MEMORANDUM OPINION AND AMENDED ORDER1

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Vallejos' Motion to Dismiss Plaintiff's Claims in the First Amended Complaint, filed March 18, 2013 (Doc. 32)("MTD"). The Court held a hearing on June 20, 2013. The primary issues are: (i) whether Plaintiff Crystal Peña has alleged a plausible excessive force claim under the Eighth Amendment to the Constitution of the United States, where she alleges that Defendant Carlos Vallejos, a correctional officer in a facility in which she was an inmate, pushed her against a wall for refusing to answer his questions and for walking away from him; and (ii) whether these same allegations state a plausible claim for battery. The Court will dismiss the Eighth Amendment claim but leave the battery claim intact. The Eighth Amendment does not require officers to use the minimum force necessary or even reasonably proportional force, but, rather, it requires only that they refrain from "malicious and sadistic" violence, and that they direct their efforts to achieving a sincere penological end. Hudson v. McMillian, 503 U.S. 1, 7 (1992). There are legitimate reasons — or at least reasons less invidious than "malic[e] and sadis[m]" — for a prison guard to push an inmate against a wall when she refuses to answer his questions and walks away from him. Peña's allegations are consistent with cruelty, malice, and sadism, but they do not suggest those motives, i.e., the allegations are also perfectly consistent with prison disciplinary measures that are not only legal, but normal, as well. Peña has thus failed to nudge her allegations over the line from conceivable to plausible, and the Court will, accordingly, dismiss her claim. Because Peña has already had one opportunity to amend her claim to add additional facts tending to show plausibility, the Court concludes that further opportunity to amend would be futile, and the Court will therefore dismiss the claims with prejudice. As to the battery claim, however, the standard to which officers are held is more rigorous: the officer must not use any more force than he or she reasonably believes to be necessary. Peña has alleged facts that, if combined with reasonable inferences in her favor — e.g., that Vallejos gave Peña no advance warning or additional opportunity to stop, and that Vallejos' "slamming" was violent and severe — give rise to a plausible inference that Vallejos used more force than he reasonably believed necessary to respond to Peña's obstinance. The Court will therefore decline to dismiss the battery claim.

FACTUAL BACKGROUND

The Court takes its facts from the Amended Complaint for Civil Rights Violations and Common Law Torts, filed February 28, 2013 (Doc. 30)("Complaint"), as it must at the motion-to-dismiss stage, see Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))). In July, 2009, Peña was a post-conviction prisoner at the New Mexico Women's Correctional Facility ("NMWCF"). See Complaint ¶ 3, at 1-2. At all times material to Peña's allegations, Defendant Corrections Corporation of America ("CCA") operated and maintained the NMWCF pursuant to a contract with the State of New Mexico, and was bound to comply with certain New Mexico Corrections Department ("NMCD") policies. Complaint ¶ 4, at 2. CCA employed Defendant Arlene Hickson as the NMWCF's warden, and, as such, she was the head supervisor of the facility. See Complaint ¶ 5, at 2. During the time period throughout which the underlying conduct took place, CCA employed Vallejos and Defendant Dale Greffet as corrections officers at the NMWCF. See Complaint ¶ 6, at 2.

The boyfriend of Peña's mother raped Peña when she was a young child on two separate occasions. See Complaint ¶ 7, at 2. Before the events in the Complaint, Peña had been diagnosed with debilitating mental illnesses. See Complaint ¶ 8, at 2. In the spring of 2009, while Peña was isolated in the NMWCF's segregation unit, Greffet befriended her and initiated, cultivated, and encouraged an intimate relationship with her contrary to CCA's and NMCD's policies and procedures. See Complaint ¶ 9, at 2. The claims alleged in the Complaint arise from five distinct incidences: (i) Greffet's alleged sexual abuse at the NMWCF in July/August, 2009; (ii) Greffet's alleged sexual abuse in Alamogordo, New Mexico, around Labor Day weekend, 2009; (iii) Greffet's alleged sexual abuse in Albuquerque, New Mexico, around August, 2010; (iv) Vallejos' alleged assault and battery in a hallway at the NMWCF in June, 2011; and (v) Peña's being placed and kept in segregation following her sexual abuse report in 2011.

1. The July/August, 2009, Alleged Sexual Abuse at the NMWCF.

Beginning in July of 2009, Greffet began to make advances and sexual comments to Peña about her physical appearance, which, for a period of time, Peña resisted. See Complaint ¶¶ 10-11, at 2. In July and August of 2009, Greffet began to sexually fondle2 Peña. See Complaint ¶ 12, at 3. During the same time frame, Greffet made numerous false statements to Peña, including expressing his intent to enter into a committed relationship with her and his desire that they raise children together after her release from custody. See Complaint ¶ 13, at 3. Peña, relying on these statements, came to believe that Greffet was committed to a monogamous relationship with her in which the two of them would raise children. See Complaint ¶ 14, at 3. Peña was particularly susceptible to these advances, because of her history of sexual victimization, her diagnosed mental illnesses, and her aspiration to live a life of love and normalcy. See Complaint ¶ 15, at 3. At some point during late July or early August of 2009, Greffet called Peña into the commanding officer's office in front of the master control area of the NMWCF, and, sitting at the desk, revealed his erect penis to Peña, and told her to look and see the effect that she had on him. See Complaint ¶¶ 16-17, at 3. With Peña under the desk, Greffet orally sodomized her. See Complaint ¶ 18, at 3.

2. The Labor Day Weekend, 2009, Alleged Sexual Abuse in Alamogordo.

On or about late August of 2009, Peña paroled to Ruidoso, New Mexico, from the NMWCF. See Complaint ¶ 19, at 4. After Peña paroled, Greffet obtained Peña's telephone number from Peña's aunt, who was incarcerated at the NMWCF. See Complaint ¶ 20, at 3. Greffet contacted Peña and pressured her to meet him. See Complaint ¶ 20, at 3. On Labor Day weekend of 2009, just before Peña entered into an in-patient treatment program in Alamogordo as a condition of her probation, Greffet rented a motel room for the two of them. See Complaint ¶ 21, at 4. During their stay in the motel room, Greffet raped3 Peña on four occasions. See Complaint ¶ 22, at 4. In the motel room, Peña resisted Greffet's efforts to orally and anally sodomize her, but relented when Greffet persisted. See Complaint ¶ 23, at 4.

On or about October of 2009, Peña's parole was revoked, and she returned to the NMWCF, where Greffet continued to work. See Complaint ¶ 24, at 4. After returning from parole, Greffet continued to falsely state his commitment to Peña and his intent to raise children with her, to make sexual advances toward her, and to sexually fondle her. See Complaint ¶ 25, at 4. On or around April of 2010, Greffet left his position at the NMWCF. Before he left, however, Greffet again expressed his plans to live with Peña and to raise children with her. See Complaint ¶ 26, at 4.

