MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Dismissing Complaint in its Entirety, filed March 29, 2013 (Doc. 26)("MTD & MSJ."). The Court held a hearing on November 1, 2013. The primary issue is whether the Court will dismiss for failure to state a claim or grant summary judgment on the Plaintiffs' claims against Defendants City of Albuquerque, Richard Berry, Robert J. Perry, and Bruce Rizzieri ("the City Defendants"). The Court will grant the MTD & MSJ. The Plaintiffs have not shown that the City of Albuquerque has a custom or policy that directly caused one of its officers to violate the Plaintiffs' constitutional rights; accordingly, the City of Albuquerque is not subject to liability for the Plaintiffs' constitutional claims. The Plaintiffs have not stated a claim for violations of the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment, and no evidence supports their allegations; accordingly, the Court will grant the MTD & MSJ as to those claims. No evidence supports the Plaintiffs' allegations that the City Defendants breached a contract with them; the Court will, therefore, grant the MTD & MSJ as to that claim. Plaintiff Jessica Tapia has not stated a claim that any City Defendant violated a privacy right that the Constitution protects, and no evidence supports her allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not adequately alleged the elements of a negligence claim against any City Defendant, and statutory immunities protect the City Defendants from liability; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants conspired to violate their Constitutional rights, and no evidence supports the Plaintiffs' allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants engaged in unfair labor practices, and no evidence supports the Plaintiffs' allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. Finally, the Plaintiffs have not shown that the individual City Defendants violated Constitutional rights that were clearly established at the time the City Defendants violated them; accordingly, the individual City Defendants are entitled to qualified immunity.

FACTUAL BACKGROUND

The Court presents the factual background in multiple parts. To provide background for the MTD & MSJ, the Court takes the facts in the first four sections from the Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, filed in state court January 15, 2013, filed in federal court March 4, 2013 (Doc. 1-1)("Complaint"). The Complaint's organization is unclear. Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.

The Court sets forth the undisputed facts in the remaining sections. The Plaintiffs did not respond to the MTD & MSJ. Under the local rules, "[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted." D.N.M.LR-Civ. 56.1(b). Accordingly, the statement of undisputed facts incorporates all statements in the MTD & MSJ that evidence supports.

1. The Parties.

Plaintiff "Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheelchair lift on a City van." Complaint ¶ 1, at 1 (emphasis omitted). Plaintiff "Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011." Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff "[t]he New Mexico Transportation Union ("NMT[U]"), [sic] is the labor union that has represented City bus and van drivers since 1965; [Plaintiff] Ernest Lucero is the current NMTU Chairman." Complaint ¶ 3, at 2 (emphasis omitted). "Defendant City of Albuquerque is the largest city in New Mexico; Albuquerque is in Bernalillo County, New Mexico." Complaint ¶ 4, at 2 (emphasis omitted). Defendant "Richard Berry is the Mayor of Albuquerque; [Defendant] Robert J. Perry is the Chief Administrative Officer (CAO) of the City." Complaint ¶ 5, at 2 (emphasis omitted). Defendant "[t]he City Personnel Board is supposed to be a neutral quasi-judicial hearing panel;" according to the Plaintiffs, "the current Personnel Board operates unlawfully under the control and direction of" Perry. Complaint ¶ 6, at 2. Non-party "[t]he City Labor-Management Relations Board is supposed to be a neutral quasijudicial hearing panel;" the current Labor Board operates under the control and direction of the City of Albuquerque, Berry, and Perry. Complaint ¶ 7, at 2. Defendant Bruce Rizzieri is "Director of the City's Transit Department." Complaint ¶ 8, at 2. Defendant "Paula Forney is a former assistant City attorney." Complaint ¶ 9, at 2. Defendant "Carmen Wagner-Mogel was Jessica Tapia's physician." Complaint ¶ 10, at 2.

2. Facts Related to the NMTU and City Government Actors.

The Plaintiffs assert that NMTU "petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and van drivers in March, 2011," but "the City would not formally recognize its majority status until October 5, 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624." Complaint ¶ 10, at 3. Although the City Labor Board conducted that election, neither the City nor its labor board supported "the NMTU in either its grievance or bargaining representation." Complaint ¶ 11, at 3. "On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU." Complaint ¶ 12, at 3. "However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded." Complaint ¶ 13, at 3.

Complaint ¶ 14, at 3-4. Tapia's and Aragon's grievances "were the first two grievances ever handled by NMTU's new Chairman." Complaint ¶ 15, at 4.

According to the Plaintiffs, the City Charter requires the mayor to administer and protect "the merit system," and to appoint "an officer to administer the merit system." Complaint ¶ 16, at 4.1 According to the Plaintiffs, "[t]he City has not appointed or hired" such an officer. Complaint ¶ 17, at 4. "[M]oreover, the Merit System Ordinance states that the Mayor" shall designate the CAO—"the City's highest appointed official and the person authorized to `reprimand, suspend, demote or discharge employees'"—to administer that system. Complaint ¶ 18, at 4 (quoting MSO § 3-1-2(c)(3)). "The City Personnel Board is neither fair nor neutral," but instead, "whenever possible[, it] upholds and advances management policies and interests over the rights of City employees. In this case the City dictated the actions of the Personnel Board." Complaint ¶ 19, at 4.

Complaint ¶ 20, at 5.

3. Conflict Between Tapia and the City of Albuquerque.

Tapia's wrist was injured on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. "Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver." Complaint ¶ 22, at 5. "Following her on-the-job wrist injury the Transit Department assigned Ms. Tapia to `monitor' the public restrooms at the City's Alvarado Transit Center. While `monitoring' at the ATC, in November, 2010, Ms. Tapia was attacked by a homeless man who injured her shoulder." Complaint ¶ 21, at 5. "By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do." Complaint ¶ 23, at 5.

Complaint ¶ 24, at 5.

Complaint ¶ 25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶ 26, at 6. When Tapia's attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia "submitted a P30 Request for Leave form with 68.270 hours of Absent Without Leave. This type of leave is unauthorized leave and considered absent from work without authorization. Your AW absences totaling 68.270 hours have placed you in violation of City Rules and Regulations." Complaint ¶ 26, at 6 (source of quotation unidentified). "Ms. Tapia had submitted the form on the instructions of Transit's Personnel Manager. Nonetheless, on March 18, 2011, [t]he Transit Department gave Tapia a 3-day suspension." Complaint ¶ 27, at 6.

Complaint ¶ 27, at 6 (source of quotation unidentified).

Complaint ¶ 28, at 6-7 (source of quotation unidentified). On May 18, 2011, in response to the hearing held on May 9, 2011, the Transit Department suspended Tapia without pay for eight work days, or sixty-four work hours, to be served from May 20, 2011 to May 31, 2011. See Complaint ¶ 29, at 7. On May 31, 2011, Maintenance Manager Dennis Stump gave Ms. Tapia notice of another Pre-determination Hearing scheduled for Thursday June 9, 2011. According to the City's untrue account, Ms. Tapia had requested accommodation in October, 2010 `citing that you are unable to drive at night due to your medical condition.'" Complaint ¶ 30, at 31. "Without her knowledge the City had apparently paid a private investigator to follow her outside of work hours, with the result that she was accused of `driving at night' and `purchasing liquor at a Walgreens establishment then attending what appeared to be a party.'" Complaint ¶ 31, at 7 (source of quotation unidentified).

Also, according to the Plaintiffs' account, the City's

(Emphasis added.)

Complaint ¶ 32, at 7 (omission in Complaint).

"On June 8, 2011, Jessica Tapia received the `results of pre-determination hearing' that `on April 18-20, 2011, you did not show up for work or call in to be absent from work.' The Transit department imposed a 15-workday, 120 hour suspension without pay." Complaint ¶ 33, at 7. "Without further notice to Ms. Tapia or NMTU, the City terminated Ms. Tapia's employment." Complaint ¶ 34, at 8.

"On August 2, 2011, the City's attorney, Paula Forney, drafted and issued a subpoena for Ms. Tapia's medical records. Ms. Forney did that without informing Ms. Tapia or her attorney. Ms. Forney did not seek or secure a release." Complaint ¶ 40, at 9. The subpoena, which Forney evidently issued to Dr. Wagner-Mogle, and stated "that it was: `[f]or the medical records of patient, Jessica Tapia . . . requires you to appear for a deposition on August 10, 2011 at 10:00 a.m. . . . and bring with you: Any and all documents in your possession regarding Jessica Tapia. . . beginning 01/01/2010 to the present.'" Complaint ¶ 41, at 9. "In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that: `You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance.'" Complaint ¶ 42, at 9 (source of quotation not provided). On August 4, 2011, Dr. Wagner-Mogle sent Tapia's records to Forney by facsimile transmission, without requesting or securing a release or other authorization, and without notifying Tapia. See Complaint ¶ 43, at 9. "On August 8, 2011, Ms. Forney wrote to counsel that she had received `A phone call from Ms. Tapia's doctor acknowledging that she should not have sent Ms. Tapia's records without a release.'" Complaint ¶ 44, at 10. "Ms. Tapia objected to the unauthorized release of her medical records, but on September 9, 2011, Personnel Hearing Officer Patrick Bingham issued the subpoena for medical records requested by Ms. Forney and granted the City attorney permission to serve discovery on Ms. Tapia." Complaint ¶ 45, at 10.

After the hearing officer allowed "the City unlimited `discovery' (including Ms. Tapia's medical records), Ms. Forney propounded burdensome and offensive `discovery requests' designed to embarrass Ms. Tapia and place pressure on the inexperienced NMTU officers who were attempting to represent her, rather than produce any actually useful information." Complaint ¶ 46, at 10. "The Hearing Officer signed an order dismissing Ms. Tapia's case, but the Personnel Board objected that Mr. Bingham's order did not give any reasons or include any `findings.' The Personnel Board remanded the case to the Personnel Hearing Officer to make findings and issue a `correct' order." Complaint ¶ 47, at 10. "Instead of the Hearing Officer making findings and issuing a correct corder [sic], Paula Forney wrote a set of `findings and conclusions' dismissing Ms. Tapia's case." Complaint ¶ 48, at 10. "The Hearing Officer merely changed the title of the document prepared by Ms. Forney and signed the `Order' drafted by Ms. Forney, dismissing Ms. Tapia's Personnel Board case without a hearing.'" Complaint ¶ 49, at 10. "At its December 14, 2011, meeting the Personnel Board gave its rubber-stamp `approval' of Ms. Forney's findings and conclusions." Complaint ¶ 50, at 11.

Complaint ¶ 51, at 11.

4. Conflict Between Aragon and the City of Albuquerque.

"The City has held an extraordinary number of pre-disciplinary hearings in this case, spanning the time between the first such action on December 26, 2006, and the last on June 1, 2011." Complaint ¶ 35, at 8 (footnote omitted). The Complaint lists, without further explanation, a number of "Results of Pre-Disciplinary He[ar]ings" and states that "in addition the City has held two investigations . . . and issued at least seven letters of investigation." Complaint ¶ 35 n. 1, at 8.

Complaint ¶ 36, at 8. "On May 17, 2011, Deputy Operations Manager Annette Paez ordered Ms. Aragon to return to work, but Ms. Aragon was unable to comply because of her medical condition." Complaint ¶ 37, at 8. "On June 1, 2011, Ms. Paez charged Ms. Aragon with violations of Section 300, 302, 402.5(c) and 902.1 (E. [sic] J, and M-3)." Complaint ¶ 38, at 8. "Although the record indicates an increasing concern over attendance and use of sick leave, the City has never explained the reasons for its disciplinary actions against Ms. Aragon." Complaint ¶ 39, at 9.

"On October 17, 2011, Mr. Lucero wrote to Ms. Wardlaw to request Vanessa Aragon's case and all other NMTU cases be stayed until the Union achieved the ability to represent the bargaining unit employees." Complaint ¶ 52, at 11. "The City refused to agree to a continuance, claiming that Mr. Lucero had waited too long to request it." Complaint ¶ 53, at 11. "Without any attempt to contact Ms. Aragon, the City's Personnel Hearing Officer wrongly concluded that: `. . . it is more likely than not that Employee was aware of the hearing and did not appear so as to support the request for a continuance.'" Complaint ¶ 54, at 11 (omission in Complaint)(source of quotation not provided).

Complaint ¶ 55, at 12 (source of block quotation not provided).

Complaint ¶ 56, at 12.

5. Undisputed Facts: Tapia's Claims.

"Tapia was a sun van driver who got injured on the job." MTD & MSJ Memo. ¶ I.1, at 2 (setting forth this fact); Affidavit of Mary Scott ¶ 4, at 2, executed March 27, 2013, filed March 29, 2013 (Doc. 27-1)("Scott Aff."). "She was covered by the City under worker's compensation." MTD & MSJ Memo. ¶ I.2, at 3 (setting forth this fact); Scott Aff. ¶ 6, at 2. "Tapia applied for and received" leave under Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 ("FMLA"). MTD & MSJ Memo. ¶ I.3, at 3 (setting forth this fact); Scott Aff. ¶ 8, at 2. "On June 8, 2010, Defendant Dr. Carmen Wagner-Mogle signed a certification for Tapia to receive FMLA leave for her diabetes, one time per week, 1-2 days per episode." MTD & MSJ Memo. ¶ I.3, at 3 (setting forth this fact); Scott Aff. ¶ 8, at 2. See City of Albuquerque Family and Medical Leave Certification at 1, executed June 8, 2010, filed March 29, 2013 (Doc. 27-2). "She was approved for intermittent FMLA leave beginning June 8, 2010, until June 7, 2011 for her diabetes." MTD & MSJ Memo. ¶ I.4, at 3 (setting forth this fact); Scott Aff. ¶ 9, at 2. See City of Albuquerque Family and Medical Leave Certification at 1. "She was returned to light duty from her on-the-job injury and assigned to the Vehicle Maintenance Division, to work swing shift, reporting to work at 3:30 p.m. on September 20, 2010." MTD & MSJ Memo. ¶ I.5, at 3 (setting forth this fact); Scott Aff. ¶ 10, at 3. See Inter-Office Memorandum from Danny R. Holcomb to Jessica Tapia at 1, executed September 28, 2010, field March 29, 2013 (Doc. 27-4). "On September 21, 2010, Dr. Carmen Wagner-Mogle wrote a letter to the city indicating that Tapia should be on day shift because she could not drive in the dark." MTD & MSJ Memo. ¶ I.11, at 3 (setting forth this fact); Scott Aff. ¶ 11, at 3. See Letter from Carmen Wagner-Mogle, M.D., to To Whom It May Concern, executed September 21, 2010, filed March 29, 2013 (Doc. 27-5). "The City complied and placed Tapia on day shift." MTD & MSJ Memo. ¶ I.7, at 3 (setting forth this fact); Scott Aff. ¶ 16, at 3.

"On November 2, 2010, Tapia was outside her assigned work area when she was accosted by a homeless person." MTD & MSJ Memo. ¶ 8, at 3 (setting forth this fact); Scott Aff. ¶ 13, at 3. See Security Incident Report, executed November 3, 2010, filed March 29, 2013 (Doc. 27-6). "Tapia received worker's compensation for this injury." MTD & MSJ Memo. ¶ 9, at 3; Scott Aff. ¶ 13, at 3.

"On December 23, 2010, she was approved to return to work, with restrictions which included no driving heavy equipment or cars and limited use of her shoulder." MTD & MSJ Memo. ¶ 10, at 4 (setting forth this fact); Scott Aff. ¶ 15, at 3. See Physical Evaluation Form, executed December 21, 2010, filed March 29, 2013 (Doc. 27-7). "Tapia was assigned, on day shift, to monitor the guard shack at [the Transit Department's] Daytona facility." MTD & MSJ Memo. ¶ 11, at 4 (setting forth this fact); Scott Aff. ¶ 16, at 3. "On February 11, 2011, Tapia submitted a request for leave, requesting 68.27 hours leave without pay." MTD & MSJ Memo. ¶ 12, at 4 (setting forth this fact); Scott Aff. ¶ 17, at 3. See Interoffice Memorandum from James Bird to Jessica Tapia at 1, executed February 24, 2011, filed March 29, 2012 (Doc. 27-8)("March Pre-Determination Memo."). "[T]he request was treated as an absence without leave because she took off those hours without obtaining approval." MTD & MSJ Memo. ¶ 13, at 4 (setting forth this fact); Scott Aff. ¶ 18, at 4.2 "Tapia was given notice of a pre-determination hearing and a hearing was conducted." MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact); Scott Aff. ¶ 19, at 4. See March Pre-Determination Memo. to Tapia at 1; Interoffice Memorandum from James Bird to Jessica Tapia at 1, executed April 14, 2011, filed March 29, 2013 (Doc. 27-9)("March Hearing Results Memo. to Tapia"). "On March 18, 2011, Tapia was assessed three days leave without pay as discipline for her improper usage of leave and her improper leave request." MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact); Scott Aff. ¶ 19, at 4. See March Hearing Results Memo. to Tapia at 2. "She did not file an appeal over this discipline." MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact). See Affidavit of Lucinda Montoya ¶ 4, at 2, executed March 26, 2013, filed March 29, 2013 (Doc. 27-39)("Montoya Aff.").

"On February 21, 2011, Dr. Carmen Wagner-Mogle submitted an FMLA certification for leave from 02-07-11 to 02-10-11 for acute bronchitis, which was approved" by the City of Albuquerque. MTD & MSJ Memo. ¶ 15, at 4 (setting forth this fact); Scott Aff. ¶ 20, at 4. See Family and Medical Leave Certification at 2-3, executed February 21, 2011, filed March 29, 2013 (Doc. 27-10). "On April 26, 2011, Dr. Wagner-Mogle submitted a new certification for Tapia's diabetes, severe headaches, and fatigue, which entitled Tapia to be absent from work two times per month, one—three days duration for each episode." MTD & MSJ Memo. ¶ 16, at 4 (setting forth this fact); Scott Aff. ¶ 21, at 4. See Family and Medical Leave Certification at 2-3, executed February 21, 2011, filed March 29, 2013 (Doc. 27-11).

"On April 11, 2011, Tapia clocked in at 9:59 a.m.; her work hours were from 10:00 a.m. to 6:30 P.M." MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. "She did not clock out on April 11, 2011, but, when her supervisor looked for her, she was not at her work station at 3:00 p.m." MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. "She called in to take FMLA [leave] on April 12, 2011." MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. Tapia "did not inform her supervisor before taking the leave." MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact). See Interoffice Memorandum from Dennis Stump to Jessica Tapia at 1, executed May 18, 2011, filed March 29, 2013 (Doc. 27-13)("April Hearing Results Memo. to Tapia").3 Tapia "was given notice of a pre-determination hearing and given that hearing," at which "[s]he was given an eight day suspension." MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 23, at 5. See April Hearing Results Memo. to Tapia at 2. "She did not file an appeal over that suspension. . . ." MTD & MSJ Memo. ¶ 18, at 5 (setting forth this fact); Scott Aff. ¶ 23, at 5. See Montoya Aff. ¶ 5, at 2.4

"On April 18-20, 2011, Tapia did not appear for work." MTD & MSJ Memo. ¶ 24, at 5 (setting forth this fact); Scott Aff. ¶ 24, at 5. "She was given a notice of pre-determination hearing and given that hearing," at which "[s]he was given a 15 day suspension." MTD & MSJ Memo. ¶ 19, at 5 (setting forth this fact); Interoffice Memorandum from James Bird to Jessica Tapia, dated April 21, 2011, filed March 29, 2013 (Doc. 27-14)("June Pre-Determination Hearing Memo. to Tapia"). See Interoffice Memorandum from James Bird to Jessica Tapia, executed June 9, 2011, filed March 29, 2013 (Doc. 27-15). "She did not file an appeal over that suspension." MTD & MSJ Memo. ¶ 19, at 5 (setting forth this fact); Scott Aff. ¶ 24, at 5. See Montoya Aff. ¶ 6, at 2.

"The City administers its worker's compensation claims in a department separate from the Transit Department." MTD & MSJ Memo. ¶ 25, at 5; Scott Aff. ¶ 25, at 5. "On May 2, 2011, surveillance was done on Tapia because she was engaging in activities reportedly outside her restrictions for light duty work," which "were that she could not operate heavy equipment or a car and only limited use of her shoulder." MTD & MSJ Memo. ¶ 25, at 5 (setting forth this fact); Scott Aff. ¶ 25, at 5. "The surveillance demonstrated that she drove her car at night and used her shoulder in violation of her restrictions." MTD & MSJ Memo. ¶ 25, at 5 (setting forth this fact). See Scott Aff. ¶ 25, at 5; Workers Comp Surveillance Report, dated May 6, 2011, filed March 29, 2013 (Doc. 27-16).

