JAMES O. BROWNING, District Judge.
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 in ruling on a rule 12(c) motion, see Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. 303, 304 (D.N.M.2000) (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998)). 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, 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 facility's head supervisor. See Complaint ¶ 5, at 2. During the time period throughout which the underlying conduct took place, CCA employed Greffet and Defendant Carlos Vallejos 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,
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 fondle
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 raped
On or about October of 2009, Peña's parole was revoked, and she returned to the NMWCF, where Greffet continued to work.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.
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.
On or around early June of 2011, Peña was suffering from postpartum depression,
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.
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 of the United States of America. 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
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.
The Court has already dismissed several other claims that Peña initially alleged. In its Memorandum Opinion and Order, filed January 28, 2013 (Doc. 22)("MOO"), the Court dismissed § 1983 claims arising from sexual encounters between her and Greffet that occurred outside of the NMWCF. See MOO at 2. The Court also dismissed vicarious liability claims against CCA for Greffet's conduct outside of the NMWCF. See MOO at 2-3.
On July 19, 2013, attorneys for both sides filed a motion asking the Court to stay proceedings to allow the parties to litigate "whether, in the event that Plaintiff prevails on her intentional tort claim against former CCA-employee Greffet, Defendant CCA could be held vicariously liable,
On September 20, 2013, CCA, Hickson, and Vallejos (collectively, the "CCA Defendants") filed the Motion now before the Court, asking the court to enter judgment against Peña on the vicarious-liability issue. See Motion at 3-4, 5-6. They contend that Peña falls short of the facial plausibility standard expressed in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), by failing to expressly allege aided-in-agency liability or to allege facts that would support such a claim. See Defendants MFJ at 3-4, 5-6. The CCA Defendants argue that, because Peña "merely alleges that Greffet ... `called' her `into the Commander's office[]' and `orally sodomized her,'" she fails to establish Greffet either "purported to act or speak on behalf of [CCA,] and there was reliance upon apparent authority, or [that Greffet] was aided in accomplishing the tort by the existence of the agency." Motion at 6.
The CCA Defendants contend that Peña's pleaded facts demonstrate that Greffet was not aided by his role as an agent of CCA in committing the alleged sexual misconduct at the NMWCF. See Motion at 6. The CCA Defendants note that Peña alleges that Greffet "continued to sexually assault her even after she was released from NMWC[F] and after he was no longer employed by CCA," which they say indicates that "the conduct did not occur as a result of the agency relationship." Motion at 7. For support, the CCA Defendants cite EEOC v. Genesco, Inc., No. CIV 09-0652 WJ/RHS, 2011 WL 2490634 (D.N.M. Apr. 12, 2011) (Johnson, J.), which found no aided-in-agency liability where "harassment occurred before, during, and after the period in which [the defendant] was [the plaintiff's] supervisor." Motion at 7 (quoting 2011 WL 2490634, at *3) (internal quotation marks omitted). Moreover, the CCA Defendants contend that the Court "already rejected an aided-in-agency theory of liability based on" an alleged sexual assault in Alamogordo after the NMWCF released Peña, "because `Peña's factual allegations plead that Greffet's sexual assault was contrary to CCA's and NMCD's policies.'" Motion at 67 (citation omitted). In light of Peña's pleaded facts, the CCA Defendants contend that "it is not plausible to suggest that Greffet was acting pursuant to his agency authority." Motion at 6-7. Additionally, the CCA Defendants warn that "to construe Peña's
A little less than a month after the CCA Defendants filed the Motion, Peña filed her Response in Opposition to Defendants' Motion for Judgment on the Pleadings, filed October 16, 2013 (Doc. 69)("Response"). Peña contends that the Court "already determined that the original complaint plausibly alleged an aided-in-agency theory" based on the alleged sexual misconduct in the NMWCF, Response at 3, when, in its MOO, the Court wrote:
Response at 3 (quoting MOO at 110). Additionally, Peña argues that she plausibly alleged a claim for aided-in-agency liability for the alleged NMWCF sexual misconduct. She contends that, because Greffet "cultivated a relationship" with Peña while she was an inmate and "called Plaintiff into the Commander's office [and] revealed his erect penis and proceeded to orally sodomize her" at a time when Peña "perceived Defendant Greffet to be an agent and employee of CCA, ... it is plainly plausible" that Greffet was "aided" in committing the alleged sexual misconduct "by virtue of his access to Plaintiff ..., his authority over Plaintiff ..., and his ability... to summon Plaintiff to a `Commander's Office' in order to perpetrate sexual abuse." Response at 4. In other words, Peña argues that "it is plausible that the `instrumentality' of Defendant Greffet's authority as a CCA corrections officer aided and enabled him to access Plaintiff, and to `summon' her to the Commander's Office." Response at 4.