3. The August, 2010, Alleged Sexual Abuse in Albuquerque.

On or about August of 2010, the NMWCF again released Peña on probation. A condition of her probation was that she enroll in an in-patient treatment program for her mental health. See Complaint ¶ 27, at 4. Peña reported to and tried to qualify for the Maya's Place treatment program in Albuquerque. See Complaint ¶ 28, at 4. During this time frame, Greffet raped Peña on three occasions, again notwithstanding her resistance to anal sodomy. See Complaint ¶ 29, at 4. Greffet conceived a child with Peña during this time frame. See Complaint ¶ 29, at 4. Eventually, Maya's Place rejected Peña because, as she suffered from mental illness rather than drug dependence, she did not fit the program's criteria for admittance. See Complaint ¶ 30, at 5.

Because she was unable to enter a treatment program and thereby satisfy her condition of probation, Peña turned herself into law enforcement in September of 2010. See Complaint ¶ 31, at 5. As she was surrendering to authorities, Peña fainted, was taken to the emergency room, and learned for the first time that she was pregnant. See Complaint ¶ 33, at 5. Greffet promised to bond her out from Doña Ana County Detention Center in Las Cruces, New Mexico, where she would be held, but never did so. See Complaint ¶¶ 32, 36, at 5. The next day, from jail, Peña told Greffet that she was pregnant. See Complaint ¶ 34, at 5. Greffet thought that aborting the baby was the best option, and, accordingly, Peña and the Doña Ana County Detention Center made arrangements for the abortion. See Complaint ¶¶ 34-35, at 5. Peña could not go through with the abortion, however, and returned to jail with the baby still in utero. See Complaint ¶¶ 34-35, at 5. Eventually, Peña realized that Greffet was not going to bond her and that she was going to have to deliver the child in jail. See Complaint ¶ 36, at 5. She discussed with Greffet how to care for the child during the child's first months of life, when she would still be incarcerated. See Complaint ¶ 36, at 5. Greffet said he would not care for the baby and that adoption was the best option. See Complaint ¶ 37, at 5. Before giving birth, and in large part because of her inability to find someone to care for the baby while she remained in prison, Peña felt compelled to relinquish her parental rights. See Complaint ¶ 38, at 6. She gave birth to her son on May 2, 2011, while incarcerated at the NMWCF. See Complaint ¶ 39, at 6.

4. Vallejos' Alleged Assault and Battery.

On or around early June of 2011, Peña was suffering from postpartum depression, in addition to her other mental illnesses, and was grieving her estrangement from her son in the NMWCF's hallway. See Complaint ¶ 40, at 6. Vallejos verbally engaged Peña in the hallway, asking her what was wrong. See Complaint ¶ 41, at 6. Peña was despondent and traumatized, and did not have the will or the desire to explain to Vallejos her predicament or her feelings; she continued to walk toward her unit, where she intended to contact mental health for immediate mental health treatment. See Complaint ¶ 42, at 6. When Peña failed to respond to Vallejos' questioning, he pursued her down the hallway, grabbed her from behind and slammed her against the wall of the hallway, causing bruising to her arms and triggering severe symptoms of chronic post-traumatic stress disorder. See Complaint ¶ 43-44, at 6. Because of Vallejos' battery of Peña and his mistreatment of other inmates at the facility, CCA removed him from his position at the NMWCF. See Complaint ¶ 42, at 6.

5. The Alleged Retaliation Against Peña.

CCA and Hickson placed Peña in isolated/segregated confinement in response to the incident with Vallejos. See Complaint ¶ 47, at 7. While Peña was in segregation at the NMWCF, CCA and Hickson learned that she was accusing Greffet of raping her; they pressured her to provide them with a statement about the incident. See Complaint ¶ 48, at 7. When Peña refused to provide them with a statement about Greffet, and when it became clear that she was also accusing Vallejos of assault and battery, CCA and Hickson kept her in varying levels of segregated confinement for a period of approximately eight months, in violation of CCA's and NMCD's policies. See Complaint ¶ 49, at 7. Her placement in segregated confinement severely aggravated her fragile mental condition, prevented her from contacting the outside world, including her mother and her son's adoptive parents, and caused her to lose good time and to remain incarcerated for a longer period of time, resulting in severe mental and emotional distress. See Complaint ¶ 50, at 7.

PROCEDURAL BACKGROUND

The Court will first describe Peña's claims. It will then outline the relevant prior procedural history in this case. Last, the Court will summarize the parties' arguments in their briefing and at the hearing on the MTD.

1. Peña's Claims.

Peña brings this action against Greffet and Vallejos in their individual capacities, against Hickson in her individual and official capacity, and against CCA pursuant to 42 U.S.C. § 1983, for their alleged violation of her civil rights arising under the Fourth, Eighth, and Fourteenth Amendments to Constitution. See Complaint at 1. In Count I, Peña alleges that Greffet sexually fondled her while she was incarcerated in the NMWCF, and orally sodomized her in the NMWCF, in violation of her Eighth Amendment right to be free from cruel and unusual punishment, "including the right to be secure in her bodily integrity and free from sexual advances, sexual fondling, sexual intercourse, anal sodomy, and oral sodomy by prison personnel." Complaint ¶ 52, at 7-8. Peña alleges that Greffet's sexual fondling, sodomy, and rapes proximately caused her damages and injuries, and she requests the Court grant "compensatory and punitive damages against Defendant Greffet, together with all costs and attorney's fees." Complaint ¶ 57, at 8.

In Count II, Peña alleges that Vallejos' conduct in "grabbing Plaintiff and slamming her against a wall" violated her Eighth Amendment right to be free from cruel and unusual punishment, and to be free from "unreasonable, unnecessary, and excessive force. ..." Complaint ¶ 60, at 9. Peña asserts that Vallejos' use of "unreasonable, unnecessary, and excessive force against Plaintiff was intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard for Plaintiff's constitutional rights." Complaint ¶ 61, at 9. She requests the same relief in Count II that she does in Count I. See Complaint ¶ 64, at 9.

In Count III, Peña alleges that CCA and Hickson violated her Eighth and Fourteenth Amendment rights to be free from exposure to "unreasonable risks of harm or from exercising deliberate indifference toward her safety, security, and constitutional rights," because CCA and Hickson "engaged in a custom of suppressing, denying or disregarding incidents of prison rape. ..." Complaint ¶¶ 66-67, at 10. The incidents of rape are alleged to include: (i) placing inmates who reported sexual or other staff misconduct in segregation, or otherwise retaliating against them; (ii) violating internal and NMCD policies by failing to report allegations of prison rape to outside law enforcement; (iii) failing to conduct adequate internal investigations of rape allegations; and (iv) offering financial incentives for non-reporting. See Complaint ¶ 67, at 10. She requests the same relief in Count III that she does in Counts I and II. See Complaint ¶ 69, at 10.

In Count IV, Peña alleges that CCA and Hickson violated her First Amendment right to be free from retaliation for reporting sexual or physical assaults by prison officers, her Eighth Amendment right to be free from cruel and unusual punishment, her Fourteenth Amendment right to procedural due process, and CCA and NMCD policies, when they placed and kept Peña in "segregated confinement following her reporting of Defendant Greffet's rapes and Carlos Vallejos' assault." Complaint ¶¶ 71-72, at 11. She requests the same relief in Count IV that she does in the other Counts. See Complaint ¶ 75, at 11.