"On May 16, 2011, Tapia was denied her FMLA leave." MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Affidavit of Carmen Ortiz, executed March 27, 2013, filed March 29, 2013 (Doc. 27-28)("Ortiz Aff."). "The last time she was paid regular pay was September 14 and 15, 2010, and she was paid for 16 hours." MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1. "Since that time, she was carried on FMLA leave, vacation, worker's compensation, FMLA without pay, suspension and absent without leave." MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1. Tapia's denial of FMLA leave "was based on a conversation" that Carmen Ortiz, an executive assistant in the City of Albuquerque's Human Resources Department, "had with Dr. Wagner-Mogle[`s staff]." MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1.5 Ortiz "asked for clarification from the doctor of Jessica Tapia's most recent FMLA request dated May 16, 2011." Ortiz Aff. ¶ 4, at 2.6 "Dr. Wagner-Mogle's office told [her] on May 16, 2011, that there's `no reason [Tapia] should be out 5 weeks straight.'" Ortiz Aff. ¶ 4, at 2. See Information Sheet at 1, various dates, filed March 29, 2013 (Doc. 27-30).

MTD & MSJ Memo. ¶ 22, at 6 (setting forth these facts); Scott Aff. ¶ 26, at 6. See Interoffice Memorandum from Dennis Stump to Jessica Tapia, executed June 1, 2011, filed May 31, 2011 (Doc. 27-17)("Second June Pre-Determination Memo. to Tapia"). "On June 28, 2011, Tapia's employment was terminated." MTD & MSJ Memo. ¶ 23, at 6 (setting forth this fact); Scott Aff. ¶ 27, at 6. See Interoffice Memorandum from Dennis Stump to Jessica Tapia at 4, executed June 28, 2011, filed March 29, 2013 (Doc. 27-18)("Termination Memo. to Tapia").

"On July 8, 2011, Mr. Livingston, on her behalf, filed an appeal contesting the termination." MTD & MSJ Memo. ¶ 24, at 7 (setting forth this fact); Scott Aff. ¶ 28, at 6. See Letter from Paul Livingston to Rob Perry, executed July 8, 2011, filed March 29, 2013 (Doc. 27-19). "Patrick Bingham, a contract[] hearing officer, was assigned to hear" Tapia's appeal. MTD & MSJ Memo. ¶ 25, at 7 (setting forth this fact); Scott Aff. ¶ 29, at 7; Montoya Aff. ¶ 9, at 2. "The City obtained leave to serve discovery and served a subpoena, to obtain Tapia's medical records from Dr. Wagner-Mogle." MTD & MSJ Memo. ¶ 26, at 7 (setting forth this fact). See Montoya Aff. ¶ 10, at 2; Subpoena, executed August 8, 2011, filed March 11, 2013 (Doc. 14)("Forney Subpoena"). "Tapia and her counsel were given notice of the subpoena and were served with the discovery requests." MTD & MSJ ¶ 26, at 7 (setting forth this fact); Montoya Aff. ¶ 11, at 2. See Letter from Constance L. Zamora to Medical Records Custodian, executed August 2, 2011, filed March 11, 2013 (Doc. 14). Dr. Wagner-Mogle's office sent Tapia's medical records to the City of Albuquerque by facsimile transmission. See Letter from Constance L. Zamora to Honora Persson at 1, executed August 9, 2011, filed March 11, 2013 (Doc. 14).7 "The City returned the documents to Dr. Wagner-Mogle without reading them." MTD & MSJ Memo. ¶ 29, at 7 (setting forth this fact). See Letter from Constance L. Zamora to Honora Persson at 1.

"Paul Livingston withdrew as Tapia's counsel on September 19, 2011 and Ernest Lucero entered his appearance as chairman of NMTU." MTD & MSJ Memo. ¶ 30, at 2 (setting forth this fact). See Ortiz Aff. ¶ 8, at 2; Notice of Withdrawal and Substitution of Representation, filed March 29, 2013 (Doc. 27-31). "The grievance was dismissed for discovery abuse when neither Mr. Livingston nor Mr. Lucero adequately responded to the discovery, which was approved by the hearing officer." MTD & MSJ Memo. ¶ 31, at 7 (setting forth this fact); Scott Aff. ¶ 31, at 7. (See Order Dismissing Grievant's Claim, no date provided, filed March 29, 2013)(Doc. 27-11); Montoya Aff. ¶ 12, at 2. "The Personnel Board upheld the termination for discovery abuse." MTD & MSJ Memo. ¶ 32, at 8 (setting forth this fact); (Scott Aff. ¶ 31, at 7; Montoya Aff. ¶ 13, at 2). See Hearing Officer's Proposed Findings of Fact and Conclusions of Law, executed by Hearing Officer December 2, 2011, accepted by the City Personnel Board December 14, 2011, filed March 29, 2013 (Doc. 27-22). "Mr. Livingston appealed the result of termination to the state district court." MTD & MSJ Memo. ¶ 33, at 8 (setting forth this fact); Montoya Aff. ¶ 14, at 3. "When Mr. Livingston failed to provide the required statement of appellate issues, the case was dismissed for lack of prosecution." MTD & MSJ Memo. ¶ 34, at 8 (setting forth this fact). See Order Dismissing Appeal, executed June 25, 2012, filed March 29, 2013 (Doc. 27-33)("Tapia Appeal Dismissal Order").

6. The Undisputed Facts: Aragon's Claims.

"Aragon was employed as a motor coach operator." MTD & MSJ Memo. ¶ 35, at 8 (setting forth this fact); Scott Aff. ¶ 33, at 7. "On May 17, 2011, she was given a direct order to appear for work no later than May 23, 2011." MTD & MSJ Memo. ¶ 36, at 8 (setting forth this fact); Scott Aff. ¶ 34, at 7. See Interoffice Memorandum from Annette Paez to Vanessa Aragon at 1, executed May 17, 2011, filed March 29, 2013 (Doc. 27-23)("Pre-Determination Memo. to Aragon"). "She failed to appear as ordered and her employment was terminated on July 18, 2011." MTD & MSJ Memo. ¶ 37, at 8 (setting forth this fact); Scott Aff. ¶ 34, at 7. See Interoffice Memorandum from Annette S. Paez to Vanessa Aragon at 4-5, executed July 18, 2011, filed March 29, 2013 (Doc. 27-24)("Aragon Termination Memo.").

"Mr. Livingston, who had entered his appearance on March 21, 2011 on Aragon's behalf, filed an appeal of that termination." MTD & MSJ Memo. ¶ 38, at 8 (setting forth this fact); Scott Aff. ¶ 35, at 7. See Electronic Mail Transmission from Paul Livingston to Selinda Guerrero, et al., dated March 21, 2011, filed March 29, 2013 (Doc. 27-25); Montoya Aff. ¶ 15, at 3. "Barbara Albin was assigned as the hearing officer." MTD & MSJ Memo. ¶ 39, at 9 (setting forth this fact); Scott Aff. ¶ 36, at 7; Montoya Aff. ¶ 16, at 3. "On October 6, 2011, Mr. Livingston withdrew his appearance and Ernest Lucero entered his appearance on behalf of NMTU." MTD & MSJ Memo. ¶ 40, at 9 (setting forth this fact); Montoya Aff. ¶ 17, at 3. See Recommendation of the Hearing Officer at 1, executed November 9, 2011, filed March 29, 2013 (Doc. 27-26)("Hearing Officer's Recommendation Re: Aragon"). "The hearing was scheduled to begin October 18, 2011." MTD & MSJ Memo. ¶ 41, at 9 (setting forth this fact); Scott Aff. ¶ 38, at 8. See Montoya Aff. ¶ 18, at 3; Hearing Officer's Recommendation Re: Aragon at 1. "At 7:30 p.m., October 17, 2011, Lucero asked the City to concur in his request to vacate the hearing." MTD & MSJ Memo. ¶ 42, at 9 (setting forth this fact); Scott Aff. ¶ 39, at 8; Hearing Officer's Recommendation Re: Aragon at 1. "The City declined," and, "[o]n October 18, 2011, Lucero, representatives of the city and the hearing officer appeared as scheduled," but "Aragon did not." MTD & MSJ Memo. ¶ 43, at 9 (setting forth these facts); Scott Aff. ¶ 40, at 8. See Montoya Aff. ¶ 19, at 3. "The hearing officer concluded that it was more likely than not that[,] from the facts established after inquiry[,] Aragon was aware of the scheduling hearing and chose not to appear to lend credence to NMTU's motion to vacate the hearing." MTD & MSJ Memo. ¶ 44, at 9 (setting forth this fact); Scott Aff. ¶ 41, at 8. "On December 19, 2011, Aragon appealed the termination to the state district court." MTD & MSJ Memo. ¶ 45, at 9; Montoya Aff. ¶ 20, at 3. See Docket Sheet in Vanessa Aragon v. City of Albuquerque, No. D-202-CV-2011-12542, dated March 26, 2013, filed March 29, 2013 (Doc. 27-34). "On May 17, 2012, District Court Judge Clay Campbell dismissed the appeal for lack of prosecution." MTD & MSJ Memo. ¶ 46, at 10 (setting forth this fact). See Order Granting Motion to Dismiss for Lack of Prosecution, filed in state court in No. D-202-CV-2011-12542 May 17, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-35)("Aragon Appeal Dismissal Order").

7. The Undisputed Facts: NMTU's Claims.

"On June 30, 2011, the collective bargaining agreement between the City and the American Federation of State, County and Municipal Employees (hereinafter AFSCME) for representation of Transit bus and van drivers expired." MTD & MSJ Memo. ¶ 47, at 10 (setting forth this fact); Scott Aff. ¶ 42, at 8; Montoya Aff. ¶ 21, at 3. "On August 1, 2011, the City's Labor-Management Relations Board (hereinafter the Labor Board) ordered that a representational election" to choose the union that would represent bus and sun van drivers would proceed. MTD & MSJ Memo. ¶ 48, at 10 (setting forth this fact); Scott Aff. ¶ 43, at 8; Montoya Aff. ¶ 22, at 3. "AFSCME appealed the order of the Labor Board to state district court." MTD & MSJ Memo. ¶ 49, at 10 (setting forth this fact); Montoya Aff. ¶ 23. at 3. See Docket in Am. Fed. of State, Cnty. & Mun. Emps. v. NM Transp. Union, dated March 27, 2013, filed March 29, 2013 (Doc. 27-36).

"On August 10, 2011, AFSCME filed a prohibited practice complaint (hereinafter PPC) with the Labor Board alleging violations of the City's Labor-Management Relations Ordinance (hereinafter LMRO) by NMTU." MTD & MSJ Memo. ¶ 50, at 10 (setting forth this fact); Scott Aff. ¶ 44, at 9; Montoya Aff. ¶ 24, at 3. "On September 14, 2011, a representational election was held pursuant to the Labor Board's order and NMTU prevailed." MTD & MSJ Memo. ¶ 51, at 10 (setting forth this fact); Scott Aff. ¶ 45, at 9; Montoya Aff. ¶ 25, at 3. "On October 24, 2011, the Labor Board found that while NMTU had acted inappropriately in soliciting membership during working hours, AFSCME had failed to file the PPC within the time limits established in the LMRO." MTD & MSJ Memo. ¶ 52, at 10 (setting forth this fact); Scott Aff. ¶ 46, at 9. See Findings & Conclusions, executed October 24, 2011, filed March 29, 2013 (Doc. 27-27). "On May 23, 2012, Judge Nan Nash issued her memorandum opinion and order holding that, if the election the Labor Board ordered was held, the results would be null and void because NMTU did not provide current interest cards, justifying the election." MTD & MSJ Memo. ¶ 53, at 11 (setting forth this fact). See Memorandum Opinion and Order at 5, filed in state court in CV-2011-8899 March 23, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-37)("Judge Nash's MOO"). Judge Nash also held that,

Judge Nash's MOO at 5.

"The denial of AFSCME's PPC by the Labor Board was dismissed as moot by the state district court." MTD & MSJ Memo. ¶ 54, at 11 (setting forth this fact). See Order Dismissing Appeal as Moot and Granting All Motions to Dismiss Without Prejudice at 1, filed in state court in American Federation of State, County and Municipal Employees v. New Mexico Transportation Union, No. D-202-CV-2011-11682 July 9, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-38).8

"Neither NMTU nor Lucero filed a PPC before the Labor Board challenging the post-termination hearings of Tapia and Aragon." MTD & MSJ Memo. ¶ 55, at 11 (setting forth this fact); Scott Aff. ¶ 46, at 9; Montoya Aff. ¶ 26, at 4. "Between the election in September 14, 2011, and the date of invalidation of the election on May 23, 2012, no collective bargaining agreement (hereinafter CBA) was negotiated between NMTU and the City." MTD & MSJ Memo. ¶ 46, at 11 (setting forth this fact); Scott Aff. ¶ 48, at 9.

PROCEDURAL BACKGROUND

The Court will discuss the procedural background in two parts. First, the Court will discuss the Plaintiffs' Complaint and the Defendants' removal to federal court. Second, the Court will discuss the MTD & MSJ.

1. The Plaintiffs File their Complaint; the Defendants Remove to Federal Court.

The Plaintiffs filed their Complaint in state court, stating that they "bring their claims under 42 U.S.C.Sec.1983[sic], and the laws and Constitutions of the United States and the State of New Mexico." Complaint ¶ 9, at 2-3. The Plaintiffs allege six causes of action. See Complaint ¶¶ 57-84, at 12-16. Under "Count 1 Due Process and Equal Protection," the Plaintiffs assert that Tapia and Aragon, "[a]s classified, full-time, City employees . . . had legitimate expectations of continued employment absent just cause for disciplinary action. They had the right to a full and fair hearing to challenge their termination." Complaint ¶ 57, at 12. "Similarly," the Plaintiffs allege, "NMTU and its leadership had a due process right and an obligation to represent employees in the bargaining unit at post-termination grievance hearings that are fundamentally fair and procedurally correct." Complaint ¶ 58, at 12. According to the Plaintiffs, the "Defendants denied the employees' rights and hearings and dismissed their cases on pretextual grounds," and, thereby, "the City Defendants have violated Plaintiffs' rights to due process and equal protection of the laws." Complaint ¶¶ 59-60, at 13.

Under "Count 2 Breach of Employment Contracts," the Plaintiffs allege that, "[a]s tenured public employees, Plaintiffs Tapia and Aragon were covered by a contract of employment that consisted of the Merit System Ordinance, the Personnel Rules and Regulations and applicable collective bargaining agreements." Complaint ¶ 62, at 13. The Plaintiffs contend that they "were contractually entitled to notice and an opportunity to be heard, and to be disciplined only for just cause." Complaint ¶ 62, at 13. The Plaintiffs submit that, thereby, the Defendants "have violated their contractual obligations and are liable for damages to be determined at trial." Complaint ¶ 64, at 13.

Under "Count 3 Violation of Right to Privacy," the Plaintiffs contend that "Forney used a misleading letter and an illegitimate subpoena that she issued herself to secure Jessica Tapia's medical records from Dr. Carmen Wagner-Mogle," and that Dr. "Wagner-Mogle sent Ms. Tapia's medical records to Ms. Forney without any knowledge or authorization by Ms. Tapia." Complaint ¶¶ 66-67, at 13-14. The Plaintiffs assert that "Dr. Wagner-Mogle communicated with Ms. Forney and other City representatives about Jessica Tapia and her medical condition and records on at least several occasions," but "never contacted or attempted to contact Ms. Tapia or her attorney." Complaint ¶ 68, at 14. The Plaintiffs state that "[t]he acts of Defendants, specifically Paula Forney, Dr. Carmen Wagner-Mogle and the Transit Department deliberately and willfully violated Jessica Tapia's right to privacy in her medical records." Complaint ¶ 69, at 14. The Plaintiffs contend that the "Defendants also hired a private investigator and followed Ms. Tapia, seeking and securing information about her personal life and activities entirely unconnected with her work." Complaint ¶ 70, at 14. The Plaintiffs assert that the "Defendants are liable for their violations of Ms. Tapia's right to privacy." Complaint ¶ 71, at 14.

Under "Count 4 Negligence," the Plaintiffs assert that, "[a]s described herein, Defendants have treated Jessica Tapia and Vanessa Aragon negligently and with deliberate indifference with respect to their employment." Complaint ¶ 73, at 14. "In addition," the Plaintiffs state, "Ms. Tapia sustained two injuries, the first resulting from operation of a wheelchair lift while on duty; the second of which was a result of her assignment to monitor the restroom facilities at the Alvarado Transit Center, a building managed and maintained by the City Transit Department." Complaint ¶ 74, at 15. The Plaintiffs assert that "Tapia has given notice of her tort claim to the City of Albuquerque." Complaint ¶ 75, at 15. The Plaintiffs maintain that "[t]he city and its Transit Department, as well as its Director, are liable for the damages proximately caused by their negligence in an amount to be determined at trial." Complaint ¶ 76, at 15.

Under "Count 5 Conspiracy to Deny Constitutional Rights," the Plaintiffs assert that "[t]he City Defendants, aware of Plaintiffs' rights to due process and equal protection, acted deliberately to deny the right to a hearing, one of the most fundamental rights of public employees subjected to wrongful disciplinary actions." Complaint ¶ 78, at 15. "In particular," according to the Plaintiffs, "Paula Forney, the Personnel Hearing Officers, the Personnel Board, and Bruce Rizzieri and other City officials met, discussed, and arranged for the denial of Plaintiffs' due process and equal protection rights." Complaint 79, at 15.

Under "Count 6 Unfair Labor Practices," the Plaintiffs state that, "[l]ong after the submission of NMTU's majority petition for representation of the Transit drivers' bargaining unit in March, 2011, and the expiration of the Collective Bargaining Agreement on June 30, 2011, the City and Transit Department continued recognizing AFSCME as the exclusive bargaining and grievance representative." Complaint ¶ 81, at 15-16. According to the Plaintiffs,

Complaint ¶ 82, at 16. The Plaintiffs maintain that "[t]he City's misconduct and the Hearing Officers' and Personnel Board's lack of concern over—and engagement in—collusive tactics in this case, including biased hearing officers eager to dismiss rather than hear employee cases, and unethical and illegal conduct, clearly demonstrated the City's policy and practice with respect to the rights of its employees and the obligations of City management towards those employees." Complaint ¶ 83, at 16. The Plaintiffs assert that they "are entitled to compensatory, declaratory, and injunctive relief for the City's failure to comply with its laws, failure to recognize and hear employee grievances, and collusive and conspiratorial conduct with respect to these and other employees' rights and grievances." Complaint ¶ 84, at 16.

The Plaintiffs ask for the following forms of relief:

Complaint ¶¶ A-H, at 16-17.

On March 4, 2013, the Defendants filed their Notice of Removal. See Doc. 1.

On March 8, 2013, the City Defendants filed their Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, Affirmative Defenses and Counterclaim. See Doc. 13 ("City Defendants' Answer"). The City Defendants raise two counterclaims: (i) malicious abuse of process, contending, in essence, that the Plaintiffs' claims are meritless and that they are abusing the legal process, see City Defendants' Answer ¶¶ 48-56, at 16-17; and (ii) prima facie tort, contending that the Plaintiffs have intentionally brought a meritless claim to harm the City of Albuquerque, see City Defendants' Answer ¶¶ 57-64, at 18-19.

On March 2013, Forney filed her Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices by Defendant Paula Forney and Counterclaim. See Doc. 15 ("Forney's Answer"). Forney raises counterclaims for malicious abuse of process and prima facie tort, largely for the same reasons that the City Defendants give. See Forney's Answer ¶¶ 1-13, at 19-21.

2. The MTD & MSJ.

The City Defendants move the Court to dismiss the Complaint or, in the alternative, to grant summary judgment. See MTD & MSJ Memo. at 1. The City Defendants assert that:

MTD & MSJ. ¶¶ 3-9, at 1-2. The City Defendants assert that: (i) the individual defendants are entitled to qualified immunity, see MTD & MSJ ¶¶ 10-11, at 2; and (ii) if the individual defendants are entitled to qualified immunity, the City of Albuquerque cannot be held liable for constitutional violations, see MTD & MSJ ¶ 12, at 2.

After referring to the familiar standards for judicial review of motions to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure and motions for summary judgment under rule 56 of the Federal Rules of Civil Procedure, see MTD & MSJ Memo. at 11-13, the City Defendants first argue that the Court should dismiss Count 1—that is, Tapia's and Aragon's due-process claim. See MTD & MSJ Memo. at 13. The City Defendants assert that "[t]he only allegations relevant to due process on behalf of the individual employees is their allegation that they had a right to a fair hearing before being deprived of their employment," and that "[t]he undisputed material facts demonstrate that Aragon and Tapia had available to them full and fair hearings." MTD & MSJ Memo. at 13. The City Defendants point out that Tapia did not "comply with the discovery ordered by the hearing officer, resulting in the dismissal of her appeal." MTD & MSJ Memo. at 13. With respect to Aragon, the City Defendants point out that she "knowingly failed to appear for the hearing." MTD & MSJ Memo. at 13. They state that her representative asked to continue the hearing the night before it was scheduled—and that it had been scheduled for nearly two months before it happened. See MTD & MSJ Memo. at 13. According to them, Aragon knew about the hearing schedule and did not appear for the hearing, which led to the hearing officer concluding that Aragon abandoned her appeal. See MTD & MSJ Memo. at 13-14. Moreover, they state that Tapia's and Aragon's appeals were both dismissed for failure to prosecute. See MTD & MSJ Memo. at 14.

