (citing Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir.2000); Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.1998)). The City of Albuquerque states that the Complaint does not allege: (i) any facts indicating that the City of Albuquerque had a policy, custom, or practice that led to the Plaintiffs’ injuries; or (ii) any facts that would show that City of Albuquerque policymakers were aware — or should have been aware — of any alleged misconduct by City of Albuquerque employees. See MTD 2 at 6-7. The City of Albuquerque argues that the Court should, accordingly, dismiss the Plaintiffs’ § 1983 claims against it. See MTD 2 at 7.

The Plaintiffs responded to the MTD 2 on May 23, 2014. See Plaintiffs’ Response in Opposition to Defendant City of Albuquerque’s Motion and Memorandum to Dismiss Plaintiffs’ Municipal Liability Claims Against City of Albuquerque, filed May 23, 2014 (Doc. 21)(“MTD 2 Response”). In the MTD 2 Response, the Plaintiffs state that, contrary to the City of Albuquerque’s contentions, Young’s due-process claims are not based solely on vicarious liability. See MTD 2 Response at 3. In the Plaintiffs’ view, the City of Albuquerque is also directly liable, because: (i) “[tjhere was never any notice of seizure, notice of impoundment, or any other written notification sent to either Plaintiff about the seizure of the motorcycle,” MTD 2 Response at 3 (citation omitted); (ii) the “Defendants violated New Mexico law by holding Plaintiffs property beyond the statutory maximum of 6 days and never sought an ex parte order allowing impoundment as required by N.M.S.A. 66-3-507(B),” MTD 2 Response at 3; (iii) the Defendants never filed a petition in a State of New Mexico court requesting the motorcycle be declared contraband, see MTD 2 Response at 3; and (iv) despite Young’s numerous demands to return the Motorcycle — not only from Dear, but also from the City Attorney’s office — the Defendants have refused to do so, see MTD 2 Response at 4. In the Plaintiffs’ view, “[tjhese facts showing culpability by the municipality itself absolutely states a municipal liability claim.” MTD 2 Response at 4. The Plaintiffs argue that, moreover, the Defendants’ continued disregard of their rights “shows a systemic problem in the procedure for seizing vehicles.” MTD 2 Response at 4.

The Plaintiffs contend that the MTD 2 did not address Young’s procedural due-process claim. See MTD 2 Response at 5. According to the Plaintiffs, to prevail on either a procedural or substantive due-process claim under § 1983, they must “first establish that a defendant’s actions deprived plaintiff of a protectable property interest.” MTD 2 Response at 5 (quoting Nichols v. Bd. of Cnty. Comm’rs, 506 F.3d 962, 969 (10th Cir.2007))(internal quotation marks omitted). The Plaintiffs state that, to plausibly allege a procedural due-process claim, they instead must show that “the government process which it must follow is insufficient to protect its ownership rights.” MTD 2 Response at 5 (citing Winters v. Bd. of Cnty. Comm’rs, 4 F.3d 848 (10th Cir.1993)). The Plaintiffs state:

The complaint alleged that Plaintiff had a property right in her motorcycle, that Defendants have deprived Plaintiff of her property rights without due process of law by failing to give proper notice and an opportunity to be heard. Moreover the complaint specifically states that Defendants’ conduct violates Plaintiffs rights to procedural and substantive due process under the United States Constitution and New Mexico Constitution.

MTD 2 Response at 6.

The City of Albuquerque replied to the MTD 2 Response on June 12, 2014. See Defendant City of Albuquerque’s Reply to Plaintiffs’ Response to the Motion and Memorandum to Dismiss Plaintiffs’ Municipal Liability Claims Against City of Albuquerque, filed June 12, 2014 (Doc. 24)(“MTD 2 Reply”). The City of Albuquerque raises two new arguments in the MTD 2 Reply. See MTD 2 Reply at 4-8. First, the City of Albuquerque argues that it did not violate Young’s substantive due-process rights, because its conduct did not “shock the conscience.” MTD 2 Reply at 5 (citing Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995)). The City of Albuquerque explains that “[i]t is only when the reasons set forth for the governmental action have so little relationship to a legitimate state interest so as to shock the conscience that substantive due process is implicated.” MTD 2 Reply at 5 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). The City of Albuquerque argues that, because it has a legitimate interest in seizing stolen property like the Motorcycle, such conduct does not shock the conscience. See MTD 2 Reply at 7.