In Count V, Peña alleges that Greffet is liable for the intentional torts of battery and rape for his rapes of Peña in Alamogordo and in Albuquerque when she "lacked the capacity to consent thereto[, and i]n any case, ... did not consent to the sex." Complaint ¶¶ 77, at 12. Peña alleges that CCA is legally liable under New Mexico law for Greffet's tortious conduct under the doctrine of respondeat superior, as Peña "was directly informed and/or had reason to believe that Defendant Greffet was an agent and employee of" CCA. Complaint ¶¶ 80-81, at 12. She seeks the same relief in Count V as in the other Counts. See Complaint ¶ 81, at 12.

In Count VI, Peña alleges that Vallejos, in "violently grabbing [her] and slamming her against the wall," committed an intentional offensive touching to Peña's person, and Vallejos is thus liable for the intentional tort of battery. Complaint ¶¶ 83, at 13. Peña alleges that CCA is also liable for this intentional tort of Vallejos under the respondeat superior theory, as he was acting as CCA's agent and employee at all material times. See Complaint ¶¶ 87-88, at 13. She seeks the same relief in Count VI as in the other claims. See Complaint ¶ 88, at 13.

2. The Court's Prior Dismissals and Peña's Subsequent Amendments to Her Original Complaint.

The presently operative Complaint is not the original complaint, but, rather, the first amended complaint. The original Complaint for Civil Rights Violations and Common Law Torts, filed June 29, 2012 (Doc. 1)("Original Complaint"), alleged the same basic story and all the same claims, but contained fewer factual allegations regarding Vallejos' alleged misconduct. Compare Original Complaint ¶¶ 40-42, at 6 (setting forth the facts of the Peña-Vallejos hallway encounter, and alleging only that "[w]hen [Peña] failed to respond to a question by the ... Vallejos, he grabbed her and slammed her against the wall of the hallway"), with Complaint ¶¶ 40-46, at 6-7 (alleging those facts, and additionally specifying that Vallejos' question regarded "what was wrong" — i.e., why she seemed sad — and that the reason Peña did not respond was because she "was despondent and traumatized"). The Defendants — other than Greffet — moved to dismiss, see CCA, Hickson and Vallejos' Motion to Dismiss, filed September 24, 2012 (Doc. 10)("Earlier MTD"), and the Court granted the Earlier MTD in part and dismissed several claims without prejudice, see Memorandum Opinion and Order at 111-12, filed January 28, 2013 (Doc. 22)("MOO"). Most relevant here, the Court dismissed both claims against Vallejos — Counts II and VI — because Peña failed to plead them with the requisite specificity. See MOO at 62, 94, 97, 111-12.

The Original Complaint had alleged only the following facts regarding the hallway encounter between Peña and Vallejos:

Original Complaint ¶¶ 40-42, at 6. The Court ruled that Peña failed "to provide the Court with sufficient, non-conclusory, factual allegations to support the reasonable inference that Vallejos violated her civil rights and committed a civil battery against her," MOO at 62, and that "conclusory recitations of the elements of a § 1983 claim for excessive force are not-well pleaded factual allegations," MOO at 94. The Court stated:

If such a possibility is true, Vallejos' conduct would have been constitutional. MOO at 94. The Court ruled that, "[t]o impose liability ... without any factual allegations regarding the circumstances of ... Peña's resist[ance to] ... complying with Vallejos' direction to answer his questions, would be close to imposing strict liability upon corrections officers dealing with inmates." MOO at 97. The Court, thus, dismissed the two claims against Vallejos without prejudice to Peña amending the Original Complaint to flesh out the allegations. See MOO at 111-12.

In response to the MOO, Peña filed4 her current Complaint, which now contains the following allegations relating the hallway incident between her and Vallejos:

Complaint ¶¶ 40-46, at 6-7.

3. The Briefing and Hearing on the MTD.

Vallejos moves the Court to dismiss Counts II and VI — the same claims that the Court dismissed without prejudice in its MOO. See MTD at 3-6. As to Count II, the Eighth Amendment claim, Vallejos argues:

MTD at 4-5. Vallejos also argues that Peña's injuries are de minimis for Eighth Amendment purposes. See MTD at 5. Vallejos also moves the Court to dismiss Count VI — the battery claim — arguing that the "`new' facts related to her mental state and unexpressed intentions are irrelevant," and that her allegations amount to legal conclusions, rather than facts. MTD at 6.

Peña responded to the MTD roughly three weeks later. See Plaintiff's Response to Defendant's Second Motion to Dismiss, filed April 8, 2013 (Doc. 41)("Response"). She states that, in the new Complaint, she "describes all that was knowable to her about Vallejos' use of force against her." Response at 1. Peña argues that the Court can draw the following inferential chain from the Complaint's new allegations:

Response at 4-5 (citations to the Complaint omitted).

Peña further argues that the Supreme Court has rejected any de minimis injury requirement in Eighth Amendment excessive force cases, see Response at 5-6, instead setting forth a de minimis force requirement, see Response at 6. Peña then covers her bases by stating that, even if it were necessary for her to demonstrate non-de minimis injury, the Tenth Circuit has explicitly held that post-traumatic stress disorder is a more-than-de minimis injury. See Response at 7-8 (citing Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1206 (10th Cir. 2006)). Last, Peña requests that, if the Court dismisses her claim, it do so without prejudice to her seeking the Court's leave to amend her Complaint once more. See Response at 8.

Vallejos replied to the Response three days later. See Vallejos' Reply in Support of Motion to Dismiss Plaintiff's Claims in the First Amended Complaint, filed April 11, 2013 (Doc. 45)("Reply"). He argues that "[t]he focus of an excessive force and battery claim is not on the facts known to the Plaintiff, but on the facts known to Vallejos." Reply at 2. He states:

Reply at 2-3. Vallejos contends that "[t]he crux of [Peña's] argument seems to be that inmates should be allowed a `pass,' when they are upset, to disregard what correctional officers do or say, in favor of what the inmate thinks is best and regardless of the inmate's prior institutional history." Reply at 3. Vallejos argues that "[s]uch a proposition does not further [a] legitimate penological interest, or further the goal of maintenance of the security and orderly operation of the facility," but that, "[t]o the contrary, it encourages dysfunction, disorder, and a subjective standard whereby the inmate's state of mind dictates how a correctional officer can respond to an overt act of failure to follow prison rules and regulations." Reply at 3. Vallejos further states that Peña mischaracterizes his arguments vis-à-vis de minimis injury: he acknowledges that de minimis injury can still make out an Eighth Amendment claim, but contends that the force used must be more than de minimis; he further asserts that "allegations of a psychological nature are unhelpful in evaluating the level of force[,] ... because purported psychological distress does not necessarily bear any relationship to the amount and extent of force used." Reply at 4-5.