The City Defendants point to the Court's decision in Tapia v. Beffort, No. CIV 02-0513 JB/ACT, 2003 WL 24130246 (D.N.M. Nov. 26, 2003) (Browning, J.), where

MTD & MSJ Memo. at 14 (quoting Tapia v. Beffort, 2003 WL 24130246, at *9). The City Defendants also point to Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), in which the Supreme Court of the United States held that

MTD & MSJ Memo. at 14 (quoting 468 U.S. at 533, 104 S.Ct. 3194). The City Defendants argue that, because the Plaintiffs did not perfect their appeals and allowed them to be dismissed for failure to prosecute, they have waived their due process claim. See MTD & MSJ Memo. at 15. Moreover, they state that the Complaint does not argue that the Plaintiffs lacked the right to that appellate process, but "only that the process was in some undefined manner flawed. . . . If plaintiffs would have followed through with their appeals, they could have raised all the arguments stated in their complaint in state court." MTD & MSJ Memo. at 15. The City Defendants acknowledge that the Plaintiffs filed the Complaint in state court before the Defendants removed the case to federal court, but state that "[s]imply filing the claim in state court does not satisfy the exhaustion requirement for purposes of a due process claim." MTD & MSJ Memo. at 15 n. 2.

The City Defendants also assert that no authority supports the notion that NMTU has "a due process right and an obligation to represent employees in the bargaining unit at post-termination hearings," and that, even if such authority existed, "it is undisputed that NMTU failed to represent its members" in two distinct ways: (i) it did not respond to discovery requests on Tapia's behalf; (ii) it did not have Aragon appear for her hearing, which made `more likely than not that [Aragon] knew about the hearing and did not appear to support the request for a continuance.' MTD & MSJ Memo. at 15 (quoting Recommendation of the Hearing Officer ¶ 12).9 According to the City Defendants, "[n]either NMTU nor Lucero filed a PPC before the Labor Board challenging the City's failure to recognize NMTU as the collective bargaining agent." MTD & MSJ Memo. at 15. The City Defendants point out that the LMRO establishes the Labor Board, and quote the Supreme Court of New Mexico's explanation of the Labor Board:

MTD & MSJ Memo. at 16. The City Defendants point out that "[i]t is undisputed that none of the plaintiffs filed a PPC before the Labor Board, thus depriving the Labor Board of any authority to address the terminations of plaintiffs or to grant them and the union `due process.'" MTD & MSJ Memo. at 16.

The City Defendants also cite the Court's decision in Abreu v. N.M. Children, Youth & Families Department, 797 F.Supp.2d 1199 (D.N.M.2011)(Browning, J.), in which the Court pointed out that some source of law defines property interests for due-process purposes; the City Defendants point out that the Complaint does not explain the source of NMTU's and Lucero's asserted property right to represent employees. See MTD & MSJ Memo. at 16-17. They note that,

MTD & MSJ Memo. at 17.

Further, the City Defendants argue that, even if they owed due process to NMTU and Lucero,

MTD & MSJ Memo. at 17-18. The City Defendants also state that "it is unclear how the individual defendants violated the due process rights of any plaintiff." MTD & MSJ Memo. at 18.

The City Defendants also acknowledge that the Complaint entitles count 1 "due process and equal protection," but state that the Complaint "does not state any facts to support an alleged violation of equal protection. Thus the Court should dismiss the equal protection claim for failure to state a claim upon which relief may be granted." MTD & MSJ Memo. at 18.

With respect to the Plaintiffs' breach-of-contract claim, the City Defendants assert that "[t]he complaint contains no factual allegations to support their breach of contract claim"—specifically, that the Merit System Ordinance, the Personnel Rules and Regulations, and collective bargaining agreements create an implied contract of employment. MTD & MSJ Memo. at 18. The City Defendants argue that the Complaint does not allege that they violated any contract with NMTU, because, the parties assert, "[i]t is undisputed that there was never a contract negotiated with NMTU during this period of time." MTD & MSJ at 18. The City Defendants state that, before "the AFSCME contract which expired in July, 2011, NMTU had a CBA with the City. NMTU lost the election with AFSCME, thus AFSCME became the representative." MTD & MSJ Memo. at 18 n. 4. The Defendants contend that the Complaint's "allegation does not withstand either a motion to dismiss or a motion for summary judgment." MTD & MSJ Memo. at 18. The City Defendants argue that "[t]he complaint does not allege that any individual defendant has a contract with plaintiffs. It is undisputed that no individual defendant has a contract with any plaintiff. This count can only be against" the City Defendants. MTD & MSJ Memo. at 18 n. 5.

The City Defendants point to the Court's decision in Armijo v. State Department of Transportation, in which

MTD & MSJ Memo. at 19. The City Defendants acknowledge that a personnel manual can, in some circumstances, give rise to an implied contract, but point to the Court's decision in Eoff v. New Mexico Corrections Department, Nos. CIV 10-0598 JB/RHS, CIV 10-0599 JB/DJS, & 10-0600 JB/WDS, 2010 WL 5477679 (D.N.M. 2010)(Browning, J.), in which the Court held that the State Personnel Act, N.M. Stat. Ann.1978, § 10-9-4, was the exclusive remedy for breach-of-contract claims based on the State Personnel Act, and that the New Mexico Legislature did not intend to permit plaintiffs to pursue a breach-of-contract claim at common law. See MTD & MSJ Memo. at 19-20. According to the City Defendants, the Plaintiffs' breach-of-contract claims fall for the same reason, because the Plaintiffs' breach-of-contract claims arise out of the MSO, the CBA, and the City of Albuquerque's Personnel Rules, the State Personnel Act provides the exclusive remedy. See MTD & MSJ Memo. at 20-21. Accordingly, the City Defendants ask the Court to dismiss the breach-of-contract claim, "because the MSO and Rules are the exclusive remedy for their alleged claims of breach of contract." MTD & MSJ Memo. at 21.

The City Defendants then turn to Count 3, which they note "alleges claims against defendants Dr. Wagner-Mogle and Paula Forney for their actions with regard to the subpoena of Tapia records," and "that the `defendants' also hired a private investigator to conduct surveillance of Tapia." MTD & MSJ Memo. at 21 (citing Complaint ¶¶ 66-71, at 13-14). The City Defendants state that the MTD & MSJ Memo. addresses neither Dr. Wagner-Mogle's liability nor Forney's liability. See MTD & MSJ Memo. at 21.10 According to the City Defendants' narrative, "[t]he City served a subpoena on Dr. Wagner-Mogle for production of Tapia's medical records in preparation for her post-termination hearing." MTD & MSJ Memo. at 21. Acknowledging the Complaint's allegation that "Tapia and her attorney were aware of the service of the subpoena for Tapia's medical records," MTD & MSJ Memo. at 21 (citing Complaint ¶ 45, at 10), the City Defendants state that "Dr. Wagner-Mogle provided the medical records and the City sent them back, unread. Dr. Wagner-Mogle also sent a copy of those records to Tapia and her attorney." MTD & MSJ Memo. at 21 (citing Dr. Wagner-Mogle's Motion to Dismiss at 8). The City Defendants assert that "Tapia objected to production of the medical records, not with the form of the subpoena but with the substance." MTD & MSJ Memo. at 21. According to the City Defendants, under rule 45(c)(3) of the Federal Rules of Civil Procedure, a party who objects to production of records pursuant to subpoena must file a timely motion to that effect. See MTD & MSJ Memo. at 21. According to the City Defendants, "[t]he hearing officer overruled her objection and compelled her to produce those records. She failed to produce the records which may have resulted in her appeal being dismissed for failure to cooperate in discovery." MTD & MSJ Memo. at 21-22. The City Defendants assert that, because Tapia did not produce the requested records, "her right to privacy could not have been violated." MTD & MSJ Memo. at 22. Moreover, they state that, "[i]f her failure to produce those records contributed to her termination, she had the right to and did appeal the determination of the personnel board to the district court," but "failed to perfect the appeal[,] resulting in the appeal being dismissed for lack of prosecution." MTD & MSJ Memo. at 22.

With respect to Tapia's private-investigator claim, the City Defendants state:

MTD & MSJ Memo. at 22. Moreover, they note that the Complaint does not name a single government defendant for having implemented the surveillance, and that the City of Albuquerque "cannot be held liable under § 1983 without proof of a custom or policy." MTD & MSJ Memo. at 22. Accordingly, they submit that Tapia's "right to privacy, to the extent it existed, was not violated either by service of the subpoena of her medical records or the City's conduct of surveillance." MTD & MSJ Memo. at 22.

The City Defendants also ask the Court to dismiss Count 4—that is, the Plaintiffs' negligence claim—because there is no waiver of sovereign immunity under the NMTCA, and because the New Mexico Workers' Compensation Act, N.M. Stat. Ann.1978, § 52-1-9("NMWCA"), is the exclusive remedy for on-the-job injuries. See MTD & MSJ Memo. at 23. The City Defendants note that Count 4 "states that only Tapia was injured on the job; the complaint does not define how the defendants were negligent with regard to Aragon." MTD & MSJ Memo. at 23. With respect to the NMWCA, the City Defendants note that "[t]he complaint only alleges in support of the claim for negligence that Tapia was injured twice on the job. Since the [NMWCA] provides that the exclusive remedy for on-the-job injuries is through the [NMWCA, this claim should be dismissed." MTD & MSJ Memo. at 23. With respect to the sovereign immunity argument, the City Defendants cite the NMTCA's limits on the scope of liability for government entities and government employees, and state that "[t]he complaint does not identify any waiver of immunity for negligence for defendants for terminating plaintiffs. Thus Count 4 should be dismissed on the basis of lack of waiver of immunity as well as on the exclusive remedy embodied in the WCA." MTD & MSJ Memo. at 23-24.

The City Defendants also ask the Court to eliminate Count 5—the conspiracy count—"because it does not state specific facts in support of the alleged conspiracy." MTD & MSJ Memo. at 24. The City Defendants assert that the Complaint is unclear "whether the alleged conspiracy sounds in tort or attempts to state a constitutional claim." MTD & MSJ Memo. at 24. They argue that, if the conspiracy claim is a tort claim, the NMTCA bars it. See MTD & MSJ Memo. at 24. If, however, it asserts a constitutional claim, the City Defendants maintain that the Court should dismiss it: they cite Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir. 2004), in which the United States Court of Appeals for the Tenth Circuit stated:

MTD & MSJ Memo. at 24 (quoting Montgomery v. City of Ardmore, 365 F.3d at 939-40). The City Defendants point out that the Complaint alleges "that the identified individuals, Paula Forney and Bruce Rizzieri and various other unidentified city employees, conspired against plaintiffs by `[meeting], discuss[ing], and arranging] for the denial of Plaintiffs' due process and equal protection rights.'" MTD & MSJ Memo. at 24-25 (quoting Complaint ¶ 79, at 15). Citing a decision from the Court of Appeals of New Mexico, the City Defendants state that a complaint must allege the following three elements to state a cause of action for conspiracy: "`[(i)] the existence of the conspiracy; [(ii)] the wrongful act or acts done pursuant to the conspiracy; and [(iii)] the damage resulting from such act or acts.'" MTD & MSJ Memo. at 25 (quoting Las Luminarias of the N.M. Council of the Blind v. Isengard, 1978-NMCA-117, 92 N.M. 297, 300, 587 P.2d 444, 447 (citations omitted)). The City Defendants assert that the Plaintiffs have not met this standard, because it alleges "no wrongful acts . . . against co-conspirators Rizzieri or Forney. Other than Paula Forney and Bruce Rizzieri, no other coconspirators are identified." MTD & MSJ Memo. at 25. Accordingly, the City Defendants ask that

MTD & MSJ Memo. at 25.

The City Defendants argue that the Court should dismiss Count 6—the unfair labor practices claim—"because the district court decided that the election violated the LMRO." MTD & MSJ Memo. at 25. The City Defendants state that, in that count,

MTD & MSJ Memo. at 25. The City Defendants allege that, after the state court invalidated the election in which NMTU prevailed, see Judge Nash's MOO at 5, and after the NMTU did not appeal that decision, "AFSCME remained the bargaining representative under the CBA'[s] evergreen clause which provides for the bargaining agreement in the absence of a new one being implemented." MTD & MSJ Memo. at 26. Moreover, the City Defendants note,

MTD & MSJ Memo. at 26.

The City Defendants also assert that they are entitled to qualified immunity. See MTD & MSJ Memo. at 26. The City Defendants review the familiar standards for qualified immunity, see MTD & MSJ Memo. at 26-27, and argue that the Complaint does not clearly explain how Berry, Perry, and Rizzieri violated the Plaintiffs' constitutional rights. See MTD & MSJ Memo. at 28. About Berry, the City Defendants note the Complaint's allegations that he is the mayor, that he de-certified AFSCME, and that he certified NMTU after the election. See MTD & MSJ Memo. at 28 (citing Complaint ¶ 12, at 3). The City Defendants state that "[t]he complaint also alleges that the Mayor, under the City Charter, is responsible for appointing an officer to administer the merit system." MTD & MSJ Memo. at 28. The City Defendants assert that "[t]his allegation is not specific to Mayor Berry." MTD & MSJ Memo. at 28 n. 8. The City Defendants maintain that the Complaint alleges "that the Personnel Board and the Labor Board act under the direction of Mayor Berry, without oversight from the city council and `in violation of the City Charter.'" MTD & MSJ Memo. at 28 (quoting Complaint ¶ 20, at 5).

The City Defendants assert that "Perry is identified as the Chief Administrative Officer," and "is alleged to have directed the actions of the Personnel Board, the Labor Board and the hearing officers to violate some unnamed provision of the City Charter and the rights of plaintiffs." MTD & MSJ Memo. at 28 (citing Complaint ¶ 20, at 5). "These are the only references to Defendant Perry in the complaint." MTD & MSJ Memo. at 28. The City Defendants observe that the Complaint identifies Rizzieri's position as director of the Transit Department, and that it alleges "that counsel for Tapia wrote to Mr. Rizzieri, complaining about Tapia's assignment to the `cold guard shack with nothing to do.'" MTD & MSJ Memo. at 28 (quoting Complaint ¶ 24, at 5). "The only other reference to Mr. Rizzieri is to claim that he conspired to deprive plaintiffs' [sic] of their due process and equal protection rights." MTD & MSJ Memo. at 28 (citing Complaint ¶ 79, at 15).

According to the City Defendants, these assertions do not demonstrate that any of the Plaintiffs' constitutional rights were violated. See MTD & MSJ Memo. at 29. They argue, citing cases from the Supreme Court and from the Tenth Circuit, that "[t]here is no allegation that any individual defendant specifically acted with intent to deprive plaintiffs of their rights. Intentional conduct is required to establish violation of a constitutional right." MTD & MSJ Memo. at 29 (citing Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996); Archuleta v. McShan, 897 F.2d 495 (10th Cir.1990)). According to the City Defendants, no facts "support any allegations of a violation of equal protection and the individual defendants are entitled to qualified immunity for that claim, as well." MTD & MSJ Memo. at 29. The City Defendants assert that,

MTD & MSJ Memo. at 29.

The City Defendants also assert that, if Berry, Perry, and Rizzieri are entitled to qualified immunity, the City of Albuquerque also cannot be held liable. See MTD & MSJ Memo. at 30. Quoting the familiar standards for municipal liability under § 1983, the City Defendants argue that the named defendants' activities did not violate the constitution, and that the City of Albuquerque did not know that the defendants were violating any of the Plaintiffs' rights. See MTD & MSJ Memo. at 30. Moreover, they assert that the Complaint "does not allege that the City had any de facto policies of violating the due process or Fourth Amendment rights of its employees. Thus the City should be dismissed from this case on Counts 1 and 5." MTD & MSJ Memo. at 30.

The Plaintiffs did not file a response.

The Court held a hearing on November 1, 2013. See Transcript of Hearing, taken November 1, 2013, filed November 8, 2013 (Doc. 63)("Tr."). The City Defendants noted that, because the Plaintiffs had not responded to the MTD & MSJ Memo., it was difficult to argue, but briefly outlined the MTD & MSJ Memo.'s arguments. See Tr. at 45:11-18 (Forney).11 The City Defendants asserted that the Court had dealt with the constitutional claims at issue in this case in Salazar v. City of Albuquerque, No. CIV 10-0645 JB/ACT, 2013 WL 5554185 (D.N.M. Aug. 20, 2013) (Browning, J.)("Salazar I")—specifically, they argue that the Plaintiffs have not shown a violation of due process, because they did not use the process available to them to contest their termination. See Tr. at 45:19-22 (Forney). With respect to the breach of contract claim, the City Defendants argued that Salazar I dealt with that claim, but also pointed the Court to its decision in Eoff v. New Mexico Corrections Department, reiterating the MTD & MSJ Memo.'s argument. See Tr. at 45:23-6:4 (Forney). The City Defendants maintained that Dr. Wagner-Mogle's attorney had dealt with that claim in argument on Dr. Wagner-Mogle's Motion to Dismiss. See Tr. at 46:4-5 (Forney). As to the negligence and the conspiracy claims, the City Defendants argued that the Court had disposed of them in Salazar I, and reiterated that the NMTCA had not waived sovereign immunity. See Tr. at 46:6-8 (Forney). The City Defendants asserted that "[t]he unfair labor practice goes back to the due process. No person, no plaintiff filed a claim before the Labor Board, so there's no unfair labor practices to be alleged." Tr. at 46:9-12 (Forney). "Finally," the City Defendants argued that they "are entitled to qualified immunity if the court[] finds a violation of any constitutional provision. They didn't—they weren't aware that any of their actions were wrong to the extent that the complaint identified any wrongdoing by any specific defendant, which it did not. So I raised it my brief." Tr. at 46:13-18 (Forney).

The Court asked the Plaintiffs if they could distinguish Salazar I; the Plaintiffs stated that the Court should not grant the MTD & MSJ Memo. for the reasons that the Court gave in Salazar I, and elaborated:

Tr. at 49:3-15 (Livingston). The Plaintiffs also contended that the facts of the cases differ, and that the City Defendants are "going solely on speculation of—and speculation about the law," and argued that "we need to get into the facts of each case, not just arguments on each count." Tr. at 47:16-24 (Livingston). The Plaintiffs complained that the case is being micromanaged to eliminate the case count-by-count, and contended that

Tr. at 48:2-12 (Livingston).12 The Plaintiffs argued that the pleading "is a mess," and that the City Defendants ask the Court to "just dismiss the case. . . . It doesn't matter why; it doesn't matter what reasons; it doesn't matter that they have justification." Tr. at 48:13-17 (Livingston). The Plaintiffs stated that "[t]he city just wants the case dismissed, and of course, they'll all concur in each other's motions, but do the—do the parties, do the real people who are involved in this, do they know anything about what's happening? I think the answer's no." Tr. at 48:17-21 (Livingston). The Plaintiffs also complained that the Court "has allowed them to get away with the notion of informed consent that's not in writing even though it's required to be in writing. Your Honor has taken their word for the fact that they've given informed consent even though they don't think they have to give informed consent." Tr. at 48:22-9:1 (Livingston). The Plaintiffs stated that

Tr. at 49:2-50:2 (Livingston).

After a brief digression regarding the Court's disposition of a different motion, see Tr. at 50:3-51:11 (Livingston, Court), the Plaintiffs concluded by stating that

Tr. at 51:17-24 (Livingston).

After no other Defendant accepted the Court's invitation to comment, see Tr. at 52:2-4 (Court, Green), the Court invited the City Defendants to reply, see Tr. at 52:5 (Court). The City Defendants stated that they were clear on the case's status and that they have filed all the motions that the pleadings require. See Tr. at 52:7-10 (Forney). The City Defendants further stated:

Tr. at 52:11-18 (Forney).

The Court took the MTD & MSJ under advisement. See Tr. at 52:21-22 (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. Maker Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ("[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss."); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) ("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-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) (internal quotation marks omitted)(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). "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 complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (emphasis omitted). The Tenth Circuit stated:

Robbins v. Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).

LAW REGARDING SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the nonmoving party's case.'" Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence—using any of the materials specified in Rule 56(c)—that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original).13 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) ("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) ("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial'" Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

There are, however, limited circumstances in which the Court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified-immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiffs version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:

550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:

Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir.2009) (Tymkovich, J.)(unpublished),14] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).

Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting))(observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts").