Second, the City of Albuquerque contends that Young received all of the procedural due process to which she was entitled. See MTD 2 Reply at 6-7. The City of Albuquerque states:

NMSA 66-3-507 deals with altered vehicle identification numbers and the definition of contraband. The main purpose of construing statutes is to determine the meaning and intent of the legislature. Roth v. Thompson, 113 N.M. 331, 332, 825 P.2d 1241, 1242 (1991 [1992]). In State ex rel. Dep’t of Public Safety v. One 1986 Peterbilt Tractor, the New Mexico Court of Appeals held that:

the provisions of Section 66-3-507, when read together, clearly evince a legislative intent that a person in possession of a vehicle or engine must make adequate inquiry and inspection to determine that the vehicle or engine’s VIN has not been altered, de-' faced, or destroyed. Section 66-3-507(B) provides that when a law enforcement officer finds that a vehicle or vehicle engine has an altered or removed VIN, there is a presumption that the vehicle and/or engine is contraband. The Section 66-3-507(B) procedures ensure that the declaration is by petition of the State to a court of general jurisdiction and after a hearing. Section 66-3-507(B) also requires an owner of a vehicle/engine having an altered VIN to furnish the court with records indicating the identity of all intermediate owners in order for the owner of the vehicle/engine having an altered VIN to be entitled to its return. Lastly, Section 66-3-507(C) provides exceptions to the declaration that the vehicle/engine is contraband.

1997-NMCA-050, ¶ 10 [123 N.M. 387, 940 P.2d 1182] (emphasis added). Section 66-3-507(C) states “the vehicle, motor vehicle or motor vehicle engine or component shall not be considered contraband when (1) it has been determined that the vehicle, motor vehicle or motor vehicle engine or component has been reported as stolen.” The Court further held that NMSA 66-3-507 “does not violate due process,” 1997-NMCA-050, ¶ 9 [123 N.M. 387, 940 P.2d 1182].

MTD 2 Reply at 6 (citations omitted)(internal quotation marks omitted). The City of Albuquerque contends that, as stolen property, the Motorcycle and its parts “clearly fall into the Section 66-3-507(C) exception to contraband and therefore are also exempted from the 66-3-507(B) requirements for a petition and a hearing in front of a court to declare items contraband.” MTD 2 Reply at 7. The City of Albuquerque states that, because Young could not prove her lawful ownership of the Motorcycle, Dear “could not return the motorcycle until [Young] could obtain the proper paperwork from a judge advising that the motorcycle was now legally hers.” MTD 2 Reply at 7. The City of Albuquerque concludes, therefore, that Young received all of the procedural due process to which she was entitled given § 66-3-507 and the Motorcycle’s status as stolen prop-' erty. See MTD 2 Reply at 7.

3. The October 28, 2014 Hearing.

The Court held a hearing on October 28, 2014. See Transcript of Hearing (taken October 28, 2014)(“Tr.”). At the hearing, the parties largely reiterated the arguments from the briefing. See Oct. 28, 2014 Tr. at 1:23-15:13 (Dalton, Garcia). Regarding the MTD 1, the APD reiterated that it is not a suable entity, because it is an arm of the City of Albuquerque municipal corporation. See Tr. at 12:11-25 (Dalton). The APD also pointed out that cases have not limited this holding to § 1983 claims, but instead have concluded that police departments are not suable entities generally. See Tr. at 12:25-13:5 (Dalton)(citing Maxwell v. City of Albuquerque Police Department, No. CIV 02-0568 (D.N.M. Dec. 30, 2012) (Hansen, J.)). The Plaintiffs responded that the Court should allow the claims against the APD to go forward, because the Complaint alleges distinct causes of action against it as opposed to the City of Albuquerque. See Tr. at 13:16-14:10 (Garcia).

Addressing the MTD 2, the Plaintiffs clarified that the Complaint alleges only that the City of Albuquerque had an informal custom or practice, and not a formal policy, of depriving individuals of their property rights without due process. See Tr. at 5:3-6:7 (Garcia). The City of Albuquerque responded that, because the Complaint does not allege the existence of an informal policy that motivated Detective Dear’s decisions, it does not state a plausible § 1983 claim. See Tr. at 10:1-6 (Dalton). The Court said that it was inclined to grant both motions to dismiss. See Tr. at 11:16-12:8 (Court). Regarding the MTD 1, the Court stated that the Plaintiffs could not sue APD as a separate entity, but must instead sue the City of Albuquerque. See Tr. at 12:2-9 (Court). Regarding the MTD 2, the Court said that the Complaint did not sufficiently allege enough facts to indicate that the City of Albuquerque has a formal policy, custom, or practice that caused the alleged constitutional violations. See Tr. at 11:16-25 (Court).

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The 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 well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See 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. Twombly, 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).

“[P]lausibility” 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 1983 of Title 42 of the United States Code provides:

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

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting -under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a 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 “well 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 plaintiff’s constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be “ ‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Mar tinez 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, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:

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

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, “[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 308-04 (5th ed.1984)). If

the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act reheves 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 Cir2009) (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 (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality’s inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.

LAW REGARDING 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. Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). “[NJothing 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. Dep’t of Soc. Servs., 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. Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998.

1.Exceptions to the General Rule.

There are, however, two exceptions to this general rule. The first exception&emdash;the special-relationship doctrine&emdash;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 exception—the danger-creation theory&emdash;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 shocks the conscience standard applies to both types of suits.”)).

2. Special-Relationship Exception.

The first exception to the general principle that a state’s negligent failure to protect an individual cannot trigger liability under the due-process clause is the special-relationship doctrine. A plaintiff must show that they were involuntarily committed to state custody to establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir.1996). “A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995).