The Court held a hearing on the MTD on June 20, 2013. See Transcript of Hearing (taken June 20, 2013)("Tr.").5 In defending her claims against Vallejos, Peña focused heavily on the language she added to the Complaint specifying that she was "visibly upset." Tr. at 12:3-8 (Court, Fine). She noted that Vallejos might have some justification for using the force that he did if she was walking down the hall with an object that could be mistaken for a weapon in her hand, but that merely looking sad does not warrant violence. See Tr. at 12:12-22 (Fine). The Court asked whether Vallejos was entitled to check on an upset prisoner, and Peña responded that, while Vallejos may have that right in some circumstances, this case is "not a situation where she's screaming or throwing her arm[s] up ... or ... making violent ge[stures]. She's very upset because she has some very difficult things that she's going through at the time." Tr. at 14:14-18 (Fine). The Court tried to pin Peña down on exactly what a prison guard should be allowed to do to a prisoner who appears agitated and upset, and ignores verbal commands or questions, and Peña relied on the MTD's legal posture — i.e., that she should get all reasonable inferences in her favor at this stage — rather than staking out a definite position. See Tr. at 16:8-24 (Court, Fine)("THE COURT: You can't use excessive for[ce] maybe, but you probably can grab them and you probably can put them up against a wall. MR. FINE: I would disagree with that, and I would again argue that that would be an inference [to which Peña is entitled] at this stage."). Peña also pointed out that Vallejos was fired for mistreating inmates, in part stemming from this incident. See Tr. at 17:16-18:9 (Fine). Last, she stated that "there are a lot of things that [Vallejos] could have ... done" short of slamming Peña against a wall, like "physically go[ing] around and g[etting] in front of her and try[ing] to stop[] her." Tr. at 22:14-19 (Fine).

Vallejos talked very little at the hearing; he generally agreed with the analysis that the Court set forth in its questions to Peña — adding only that, to the extent that state of mind is important to the analysis, the focus is on Vallejos' state of mind, and not on Peña's — and otherwise limited his argument to encouraging the Court to deny Peña leave to amend her Complaint. See Tr. at 29:11-31:22 (Retts). He did not argue that Peña had plead all relevant facts and that opportunity to amend would be futile, but, rather, he argued the opposite:

Tr. at 29:24-30:20 (Retts). Before adjourning the hearing, the Court indicated that it was inclined to dismiss the two claims, see Tr. at 32:1-5 (Court), and, a little over eight months later, it entered an Order, filed March 31, 2014 (Doc. 73), granting the MTD and dismissing both claims. 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-pled 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 plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)("[O]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss."); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).

A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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. "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 (citation omitted).

To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; 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 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit has stated:

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)(citations omitted).

Although affirmative defenses must generally be pled in the defendant's answer, not argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions where: (i) the defendant asserts an immunity defense — the courts handle these cases differently than other motions to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 (2009); Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)); and (ii) where the facts establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965)("Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule."). The defense of limitations is the affirmative defense most likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure: Civil § 1277 (3d ed. 2014). If the complaint sets forth dates that appear, in the first instance, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 273-75 (10th Cir. 1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945); Andrew v. Schlumberger Tech. Co. , 808 F.Supp.2d 1288, 1292 (D.N.M. 2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir. 1954)(holding that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from case law in several circuits, that the plaintiff may avoid this problem altogether — at least at the motion-to-dismiss stage — by simply refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir. 2007); Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); Harris v. New York, 186 F.3d 243, 251 (2d Cir. 1999); Honeycutt v. Mitchell, No. CIV 08-0140 W, 2008 WL 3833472 (W.D. Okla. Aug. 15, 2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the Court has permitted it, see Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1235-36 (D.N.M. 2014)(Browning, J.).

LAW REGARDING THE EIGHTH AMENDMENT

When a prisoner is incarcerated after being indicted, the Eighth Amendment protects him from "a prison official's `deliberate indifference' to a substantial risk of serious harm," as well as the intentional use of excessive force. Farmer v. Brennan, 511 U.S. 825, 828 (1994). "[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners," but "[t]hey are ... responsible for taking reasonable measures to insure the safety of inmates." Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is "sufficiently serious," i.e., an injury that equates to the "denial of the minimal civilized measure of life's necessities"; and (ii) the official has a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. at 834 (internal quotation marks omitted). The second condition represents the functional application of the deliberate indifference standard. See Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006)("To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm], the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm[,] the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component." (quoting Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003))).

Analyzing whether the plaintiff has satisfied the first element, the objective element, "requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused." Helling v. McKinney, 509 U.S. 25, 36 (1993). Courts should also consider "whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. at 36 (emphasis in original). "In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. at 36. The Eighth Amendment does not protect against "de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)(internal quotation marks omitted)("That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action."). The Tenth Circuit has noted that, "in Hudson, the Supreme Court evidenced its `commit[ment] to an Eighth Amendment which protects against cruel and unusual force, not merely cruel and unusual force that results in sufficient injury.'" United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). Were it otherwise, the Tenth Circuit reasoned, "a prisoner could constitutionally be attacked for the sole purpose of causing pain as long as the blows were inflicted in a manner that resulted in visible (or palpable or diagnosable) injuries that were de minimis." United States v. LaVallee, 439 F.3d at 688. See also Hudson v. McMillian, 503 U.S. at 13 (Blackmun, J., concurring)("The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with `significant injury,' e.g., injury that requires medical attention or leaves permanent marks."). Thus, to establish excessive force in violation of the Eight Amendment, the plaintiff need not establish that he or she "suffered a certain level or type of injury." United States v. LaVallee, 439 F.3d at 688.

Where a security measure involving the use of force is undertaken to resolve a prison disturbance, the Supreme Court has held that "the question whether the measure taken inflicted unnecessary and wanton pain and suffering [in violation of the Eighth Amendment] ultimately turns on `whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Whitley v. Albers, 475 U.S. 312, 320-21 (1986)(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). In a court's inquiry whether the use of force to resolve the disturbance violates the Eighth Amendment under this standard, "such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted, are relevant to that ultimate determination." Whitley v. Albers, 475 U.S. at 321 (alterations omitted)(internal quotation marks omitted)(quoting Albers v. Whitley, 546 F.Supp. 726, 733 (D. Or. 1982)). These factors may be used to draw inferences whether the use of force "could plausibly have been thought necessary, or instead evinced such wantonness with respect to unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley v. Albers, 475 U.S. at 321.

The second element regarding the government official's state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Courts apply this subjective inquiry whether the allegations are that a "short-term" or "one-time" violation occurred, or that "continuing" or "systemic" violations occurred. Wilson v. Seiter, 501 U.S. at 299. The Supreme Court has stated: "With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness." Farmer v. Brennan, 511 U.S. at 836. The Supreme Court provided the following test for determining when this subjective element is met:

Farmer v. Brennan, 511 U.S. at 837. For Eighth Amendment purposes, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 F. App'x 821, 823-24 (10th Cir. 2007)(unpublished)(quoting Smith v. Cummings, 445 F.3d at 1258).