LAW REGARDING FAILURE TO RESPOND TO A MOTION

"Failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion." D.N.M.LR-Civ. 7.1(b). The court cannot, however, grant a motion to dismiss or a motion for summary judgment based solely on plaintiffs failure to respond and must consider the merits of the motion. See Issa v. Comp USA 354 F.3d 1174, 1177-78 (10th Cir.2003) ("[E]ven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiffs complaint and determine whether the plaintiff has stated a claim upon which relief can be granted."); Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.2002) (holding that a district court cannot grant an unopposed motion for summary judgment unless the moving party has first met its burden of production and demonstrates it is legally entitled to judgment under rule 56). The requirement that a court consider the merits before granting an unopposed motion to dismiss is "consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test `the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.'" Issa v. Comp USA, 354 F.3d at 1177-78 (quoting Mobley v. McCormick, 40 F.3d at 340). Similarly, when a party fails to respond to a motion for summary judgment, a district court can properly grant the motion only "if the motion demonstrates no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law." Reed v. Bennett, 312 F.3d at 1196. Failure to respond does "not relieve the court of its duty to make the specific determination required by Fed.R.Civ.P. 56(c)." Reed v. Bennett, 312 F.3d at 1196. Accordingly, although the local rules provide that a party's failure to respond to a motion for summary judgment or to a motion to dismiss for failure to state a claim is deemed consent to the Court granting the motion, the Court will nonetheless rule substantively on such motions and generally does not grant dispositive motions on procedural defaults alone. See D.N.M.LR-Civ 7.1(b) ("The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion."); Sawyer v. USAA Ins, Co., 912 F.Supp.2d 1118, 1144 (D.N.M.2012) (Browning, J.)("It is important that Sawyer filed no written response to BCBSKC's motions and, under the rules, is deemed to have consented to the Court granting the motion. . . . The Court nonetheless carefully considered the merits of this motion and held a hearing, at which Sawyer presented no evidence.").

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

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

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 [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens"),] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of 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 tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of then' 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:

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

2. Individual Liability.

Under § 1983, "Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255. Thus, 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 complained-of under § 1983, and stated that 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).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment to the Constitution of the United States of America, the Tenth Circuit has held that government actors "may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding then' 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-Circuit Judge for the Third Circuit, now-associate Justice for the Supreme Court:

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

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

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, [] exercise of control or direction, or [] failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ("[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. Camas, 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." 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:

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:

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." 614 F.3d at 1200 n. 8. Relying on the Supreme Court's opinion in Bd. of Cnty. Comm'rs 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:

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 STATE ACTION AND CIVIL-RIGHTS CLAIMS

The Supreme Court has stated that it is a judicial obligation to not only

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal quotations and citations omitted). The rights under the Fourth and Fourteenth Amendments to the Constitution of the United States of America at issue secure protection only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) ("[M]ost rights secured by the Constitution are protected only against infringement by governments."). Under some circumstances, however, private parties' conduct may be deemed to be state action when the "conduct allegedly causing the deprivation of a federal right may be fairly attributable to the State." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Whether the conduct may in fact be "fairly attributed" to the state requires a two-part inquiry. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible." Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. 2744. "Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. 2744. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (explaining that, to state a claim under § 1983, the plaintiff must show: (i) deprivation of a right that the federal Constitution or federal laws secure; and (ii) that a person acting under color of state law caused the deprivation).

The Supreme Court in Lugar v. Edmondson Oil Co., Inc. explained that the two prongs merge when the claim is "directed against a party whose official character is such as to lend the weight of the State to his decisions," whereas they remain distinct when analyzing private parties' conduct. 457 U.S. at 937, 102 S.Ct. 2744. The first prong of the test in Lugar v. Edmondson Oil Co., Inc.—that the deprivation of a right is attributable to the state—is satisfied when "the authority of state officials . . . put the weight of the State behind [the defendant's private decision[.]" 457 U.S. at 940, 102 S.Ct. 2744. The Supreme Court in Lugar v. Edmondson Oil Co., Inc. further instructed that the second prong, identification of a defendant as a state actor, may arise "because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state." 457 U.S. at 937, 102 S.Ct. 2744.

In Lugar v. Edmondson Oil Co., Inc., the Supreme Court determined that the plaintiffs allegation that private conduct unlawful under state law deprived the plaintiff of his property without due process failed to state a claim under § 1983. See 457 U.S. at 940, 102 S.Ct. 2744. The Supreme Court also held that the plaintiffs claim alleging that the private parties had invoked a state statute maliciously or without valid grounds did not give rise to state action. See 457 U.S. at 940, 102 S.Ct. 2744. Instead, that claim amounted to nothing more than the private misuse or abuse of a state statute. See 457 U.S. at 940-41, 102 S.Ct. 2744.

For a private individual to be acting under color of state law, the deprivation of a federal right "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. at 937, 102 S.Ct. 2744.

How v. City of Baxter Springs, 217 Fed. Appx. 787, 793 (10th Cir.2007) (unpublished).

1. Whether There is State Action by Private Actors is a Legal Determination Made by the Court.

The Tenth Circuit has described the determination of state action as "particularly fact-sensitive, so the circumstances must be examined in their totality." Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir.2004). According to the Tenth Circuit, "[t]he Supreme Court has counseled us that the state action inquiry, although a legal determination to be made by the court, [see Gilmore v. City of Montgomery, 417 U.S. 556, 570, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974),] requires the sifting [of] facts and weighing [of] evidence." Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1271 (10th Cir.1989) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). In Gilmore v. City of Montgomery, the Supreme Court found that, although it was the Supreme Court's role to determine whether the use of zoos, museums, parks, and other recreational facilities by private school groups and private non-school organizations "involved government so directly in the actions of those users as to warrant court intervention on constitutional grounds," the factual record before the Supreme Court "[did] not contain sufficient facts upon which to predicate legal judgments of this kind." 417 U.S. at 570, 94 S.Ct. 2416.

On the other hand, leaving the determination of state action to the jury has shown to be ill-advised. The cases in which the acts of private entities have been held to constitute state action or to be under color of law, and cases in which they have not, tend to be distinguished "by fine shadings in the sometimes complex interrelationships that develop between the state and private bodies." Adams v. Vandemark, 787 F.2d 588, 1986 WL 16606, at *2 (6th Cir.1986) (unpublished). In Adams v. Vandemark, the United States Court of Appeals for the Sixth Circuit reviewed a jury instruction from the United States District Court for the Eastern District of Michigan, instructing the jury on when to find state action. The Sixth Circuit found that the few words that were given to the jury on when to find state action "gave the jury little to guide it in making its determination on this crucial element of the claim for relief." 1986 WL 16606, at *2. The Sixth Circuit noted that the application of the symbiotic-relationship test and the joint-relationship test are "very difficult and complex questions," and, "[t]o the extent a jury is to decide upon the proper factual predicates for this essentially legal determination, it must be given instructions that are clear, precise and informative as to the factors involved and the factual issues to be determined." 1986 WL 16606, at *2. The Sixth Circuit found that the defendants were entitled to a new trial, because the jury was given no direction that could have enabled it to make the necessary underlying factual determination regarding state action. 1986 WL 16606, at *2-*3.

2. Tests for Determining State Action by a Private Party.

The Supreme Court has articulated four different tests for courts to use in determining whether conduct by an otherwise private party is state action: (i) the public-function test; (ii) the nexus test; (iii) the symbiotic-relationship test; and (iv) the joint-action test. See Johnson v. Rodrigues (Orozco), 293 F.3d 1196, 1202-1203 (10th Cir.2002) (reviewing the various tests); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995) (noting that "[application of the state action doctrine has been characterized as one of the more slippery and troublesome areas of civil rights litigation." (internal quotation marks omitted)).

a. Public-Function Test.

Under the public-function test, a court determines whether a private party has exercised "powers traditionally exclusively reserved to the State." Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The public-function test is difficult to satisfy, because while many functions may be traditionally governmental, few are "exclusively" governmental functions, as the test requires. Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1456. The courts have found exclusive government functions to include holding elections, performing necessary municipal functions, and running a nursing facility. See Johnson v. Rodrigues (Orozco), 293 F.3d at 1203.

b. Nexus Test.

Under the nexus test, state action is present if the state has ordered the private conduct, or "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 993, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). A court determines under the nexus test whether there is a sufficiently close nexus between the state and the challenged conduct, such that the conduct "may be fairly treated as that of the state itself." Jackson v. Metro. Edison Co., 419 U.S. at 351, 95 S.Ct. 449. "Private use of state-sanctioned private remedies or procedures does not rise to the level of state action. . . . But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found." Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (internal citations omitted).

c. Symbiotic-Relationship Test.

Under the symbiotic-relationship test, state action is present if the state "has so far insinuated itself into a position of interdependence" with a private party that "it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). "[E]xtensive regulation, receipt of substantial state funds, and the performance of important public functions do not necessarily establish the kind of symbiotic relationship between the [state] and a private [party] that is required for state action." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1451.

Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1452.

d. Joint-Action Test.

State action exists under the joint-action test if the private party is a "willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Courts look to "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1453. "[I]f there is a substantial degree of cooperative action between state and private officials . . . or if there is overt and significant state participation, in carrying out the deprivation of the plaintiffs constitutional rights, state action is present." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1454 (internal quotation marks and citations omitted). Joint participation can also take the form of a conspiracy between public and private actors; in such cases, the plaintiff must show that the public and private actors shared a common, unconstitutional goal. See Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir.2000). Even a conspiracy claim requires a sufficient level of state involvement to constitute joint participation in the unconstitutional actions. See Soldal v. Cook County, 506 U.S. 56, 60 n. 6, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). The Tenth Circuit has previously dismissed constitutional claims against a private individual where the plaintiff did not give specific facts showing a conspiracy evidencing state action. See Martinez v. Winner, 771 F.2d 424, 445 (10th Cir.1985) ("Beyond the bare conclusory allegation that [the defendant], a private citizen, conspired with the other defendants to deprive plaintiff of his constitutional and civil rights, no facts are stated indicating that [the defendant] did anything . . .").

In Gallagher v. Neil Young Freedom Concert, the Tenth Circuit surveyed several instances in which courts have found action "under color of state law" where governmental and private parties have acted together in joint-action:

49 F.3d at 1453-56. The Tenth Circuit noted that, "just as with the other tests for state action, the mere acquiescence of a state official in the actions of a private party is not sufficient." 49 F.3d at 1453. The Tenth Circuit found that the joint-action test can be satisfied where police are involved in cooperative action with a private party when "the police have substantially assisted in the allegedly wrongful conduct." 49 F.3d at 1455. Joint participation typically arises when the authorities agree to facilitate through affirmative action a private party's unconstitutional acts. See Soldal v. Cook County, 506 U.S. 56, 60 n. 4, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).

3. The Influence of Police Involvement on Private Action as State Action.

The Tenth Circuit has found that the involvement of the police does not necessarily convert a defendant's abuse of state law into conduct attributable to the state for purposes of § 1983 liability. See Yanaki v. Iomed, Inc., 415 F.3d 1204, 1210 (10th Cir.2005) (citing Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Taylor v. Gilmartin, 686 F.2d 1346, 1348-49, 1355 n. 3 (10th Cir.1982); Torres v. First State Bank of Sierra County, 588 F.2d 1322, 1327 (10th Cir.1978)). In Yanaki v. Iomed, Inc., the plaintiffs argued that the involvement of the police acting in concert with the defendants in the search of the plaintiffs' residence converted the defendants' actions into conduct attributable to the state for the purposes of § 1983 Lability. See 415 F.3d at 1209-10. The Tenth Circuit held that the plaintiffs "fail[ed] to satisfy the first part of the [Lugar v. Edmondson Oil Co., Inc.] color of law test because the conduct that Plaintiffs complain deprived them of their constitutional rights was caused by and [could] only be attributed to the private Defendants." 415 F.3d at 1210. The Tenth Circuit, therefore, found it unnecessary to address whether the private defendants were state actors. See 415 F.3d at 1210. Additionally, merely following a procedure established by state law does not transform a private party's activity into state action. See Scott v. Hern, 216 F.3d 897, 906-07 (10th Cir.2000); Kirksey v. Theilig, 351 F.Supp. 727, 733 (D.Colo. 1972) (holding that self-help repossession of an automobile by a private party is not action under color of state law).

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, e.g., 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)).

"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 Bd. of Regents of State Colls, v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 ("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."); 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)); 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.").

"[O]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 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "[D]ue process is flexible and calls [only] 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) (internal quotation marks and brackets omitted). The Supreme Court has described

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (footnote omitted) (citations and internal quotation marks omitted). The United States Court of Appeals for the Second Circuit has stated:

United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir.2004). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government's interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. For example, "[w]here . . . the state must act quickly, a meaningful postdeprivation hearing is adequate." Clark v. City of Draper, 168 F.3d at 1189. See also Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.1989) (removal of a child from parents' custody requires predeprivation hearing "except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." (internal quotation marks omitted)).

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, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.Xquoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "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).

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 Qualified Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified 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 a 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 mandatory 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 (yii) 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). 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 1181.15 "Courts should think carefully before fore 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. 223, 236-37, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). 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.").16 The Tenth Circuit will re mand 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 Qualified Immunity Analysis.

In evaluating whether the right was clearly established, a district court considers 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). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). 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 original)(quoting 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). While a case directly on point is not required, the Supreme Court has held that "existing precedent must have placed the statutory or constitutional question beyond debate." 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 volatile 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. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

NEW MEXICO LAW REGARDING BREACH-OF-CONTRACT CLAIMS

A contract is a legally enforceable promise that must consist of an offer, an acceptance, consideration, and mutual assent. See N.M.R.A., Civ. UJI 13-801. A person may breach a contract by failing to perform a contractual obligation when the performance is required, unless that performance is otherwise excused. See N.M.R.A., Civ. UJI 13-822. Incomplete performance is a breach of contract. See Cochrell v. Hiatt, 97 N.M. 256, 258-59, 638 P.2d 1101, 1103-04 (Ct.App.1981) (holding that, where the contract called for the roof to be restored to a "healthy" state and guaranteed the work for twenty-five years, because the roof leaked within the twenty-five year period, the defendant's performance was incomplete, and the defendant was in breach of the contract). Under New Mexico law, "[t]he elements of a breach-of-contract action are the existence of the contract, breach of the contract, causation, and damages." Abreu v. N.M. Children, Youth and Families Dep't, 797 F.Supp.2d 1199, 1247 (D.N.M.2011) (Browning, J.)(citing Camino Real Mobile Home Park P'ship v. Wolfe, 1995-NMSC-013, 199 N.M. 436, 442, 891 P.2d 1190, 1196 (1995), overruled on other grounds by (Sunnyland Farms, Inc. v. Central N.M. Elec. Co-op., Inc., 2013-NMSC-017, 301 P.3d 387)).

McCasland v. Prather, 92 N.M. 192, 194, 585 P.2d 336, 338 (Ct.App.1978).

Applying these principles in Armijo v. N.M. Dep't of Transp., No. CIV. 08-0336 JB/ACT, 2009 WL 1329192 (D.N.M. Apr. 6, 2009) (Browning, J.), the Court found that a plaintiffs' allegations failed to state a claim for breach of contract. In support of the breach-of-contract claim, the plaintiff asserted that "the Department would follow state employment policies and procedure, and that the Department terminated him in breach of those policies without just cause." 2009 WL 1329192, at *7. The Court noted that the plaintiff did not "indicate what contractual provisions or employment policies the Department breached," and did not say "to what his employment contract entitles him or of what the Department deprived him." 2009 WL 1329192, at *7. The Court found that there was "not enough to determine whether, if taken as true, the Complaint's allegations would support claims for breach of contract." 2009 WL 1329192, at *8. On the other hand, the Court has previously determined that a pro se plaintiff sufficiently alleged that his counsel breached a contract for legal representation by alleging that his former counsel promised to represent the plaintiff at forfeiture proceedings, that the plaintiff paid the counsel, and that the counsel failed to represent the plaintiff. See Archuleta v. City of Roswell, 898 F.Supp.2d 1240, 1257-58 (D.N.M.2012) (Browning, J.).

"Additionally, in spite of the general bar on punitive damages for breach-of-contract cases, the Supreme Court of New Mexico has recognized that punitive damages may be recoverable under some circumstances for a breach of contract." Anderson Living Trust v. ConocoPhillips Co., LLC, 952 F.Supp.2d 979, 1030-31 (D.N.M.2013) (Browning, J.). As the Supreme Court of New Mexico stated in Romero v. Mervyn's, 109 N.M. 249, 784 P.2d 992 (1989): "Our previous cases clearly establish that, in contract cases not involving insurance, punitive damages may be recovered for breach of contract when the defendant's conduct was malicious, fraudulent, oppressive, or committed recklessly with a wanton disregard for the plaintiffs rights." 109 N.M. at 255, 784 P.2d at 998. Punitive damages are not available when a breaching party's conduct was "solely gross negligence. . . . In addition to, or in lieu of, such negligence there must be evidence of an `evil motive' or a `culpable mental state.'" Paiz v. State Farm Fire & Cas. Co., 118 N.M. 203, 211, 880 P.2d 300, 308 (1994). The Supreme Court of New Mexico has defined "reckless disregard" sufficient for an award of punitive damages as "when the defendant knows of potential harm to the interests of the plaintiff but nonetheless utterly fails to exercise care to avoid the harm." Paiz v. State Farm Fire & Cas. Co., 118 N.M. at 211, 880 P.2d at 308 (secondary quotations and citation omitted). A defendant does not act with reckless disregard to a plaintiffs rights merely by failing "to exercise even slight care," absent the requisite "culpable or evil state of mind." Paiz v. State Farm Fire & Cas. Co., 118 N.M. at 211, 880 P.2d at 308 (secondary quotations and citation omitted). The New Mexico Civil Jury Instructions define the elements necessary for an award of punitive damages for a breach of contract as follows:

N.M.R.A., Civ. UJI 13-861.

LAW REGARDING FOURTH AMENDMENT SEARCHES

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It also commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. In determining whether a Fourth Amendment violation has occurred, courts must "assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Scalia, J.)(alteration in original)(quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Scalia, J.)).

"Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness." United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M.2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir.2011) ("[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'")(quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). "In the criminal context, reasonableness usually requires a showing of probable cause." Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1184 (D.N.M.2011) (Browning, J.)(quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). The Supreme Court has stated in the law enforcement context that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).

1. United States v. Jones.

The defendant in United States v. Jones was suspected of drag trafficking, and a joint Federal Bureau of Investigation and District of Columbia Metropolitan Police Department task force obtained a warrant authorizing installation in Washington, D.C., within ten days, of a Global Positioning System device to the defendant's car. See 132 S.Ct. at 948. On the eleventh day, task force agents attached the GPS device to the bottom of the defendant's car while the car was in Maryland. The agents then used the GPS device to track the defendant's movements over the next twenty-eight days, replacing the battery once, and collecting over two-thousand pages of data sent from the device. See 132 S.Ct. at 948.

The Honorable Antonin G. Scalia, Associate Justice of the Supreme Court, writing for the majority, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor joined, held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a `search.'" 132 S.Ct. at 949. Justice Scalia reasoned that the United States's conduct was a Fourth Amendment search, because the government trespassed on a constitutionally protected area. See 132 S.Ct. at 949 ("The Fourth Amendment provides . . . that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' It is beyond dispute that a vehicle is an `effect' as that term is used in the Amendment."). Such a physical intrusion, Justice Scalia opined, would have come within the Framers' intended definition of a "search": "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a `search' within the meaning of the Fourth Amendment when it was adopted." 132 S.Ct. at 949. Justice Scalia reconciled the Supreme Court's conclusion that attaching a GPS device to track a Jeep in plain view was a Fourth Amendment search with New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), in which the Supreme Court concluded that a visual examination of the outside of a vehicle while in plain view does not constitute a search, by noting that "[i]n Class itself we suggested that this [physical invasion] would make a difference, for we concluded that an officer's momentary reaching into the interior of a vehicle did constitute a search." 132 S.Ct. at 952.