3. Danger-Creation Exception.

The Due Process Clause protects against “deliberately wrongful government decisions rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The danger-creation exception to this rule applies only when “a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Estate of B.I.C. v. Gillen, 702 F.3d 1182, 1187 (10th Cir.2012) (“[S]tate officials can be liable for the acts of private parties where those officials created the very danger that caused the harm.”)- Under a danger-creation theory, there is no § 1983 liability absent “an intent to harm” or “an intent to place a person unreasonably at risk of harm.” Uhlrig v. Harder, 64 F.3d at 573. A plaintiff must show “sufficiently] ‘affirmative conduct on the part of the state in placing the plaintiff in danger.’” Estate of B.I.C. v. Gillen, 702 F.3d at 1187 (quoting Gray v. Univ. Colo. Hosp. Auth., 672 F.3d 909, 916 (10th Cir.2012)). To state a prima-facie case, the plaintiff must show that his or her danger-creation claim for due-process violations meets a six-part test: (i) the state and individual actors must have created the danger or increased plaintiffs vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (in) the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) and the defendant must have acted recklessly in conscious disregard of that risk. See Pena v. Greffet, 922 F.Supp.2d 1187, 1227 (D.N.M.2013) (Browning, J.)(citing Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir.2008)).

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

4. What Shocks the Conscience.

A government actor’s official conduct intended to injure in a way that cannot reasonably be justified by any government interest most likely shocks the conscience. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“[Conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”). “[A] plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir.2006) (quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.2006) (internal quotation marks omitted)). “The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d at 1222-23 (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995))(internal quotation marks omitted).

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

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

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

In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir.2001), the widow of a corrections officer sued the director, deputy director, warden, and deputy wardens of the department of corrections, alleging that the defendants deliberately failed to ensure proper training and supervision of penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective action to protect her husband, all of which resulted in him being killed during the escape of three inmates. See 265 F.3d at 1132. The district court found that the plaintiff failed to state a § 1983 claim for violation of the Due Process Clause under a danger-creation theory because the defendants’ actions were “not of such a magnitude that the Court is able to conclude they shock the conscience.” 265 F.3d at 1134. The Tenth Circuit agreed with the district court’s conclusion, stating: “[U]n-der the circumstances of this case, inaction in the face of known dangers or risks [was] not enough to satisfy the danger-creation theory’s conscience shocking standard.” 265 F.3d at 1135.

In Schaefer v. Las Cruces Public School District, 716 F.Supp.2d 1052 (D.N.M.2010) (Browning, J.), the plaintiffs alleged that the defendants — the school district, superintendent, principal, and vice principal of a middle school — violated the plaintiffs’ substantive due-process rights when they did not take sufficient action to prevent a student at the school from “racking” the plaintiffs’ son. 716 F.Supp.2d at 1072-73. The Court concluded that the defendants’ conduct did not shock the conscience. See 716 F.Supp.2d at 1074-75. The Court explained:

Assuming the absolute worst from the Schaefers’ alleged facts, the Defendants were aware of three instances of an unknown eighth-grade student racking various sixth-grade students within the span of a month, and failed to implement policies to improve hallway monitoring and stop this conduct from occurring in time to prevent [the plaintiffs’ son] from falling victim to the same fate. Further, the Defendants indicated to the sixth graders that it had policies in place to punish individuals that assaulted other students but did not, in fact, have such policies.

While such behavior may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages, the Court’s conscience is not shocked....

Any number of actions by the Defendants might have remedied the problem, but the Court’s conscience is not shocked by the Defendants’ failure to consider or implement such a policy. Even if the Defendants knew that students frequently — more than three times per month — attacked other students in the halls and declined to implement safety measures to minimize that conduct, the Court is not convinced that it would rise to the level of shocking the conscience.

716 F.Supp.2d at 1074-75.

LAW REGARDING PROCEDURAL DUE PROCESS

The Fourteenth Amendment states: “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See Reid v. Pautler, 36 F.Supp.3d 1067, 1136, 2014 WL 3845042, at *50 (D.N.M.2014) (Browning, J.)(citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “Under either form of protection, however, a person must have a protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008) (Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s procedural due-process rights were violated: (i) “Did the individual possess a protected property interest to which due process protection was applicable?”; and (ii) “Was the individual afforded an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999) (internal quotation marks omitted)).

“The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the ‘broad and majestic terms’ enshrined in the Fourteenth Amendment.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Such an interest arises not from the Due Process Clause of the Constitution itself, but is created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.” Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (“[Liberty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”).

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

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

“[0]nce it is determined that the Due Process Clause applies, the question remains what process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citation omitted). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Supreme Court has explained that

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

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

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

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

The Supreme Court ... explained that procedural due process is a flexible standard that can vary in different circumstances depending on “ ‘the private interest that will be affected by the official action’ ” as compared to “the Government’s asserted interest, ‘including the function involved’ and