In Graham v. Connor, the Supreme Court addressed whether a plaintiff could assert both Eighth Amendment violations and substantive due-process violations in the same suit against government officials alleging that they engaged in physically abusive conduct. See Graham v. Connor, 490 U.S. at 394-95. More specifically, it held that, when a specific constitutional amendment provides "an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct," courts should analyze all constitutional claims under that amendment's standards rather than under "the more generalized notion of `substantive due process.'" Graham v. Connor, 490 U.S. at 395. The Supreme Court gave as an example for this principle "the Eighth Amendment's ban on cruel and unusual punishments," because it is one of the "two primary sources of constitutional protection against physically abusive governmental conduct." Graham v. Connor, 490 U.S. at 395. The Supreme Court later clarified that its holding in Graham v. Connor "simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). To illustrate this point, the Supreme Court has recognized that, if a search or seizure did not occur, the Fourth Amendment does not cover the situation, and the plaintiff may proceed on a substantive due-process theory. See Cnty. of Sacramento v. Lewis, 523 U.S. at 842-844 ("The Fourth Amendment covers only `searches and seizures,' neither of which took place here. ... Graham's more-specific-provision rule is therefore no bar to respondents' suit.").

In Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), the Tenth Circuit addressed a case where the plaintiff asserted claims that they were "denied necessary medical care [in prison] in violation of their rights under the Eighth and Fourteenth Amendments." 83 F.3d at 1202. In determining whether to apply Eighth Amendment standards or substantive due-process standards when reviewing the plaintiffs' claims in Riddle v. Mondragon, the Tenth Circuit noted that, "where constitutional protection is afforded under specific constitutional provisions, alleged violations of the protection should be analyzed under those provisions and not under the more generalized provisions of substantive due process." 83 F.3d at 1202 (citing Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990). Thus, the Tenth Circuit reviewed the plaintiffs' claims for denial of medical care in prison under the Eighth Amendment and did not consider the plaintiffs' substantive due-process theory. See Riddle v. Monragon, 83 F.3d at 1202 ("Accordingly, we will review plaintiffs' claims under the Eighth Amendment as made applicable to the states through the Fourteenth Amendment.").

LAW REGARDING THE TORT OF BATTERY UNDER NEW MEXICO LAW

New Mexico courts have stated that "the elements of civil and criminal assault and battery are essentially identical." New Mexico v. Ortega, 1992-NMCA-003, ¶ 12, 827 P.2d 152, 155 (N.M. Ct. App. 1992). A tortfeasor is liable for battery if: "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results." New Mexico v. Ortega, 1992-NMCA-003, ¶ 12, 827 P.2d at 155 (quoting Restatement (Second) of Torts § 18(1)(a)-(b) (1965)). See N.M. Stat. Ann. § 30-3-4 ("Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.")(defining the elements of criminal battery).

As to the intent required to commit a battery, the Restatement (Second) of Torts is ambiguous whether intent means showing merely an intent to touch that person — and that the touching turns out to be offensive or harmful need not be intended — or if the plaintiff must also show that the harm or offense was intended. It is clear, however, that an intent to touch in a way that the defendant understands is not consented to is sufficient, as is an actual intent to harm. As for the severity of contact required, because the intentional tort of battery rose out of the common-law action of trespass, no harm is required. Accord Selmeczki v. N.M. Dep't of Corr., 2006-NMCA-024, ¶ 29, 129 P.3d 158 ("It is black-letter law that causing an offensive touching, even indirectly to another's clothing and not resulting in injury, is the tort of battery.").

"An `officer can be held liable for assault and battery if he uses excessive force.'" Adegbuji v. Middlesex Cnty., No. CIV A 03CV-1757 PGS, 2006 WL 2806289, at *12 (D.N.J. Sept. 28, 2006)(quoting Mantz v. Chain, 239 F.Supp.2d 486, 498 (D.N.J. 2002)). When analyzing whether an officer's actions create liability for tort claims, the officer's perspective is the central focus; the reasonableness of an officer's use of force is measured "from the perspective of the officer on the scene, with the understanding that officers must often make split-second decisions in difficult situations." Archuleta v. Lacuesta, 1999-NMCA-113, ¶ 8, 988 P.2d 883, 885. In Selmeczki v. New Mexico Department of Corrections, the Court of Appeals of New Mexico held that a disgruntled corrections department officer committed the tort of battery when the officer hit visitors to his office with a stack of coins. See 2006-NMCA-024, ¶ 29, 129 P.3d 158. The visitors' testimony was that the officer "rose up part way from a seated position behind a desk and forcefully slapped a stack of five to ten coins toward both visitors, which resulted in the coins striking them both on the legs." 2006-NMCA-024, ¶ 6, 129 P.3d 158. The officer's version was different; he "denied slapping or striking the coins at [the visitors] but claimed that he only `nudged or dropped' them off the desk, a gesture he admitted was probably `not prudent.' He denied any advance planning, claiming it was a `spur of the moment' act." 2006-NMCA-024, ¶ 7, 129 P.3d 158. The testimony elicited at trial was that "no injury or harm was likely from the coins being launched at [the visitors]." 2006-NMCA-024, ¶ 29, 129 P.3d 158. The Court of Appeals of New Mexico concluded that, regardless whether "he did not `meaningfully' commit a civil battery," he was liable, as "[i]t is black-letter law that causing an offensive touching, even indirectly to another's clothing and not resulting in injury, is the tort of battery." 2006-NMCA-024, ¶ 29, 129 P.3d 158.

ANALYSIS

The Court will dismiss Peña's Eighth Amendment excessive force claim against Vallejos — this time with prejudice — because she has not plausibly alleged that he used physical force "maliciously and sadistically to cause harm," rather than "in a good-faith effort to maintain or restore discipline." Hudson v. McMillian, 503 U.S. at 7. She has alleged a serious injury — the onset of post-traumatic stress disorder symptoms — but it is an injury of the kind that modest, or even nonexistent, physical force can cause, and it is Vallejos' force, rather than Peña's injury, which is the focus of the Court's analysis. The prison setting is one in which authority figures' use of reasonable, proportional physical force is expected and acceptable, and Peña has not plausibly alleged that Vallejos did anything beyond that. Because further opportunity to amend would be futile, the Court will dismiss that claim with prejudice.

The Court will not, however, dismiss Peña's battery claim. The Eighth Amendment's "constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery." Johnson v. Glick, 481 F.2d at 1033. Under New Mexico's standard, Vallejos' privilege to use physical force against Peña extends only as far as he "reasonably believes to be necessary" in the pursuit of legitimate penological ends. Restatement (Second) of Torts § 132. Peña has alleged facts that — if true, and if coupled with reasonable inferences in her favor — plausibly suggest that Vajellos used more force than he reasonably believed to be necessary in subduing Peña.

I. THE COURT WILL DISMISS COUNT II — THE EIGHTH AMENDMENT EXCESSIVE FORCE CLAIM — BECAUSE PEÑA HAS NOT ALLEGED FACTS THAT PLAUSIBLY SUGGEST VALLEJOS ACTED OUT OF MALICE OR SADISM.