Justice Scalia reasoned that the Fourth Amendment's text supports taking a property law based approach to determine whether there is a search, but did not shy away from the fact that, in recent history, the Supreme Court had deviated from this approach:

132 S.Ct. at 949-50.

The United States had contended that, under the "Harlan standard"—i.e., the Katz v. United States reasonable-expectation-of-privacy approach—"no search occurred here, since Jones had `no reasonable expectation of privacy' in the area of the Jeep accessed by the Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all." 132 S.Ct. at 950. Justice Scalia concluded, however, that the Supreme Court "need not address the Government's contentions" in relation to the Katz v. United States reasonable-expectation-of-privacy test analysis, because the trespass-based search approach, which existed at the time of the Fourth Amendment's adoption, disposed of the issue:

132 S.Ct. at 950-51 (some alteration in original)(footnotes omitted).

In her concurrence, Justice Sotomayor agreed that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case." 132 S.Ct. at 955 (Sotomayor, J., concurring). She continued:

132 S.Ct. at 954-55 (Sotomayor, J., concurring). Justice Sotomayor's concurrence focused on the reality, in her view, that,

132 S.Ct. at 955 (Sotomayor, J., concurring)(alteration in original)(quoting the majority opinion, 132 S.Ct. at 953).

Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although he agreed with the result, given the use of twenty-first century technology, he would have analyzed whether the government's long-term monitoring of the defendant violated the Katz v. United States reasonable-expectation-of-privacy test:

132 S.Ct. at 957-58 (Alito, J., concurring in the judgment). Justice Alito first took issue with what he called the majority's "questionable proposition that the[] two procedures [of attaching and using a GPS device] cannot be separated for Fourth amendment purposes." 132 S.Ct. at 958. Justice Alito submitted that, "[i]f these two procedures are analyzed separately, it is not at all clear from the Court's opinion why either should be regarded as a search." 132 S.Ct. at 958.

Justice Alito contended that the majority's opinion suggests that "the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence," but disagreed with the majority, stating: "[W]e know this is incorrect." 132 S.Ct. at 958. Justice Alito pointed out that the open-fields doctrine grew out of the distinction between a physical intrusion of any private property and property that is part of a home: "At common law, any unauthorized intrusion on private property was actionable, but a trespass on open fields . . . does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a `hous[e]' within the meaning of the Fourth Amendment." 132 S.Ct. at 958-959 (Alito, J., concurring in the judgment)(quoting Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)).

Justice Alito asserted that the trespass-based approach that the majority used was "repeatedly criticized" and ultimately "repudiated," based largely on its incompatibility with cases involving wiretapping and eavesdropping surveillance. United States v. Jones, 132 S.Ct. at 959, 960 (Alito, J., concurring in the judgment). Justice Alito contended that "the majority is hard pressed to find support in post-Katz cases for its trespass-based" decision that, when the United States attached the GPS device to Jones' Jeep, it trespassed on his effects and performed a Fourth Amendment search. 132 S.Ct. at 960-61. Justice Alito pointed to multiple problems that he believes the majority's trespass-based approach creates. First, he asserted that the majority's analysis is irreconcilable with the element of the United States' conduct that he contends society would find offensive—the GPS-monitoring and not the attachment of the device. If the United States could follow a car without physically trespassing on a person, home, paper, or effect, such as remotely monitoring a car via an internal GPS device, this monitoring would not constitute a Fourth Amendment search under the majority's analysis. See 132 S.Ct. at 961. Second, along the same lines, Justice Alito pointed out an "incongruous result[]" from the majority's opinion that a short-term tracking of a vehicle with a GPS device, merely tracking a vehicle down a single street, is a Fourth Amendment search, while, "if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints." 132 S.Ct. at 961. Justice Alito also asserted that, by tying Fourth Amendment searches to property law and trespass concepts, the Fourth Amendment's protections "may vary from State to State," based on different property and contract laws in the various states. 132 S.Ct. at 961-62.

2. Florida v. Jardines.

In Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), Justice Scalia, writing for the majority once again, held that using a drug-sniffing dog to sniff a person's "home and its immediate surroundings" is a Fourth Amendment search. 133 S.Ct. at 1417-18. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia's majority opinion in Florida v. Jardines. The Honorable Elena Kagan, Associate Justice, filed a separate concurring opinion, in which Justices Ginsburg and Sotomayor joined, adding "further thoughts, suggesting that a focus on Jardines' privacy interests would make `an easy cas[e] easy' twice over," but "join[ing] the Court's opinion in full." 133 S.Ct. at 1420 (Kagan, J., concurring). Justice Alito dissented, and Chief Justice Roberts, Justice Kennedy, and Justice Breyer joined his opinion.

In Florida v. Jardines, based on a tip that the defendant, Jardines, was growing marijuana in his home, the Miami-Dade, Florida, police department and the Drug Enforcement Administration sent a surveillance team to Jardines' home. See 133 S.Ct. at 1413. Observing nothing of note in the first fifteen minutes watching the home, two detectives approached the home accompanied by a dog trained to detect marijuana, cocaine, heroin, and several other drugs by alerting the detectives with behavioral changes. See 133 S.Ct. at 1413. As the dog approached Jardines' front porch, the dog "apparently sensed one of the odors he had been trained to detect," and after tracking back and forth, sat at the base of the front door, "which is the trained behavior upon discovering the odor's strongest point." 133 S.Ct. at 1413. The dog's handler then immediately left the porch, and told the other agents and officers at the scene that there had been a positive alert for drugs, at which time the officers applied for and received a search warrant for the residence, the execution of which revealed marijuana plants. See 133 S.Ct. at 1413. Jardines was arrested for trafficking in marijuana and moved to suppress the evidence based on an illegal search. See 133 S.Ct. at 1413.

Justice Scalia held that the use of a drug-sniffing dog was a Fourth Amendment search, reasoning:

133 S.Ct. at 1414. Justice Scalia noted that "[t]he Fourth Amendment `indicates with some precision the places and things encompassed by its protections': persons, houses, papers, and effects." 133 S.Ct. at 1414 (quoting Oliver v. United States, 466 U.S. at 176, 104 S.Ct. 1735). Thus, the Fourth Amendment does not cover every "investigation] on private property; for example, an officer may (subject to Katz) gather information in what we have called `open fields'—even if those fields are privately owned—because such fields are not enumerated in the Amendment's text." 133 S.Ct. at 1414.

Justice Scalia held that "the officers' investigation took place in a constitutionally protected area," the home, as the front porch is the home's curtilage. See 133 S.Ct. at 1414-15. Justice Scalia then "turn[ed] to the question of whether it was accomplished through an unlicensed physical intrusion," 133 S.Ct. at 1415, and reasoned that it was:

133 S.Ct. at 1415. Justice Scalia noted that, while society recognizes an implicit license which "typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave," he concluded that "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that" 133 S.Ct. at 1415-16 (emphasis in original). Justice Scalia explained:

133 S.Ct. at 1416.

The State of Florida argued "that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest." 133 S.Ct. at 1417. The State of Florida cited to United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), and Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), "which held, respectively, that canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the `reasonable expectation of privacy' described in Katz." 133 S.Ct. at 1417. Justice Scalia pointed out that, in United States v. Jones, the Supreme Court had already concluded that "[t]he Katz reasonable-expectations test `has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment, and so it is unnecessary to consider [the test under Katz v. United States] when the government gains evidence by physically intruding on constitutionally protected areas." 133 S.Ct. at 1417 (quoting United States v. Jones, 132 S.Ct. at 951-52). Because the Supreme Court had already concluded that the conduct was a Fourth Amendment search under the trespass-based analysis, therefore, it held that it was unnecessary to consider whether the conduct amounts to a search under the Katz v. United States reasonable-expectation-of-privacy analysis:

133 S.Ct. at 1417.

Justice Kagan wrote a concurring opinion, noting: "The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines' privacy interests." 133 S.Ct. at 1418 (Kagan, J., concurring). Justice Kagan analogized the government's conduct in using a drug sniffing dog on Jardines' porch to a stranger coming to the front door, who "doesn't knock or say hello," but instead, peers through the windows "into your home's furthest corners" with "super-high-powered binoculars," and "in just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one." 133 S.Ct. at 1418 (Kagan, J., concurring). This conduct, she posited, is a trespass which exceeds any implied license and is also an invasion of reasonable expectations of privacy; she argued that, like her analogy, the facts in Florida v. Jardines likewise involved a trespass and a violation of privacy expectations:

133 S.Ct. at 1418 (Kagan, J., concurring). According to Justice Kagan, had she written the majority opinion based on the Katz v. United States reasonable-expectations-of-privacy search test,

___ U.S. ___, 133 S.Ct. 1409, 1418-19 (Kagan, J., concurring).

Justice Alito's dissenting opinion, in which Chief Justice Roberts, and Justices Kennedy and Breyer, joined, submitted that "[t]he Court's decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence." 133 S.Ct. at 1420 (Alito, J., dissenting). Justice Alito noted that general trespass law permits a license to public members to use a walkway to approach a house's door, including strangers such as mailmen and solicitors, and the majority's conclusion that "the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent's house by his dog, Franky," is without a sound basis in trespass law. 133 S.Ct. at 1420-21 (Alito, J., dissenting). Justice Alito also asserted that decision is inconsistent with the Katz v. United States' reasonable-expeetations-of-privaey test: "A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human." Florida v. Jardines, 133 S.Ct. at 1421 (Alito, J., dissenting).

Justice Alito contended that the majority's opinion that the detective "exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, . . . is unfounded." 133 S.Ct. at 1421 (Alito, J., dissenting). Justice Alito pointed out that the law of trespass does not distinguish between visitors or reasons for the visit in granting an implied license to approach a house's front door. See 133 S.Ct. at 1421-22 (Alito, J., dissenting). He also asserted: "As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant," and uses mail carriers as an example of such a visitor. 133 S.Ct. at 1423 (Alito, J., dissenting). Justice Alito pointed out that the implied license also applies to law enforcement and cited to Kentucky v. King, ___ U.S.___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), in which the Supreme Court held that law enforcement officers approaching the front door of a residence to conduct a "knock and talk" is not a Fourth Amendment search. Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., concurring). Given that "Detective Bartelt did not exceed the scope of the license to approach respondent's front door," Justice Alito took issue with the majority's conclusion "that Detective Bartelt went too far because he had the `objectiv[e] . . . purpose to conduct a search.'" 133 S.Ct. at 1423 (Alito, J., dissenting)(emphasis in original). According to Justice Alito, because approaching a house to conduct a knock and talk is not a search,

133 S.Ct. at 1424 (Alito, J., dissenting)(emphasis in original)(internal citations omitted). Justice Alito thus concluded: "For these reasons, the real law of trespass provides no support for the Court's holding today. While the Court claims that its reasoning has `ancient and durable roots,' its trespass rule is really a newly struck counterfeit." 133 S.Ct. at 1424 (Alito, J., dissenting)(internal citations omitted).

Justice Alito did not look any more favorably upon Justice Kagan's conclusion that Detective Bartelt's conduct violated Jardines' reasonable privacy expectations, asserting:

133 S.Ct. at 1424 (Alito, J., dissenting). Justice Kagan asserted that Detective Bartelt's use of Franky, the drug-sniffing dog, was an invasion of Jardines' privacy in his home, because the government's conduct was similar to the conduct in Kyllo v. United States, in which the Supreme Court held that using a thermal imaging device to monitor movements in a home was a Fourth Amendment search. Justice Alito pointed out that "[t]his Court . . . has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. The very argument now advanced by the concurrence appears in Justice Souter's Caballes dissent. But the Court was not persuaded." 133 S.Ct. at 1425 (Alito, J., dissenting)(internal citations omitted)(citing Illinois v. Caballes, 543 U.S. at 409-10 and 413 n. 3, 125 S.Ct. 834). Justice Alito contended that "Kyllo is best understood as a decision about the use of new technology.. . . A dog, however, is not a new form of `technology' or a `device.' And, as noted, the use of dogs' acute sense of smell in law enforcement dates back many centuries." 133 S.Ct. at 1425 (Alito, J., dissenting). Justice Alito therefore concluded that the government's conduct in Florida v. Jardines "did not constitute a trespass and did not violate respondent's reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent." 133 S.Ct. at 1426.

3. Standing.

The Tenth Circuit has referred to the test whether a particular search implicates a defendant's Fourth Amendment interests—whether the search violates the defendant's reasonable privacy expectation— as one of "standing." E.g., United States v. Creighton, 639 F.3d 1281, 1286 (10th Cir.2011) ("The Defendant has the burden of establishing . . . standing, or, in other words, a subjective expectation of privacy in the [item searched] that society is prepared to recognize as reasonable."); United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) ("[A] defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search.")(citing United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir. 1990)); United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir.1996) ("A Defendant has standing to challenge a search only if he or she has a reasonable expectation of privacy in the area being searched."). Accordingly, the Court, tracing the Tenth Circuit's language has also referred to this test as one of standing. See, e.g., United States v. Harmon, 785 F.Supp.2d at 1157 ("Standing requires the defendant to show `that he had a subjective expectation of privacy in the premises searched and that society is prepared to recognize that expectation as reasonable.'") (quoting United States v. Poe, 556 F.3d at 1121). The Supreme Court's decisions in United States v. Jones and Florida v. Jardines, however, suggest that this test has now expressly been designated a substantive Fourth Amendment analysis alongside the trespass-based Fourth Amendment analysis, rather than a distinct analysis under the rubric entitled standing.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court disapproved of labeling the inquiry whether a search implicates a defendant's personal Fourth Amendment interests "as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." 439 U.S. at 133, 99 S.Ct. 421. Dispensing with this label, the Supreme Court noted:

439 U.S. at 138-39, 99 S.Ct. 421. The Supreme Court emphasized:

439 U.S. at 139-40, 99 S.Ct. 421. In Minnesota v. Carter, the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:

525 U.S. at 87-88, 119 S.Ct. 469. The Supreme Court has thus noted that the analysis under either approach—the substantive Fourth Amendment doctrine that the rights that the Amendment secures are personal versus the separate notion of "standing"—is the same and that Katz v. United States' reasonable-expectation-of-privacy analysis has now been classified as a substantive Fourth Amendment test, as opposed to a standing test. Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.

Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421 (footnote omitted). This development is in line with the Supreme Court's guidance that the analysis "is more properly subsumed under substantive Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.

4. Whether a Fourth Amendment Search Occurred.

A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person's property or where the government, to collect information, violates a person's subjective expectation of privacy that society recognizes as reasonable. See United States v. Jones, 132 S.Ct. at 947. "[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." United States v. Jones, 132 S.Ct. at 947 (emphasis in original)(citing Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Soldal v. Cook Cnty., 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)). "When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3).

a. Trespass-Based Analysis.

The Fourth Amendment "establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3 ("[A] `search' within the original meaning of the Fourth Amendment" occurs "[w]here . . . the Government obtains information by physically intruding on a constitutionally protected area.")). "[A]n actual trespass," however, "is neither necessary nor sufficient to establish a constitutional violation." United States v. Jones, 132 S.Ct. at 951 n. 5 (Scalia, J.)(emphasis omitted)(quoting United States v. Karo, 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)).

In determining whether a search has occurred, "[t]resspass alone does not qualify, but there must be conjoined with that . . . an attempt to find something or to obtain information." United States v. Jones, 132 S.Ct. at 951 n. 5. The Supreme Court has also noted that "[p]hysically invasive inspection is simply more intrusive than purely visual inspection." Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court in Florida v. Jardines suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:

133 S.Ct. at 1414.

In United States v. Alabi, 943 F.Supp.2d 1201 (D.N.M.2013) (Browning, J.), the Court analyzed whether the Secret Service's digital scan of electronic information contained in the defendants' credit and debit cards' magnetic strips was a Fourth Amendment search under a trespass-based analysis, concluding that it was not, because the Secret Service properly possessed the credit and debit cards, and the additional act of scanning the cards to read the virtual data contained on the strips did not involve a physical intrusion or physical penetration of space. See 943 F.Supp.2d at 1264-65. The Court noted that, "[e]ven if the Supreme Court were to extend the trespass-based analysis for Fourth Amendment searches to virtual invasions, the Secret Service's conduct scanning the thirty-one credit and debit cards still would not amount to a Fourth Amendment search," because the magnetic strip, as opposed to the credit or debit card separately, is not a constitutionally protected area. 943 F.Supp.2d at 1267-68.

943 F.Supp.2d at 1273 (alteration in original).

b. Katz v. United States' Reasonable-Expectations-of-Privacy Search Test Remains Good Law.

The Court has noted that, in light of the Supreme Court's recent decisions in Florida v. Jardines and United States v. Jones, both of which Justice Scalia wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, "the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law." United States v. Alabi, 943 F.Supp.2d at 1242 (citing Minnesota v. Carter, 525 U.S. 83, 97-98, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Scalia, J. concurring)). Justice Scalia has consistently criticized this "notoriously unhelpful test":

Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., concurring)(emphasis in original)(internal citations omitted).17 In both United States v. Jones and Florida v. Jardines, however, Justice Scalia, writing for the majority, never stated that the Supreme Court was substituting the trespass-based analysis for Katz v. United States' reasonable-expectation-of-privacy analysis. Rather, his majority opinions asserted that the Katz v. United States reasonable-expectation-of-privacy analysis added to the trespass-based analysis. See Florida v. Jardines, 133 S.Ct. at 1417 ("The Katz reasonable-expectations test `has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment." (emphasis in original))(quoting United States v. Jones, 132 S.Ct. at 952). The Court concluded in United States v. Alabi that, "as the Supreme Court now stands, Justices Alito, Breyer, Kagan, Ginsburg, and Sotomayor still adhere to application of the Katz v. United States reasonable-expectation-of-privacy Fourth Amendment analysis, at least as a possible approach alongside of the trespass-based approach." 943 F.Supp.2d at 1243.

In June, 2013, Justice Scalia dissented from the Supreme Court's decision in Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), in which the Supreme Court held that "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure," 133 S.Ct. at 1980. Justice Scalia criticized the majority's opinion for analogizing DNA testing to taking an arrestee's photograph by citing to Katz v. United States and pointing out that "we have never held that merely taking a person's photograph invades any recognized `expectation of privacy.'" Maryland v. King, 133 S.Ct. at 1986 (Scalia, J., dissenting). Justice Scalia also pointed out that a person's "privacy-related concerns" in their body are weighty:

Maryland v. King, 133 S.Ct. at 1982 (Scalia J., dissenting)(emphasis in original). Justice Scalia also suggested that the Founders would have shared these privacy-related concerns:

Maryland v. King, 133 S.Ct. at 1989 (Scalia J., dissenting). The Court therefore concludes that Justice Scalia and the Supreme Court may still rely on a person's privacy expectation when determining whether a search is reasonable for Fourth Amendment purposes, although Justice Scalia may not turn to the expectations prong until he runs the facts through the trespass prong. See Apodaca v. New Mexico Adult Probation and Parole, No. CIV 13-0113 JB/SMV, 998 F.Supp.2d 1160, 1175, 2014 WL 712588, at *14 (D.N.M. Feb. 13, 2014) (Browning, J.)(reaching this conclusion).

c. Katz v. United States' Reasonable-Expectations-of-Privacy Analysis.

"`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. at 133-34, 99 S.Ct. 421 (quoting Alderman v. United States, 394 U.S. at 174, 89 S.Ct. 961). "A district court cannot suppress evidence unless the movant proves that a search implicates personal Fourth Amendment interests." United States v. Jones, 44 F.3d 860, 871 (10th Cir.1995) (emphasis in original). "`[N]o interest legitimately protected by the Fourth Amendment' is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into `the security a man relies upon when he places himself or his property within a constitutionally protected area.'" United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (Hoffa v. United States, 385 U.S. 293, 301-02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)).18 The Tenth Circuit has thus noted that "[a]n illegal search or seizure only harms those with legitimate expectations of privacy in the premises searched." United States v. Jones, 44 F.3d at 871 (citing United States v. Roper, 918 F.2d 885, 886-87 (10th Cir.1990)). Thus, "[t]he proper inquiry" to determine whether a search implicates a defendant's Fourth Amendment interests still depends, after conducting a trespass-based analysis, on "whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable." Kerns v. Bd. of Comm'rs of Bernalillo Cnty., 888 F.Supp.2d 1176, 1219 (D.N.M.2012).

"Official conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). The Supreme Court has thus recognized that, rather than determining whether law enforcement conduct was a search, it sometimes proves easier to "assess[] when a search is not a search." Kyllo v. United States, 533 U.S. at 32, 121 S.Ct. 2038.

A "reasonable expectation of privacy" is "said to be an expectation `that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" United States v. Jones, 132 S.Ct. at 951. See United States v. Harmon, 785 F.Supp.2d at 1157 ("To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law. . . ."). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421. While ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden of demonstrating "that he gained possession [of the area searched] from the owner or someone with the authority to grant possession." United States v. Arango, 912 F.2d 441, 445-46 (10th Cir.1990).

i. Subjective Expectation of Privacy.

A defendant maintains a subjective expectation of privacy when the defendant "has shown that `he sought to preserve something as private.'" Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462 (internal alterations omitted)(quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. Under the Katz v. United States expectation-of-privacy test— although perhaps not under United States v. Jones and Florida v. Jardines—"[t]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507. The Supreme Court has noted:

United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.

The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:

442 U.S. at 740 n. 5, 99 S.Ct. 2577. Most recently, in Jones v. United States, Justice Sotomayor commented that, given the reality of technology in the twenty-first century, it may no longer be sound to universally hold to the third-party disclosure rule to determine whether a subjective expectation of privacy exists:

132 S.Ct. at 957 (Sotomayor, J., concurring)(internal citations omitted). Regardless what the Supreme Court decides to do with social media on the internet, only the most ignorant or gullible think what they post on the internet is or remains private. See United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y.2012) (Pauley, J.)(holding that a person posting to his Facebook profile had "no justifiable expectation that his `friends' would keep his profile private").

ii. Privacy Expectation that Society is Prepared to Recognize as Reasonable.

Under the second step of Katz v. United States' reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012). The Supreme Court has cautioned: "The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Determining whether society would view the expectation as objectively reasonable turns on whether the government's intrusion infringes on a legitimate interest, based on the values which the Fourth Amendment protects. See California v. Ciraolo, 476 U.S. at 212, 106 S.Ct. 1809 (explaining that "[t]he test of legitimacy is not whether the individual chooses to conceal assertedly `private' activity," but instead "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment")(quoting Oliver v. United States, 466 U.S. at 181-83, 104 S.Ct. 1735). This second factor of the Katz v. United States reasonable-expectation-of-privacy analysis developed from Justice Harlan's "attempt to give content to the word `justifiably' in the majority's assertion that eavesdropping on Katz was a search because it `violated the privacy upon which he justifiably relied while using the telephone booth.'" LaFave, supra § 2.1(d), at 439 (quoting Katz v. United States, 389 U.S. at 353, 88 S.Ct. 507). Thus, whether society will recognize a certain expectation of privacy does not turn on whether the hypothetical reasonable person would hold the same expectation of privacy, but rather whether the expectation of privacy is justified or legitimate. The Supreme Court has provided that, while no single factor determines legitimacy, whether society recognizes a privacy interest as reasonable is determined based on our societal understanding regarding what deserves protection from government invasion:

Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735 (internal citations omitted).

The Supreme Court has held that "[o]fficial conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). In United States v. Place, the Supreme Court held that the "canine sniff of a drug-sniffing dog does "not constitute a `search' within the meaning of the Fourth Amendment." United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637. The case arose when law enforcement seized the luggage of an airline passenger and transported it to another location, where a drug-sniffing dog could sniff it. See 462 U.S. at 699, 103 S.Ct. 2637. The drug sniffing dog alerted the officers that drugs were in the luggage, the officers obtained a search warrant, and, upon opening the bags, the officers found over one-thousand grams of cocaine. See 462 U.S. at 699, 103 S.Ct. 2637. While recognizing that a person has a reasonable expectation of privacy in the contents of his or her luggage, the Supreme Court held that the dog's sniff test was not a Fourth Amendment search and emphasized the unique nature of the investigative technique, which could disclose only criminal activity:

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here— exposure of respondent's luggage, which was located in a public place, to a trained canine—did not constitute a "search" within the meaning of the Fourth Amendment.

462 U.S. at 707, 103 S.Ct. 2637.

In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24, 104 S.Ct. 1652. A Federal Express employee and supervisor had opened a damaged package, and exposed four zip-lock plastic bags containing six and one-half ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652. They then called the DEA and repacked the contents in the original packaging, before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652. When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field-tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652. The Supreme Court first held that removal of the plastic bags from the tubes and the agent's visual inspection were not Fourth Amendment searches:

United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652.

Most recently, where a "dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation," the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that "[a]ny intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834.20 The Supreme Court reasoned that the dog sniff in Illinois v. Caballes fell squarely in line with the line of cases holding "that any interest in possessing contraband cannot be deemed `legitimate,' and th[at] governmental conduct that only reveals the possession of contraband `compromises no legitimate privacy interests.'" Illinois v. Caballes, 543 U.S. at 408, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652) (emphasis in original). The Supreme Court explained: "This is because the expectation `that certain facts will not come to the attention of the authorities' is not the same as an interest in `privacy that society is prepared to consider reasonable.'" Illinois v. Caballes, 543 U.S. at 408-09, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 122, 104 S.Ct. 1652). The Supreme Court in Illinois v. Caballes noted that its decision was consistent with Kyllo v. United States, as the thermal imaging device in Kyllo v. United States could detect lawful, "intimate details" in a home:

Illinois v. Caballes, 543 U.S. at 409-10, 125 S.Ct. 834.

In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, "many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants." 943 F.Supp.2d at 1275. The Court reluctantly accepted the defendants' assertion that they "subjectively intended not to disclose this information to a third party—i.e., intended not to use the cards," 943 F.Supp.2d at 1275, but determined that "a privacy expectation in the account information stored on credit and debit cards' magnetic strips—separate and beyond the credit and debit cards themselves—is not objectively reasonable," 943 F.Supp.2d at 1280. The Court explained that the Secret Service's scan of the cards' magnetic strips "reveals only the same information revealed in a private search when the card is used as intended," and, further, that, even if the cards had never been used, the scan "discloses only information known by viewing the outside of the card, or information that the cards and account information are possessed unlawfully. . . ." 943 F.Supp.2d at 1281. Noting the Supreme Court's decision in Rakas v. Illinois, in which the Supreme Court "reasoned that society is not prepared to recognize as reasonable an expectation of privacy in a burglar robbing a summer cabin during the offseason," the Court concluded that society would not recognize "as reasonable a privacy expectation which, at least in contemporary society, would benefit only criminals." 943 F.Supp.2d at 1287.

5. Reasonable Government Searches.

"[B]ecause `the ultimate touchstone of the Fourth Amendment is reasonableness,'" when a search implicating the Fourth Amendment has occurred, the district court must determine whether the search is reasonable. Kentucky v. King, 131 S.Ct. at 1856 (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ("`[U]nder our general Fourth Amendment approach' we `examin[e] the totality of the circumstances' to determine whether a search is reasonable within the meaning of the Fourth Amendment.")(quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). "Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term `probable cause,' a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." United States v. Knights, 534 U.S. at 121, 122 S.Ct. 587 (citing, as an e.g. cite, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Supreme Court has justified this balancing test with the recognition that "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).

"Whether a search is reasonable `is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193 (quoting United States v. Knights, 534 U.S. at 118, 122 S.Ct. 587). See Banks v. United States, 490 F.3d 1178, 1184 (10th Cir.2007) (stating that the Supreme Court "described the totality-of-the-circumstances test as one where `the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests)'" (quoting United States v. Knights, 534 U.S. at 119-20, 122 S.Ct. 587).

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 652-53, 115 S.Ct. 2386 (1995) (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The Supreme Court has held that the test of reasonableness under the Fourth Amendment is not a concrete test:

Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

In analyzing the first factor—the intrusion on the individual's privacy—courts and the Tenth Circuit look to the individual's privacy expectations. See, e.g., United States v. Knights, 534 U.S. 112, 119-120, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (noting that the petitioner had a "significantly diminished . . . reasonable expectation of privacy," because a condition of his probation was to consent to search of his apartment without notice or probable cause, and because he was clearly notified and informed of the provision); Banks v. United States, 490 F.3d at 1186-87 (noting that the plaintiffs, convicted felons on probation, have a more limited expectation of privacy than the ordinary citizen, noting: "Those who have never been convicted of a felony are the last distinct category. What is `reasonable' under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population."); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1997) ("[W]hile obtaining and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light of an inmate's diminished privacy rights. . . .")

As Justice Kagan has noted, property law informs society's expectations about what government intrusions are reasonable: "It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property `naturally enough influence[s]' our `shared social expectations' of what places should be free from governmental incursions." Florida v. Jardines, 133 S.Ct. at 1419 (Kagan, J., concurring)(quoting Georgia v. Randolph, 547 U.S. 103, 111, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006)). Similarly, in Vernonia Sch. Dist. 47J v. Acton, Justice Scalia writing for the majority noted: "What expectations are legitimate varies, of course, with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park." 515 U.S. at 654, 115 S.Ct. 2386 (internal citations omitted).

6. Consensual Searches.

Searches conducted pursuant to consent constitute one exception to the Fourth Amendment's search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When an individual consents to a police search, and the consent is "freely and voluntarily given," the search does not implicate the Fourth Amendment. United States v. Peña, 143 F.3d 1363, 1366 (10th Cir.1998) (quoting Schneckloth v. Bustamonte, 412 U.S. at 219, 93 S.Ct. 2041). The Tenth Circuit has provided a two-part test for determining voluntariness, which requires that the government (i) "`proffer clear and positive testimony that consent was unequivocal and specific and intelligently given,'" and (ii) "the officers must have used no `implied or express duress or coercion.'" United States v. Sanchez, 608 F.3d 685, 690 (10th Cir.2010) (quoting United States v. Taverna, 348 F.3d 873, 878 (10th Cir.2003)).

Determining whether a party's consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Peña, 143 F.3d at 1366. The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that courts should consider when trying to determine whether a defendant's consent was voluntarily given:

United States v. Sedillo, No. CR 08-1419 JB, 2010 WL 965743, at *12 (D.N.M. Feb. 19, 2010) (Browning, J)(some alterations in original). See United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010).

Because courts are required to look at the totality of the circumstances in determining whether an individual's consent was voluntary, see United States v. Peña, 143 F.3d at 1366, no one factor is dispositive in a court's inquiry into the circumstances. For example, although an officer's failure to advise a defendant that he or she is free to leave might suggest that coercive law enforcement conduct caused the defendant's consent to search, the Supreme Court has ruled that officers do not need to advise an individual of his or her right to refuse to consent to a search for that individual's consent to be voluntary. See Schneckloth v. Bustamonte, 412 U.S. at 232, 93 S.Ct. 2041. Moreover, the mere presence of officers by exits to a building, threatening no more than to question individuals if they seek to leave, "should not [result] in any reasonable apprehension by any [individual] that they would be seized or detained in any meaningful way." United States v. Drayton, 536 U.S. 194, 205, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (internal citations omitted). Additionally, an officer's display of a weapon may contribute to the coercive nature of a situation, but "[t]he presence of a holstered firearm . . . is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon." United States v. Drayton, 536 U.S. at 205, 122 S.Ct. 2105. As such, "it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches." Schneckloth v. Bustamonte, 412 U.S. at 232, 93 S.Ct. 2041.

7. Legal Standard for Probable Cause in an Affidavit in Support of a Warrant.

Probable cause must support a search warrant, which requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980). To establish probable cause to justify a search of a home, an affidavit in support of a search warrant "must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000). "Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990). The task of the magistrate judge issuing the search warrant

United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished)(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein), abrogated on other grounds by Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). In making his or her determination, the magistrate judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998).

"A reviewing court should accord great deference to a magistrate's determination of probable cause." United States v. Reed, 195 Fed.Appx. at 822. The court's duty is "simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317. This deference is appropriate to further the Fourth Amendment's strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of office[r]s. . . ."). Because of the strong preference for warrants, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U.S. at 106, 85 S.Ct. 741.

The deference accorded a magistrate judge's probable cause determination, however, is not boundless. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court should not defer to a magistrate judge's probable-cause determination where there is no substantial basis for concluding that the affidavit in support of the warrant established probable cause. See United States v. Danhauer, 229 F.3d at 1006. Specifically, the Court should not defer to a magistrate judge's probable-cause determination if it "is a mere ratification of the bare conclusions or `hunches' of others or where it involves an improper analysis of the totality of the circumstances." United States v. Reed, 195 Fed. Appx. at 822 (citing United States v. Leon, 468 U.S. at 915, 104 S.Ct. 3405; Massachusetts v. Upton, 466 U.S. 727, 734, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. 2317).

8. The Particularity Requirement for Search Warrants.

The Supreme Court has stated that "those searches deemed necessary should be as limited as possible." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Tenth Circuit has explained that "the Fourth Amendment requires that the government describe the items to be seized with as much specificity as the government's knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized." Cassady v. Goering, 567 F.3d 628, 635 (10th Cir.2009) (quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988)). The particularity requirement prevents general searches and strictly limits the discretion of the officer executing the warrant. See Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985) ("The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause."); United States v. Janus Indus., 48 F.3d 1548, 1553 (10th Cir.1995) ("`As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'") (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)). "A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Janus Indus., 48 F.3d at 1553 ("The test applied to the description of the items to be seized is a practical one.").

In Cassady v. Goering, the search warrant authorized the search of the plaintiffs entire farm, including his house, and the seizure of "[a]ny & all narcotics," "[a]ny and all illegal contraband," and various specific items mostly related to a narcotics operation, as well as the search and seizure of "all other evidence of criminal activity" and all personal property that was stolen, embezzled, or otherwise illegal. 567 F.3d at 635. The Tenth Circuit found that the warrant violated the plaintiff's Fourth Amendment rights, because "[t]he warrant[] allowed precisely the kind of rummaging through a person's belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the Fourth Amendment proscribes." 567 F.3d at 635 (quoting Voss v. Bergsgaard, 774 F.2d at 405). The Tenth Circuit in Cassady v. Goering explained that it had previously "applied a blanket suppression where officers conducted a general search for evidence of crimes not specifically listed in the warrant," 567 F.3d at 643 (emphasis in original)(citing United States v. Foster, 100 F.3d 846, 851-52 (10th Cir.1996); United States v. Medlin, 842 F.2d 1194, 1199-1200 (10th Cir.1988)); given that line of cases, the Tenth Circuit said "it would be an odd result not to suppress warrants that expressly authorize a general search and seizure," Cassady v. Goering, 567 F.3d at 643 (emphasis in original).

9. Warrantless Searches of Homes.

"[T]he warrantless entry of the home is `the chief evil against which . . . the Fourth Amendment is directed.'" United States v. Lowe, 999 F.2d 448, 451 (10th Cir.1993) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). "A warrantless search of a defendant's home is unreasonable absent exigent circumstances or consent." United States v. Pikyavit, 527 F.3d 1126, 1130 (10th Cir. 2008). The Fourth Amendment's protection of the home against warrantless searches extends to a home's curtilage. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

a. Curtilage.

In United States v. Dunn, the Supreme Court articulated four factors that should be used when determining whether an area is within the curtilage of a house for Fourth Amendment purposes. These factors are

b. Consent.

A warrantless search is constitutional if consent is given for the search. Consent to a search must be unequivocal, specific, and freely given. See United States v. Guerrero, 472 F.3d 784, 789 (10th Cir.2007); United States v. Davis, 197 F.3d 1048, 1052 (10th Cir.1999); United States v. Butler, 966 F.2d 559, 562 (10th Cir.1992). Consent does not need to be spoken, but "may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer." United States v. Guerrero, 472 F.3d at 789-90. "Non-verbal conduct, considered with other factors, can constitute voluntary consent to search." United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999). In United States v. Gordon, for example, the Tenth Circuit found implied consent when, in response to an officer's question whether the defendant could open a locked bag, the defendant handed the officer the key. See 173 F.3d at 766.

One strategy to gain consent to a search is a knock and talk, and the knock and talk itself is not a search. "[P]olice officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a `knock and talk,' i.e., knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence." Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., dissenting).

Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011). The Tenth Circuit has explained that reasonable suspicion is unnecessary for a knock-and-talk investigation, because, "[a]s commonly understood, a `knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion." United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir.2006). Police officers may approach a home, entering the curtilage surrounding that home that would be the normal route of access to the home, and knock, "precisely because that is `no more than any private citizen might do,'" (United States v. Shuck, 713 F.3d 563, 568 (10th Cir.2013) (quoting Florida v. Jardines, 133 S.Ct. at 1416)).

c. Exigent Circumstances.

A warrantless search of a home can also be constitutional when there are exigent circumstances. For exigent circumstances regarding safety to justify a warrantless search of a home: "(1) the officers [must have] had an objectively reasonable basis to believe that there was an immediate need to enter to protect the safety of themselves or others, and (2) the conduct of the entry [must have been] reasonable." United States v. Reeves, 524 F.3d 1161, 1169 (10th Cir.2008). See United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986). While officers do not need probable cause to establish that exigent circumstances existed, "there must be some reasonable basis, approaching probable cause," supporting the search of the area. United States v. Smith, 797 F.2d at 840 (internal quotation marks omitted).

LAW REGARDING THE RIGHT TO PRIVACY IN MEDICAL RECORDS

The Due Process Clause of the Fourteenth Amendment protects the right of privacy. See Flanagan v. Munger, 890 F.2d 1557, 1570 n. 15 (10th Cir.1989); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986). The Tenth Circuit has recognized that the right to privacy protects government employees from their employers improperly attempting to obtain the private medical history or records. See Lankford v. City of Hobart, 27 F.3d 477, 479 (10th Cir.1994). Although the Tenth Circuit in Lankford v. City of Hobart found a violation of the right of privacy under the facts in that case, it did not discuss the manner in which a court should determine generally when a violation of the privacy right occurs. See 27 F.3d at 479-80. Flanagan v. Munger provides some instruction on this point. In Flanagan v. Munger, the Tenth Circuit employed a balancing test to determine when disclosure by the government of private information amounts to violation of the right to privacy. See 890 F.2d at 1570. Specifically, a court must inquire: "(1) if the party asserting the right has a legitimate expectation of privacy; (2) if disclosure serves a compelling state interest; and (3) if disclosure can be made in the least intrusive manner." Flanagan v. Munger, 890 F.2d at 1570. The Tenth Circuit held that the plaintiffs, police officers who owned an adult video store, did not suffer a violation of their privacy rights when their ownership was disclosed, noting that "only highly personal information is protected." Flanagan v. Munger, 890 F.2d at 1570. See Mangels v. Pena, 789 F.2d at 839 ("The legitimacy of an individual's expectations depends, at least in part, upon the intimate or otherwise personal nature of the material. . . ."). In Ortlieb v. Howery, 74 Fed.Appx. 853, 854 (10th Cir.2003) (unpublished), the Tenth Circuit applied the balancing test set forth in Flanagan v. Munger and held that the plaintiff did not have a reasonable expectation of confidentiality in her X-ray. See 74 Fed.Appx. at 857. In reaching its conclusion, the Tenth Circuit in Ortlieb v. Howery noted that the plaintiff's broken leg was not confidential information, because the plaintiff had contacted her employer seeking extended medical leave given the severity of her injury, and the injury was "well-known and publicized with no intrusion into her personal affairs." 74 Fed. Appx. at 857. The Tenth Circuit also observed that, because the plaintiff had "supported her request for an indefinite extension of medical benefits with her doctor's report stating that his opinion of continuing disability was corroborated with her x-rays, she had no reasonable expectation that the x-rays themselves would be confidential or protected from her supervisor's reach or purview." 74 Fed.Appx. at 857. Finally, the Tenth Circuit noted that "the x-rays, unlike written medical records, contained no facts or information of an intimate or personal nature about which Ms. Ortlieb could form a legitimate or reasonable expectation of confidentiality notwithstanding her claim for benefits." 74 Fed.Appx. at 857.

In Kerns v. Board of Commissioners, 707 F.Supp.2d 1190 (D.N.M.2010) (Browning, J.), rev'd in part, vacated in part sub nom. Kerns v. Bader, 663 F.3d 1173 (10th Cir.2011), the Court used the Tenth Circuit's balancing test from Flanagan v. Munger to determine whether a sheriff who obtained the plaintiff's medical records violated the plaintiff's privacy right under the Fourteenth Amendment, finding that (i) the plaintiff had a legitimate expectation of privacy in his medical and psychiatric records, because he believed that the medical and mental health records were confidential and private; (ii) the sheriffs department had a compelling state interest in the records, because of its interest in enforcing 18 U.S.C. § 922(g)(4), which makes it unlawful for a person who has been "adjudicated as a mental defective" or who has been "committed to a mental institution" to possess firearms, and ensuring that the plaintiff did not fit that category; and (iii) the state could have achieved its objectives in a less intrusive manner by making a more particularized request for records, rather than requesting to "review all records." 707 F.Supp.2d at 1256-57. Balancing these factors, the Court concluded that the plaintiff met its burden on summary judgment to demonstrate that the sheriff violated his constitutionally protected right to privacy. See 707 F.Supp.2d at 1257. The Court noted that the sheriff had not relied on HIPAA when he requested the records; the law-enforcement exception in HIPAA allows HIPAA-covered entities to disclose protected healthcare information in six circumstances:

707 F.Supp.2d at 1259 (citing 45 C.F.R. § 164.512). The Court said that "HIPAA restrains the `health plan, health care clearinghouse, or healthcare provider' from disclosing protected medical information, and does not restrain law-enforcement directly." 707 F.Supp.2d at 1259 (quoting 45 C.F.R. § 164.104). The Court also concluded that the plaintiff established that his right to privacy in his medical records was clearly established at the time, precluding the sheriff from qualified immunity. See 707 F.Supp.2d at 1259-61.