The Eighth Amendment sets a very high bar for excessive force claims, and the allegations in the Complaint do not clear it. "The `core judicial inquiry' [in an Eighth Amendment excessive force claim is] not whether a certain quantum of injury was sustained, but rather `whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)(quoting Hudson v. McMillian, 503 U.S. at 7). The type and extent of the plaintiff's injuries are relevant to this inquiry — these factors are, of course, directly relevant to damages, and they are also often highly probative evidence whether a constitutional violation occurred — but they are not, themselves, either necessary or sufficient ingredients in an Eighth Amendment claim. The Supreme Court moved the focus of the Eighth Amendment excessive force analysis from the plaintiff's injuries the officer's force in 1992 in Hudson v. McMillian, and reaffirmed this focus in 2009:

Wilkins v. Gaddy, 559 U.S. at 37-38 (citations omitted).

Interestingly, the Supreme Court's intent — or at least the primary result it anticipated — in shifting the focus of the excessive force analysis from the injury sustained to the force used was to make it easier for plaintiffs to prevail, but, in this case, it has the opposite effect. See Wilkins v. Gaddy, 559 U.S. at 37 (holding that a plaintiff need not demonstrate "significant injury" or even "`non-de minimis'" injury to make out an Eighth Amendment claim, because "[o]therwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury"). Here, the injury that Peña alleges she sustained as a result of Vallejos' actions — the "triggering [of] severe symptoms of ... chronic PTSD" — would meet the threshold to be considered a significant or non-de minimis injury, were that the important question.6 Complaint ¶ 43, at 6. She has not, however, plausibly alleged that Vallejos' level of force was excessive.

Important to the outcome in this case is the legal standard by which the Court analyzes the MTD; it is a somewhat unusual one, in which the Twombly/Iqbal standard is elevated — not as a matter of procedure, but as a result of the applicable substantive law and its practical implications. Vallejos is a prison guard; he is in a perpetually dangerous environment, surrounded constantly by criminal offenders and tasked with protecting the outside world from then and them from each other. His role in society is perhaps second only to military personnel in the degree of latitude vested in the position to use extemporaneous physical force to effectuate order, discipline, and safety. See Johnson v. Glick, 481 F.2d at 1033 ("The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force."). He is entitled to use force "in a good-faith effort to maintain or restore discipline." Hudson v. McMillian, 503 U.S. at 7. Unlike traditional prison guards, however, Vallejos is not entitled to qualified immunity, because he works for CCA — a non-governmental entity — and "private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a § 1983 case." Richardson v. McKnight, 521 U.S. 399, 412 (1997). As a formal, procedural matter, therefore, claims against Vallejos are subject to the same notice-pleading standard that governs private-citizen defendants and not the heightened standard that applies in qualified-immunity cases. See Copar Pumice Co., Inc. v. Morris, No. CIV 07-0079 JB/ACT, 2009 WL 1563515, at *7 (D.N.M. May 11, 2009)(Browning, J.).

As a practical matter, however, allegations that a prisoner makes against a prison guard are treated differently than same allegations that one free citizen makes against another. If an un-incarcerated plaintiff alleged that another private citizen "pursued her down [a] hallway, grabbed her from behind and slammed her against the wall" — as Peña alleges that Vallejos did to her — this allegation would suffice to make out a tort claim, but more is required in the guard-prisoner context. Complaint ¶ 43, at 6. This disparate treatment has nothing to do with the Court doubting Peña's story, but, rather, is an application of the usual rule that factual allegations are evaluated in light of (i) the controlling substantive law; and (ii) the contextual backdrop that the plaintiff's other factual allegations provide. Similarly, in the non-prison example of a plaintiff filing suit against a defendant for chasing her down an alley and slamming her against a wall, if the plaintiff had just stolen the defendant's purse, then the defendant's actions might be legally justified, and the plaintiff's allegations would fail to plausibly state a claim. This outcome would depend, however, on the plaintiff pleading her own commission of theft in the complaint. The plaintiff could omit the theft from the story entirely, and the Court would not be entitled to consider the defendant's self-help/recovery-of-stolen-property defense at the motion-to-dismiss stage, regardless of any extrinsic evidence that the defendant had to support it.

Here, the relevant substantive law gives Vallejos numerous broad justifications to commit acts that would otherwise constitute a tort against Peña — if he and Peña were both free, private citizens on the street, instead of prison guard and prisoner, respectively. These justifications are known, collectively, as "privilege." Restatement (Second) of Torts § 10 ("The word `privilege' ... denote[s] the fact that conduct which, under ordinary circumstances, would subject the actor to liability, under particular circumstances does not subject him to such liability."). Peña has not pled any of these justifications in her Complaint, but it is not necessary for her to do so. She has pled that she is a prisoner and that Vallejos is a prison guard; the Court can fill in the remainder of the context as a matter of law. Unlike the example of the purse-snatching plaintiff — who need not plead around the defendant's self-help/recovery-of-stolen-property defense if she declines to plead the theft — in this case, the institutional roles of the parties triggers the need to plead around the myriad justifications for the defendant's use of physical force.

To be clear, putting Peña's allegations in their proper context does not undermine the Supreme Court's rule that private prison guards are not entitled to qualified immunity. Qualified immunity absolves defendants of liability for unconstitutional conduct that was not clearly established to be unconstitutional at the time the defendant committed it; the Court's approach merely evaluates whether Peña has plausibly alleged that Vallejos has violated the applicable constitutional standards, regardless whether those standards are clearly established. Qualified immunity protects the defendant who steps into the murky grey waters of constitutional law and discovers, only upon his foot hitting the bottom, that he has trod across the boundary line between legal and illegal. Vallejos, on the other hand, is responsible for where his foot lands, regardless whether the water was clear.

Having outlined the relevant legal standard, the Court will examine Peña's factual allegations:

Complaint ¶¶ 40-46, at 6-7. In short, the sequence of events that constitute the cause of action against Vallejos unfolded in four stages. First, Peña was "suffering from ... mental illness[]," "grieving," "despondent," "traumatized," and in need of immediate mental-health treatment. Complaint ¶¶ 40, 42, at 6. These conditions are ones whose etiology, severity, and imminent danger are not apparent from observation alone, i.e., Vallejos could not plausibly tell from looking at Peña why she was upset, how upset she was, or whether she was in need of immediate assistance. For all Valljos knew, Peña could have been undergoing a medical or psychiatric emergency, or one of the other inmates could have just assaulted her; any of those circumstances would necessitate Vallejos' intervention, whether Peña desired it or not.

Second, Peña refused to answer a question that Vallejos directed to her regarding her wellbeing and emotional condition. See Complaint ¶ 41, at 6. The Complaint makes it clear that Peña did not fail to hear the question, but rather she heard it and chose to ignore it. See Complaint ¶ 42, at 6 (stating that Peña "did not have the will or the desire to explain"). Vallejos was entitled, at this point, to demand an answer — regardless whether Peña wanted to answer.

Third, Vallejos "pursued her down the hallway" to get his question answered. Complaint ¶ 43, at 6. Given that the word "pursue" is not used to describe motion towards a stationary target, the Court takes this allegation to mean that Peña continued to move away from Vallejos even as he approached her. It is unclear whether Vallejos, in addition to chasing after Peña, also continued to try to get her attention verbally. The Complaint refers to Peña "fail[ing] to respond to [Vallejos'] questioning," implying that Vallejos asked her more questions than the single question she alleges in the Complaint, Complaint ¶ 43, at 6 (emphasis added), but, as the Court can find no dictionary definitively defining "questioning" to refer to multiple questions, Peña is entitled to the inference that Vallejos asked only a single question before using physical force against Peña.