The majority of the panel in the Tenth Circuit did not agree with the Court that the plaintiff's Fourteenth Amendment rights were clearly established and reversed the Court without analyzing whether the sheriff had violated the plaintiffs constitutional rights. See Kerns v. Bader, 663 F.3d at 1183-84. Although the plaintiff cited several cases in which the Tenth Circuit "held that government officials violated plaintiffs' substantive due process privacy rights by accessing their records without public disclosure," the Tenth Circuit explained that those cases "involved another element not present here: the government officials involved accessed the plaintiffs' confidential information as part of an unlawful campaign of sexual harassment." 663 F.3d at 1186. The Tenth Circuit ordered the Court to enter summary judgment in favor of the sheriff, "only because [the plaintiff] has failed to identify clearly established law rendering beyond debate that the Sheriffs conduct was unlawful as of 2005." 663 F.3d at 1187. The Honorable William J. Holloway, Jr., United States Circuit Judge for the Tenth Circuit, dissented, agreeing instead with the Court that the officer violated the plaintiffs "clearly established right to have his highly personal medical information protected from a law enforcement officer whose access to that information was supported only by a generalized interest in whether a crime might have occurred." 663 F.3d at 1197-98 (Holloway, J., dissenting)(emphasis in original).

NEW MEXICO LAW REGARDING NEGLIGENCE

Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause of the plaintiffs damages. See Coffey v. United States, 870 F.Supp.2d 1202, 1225 (D.N.M.2012) (Browning, J.)(citing Herrera v. Quality Pontiac, 2003-NMSC-018, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86). "In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person." Ramirez v. Armstrong, 1983-NMSC-104, 100 N.M. 538, 541, 673 P.2d 822, 825, overruled on other grounds by Folz v. State, 1990-NMSC-075, 110 N.M. 457, 460, 797 P.2d 246, 249. Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm'rs, 1984-NMSC-079, 101 N.M. 671, 672, 687 P.2d 728, 729. "A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant." Schear v. Bd. of County Comm'rs, 101 N.M. at 672, 687 P.2d at 729. "Whether a duty exists is a question of law for the courts to decide." Schear v. Bd. of County Comm'rs, 101 N.M. at 672, 687 P.2d at 729 (citation omitted). Once courts recognize that a duty exists, that duty triggers "a legal obligation to conform to a certain standard of conduct to reduce the risk of harm to an individual or class of persons." Baxter v. Noce, 1988-NMSC-024, 107 N.M. 48, 51, 752 P.2d 240, 243.

New Mexico courts have stated that foreseeability alone does not end the inquiry into whether the defendant owed a duty to the plaintiff. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186. The New Mexico courts have recognized that, "[u]ltimately, a duty exists only if the obligation of the defendant [is] one to which the law will give recognition and effect." Herrera v. Quality Pontiac, 134 N.M. at 49, 73 P.3d at 187 (internal quotation marks omitted). To determine whether the defendant's obligation is one to which the law will give recognition and effect, courts consider legal precedent, statutes, and other principles of law. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186.

"As a general rule, an individual has no duty to protect another from harm." Grover v. Stechel, 2002-NMCA-049, 132 N.M. 140, 143, 45 P.3d 80, 84. "[C]ertain relationships, however, that give rise to such a duty [include]: (1) those involving common carriers, innkeepers, possessors of land; and (2) those who voluntarily or by legal mandate take the custody of another so as to deprive the other of his normal opportunities for protection." Grover v. Stechel, 132 N.M. at 143, 45 P.3d at 84. "[W]hen a person has a duty to protect and the third party's act is foreseeable, `such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the [person who has a duty to protect] from being liable for harm caused thereby.'" Reichert v. Atler, 1994-NMSC-056, 117 N.M. 623, 626, 875 P.2d 379, 382.

"[T]he responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances." Herrera v. Quality Pontiac, 134 N.M. at 56, 73 P.3d at 194. "The finder of fact must determine whether Defendant breached the duty of ordinary care by considering what a reasonably prudent individual would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all surrounding circumstances of the present case. . . ." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195.

"A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195. "It need not be the only cause, nor the last nor nearest cause." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195. "It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury." Herrera v. Quality Pontiac, 134 N.M. at 57, 73 P.3d at 195.

LAW REGARDING THE NMTCA

The New Mexico Legislature enacted the NMTCA, NMSA 1978, § 41-1 to -30, because it recognized "the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity." N.M.S.A. 1978, § 41-4-2A. The New Mexico Legislature, however, also recognized

N.M.S.A.1978, § 41-4-2A. As a result, it was "declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act." N.M.S.A.1978, § 41-4-2A. The NMTCA is also "based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." N.M.S.A.1978, § 41-4-2B.

The NMTCA is the

N.M.S.A.1978, § 41-4-17A. A plaintiff may not sue a New Mexico governmental entity, or its employees or agents, unless the plaintiff's cause of action fits within one of the exceptions to immunity granted in the NMTCA. See Begay v. State, 104 N.M. 483, 486, 723 P.2d 252, 255 (Ct.App. 1985) ("Consent to be sued may not be implied, but must come within one of the exceptions to immunity under the Tort Claims Act."), rev'd on other grounds by Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). A plaintiff also may not sue a governmental entity or its employees for a damage or damages claim arising out of violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of immunity. See Barreras v. N.M. Corr. Dep't, 2003-NMCA-027, ¶ 24, 133 N.M. 313, 62 P.3d 770 ("In the absence of affirmative legislation, the courts of this state have consistently declined to permit individuals to bring private lawsuits to enforce rights guaranteed by the New Mexico Constitution, based on the absence of an express waiver of immunity under the Tort Claims Act."); Chavez v. City of Albuquerque, 1998-NMCA-004, ¶ 8, 124 N.M. 479, 952 P.2d 474 (noting that a plaintiff cannot seek damages for violations of rights under the New Mexico Constitution against a city or its employees or agents unless the NMTCA waives immunity); Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 449, 744 P.2d 919, 922 (Ct.App.1987) (holding that no waiver of immunity exists for damages arising out of alleged educational malpractice claim against a school board); Begay v. State, 104 N.M. at 488, 723 P.2d at 257 (finding that no waiver exists in NMTCA for suit under Article II, § 11 of the New Mexico Constitution). "Thus, if no specific waiver can be found in the NMTCA, a plaintiffs complaint against the governmental entity or its employees must be dismissed." Salazar v. City of Albuquerque, 2013 WL 5554185, at *24 (citing Begay v. State, 104 N.M. at 486, 723 P.2d at 255).

LAW REGARDING THE NMWCA'S EXCLUSIVITY PROVISION

The NMWCA, N.M. Stat. Ann. §§ 52-5-1 to -22, "provides the exclusive remedy against employers for employees injured on the job," Vigil v. Digital Equip. Corp., 1996-NMCA-100, ¶ 7, 122 N.M. 417, 925 P.2d 883. See Hamberg v. Sandia Corp., 2008-NMSC-015, ¶ 8, 143 N.M. 601, 603, 179 P.3d 1209, 1211 (explaining that the NMWCA's exclusivity provisions shield from tort liability employers who comply with the NMWCA), provided the employer complies with the NMWCA's preconditions, see Rivera v. Sagebrush Sales, Inc., 1994-NMCA119, 118 N.M. 676, 677-78, 884 P.2d 832, 833-34. The NMWCA provides:

N.M. Stat. Ann. § 52-1-9. The NMWCA further indicates that

N.M. Stat. Ann. § 52-1-6(E). The foregoing exclusivity provisions also provide employees of an employer that the NMWCA covers with immunity from suit in tort by co-employees. See Street v. Alpha Constr. Servs., 2006-NMCA-121, 140 N.M. 425, 426-27, 143 P.3d 187, 188-89 (citing N.M. Stat. Ann. §§ 52-1-6(E); id. § 52-1-8)(additional citation omitted); Matkins v. Zero Refrigerated Lines, Inc., 1979-NMCA-095, 93 N.M. 511, 517, 602 P.2d 195, 201 ("[A]n employee of an employer who has complied with the requirements of the Act is not subject to liability under the common law for the injury or death of a coemployee.").

One of the NMWCA's preconditions is that, at the time of the accident, the "employer has complied with the provisions thereof regarding insurance." N.M. Stat. Ann. § 52-1-9(A). See Peterson v. Wells Fargo Armored Servs. Corp., 2000-NMCA-043, 129 N.M. 158, 161, 3 P.3d 135, 138 ("In order to take advantage of the exclusive remedy provisions of the Act, an employer must comply with the provisions of the Act concerning insurance.")(citing N.M. Stat. Ann. §§ 52-1-6(C) & (D); id. § 52-1-8; id. § 52-1-9). "If the employer fails to comply with those provisions, the worker can sue the employer either for compensation benefits or for damages in tort caused by the employer's negligence." Peterson v. Wells Fargo Armored Servs. Corp., 2000-NMCA-043, ¶ 10 (citing Harger v. Structural Servs., Inc., 1996-NMSC-018, 121 N.M. 657, 666, 916 P.2d 1324, 1333).

The exclusivity of compensation under the NMWCA also rests on the existence of the employment relationship. See Street v. Alpha Constr. Servs., 2006-NMCA-121, 140 N.M. 425, 426, 143 P.3d 187, 188 (citation omitted); Rivera v. Sagebrush Sales, Inc., 1994-NMCA-119, 118 N.M. 676, 680, 884 P.2d 832, 836. A worker has an employment relationship with a putative employer if the worker "was a direct employee, a statutory employee, or a special employee. In contrast, if [the worker] was an independent contractor, he would not have an employment relationship with [an alleged employer]." Hamberg v. Sandia Corp., 2008-NMSC015, ¶ 8. See Rivera v. Sagebrush Sales, Inc., 118 N.M. at 678-79, 884 P.2d at 834-35.

A defendant may be a "special employer" entitled to protection under the exclusivity provisions if three conditions are satisfied: (i) "the employee has made a contract of hire, express or implied, with the special employer"; (ii) "the work being done is essentially that of the special employer"; and (iii) "the special employer has the right to control the details of the work." Hamberg v. Sandia Corp., 2008-NMSC-015, ¶¶ 11 (internal quotation marks omitted). The Court of Appeals of New Mexico has held that, with respect to the first element of the special employer test, i.e., "whether the employee has made a contract of hire with the special employer, the employee must have consented to the employment relationship." Rivera v. Sagebrush Sales, Inc., 118 N.M. at 679, 884 P.2d at 835 (citing 1C A. Larson, Workmen's Compensation Law § 48.12 at 8-409 (2005)(noting that the employee's informed consent to a contract of hire is required, because the employee gives up rights when he or she enters into a new employment relationship, specifically the right to sue the employer at common law for negligence, and therefore it is necessary to show deliberate, informed consent to establish the existence of the new relationship)); 1C Larson, supra, § 48.12, at 8-409 (citing Antheunisse v. Tiffany & Co., 229 N.J.Super. 399, 551 A.2d 1006, 1008 (1988) (holding that worker impliedly contracted for the employment relationship where the worker knew she would be hired out to various temporary employers, voluntarily reported to work, and followed the special employer's instructions); Santa Cruz Poultry, Inc. v. Superior Ct., 194 Cal.App.3d 575, 239 Cal.Rptr. 578, 580, 582-83 (1987) (holding that the worker made a contract of hire with the employer, because the employer's control over worker's job performance implies, as a matter of law, the employment relationship between them); English v. Lehigh County Auth., 286 Pa.Super. 312, 428 A.2d 1343, 1353-54 (1981) (holding that the worker made a contract of hire, because the worker submitting himself to the control and supervision of the special employer demonstrates consent to employment); Wright v. Habco, Inc., 419 S.W.2d 34, 36 (Mo.1967) (holding that the worker consented to work for the special employers and thus that a contract for hire existed, because the worker entered into employment relationship with a labor broker and worked under the special employer's supervision for several weeks before the accidental injury)).

In Vigil v. Digital Equipment Corporation, the Court of Appeals of New Mexico concluded that the employment relationship between a corporation and the temporary worker whom an employment agency hired and lent to the corporation met the requirements for a finding of special employment, rendering the temporary worker's remedy for injuries sustained at the corporate work site limited to the NMWCA. See 1996-NMCA-100, 122 N.M. at 420, 925 P.2d at 886. The Court of Appeals of New Mexico held that the worker impliedly consented to the employment relationship. See 1996-NMCA-100, ¶ 19. The Court of Appeals of New Mexico explained that the plaintiff consented to work for the corporation and a contract could be implied, because the worker "reported for work at [the corporation] and submitted to the supervision of [the corporation] for eight months prior to the accident, [the plaintiff] was paid according to the work he did for [the corporation], and [the corporation] had the power to terminate [the plaintiffs] temporary employment at [the corporation]" if the plaintiffs work was unsatisfactory. 1996-NMCA-100, ¶ 19.

In Castillo v. McCarthy Building Cos., No. 30,939, 2013 WL 4515751 (N.M.Ct. App. Apr. 11, 2013), the Court of Appeals of New Mexico again addressed the question of implied consent to an employment relationship in the context of a special employment claim under the NMWCA. In Castillo v. McCarthy Building Cos., the defendant was the general contractor on a hotel construction project, and the plaintiff—an employee of the defendant's drywall subcontractor who had been assigned to work at the defendant's site with a clean-up composite crew on the day of the accident—was injured when he fell several stories at the defendant's job site. See 2013 WL 4515751, at *1. The Court of Appeals of New Mexico concluded that the plaintiff accepted an assignment to work for the defendant, because it was undisputed that the plaintiff was assigned to the composite crew the day of the accident; that the plaintiff was aware that the defendant operated the composite crew; and that the plaintiff worked for the composite crew at least part of the day. See 2013 WL 4515751, at *3. The Court of Appeals of New Mexico held: "Therefore, Plaintiffs acceptance of this assignment is sufficient to establish as a matter of law an implied contract for hire between Plaintiff and Defendant for the purpose of the special employer test." 2013 WL 4515751, at *3.

While employees of an employer covered by the NMWCA are also immune from suit in tort by co-employees under the NMWCA's exclusivity provisions, see Street v. Alpha Constr. Servs., 2006-NMCA-121, ¶ 7 (citations omitted), immunity is not extended to co-special employees of a shared special employer. In Street v. Alpha Construction Services, the Court of Appeals of New Mexico distinguished special co-employees from co-employees and held that special co-employees are not immune from liability. See 2006-NMCA-121, ¶¶ 11. In that case, the plaintiff was the direct employee of Technadyne Engineering Consultants, but a special employee of Sandia Corporation pursuant to a contract between Technadyne Engineering and Sandia Corporation under which the plaintiff provided administrative support services at Sandia Corporation. See 2006-NMCA-121, ¶¶ 1-2. The defendant Alpha Construction Services was a roofing company that provided employees to Sandia Corporation to undertake roofing repairs through a contract between Alpha Construction and Sandia Corporation. See 2006-NMCA-121, ¶ 2. The plaintiff sued Alpha Construction for injuries that the plaintiff allegedly sustained because of Alpha Construction's roofing activities. See 2006-NMCA-121, ¶ 2. The Honorable Roderick T. Kennedy, then Judge and now Chief Judge of the Court of Appeals of New Mexico, wrote in his dissent that, if the plaintiff, who was a Sandia Corporation special employee, had sued one of Sandia Corporation's direct employees, the direct employee would have been entitled to immunity under the NMWCA, provided the plaintiff could establish that the NMWCA covered Sandia Corporation. See 2006-NMCA-121, ¶¶ 20-21 (Kennedy, J., dissenting). Because, however, the plaintiff sued another special employee of Sandia Corporation, and this other special employee had a different direct employer from the plaintiffs direct employer and worked for Sandia Corporation under a different contract from the plaintiffs contract, the NMWCA did not cover the defendant special employee. See 2006-NMCA-121, ¶ 11.

In so holding, the Court of Appeals of New Mexico reasoned that special co-employees were not entitled to immunity, because the "quid pro quo for the protection afforded to the workers" was missing and therefore could not provide the basis for any immunity the NMWCA grants. Street v. Alpha Constr. Servs., 2006-NMCA-121, ¶ 8. The Court of Appeals of New Mexico explained:

2006-NMCA-121, ¶ 8 (quoting 6 Larson, supra, § 111.03[2], at 111-12). In the case of a co-special employee, however, the quid pro quo is not present. Thus, while "[a] special employer has a workers' compensation liability to the direct employer's employees, and therefore receives the quid pro quo of immunity from suit," "direct employers—such as Alpha and Technadyne here—have no comparable liability to each other's employees, or to the employees of other subcontractors, and therefore are not entitled to the quid pro quo of immunity from suit." 140 2006-NMCA-121, ¶ 11. Thus, the Court of Appeals of New Mexico held that "the subcontractor or direct employer, in this case Alpha, who neither provided nor was required to provide insurance protections for employees of Technadyne, is not entitled to immunity from suit under the exclusivity provisions of the Act," because "Alpha and Plaintiff are not co-employees for purposes of the Act." 2006-NMCA-121, ¶ 13. Because the NMWCA's immunity provisions did not cover the direct employer Alpha Construction from the plaintiffs claims, so too Alpha Construction's employees were not shielded from the plaintiffs claims. Cf. 2006-NMCA-121, ¶ 7 (employees of an employer covered by the NMWCA are also immune under the NMWCA's exclusivity provisions from suit in tort by co-employees) (citations omitted).

NEW MEXICO LAW REGARDING CIVIL CONSPIRACY

"A civil conspiracy requires a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." Los Alamos Nat'l Bank v. Martinez Surveying Servs., LLC, 2006-NMCA-081, ¶ 21, 140 N.M. 41, 139 P.3d 201 (internal quotations and citations omitted), overruled on other grounds by Zarr v. Washington Tru Solutions, LLC, 2009-NMCA-050, ¶ 11, 146 N.M. 274, 208 P.3d 919, 922. The purpose of a civil conspiracy claim is to "impute liability to make members of the conspiracy jointly and severally liable for the torts of any of its members." Seeds v. Lucero, 2005-NMCA-067, ¶ 12, 137 N.M. 589, 113 P.3d 859, 862 (internal quotations and citations omitted), cert. denied, 2005-NMCERT-5, 137 N.M. 522, 113 P.3d 345. In Seeds v. Lucero, the Court of Appeals of New Mexico stated the elements of a civil conspiracy and compared a civil conspiracy to a criminal conspiracy:

Seeds v. Lucero, 2005-NMCA-067, ¶ 18, 137 N.M. 589, 113 P.3d 859 (internal quotations and citations omitted). "[A]n agreement by itself, without an independent, unlawful act, is not an improper means." Los Alamos Nat'l Bank v. Martinez Surveying Servs., LLC, 2006-NMCA-081, ¶ 21, 140 N.M. 41, 139 P.3d at 207. Applying these principles, in Archuleta v. City of Roswell, the Court found that a plaintiff failed to state a plausible claim of civil conspiracy to commit assault, because he did not allege in his complaint any specific act that the defendants supposedly carried out with the purpose of placing him in a position of immediate apprehension of harm. See 898 F.Supp.2d at 1255. In Pedroza v. Lomas Auto Mall, Inc., No. CIV 07-0591 JB/RHS, 2009 WL 1919970 (D.N.M. May 26, 2009) (Browning, J.), the Court determined that plaintiffs had stated a plausible claim for civil conspiracy against an insurance company in connection with automobile dealers regarding misrepresentation of a vehicle's title, based on evidence that the insurance company submitted a misleading repair estimate and misleadingly informed the New Mexico Motor Vehicle Department that the vehicle, which should have received a salvage title, qualified for a clean title. See 2009 WL 1919970, at **2-3.

ANALYSIS

The Court will grant the MTD & MSJ. Because the Plaintiffs did not respond to the MTD & MSJ, they did not carry their burden to show that the individual Defendants violated clearly established constitutional rights or to show that the City of Albuquerque had a policy or custom that directly caused one of its officers to violate a constitutional right. Moreover, the claims each fail on their own merits.21

I. THE PLAINTIFFS HAVE NOT SHOWN THAT THE CITY OF ALBUQUERQUE HAD A POLICY OR CUSTOM THAT DIRECTLY CAUSED ONE OF ITS OFFICERS TO VIOLATE THEIR CONSTITUTIONAL RIGHTS.

The Plaintiffs' failure to respond to the MTD & MSJ dooms their claims against the City of Albuquerque. As the Court has explained, 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. The Plaintiffs have pointed to no such custom or policy. Accordingly, the Court finds that the City of Albuquerque is not subject to liability for the Plaintiffs' constitutional claims.

II. COUNT 1—DUE PROCESS AND EQUAL PROTECTION—DOES NOT STATE A CLAIM, AND NO EVIDENCE SUPPORTS THE PLAINTIFFS' ALLEGATIONS.

The Court will grant the MTD & MSJ as to Count 1. Count 1 does not recite any recognized equal protection claim, and no facts alleged would support such a claim. The undisputed facts show that Aragon and Tapia did not pursue available process; they have, therefore, waived their due process claims. Moreover, NMTU and Lucero had no right that the due process clause protects.