Fourth, upon catching up to Peña, Vallejos grabbed her from behind and slammed her against the wall sufficiently hard to cause arm bruising and "tigger[] severe symptoms of [her] PTSD." Complaint ¶ 43, at 6. At this point, what Peña does not allege is just as important as what she alleges: Peña's description of the encounter ends here, even though it seems clear her interaction with Vallejos extended for at least long enough for him to get his questions answered; this abrupt cutoff implies that Vallejos' conduct for the remainder of the encounter was, if not unobjectionable, then at least within constitutional bounds. Equally important, Peña alleges only this one incident, and there is no suggestion that Vallejos' behavior is reflective of a larger pattern of violent or abusive behavior by Vallejos against Peña — or against anyone, for that matter.7 Last, although the Eighth Amendment's focus is on the officer's force, rather than on the plaintiff's injuries, Peña's injuries fail to contribute to pushing her excessive force allegation over the line from conceivable to plausible. If she had alleged that she sustained, e.g., a fractured skull or a broken spine, then the Court could infer that Vallejos' force may have been so far in excess of what was needed that Vallejos plausibly may have acted out of malice or sadism. Instead, Peña alleges that she sustained some arm bruising, which indicates that (i) Peña contacted the wall arms-first, rather than, say, headfirst; and (ii) Vallejos' shove was not forceful enough to cause broken bones or anything more serious than bruising.8

Peña's allegations are insufficient to plausibly suggest that Vallejos pushed her against the wall "maliciously and sadistically to cause harm," rather than "in a good-faith effort to maintain or restore discipline." Hudson v. McMillian, 503 U.S. at 7. This test may seem to set up a false dichotomy — certainly there would seem to be situations where prison guards use force in a way that is too invidious to be called a "good-faith effort" but falls short of being "malicious[] and sadistic[]" — but the Supreme Court has reaffirmed this test's vitality on numerous occasions. See, e.g., Whitley v. Albers, 475 U.S. at 320-21 (citation omitted); Hudson v. McMillian, 503 U.S. at 7; Wilkins v. Gaddy, 559 U.S. at 37 (citation omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d at 1033. See Hudson v. McMillian, 503 U.S. at 9 ("That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. ... [There is no] constitutional recognition [of] de minimis uses of physical force, provided that the use of force is not of a sort `repugnant to the conscience of mankind.'" (citations omitted)). Without more, Peña's allegations are analogous to allegations of parallel conduct in a price-fixing case: they set forth facts that are consistent with malice and sadism, but do not "suggest" them; her allegations are "just as much in line with" Vallejos' legitimate pursuit of penological goals as they are with his desire to harm or humiliate her. See Bell Atl. Corp. v. Twombly, 550 U.S. at 554.9 Peña has thus failed to state a plausible claim for relief.

Given that Peña has already had one opportunity to amend her claims against Vallejos, the Court concludes that the Complaint contains every fact that Peña can allege — consistent with rule 11's demands — tending to show Vallejos' liability. Thus, leaving open the opportunity to amend at this point would be futile.10 See Response at 1 ("In her ... Complaint, Plaintiff describes all that was knowable to her about Valljos' use of force against her." (emphasis omitted)). The miniscule chance that Peña can develop information to properly allege claims against Vallejos is outweighed by Vallejos' interest in the finality of these dismissals, and the Court will, accordingly, dismiss Count II with prejudice.

II. THE COURT WILL NOT DISMISS COUNT VI — THE STATE-LAW BATTERY CLAIM — BECAUSE PEÑA HAS PLAUSIBLY ALLEGED THAT VALLEJOS USED MORE FORCE THAN HE REASONABLY BELIEVED TO BE NECESSARY UNDER THE CIRCUMSTANCES.

The Court will not dismiss Peña's battery claim, however, because the Eighth Amendment's

Johnson v. Glick, 481 F.2d at 1033 (footnote omitted)(citation omitted). This passage illustrates that the standard for what constitutes battery in the prison context is much lower than what constitutes a violation of the Eighth Amendment.

Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)("Erie"), New Mexico law governs Peña's battery claim, but there is no New Mexico precedent spelling out how the tort of battery applies to physical contact between prison guards and inmates in New Mexico. The Court was unable to find a New Mexico case in the same ballpark as this one, and the parties cited a total of zero battery cases in their briefing.11 The committee tasked with promulgating the New Mexico Uniform Jury Instructions declined to create an instruction on battery — at all, let alone in the prison guard-inmate context — because there is "insufficient New Mexico law on assault and battery to guide the committee on this subject." Civ. U.J.I. 13-1624 N.M.R.A., committee commentary. That there is a paucity of law in this area is not entirely surprising. New Mexico is a young, sparsely populated state, and many legal areas with robust case law at the federal level have state-law analogues with virtually no legal authority to guide them.

Although the Court is no stranger to this situation, care must be taken when working in areas with little controlling law. The Court must steer between the extremes of judicial activism — which, here, means dismissing a state-law claim despite having no basis in law to do so, either on policy grounds, or because other states' law or the federal common law would not countenance the claim — and judicial abdication — sending a claim to trial merely to pass the decisionmaking buck to the jury. In doing so, the Court must delineate between, on one hand, those shortcomings, gaps, and vagueness in the state case law that exist merely because the New Mexico courts have not had the opportunity to speak directly to the question, and, on the other, those deliberate omissions, exercises of restraint, and failures to specify a test or clarify a term that reflect a conscious choice by the state courts to delegate to the jury, on a case-by-case basis, the task of defining a substantive standard. Some legal standards are left intentionally vague, and that vagueness allows room for the jury to apply its own sense of justice to the facts of a particular case.

Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1238 n.29 (D.N.M. May 16, 2014)(Browning, J.). When substantive vagueness is used as a stand-in for procedural delegation of an issue to the jury, a federal court sitting in diversity must not artificially clarify the vagueness, as doing so is tantamount to rewriting the state substantive law. See Coplay Cement Co., Inc. v. Willis & Paul Grp., 983 F.2d 1435, 1438 (7th Cir. 1993)(Posner, J.). Although designating the fulfillment of a certain legal threshold a "jury question" may seem to fall on the procedural side of Erie's procedure-substance divide, it often does not: if a legal standard is clear — or at least clear enough to determine whether the facts of the case at hand fit within it — then whether the standards application goes to judge or jury is a procedural question, and federal practice governs it; if state practice is to submit the legal standard to the jury at a certain level of abstraction or vagueness, then the federal court must submit the standard to the jury with the same or greater vagueness.12 This result is justified under ordinary Erie principles — "clarifying vagueness" is just another way of saying "narrowing a definition" — but it serves equally well to protect whatever importance the state courts place on juries in the decisionmaking process.13

Sometimes, however, a gap is just a gap. That there is a dearth of case law on point does not in itself mean that the Court should reflexively let the claim pass through the motion-to-dismiss stage untouched. This approach is tempting, because, when the Court cannot point to solid authority showing that a claim should be dismissed, it is easier to let the claim through than it is to dismiss it on legally uncertain grounds. Such an approach, however, conflates the state courts' lack of opportunity to flesh out their own law — i.e., the relatively low number of opinions they write in any given area of law — with their conscious division of responsibility between judge and jury, and their associated desire to define a legal standard either rigidly and formulaically, or loosely and vaguely. Erie resolves the tension inherent in applying sparse state-court case law in a way that is conceptually clear, even if it is sometimes difficult to apply: a federal court sitting in diversity should apply whatever law the state's highest court would apply if faced with the same question. See Comm'r v. Estate of Bosch, 387 U.S. 456, 465 (1967); Anderson Living Trust v. WPX Energy Prod., LLC, 27 F. Supp. 3d at 1247 n.30.