Count 1 reads:

COUNT 1

DUE PROCESS AND EQUAL PROTECTION

Complaint ¶¶ 57-60, at 12-13.22 The Complaint's allegations do not recite any recognized equal-protection claim. "Generally, to state a claim under § 1983 for violation of the equal protection clause, the plaintiff must show that he or she is a member of a class of individuals that is being treated differently from similarly situated individuals that are not in that class." Aragon v. San Jose Ditch Ass'n, No. CIV 10-0563 JB/RHS, 2011 WL 6013284, at *13 (D.N.M. Nov. 22, 2011) (Browning, J.). No such allegations appear in the Complaint. Further, "[t]o state an equal-protection claim against a municipality in the employment context, the plaintiff must show that the defendant's conduct, taken under color of law: (i) constitutes an adverse employment action; (ii) was motivated by a discriminatory intent; and (iii) was pursuant to the defendant's policy or custom." Hunt v. Central Consol. School Dist., 951 F.Supp.2d 1136, 1186 (D.N.M. 2013) (Browning, J.). Count 1 contains no allegation of discriminatory intent or the existence of policy or custom. Moreover, as to Aragon and Tapia, there is no allegation of a "class of one" case, nor could there be: the Supreme Court has held that "the class-of-one theory of equal protection does not apply in the public employment context." Engquist v. Or. Dep't of Agric., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Finally, even if this is not a public employment complaint, the Plaintiffs have not alleged all the elements of a class-of-one equal-protection claim. The Tenth Circuit has explained:

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir.2011). Accordingly, the Court will dismiss the equal-protection claim.

Further, the Plaintiffs' blanket invocation of "Defendants" and "City Defendants," without identifying specific people, is insufficient to state a claim. As the Tenth Circuit has explained,

Robbins v. Oklahoma, 519 F.3d at 1249-50 (emphasis in original). In Robbins v. Oklahoma, the Tenth Circuit concluded that a complaint failed to satisfy rule 8's fair notice requirement, because, "[g]iven the complaint's use of either the collective term `Defendants' or a list of the defendants named individually but with no distinction as to what acts are attributable to whom, it [was] impossible for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have committed." 519 F.3d at 1250. The same reasoning applies here: that the reader cannot parse which City Defendants the Plaintiffs allege did what allegedly illegal things is, standing alone, enough to justify dismissing Count for failure to state a claim.

The individual Plaintiffs' due process claims fail, because they did not pursue the state remedies available to them. The undisputed facts show that Aragon and Tapia had appeals available to them and that they did not pursue those appeals—the appeals were dismissed for failure to prosecute. See Tapia Appeal Dismissal Order passim; Aragon Appeal Dismissal Order passim. By failing to take advantage of available procedures, Aragon and Tapia waived the right to pursue a due process claim in federal court. See Salazar v. City of Albuquerque, 2013 WL 5554185, at *32 ("The Tenth Circuit has held that a plaintiff waives his or her right to procedural due process where the plaintiff fails to take advantage of the procedures available."). See also Pitts v. Bd. of Educ, 869 F.2d at 557 ("By knowingly failing to take advantage of [available state law procedures that met constitutional requirements, the plaintiff] has waived his right to challenge them in federal court.") Accordingly, the Court will grant summary judgment as to Tapia's and Aragon's claims against the City Defendants in Count 1.

NMTU and Lucero's claims fail for related reasons. First, NMTU and Lucero presented no basis for their claim that they have a right to represent employees that the due process clause protects. NMTU and Lucero did not explain the source of the alleged right. As the Court has explained, NMTU and Lucero must point to some source of law to justify then' asserted property interest. See Teigen v. Renfroiv, 511 F.3d at 1079 ("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.'"); Bd. of Regents of State Colls, v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 ("Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rales 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."); 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)). The undisputed facts show that NMTU and the City of Albuquerque did not have a collective bargaining agreement, and the election on which NMTU and Lucero appear to rest their claim was invalidated. NMTU and Lucero have not pointed to any other source of the right that they assert.

Further, NMTU and Lucero waived their right to raise a due process claim, because they did not pursue the process available. They could have raised their objections before the Labor Board, and they did not. Moreover, no facts support the proposition that, given that the City of Albuquerque did not recognize NMTU as a bargaining representative— after the state court set NMTU's election aside in AFSCME's favor—the hearings were "fundamentally [unjfair" or "procedurally [in]correct." Complaint H 58, at 12. Indeed, the most significant defect in the hearings was the Plaintiffs' absence. Accordingly, the Court grants summary judgment as to Count 1.

III. NO EVIDENCE SUPPORTS THE PLAINTIFFS' ALLEGATIONS IN COUNT 2—BREACH OF CONTRACT.

The Court will grant the MTD & MSJ as to Count 2. Although it is possible that the Plaintiffs and the City Defendants had a contract, the Plaintiffs have not introduced the terms of the alleged contract or identified how the City Defendants breached those terms. Moreover, the Plaintiffs have not demonstrated that the City of Albuquerque has breached any contract with them.23

The Plaintiffs' failure to respond to the MTD & MSJ handicaps the Court's review of the breach-of-contract claim: the alleged contract is not in the summary judgment record, and the Plaintiffs did not present any substantive factual or legal arguments in response to the City Defendants' MTD & MSJ, either in writing or at the hearing. All the Court has is the description in Count 2:

Complaint ¶¶ 61-64, at 13.

The MTD & MSJ asserts that Count 2 "should be dismissed because defendants did not breach any contract with plaintiffs." MTD & MSJ ¶ 4, at 2. Although the Court has, in an analogous case, held that "New Mexico state law incorporates merit system ordinances into contracts of employment between employees and the municipality that adopted the merit system," Salazar v. City of Albuquerque, 2013 WL 5554185, at *47, the summary judgment record lacks any evidence of the contractual provisions that the City Defendants allegedly breached. Once the MTD & MSJ put existence and breach in issue, the Plaintiffs had the burden to demonstrate the existence of the contract, to identify the provisions that the City Defendants allegedly violated, and to explain how the City Defendants violated them. The Plaintiffs did not put the alleged contract in the record, much less identify particular provisions and explain how the City Defendants violated them. Accordingly, the Court will grant the MTD & MSJ as to Count 2.

Moreover, even if the Court were to take the Plaintiffs' characterization of the contract as sufficient to establish its existence and that it entitles Tapia and Aragon "to notice and an opportunity to be heard, and to be disciplined only for just cause," Complaint ¶ 69, at 13—and it does not— the undisputed facts demonstrate that City Defendants did not breach that contractual guarantee.24 Tapia and Aragon received notice before their hearings and opportunities to be heard at those hearings; that they did not take advantage of then' opportunities to be heard does not mean that the City Defendants did not provide that opportunity. See March Pre-Determination Memo, to Tapia at 1; March Hearing Results Memo, to Tapia at 1; June Pre-Determination Hearing Memo, to Tapia; Second June Pre-Determination Memo, to Tapia.; Termination Memo, to Tapia passim; Pre-Determination Memo, to Aragon passim; Aragon Termination Memo, passim. Moreover, the undisputed facts show that they were disciplined and terminated for legitimate reasons: Aragon because she did not show up for work, and Tapia because she failed to show up for wrork and she lied to get FMLA leave. See Aragon Termination Memo, passim; Tapia Termination Memo, passim. Even assuming that a contract exists and that it contains a provision entitling the Plaintiffs "to notice and an opportunity to be heard, and to be disciplined only for just cause," the undisputed facts show that the City Defendants did not breach that contract. Accordingly, the Court grants summary judgment in the City Defendants' favor with respect to Count 2.25

IV. COUNT THREE—"VIOLATION OF RIGHT TO PRIVACY "—DOES NOT STATE A CLAIM, AND NO EVIDENCE SUPPORTS TAPIA'S ALLEGATIONS.

The Court will grant the MTD & MSJ as to Count 3. The Complaint's vague allegations do not state a claim for a violation of any privacy right that the Constitution protects.26 Moreover, the undisputed facts undercut Tapia's allegations.

Count 3 reads as follows:

Complaint ¶¶ 65-71, at 13-14. The Complaint does not explain the source of the right to privacy—that is, whether it arises under the Fourth Amendment or the Fourteenth Amendment. Moreover, Count 3 does not clearly identify which City Defendants did which allegedly illegal things: although Rizzieri, the Transit Department Director, is a Defendant in this case, the Transit Department is not a Defendant, and Count 3 does not mention Rizzieri. Moreover, Count 3 does not identify anything that the Transit Department did, and it identifies only unnamed "other City representatives," none of which are "John Doe" Defendants in this case. For the same reasons that the Court gave with respect to Count 1, because the reader cannot parse which City Defendants Tapia alleges did what allegedly illegal things is, standing alone, enough to justify dismissing Count 3 for failure to state a claim. See Robbins v. Oklahoma, 519 F.3d at 1250.

Moreover, Count 3 fares no better on closer inspection. Considering the undisputed facts and stripped of the conclusory allegations, the upshot of this claim appears to be that Ms. Forney subpoenaed Tapia's medical records, that Forney and other City representatives received information about her medical condition and records from Dr. Wagner-Mogle, and that the City Defendants hired a private investigator to investigate Tapia's movements as part of a workplace investigation into Tapia's FMLA request. Tapia has cited no authority that holds that such acts violate any constitutional provision. Moreover, the Court has looked, and has found none—much less cases from the Supreme Court or from the Tenth Circuit.

In light of the undisputed facts, the claim related to Tapia's medical condition fails. The Complaint does not explain what made the subpoena "illegitimate." During a portion of the hearing on a different motion, the Court asked Tapia to explain her position:

Tr. at 36:8-37:3 (Court, Livingston). Tapia did not follow through on her offer to explain the subpoena rales that Forney, in her view, violated; moreover, she did not explain how that action, assuming it is true, violated the constitution. See Tr. at 37:3-40:13 (Court, Livingston).

No party briefed the alleged procedural defect—probably because the Complaint does not identify that defect, and because the Plaintiffs did not respond to the MTD & MSJ. The MTD & MSJ does not address the subpoena's propriety. The Court, therefore, lacks any evidence or argument that would probe this issue. The Court observes, however, that, although the MSO empowers Personnel Healing Officers to subpoena witnesses, its text does not prohibit attorneys, as officers of the court, from taking a blank subpoena form and issuing subpoenas. The MSO provides:

MSO § 3-4-25(H). Tapia cites no authority for the proposition that the MSO prohibits attorneys from, as officers of the court, issuing subpoenas, and the Court has found none.

Moreover, even if the subpoena were procedurally invalid under the MSO, Ms. Forney did not violate a clearly established constitutionally protected right by issuing it, and the City Defendants did not violate a clearly established constitutionally protected right by receiving the information without reading it. Although the Fourth Amendment constrains governments' use of subpoenas in their investigative capacities, see Becker v. Kroll, 494 F.3d 904, 916-17 (10th Cir.2007), the Plaintiffs have cited no authority for the proposition that when, as a part of discovery in run-of-the-mill civil litigation, a government attorney issues a defective subpoena, the state-action doctrine and the Fourth Amendment elevate the subpoena's defects from a discovery dispute to a problem of constitutional dimension. If the opposing party objects to a subpoena's breadth or to the manner in which it issued, there is an easy solution: ask the tribunal—which, after all, formally issued the subpoena—to narrow the subpoena's reach or to correct the defect. And if information is disclosed pursuant to a defective subpoena, the victim of such disclosure might have privacytort or professional-ethics remedies against the attorney.

With these principles in mind, the Court can soundly conclude that the Forney Subpoena did not violate the Fourth or the Fourteenth Amendments. The Subpoena that Ms. Forney, as the City of Albuquerque's attorney, sent to Dr. Wagner-Mogle asked for "[a]ny and all documents in [Dr. Wagner-Mogle's] possession regarding Jessica Tapia . . ., beginning 01/01/2010 to the present." Forney Subpoena at 1. The Plaintiffs have not explained how this relatively routine request violated the Fourth or Fourteenth Amendments.27 Tapia has provided no authority for the proposition that a state actor violates the Fourth or the Fourteenth Amendment when it, he, or she subpoenas medical records for use in defending a suit that grew out of a workplace investigation, or when it uses those records in that defense. Further, the Court is aware of no such authority. The bottom line is that neither the Fourth nor the Fourteenth transforms the discovery dispute in this case into a problem of constitutional magnitude. Moreover, the Tenth Circuit in Kerns v. Bader held that a similar privacy right in medical records was not clearly established, see, 663 F.3d at 1184-87, and nothing has changed in the interim.

Even if Foi'ney's subpoena were invalid under the MSO, and even if that procedural flaw violated the Constitution, the undisputed facts show that the City of Albuquerque returned Tapia's medical records to Dr. Wagner-Mogle without reading them, and that Tapia declined to pursue her claim after Hearing Officer subpoenaed her records in a way that complied with the MSO. Accordingly, her medical records' contents were never exposed. Accordingly, the City Defendants did not violate her right to privacy in those contents.28

The alleged communication between the City of Albuquerque's representatives and Dr. Wagner-Mogle also does not violate the constitution.29 Tapia sought statutory benefits under the FMLA. Those benefits are subject to authentication and clarification procedures. See 29 C.F.R. 825.307 (2013)(providing for "[authentication and clarification of medical certification for leave taken because of an employee's own serious health condition or the serious health condition of a family member"). The Constitution contains no privacy right that exempts Tapia from the scrutiny that accompanies the benefit that she seeks. The alternate holding that, because Tapia works for a government entity, she can secure the FMLA's statutory benefits without exposing her medical care to authorized scrutiny, would handicap government employers' efforts to uncover false information—like the information that Tapia provided her employer. That, in response to an authorized clarification request, state actors received information from her physician that exposed Tapia's falsehood offends neither the Fourth nor the Fourteenth Amendment.

With respect to the private investigator, neither the Fourth Amendment nor the Fourteenth Amendment provides a remedy for Tapia's claim. Hornbook law explains why the Fourth Amendment does not provide a remedy: the private investigator observed her actions in public, about which she had no reasonable expectation of privacy that the Fourth Amendment protects. See Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507 ("What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection."). She has not alleged any trespass of any property right. Tapia has cited no authority under the Fourteenth Amendment that would provide her a remedy for such an action, and the Court is not aware of any such authority. Moreover, the undisputed facts disprove Tapia's allegation that the private investigator sought and secured personal information that was unconnected with her work. When she used her alleged physical hmitations to justify an FMLA request, she put those limitations in issue for her employer. Accordingly, this claim lacks a sound basis either in the law or in the facts.30

Accordingly, the Court dismisses Count 3 and, in the alternative, grants summary judgment as to Count 3.

V. COUNT 4—"NEGLIGENCE "— DOES NOT STATE A CLAIM, AND NO EVIDENCE SUPPORTS THE PLAINTIFFS' ALLEGATIONS.

The Court will grant the MTD & MSJ as to Count 4, for substantially the reasons that the City Defendants have given. Count 4 does not state a claim of negligence. Moreover, the NMWCA and the NMTCA bar liability.

Count 4 reads:

Complaint ¶¶ 72-76, at 14-15.

The City Defendants correctly point out that "the complaint does not define how the defendants were negligent with regard to Aragon." MTD & MSJ Memo, at 23. Moreover, the Plaintiffs have failed to allege, let alone establish, basic elements of a negligence claim: the existence and contours of the duty that the City Defendants owed the Plaintiffs, and the way the City Defendants breached that duty. Moreover, assuming the Plaintiffs intend to allege that the City Defendants had a duty to provide a safe workplace, Count 4 does not explain the City Defendants acted unreasonably. Accordingly, Count 4 does not state a claim on which the Court could grant relief.

Tapia's claims fail for additional reasons. The NMWCA exclusive-remedy provision bars Tapia's claims arising out of injuries at work. The NMWCA provides that

N.M. Stat. Ann., § 52-1-8. Accordingly, Tapia cannot seek common-law remedies for injuries that she sustained at work.31

Further, as the City Defendants point out, government entities and public employees enjoy immunity from tort liability, with certain inapplicable exceptions. As the City Defendants note, "[t]he complaint does not identify any waiver of immunity for negligence for defendants for terminating plaintiffs." MTD & MSJ at 24. See N.M. Stat. Ann. § 41-4-4. Moreover, no evidence supports the Plaintiffs' allegations. Accordingly, the Court grants the MTD & MSJ as to Count 4.

VI. COUNT 5—"CONSPIRACY"— DOES NOT STATE A CLAIM, AND NO EVIDENCE SUPORTS THE PLAINTIFFS' ALEGATIONS.

The Court will grant the MTD & MSJ as to Count 5. Count 5 reads:

Complaint ¶¶ 77-79, at 15. The Court has already concluded that the City Defendants did not violate the Plaintiffs' dueprocess and equal-protection rights, largely rendering the conspiracy claim moot. Moreover, the claim does not, as the Tenth Circuit requires, "allege specific facts showing an agreement and concerted action amongst the defendants." Tonkovich v. Kansas Bd. of Regents, 159 F.3d at 533. This claim amounts to nothing more than "[c]onclusory allegations of conspiracy," which "are insufficient to state a valid § 1983 claim." Tonkovich v. Kansas Bd. of Regents, 159 F.3d at 533 (internal quotation marks omitted). See Ashcroft v. Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 ("[T]he conclusory nature of respondent's allegations. . . disentitles them to the presumption of truth."). Finally, the City Defendants correctly point out that "there are no . . . facts to support the existence of a conspiracy," MTD & MSJ ¶ 8, at 2—that is, the undisputed facts do not support these allegations.

The Complaint also does not state a claim for civil conspiracy under New Mexico law. As the Court of Appeals of New Mexico has explained,

Seeds v. Lucero, 2005-NMCA-067, ¶ 18, 137 N.M. 589, 113 P.3d 859 (internal quotation marks and citations omitted). Aside from the conclusory allegations that Rizzieri, Forney, and others met and arranged to deny the Plaintiffs' constitutional rights—allegations of which the Court has already disposed—the Complaint does not allege a wrongful act done pursuant to the conspiracy, as New Mexico law requires. Accordingly, the Court grants the MTD & MSJ as to Count 5.

VII. COUNT 6—"UNFAIR LABOR PRACTICES "—DOES NOT STATE A CLAIM, AND NO EVDENCE SUPPORTS THE PLAINTIFFS' ALLEGATIONS.

The Court will grant the MTD & MSJ as to Count 6. Its allegations are conclusory, and no evidence supports them. Accordingly, the Court will dismiss the claim and, in the alternative, grant summary judgment in the City's favor.

Count 6 reads:

COUNT 6

UNFAIR LABOR PRACTICES

Complaint ¶¶ 80-84, at 15-16.

Nowhere in the claim do the Plaintiffs identify the legal basis of this "unfair labor practices" claim. To the best the Court can infer, the Plaintiffs intend to invoke the following passage from the City of Albuquerque's Labor Management Relations Ordinance:

Albuquerque, N.M. Rev. Ordinances § 3-2-9(a). Even treating Count 6 generously, it fails to state a claim. It contains vague and conclusory accusations—"collusive tactics" and "biased hearing officers," for example—and legal conclusions—"unethical and illegal conduct," for example—not factual allegations sufficient to push Count 6 over the line from possible to plausible, as Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal require. Moreover, NMTU and Lucero did not pursue the administrative remedies that the Labor Management Ordinance provides—namely, presenting their claim to the Labor Board, see Albuquerque, N.M. Rev. Ordinances § 3-2-9 to -10—contravening the basic principle of administrative law that one must exhaust administrative remedies before seeking judicial review. See State ex rel. Regents of E. N.M. Univ. v. Baca, 2008-NMSC-047, 1116, 144 N.M. 530, 535, 189 P.3d 663, 668 ("[W]here relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts; and until that recourse is exhausted, suit is premature and must be dismissed." (internal quotation marks and alteration omitted)). Accordingly, Count 6 does not state a claim on which the Court could grant relief.

Moreover, as the City Defendants argue, even if the Court were to hold that Count 6 states a claim, no evidence supports Count 6's central accusations. The undisputed facts show no evidence of the Plaintiffs' accusation that "[t]he City and its Labor Board have ignored and opposed the legitimate representational interests of NMTU, discarded NMTU's prohibited practice complaints without hearings, insisted on an election when none was needed, and then did nothing to support or enable NMTU to represent employees after it prevailed in the election." Complaint ¶ 83, at 16. Accordingly, the Court also grants summary judgment in the City Defendants' favor on this count.

VIII. THE PLAINTIFFS HAVE NOT SHOWN THAT THE INDIVIDUAL CITY DEFENDANTS VIOLATED THEIR CLEARLY ESTABLISHED CONSTITUTIONAL RIGHTS.

The second prong of qualified immunity also insulates the City Defendants from liability. The Court has, for the reasons it has explained, concluded that the City Defendants have not violated the Plaintiffs' constitutional rights. It necessarily follows, then, that the Plaintiffs did not demonstrate that the City Defendants violated their clearly established constitutional rights. Accordingly, Court finds that qualified immunity insulates the individual City Defendants from liability for the Plaintiffs' constitutional claims.32

IT IS ORDERED that the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Dismissing Complaint in its Entirety, filed March 29, 2013 (Doc. 26), is granted.