Turning to the case at hand, New Mexico's civil-battery law is modeled after the Restatement (Second) of Torts.14 See, e.g., State v. Santiago, 2009-NMSC-045, ¶ 25 n.3, 217 P.3d 89, 97 n.3; State v. Johnson, 1996-NMSC-075, ¶ 18 n.3, 930 P.2d 1148, 1154 n.3; Brown v. Martinez, 1961-NMSC-040, ¶¶ 33-34, 361 P.2d 152, 159-60; Yount v. Johnson, 1996-NMCA-046, ¶ 17, 915 P.2d 341, 346; State v. Ortega, 1992-NMCA-003, ¶ 12, 827 P.2d 152, 155; Jaramillo v. Smith, 1978-NMCA-004, ¶ 11, 574 P.2d 597, 599. See also Sisneros v. Fisher, 685 F.Supp.2d 1188, 1220-21 (D.N.M. 2010)(Browning, J.)("Under New Mexico law, wherein the Restatement of Torts reigns, one commits a battery when. ..."). Normally, the severity-of-contact threshold for battery is so low as to be nearly nonexistent, requiring only a "harmful or offensive contact." Restatement (Second) of Torts § 13. See Selmeczki v. N.M. Dep't of Corr., 2006-NMCA-024, ¶ 29 ("It is black-letter law that causing an offensive touching, even indirectly to another's clothing and not resulting in injury, is the tort of battery." (citing State v. Ortega, 1992-NMCA-003, ¶ 13, 827 P.2d 152, 155-56)). Vallejos, however, by virtue of his job, has what the Restatement calls "privilege":

Restatement (Second) of Torts § 10. Vallejos' specific privilege is outlined in § 134, titled "Maintenance of a Custody Lawfully Taken":

Restatement (Second) of Torts § 134 (citing, e.g., Brady v. Dill, 187 F.3d 104, 123 (1st Cir. 1999); McConney v. City of Houston, 863 F.2d 1180, 1185 (5th Cir. 1989); Hatfield v. Gracen, 567 P.2d 546, 550 (Or. 1977)). The Restatement circumscribes the amount of force that someone in Vallejos' position can use against someone like Peña in a section titled, aptly, "Amount of Force": "The use of force against another for the purpose of effecting the arrest or recapture of the other, or of maintaining the actor's custody of him, is not privileged if the means employed are in excess of those which the actor reasonably believes to be necessary." Restatement (Second) of Torts § 132. See Bledsoe v. Garcia, 742 F.2d 1237, 1240 (10th Cir. 1984)(quoting this section of the Restatement as "[t]he general common law principle ... explicitly recognized by various courts"). In State v. Johnson, the Supreme Court of New Mexico explicitly adopted § 132's standard, see 1996-NMSC-075, ¶ 18 n.3, 930 P.2d at 1154 n.3, and reaffirmed the section's adoption in State v. Santiago, see 2009-NMSC-045, ¶ 25 n.3, 217 P.3d at 97 n.3. The term "reasonably believes to be necessary" means that Vallejos must both (i) subjectively, honestly believe that his force was limited to that which is necessary; and (ii) be objectively reasonable in that belief. Failing either prong incurs liability under the following conditions, described in yet another Restatement section, titled "Effect of Excessive Force":

Restatement (Second) of Torts § 133 (citing, e.g., Nelson v. Jashurek, 109 F.3d 142, 146 (3rd Cir. 1997); Munoz v. Olin, 76 Cal.App.3d 85 (1977); City of Mason v. Banks, 581 S.W.2d 621, 626 (Tenn. 1979)).

The Court concludes that the New Mexico courts would likely adopt the Restatement's15 "reasonably believes to be necessary" test for analyzing a prison guard's physical force against a prisoner. This test is, in the first instance, a jury-oriented standard, as are most tests that contain the word "reasonable" or one of its variants. The Court can still "find[] that a reasonable jury would not have a legally sufficient evidentiary basis to find" that Vallejos acted under a reasonable belief of necessity.16 Fed. R. Civ. P. 50(a)(1). The Court would have to find, however, both that (i) no jury could reasonably find the defendant's force to be reasonable; and (ii) no jury could reasonably find that the defendant subjectively believed that his level of physical force was in excess of what was necessary.

The New Mexico courts intended for juries, rather than judges, to define and apply this standard. The Court cannot refine the standard further without conjuring up specifics out of thin air. Even if the Court desired to refine the standard, such refinements would likely not cut in Vallejos' favor: virtually no exercise of force is ever strictly, perfectly limited to the exact level necessary. For example, if a police officer returns fire on and kills a suspect after the suspect non-fatally shoots the officer, the officer could have possibly effectuated the same end — neutralizing the threat of gunfire — by tasing the suspect or by shooting him in the leg. The reasonableness language, thus, works in the defendant's favor, as a jury with these facts in front of it would be unlikely to impose liability on a police officer.

In this case, the Court finds that it is implausible — though not impossible — that Vallejos did what he did out of malice or sadism. The Court cannot find, however, that Vallejos reasonably and honestly — i.e., objectively and subjectively — used what he believed to be the minimum force necessary to resolve the situation. It is plausible, from the facts alleged, that Vallejos could have gotten Peña's attention and compliance with words alone, with a tap on the shoulder, or by grabbing her but not pushing her against the wall. It is plausible that Vallejos believed that these lesser alternative responses existed, and it is plausible that a jury would find that Vallejos was unreasonable for failing to try one of these alternatives before resorting to "slam[ing] her against the wall" with such force as to cause bruising. Complaint ¶ 43, at 6. For these reasons, Peña's battery claim is plausible, and the Court will not dismiss it.

IT IS ORDERED that: (i) Vallejos' Motion to Dismiss Plaintiff's Claims in the First Amended Complaint, filed March 18, 2013 (Doc. 32), is granted in part and denied in part; (ii) Count II of the Amended Complaint for Civil Rights Violations and Common Law Torts, filed February 28, 2013 (Doc. 30)("Complaint"), is dismissed with prejudice; and (iii) the Court's Order, filed March 31, 2014 (Doc. 73), is amended to reinstate Count VI of the Complaint, and to reflect the rulings in this Memorandum Opinion and Amended Order.