Peña also argues that the CCA Defendants are misguided when they characterize the aided-in-agency theory as being unavailable when the agent's conduct violates the principal's standard policies and procedures. She contends: "This argument conflates the concept of being aided by an agency relationship with the principal with the concept of being compliant with the policies of the principal" and that, "[c]ontrary to Defendants' strained position, one can accomplish the former while violating the latter." Response at 4-5 (emphases in original). Peña notes "[t]here is no case law supporting the notion that the violation of a principal's policies or procedures precludes application of the aided-in-agency doctrine." Response at 5. Furthermore, Peña contends that the CCA Defendants improperly rely on the MOO to support this claim; she argues that, rather than holding that violating policies and regulation precludes the aided-in-agency theory, the Court was rejecting Peña's "implied authority" theory of vicarious liability. Response at 5. Finally, Peña refutes the CCA Defendants' argument that, if two of the three alleged incidents of sexual misconduct occurred out-side of the NMWCF, then Greffet could not have been aided-in-agency by CCA. She calls that argument "facially absurd" and contends that "[t]he fact that Plaintiff alleges that Defendant Greffet abused her on multiple occasions cannot, as a matter
The CCA Defendants replied roughly a month later. See CCA Defendants' Reply in Support of Motion for Judgment on the Pleadings, filed November 15, 2013 (Doc. 71)("Reply"). The Reply notes that, because Peña withdrew her MSJ, the Court should resolve the vicarious-liability question by way of the Motion. See Reply at 1. They devote the first portion of their brief to arguing that the Court did not earlier rule on whether the Complaint sufficiently pleaded the aided-in-agency theory. See Reply at 2-5. As the Court will analyze the aided-in-agency theory anew here, the Court will not summarize that argument. Next, they renew their argument that the Complaint's allegations do not establish an aided-in-agency theory, going into the details of how Peña pled her Complaint. See Reply at 5-6. They also attack the aided-in-agency theory generally, arguing that it "would impose per se vicarious liability on an employer for an employee's tort, particularly in a custodial setting, regardless of whether it occurred in the course and scope of the employee's employment." Reply at 6.
"After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A rule 12(c) motion is designed to provide a means of disposing of cases when the material facts are not in dispute between the parties. See Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 54 (3d Cir.1994) ("Under Rule 12(c), we will not grant judgment on the pleadings unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." (citation omitted)(internal quotation marks omitted)). A "[j]udgment on the pleadings should not be granted `unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'" Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA., 442 F.3d 1239, 1244 (10th Cir.2006) (citing United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000)). Claims dismissed pursuant to a motion under rule 12(c) are dismissed with prejudice. See In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir.2010).
"Any party may move for judgment on the pleadings if no material facts are in dispute and the dispute can be resolved on both the pleadings and any facts of which the Court can take judicial notice." Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing Fed.R.Civ.P. 12(c)). A motion pursuant to rule 12(c) is generally treated in the same manner as a motion to dismiss under rule 12(b)(6). See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998)). A motion for a judgment on the pleadings will be granted if the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304.
A court considering a motion for judgment on the pleadings should "accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same." Park Univ. Enters. Inc. v. Am. Cas. Co. of Reading, PA., 442 F.3d at 1244. The court must view the facts presented in the pleadings and draw the inferences therefrom in the light most favorable to the nonmoving party. See Ramirez v. Wal-Mart Stores,
The same standards that govern a motion to dismiss under rule 12(b)(6) also govern a motion for judgment on the pleadings under rule 12(c). See Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir.2000). Under rule 12(b)(6), a court may 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 and addressing 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 nonmoving party, and draw all reasonable inferences in the plaintiff's favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).
A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiff's obligation to set forth the grounds of his or her entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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). "[T]he Supreme Court recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 558, 562, 127 S.Ct. 1955). "The [Supreme] Court explained that a plaintiff must `nudge his claims across the line from conceivable to plausible' in order to survive a motion to dismiss." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (alterations omitted). "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 at 1177. The Tenth Circuit has stated:
In determining the sufficiency of a complaint, all well-pleaded factual allegations are to be taken as true. See Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). "Nevertheless, conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). "Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Hall v. Bellmon, 935 F.2d at 1110. Only well-pleaded facts, as distinguished from conclusory allegations, are admitted when considering a motion to dismiss for failure to state a claim upon which relief can be granted. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001).
A court must convert a motion to dismiss into a motion for summary judgment if "matters outside the pleading are presented to and not excluded by the court," and "all parties ... [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(d). Facts subject to judicial notice may be considered without converting a motion to dismiss into a motion for summary judgment. See Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279, n. 1 (10th Cir.2004) (citing 27A Federal Procedure, Lawyers' Ed. § 62:520 (2003)). Furthermore, when considering a motion to dismiss, "the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). A court may consider documents to which the complaint refers if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-42 (10th Cir.2002). If, however, a document is not incorporated by reference or attached to the complaint, but the complaint refers to the document and the document is central to the plaintiff's claim, the defendant may submit an "indisputably authentic copy to the court to be considered on a motion to dismiss." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997). See 5A Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 1327 (3d ed. 2004)("[W]hen the plaintiff fails to introduce a pertinent document as part of her pleading ... the defendant may introduce the document as an exhibit to a motion attacking the sufficiency of the pleading.").
"Under basic respondeat superior principles, an employer is liable for an
Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 12, 142 N.M. 583, 168 P.3d 155 (citing Narney v. Daniels, 115 N.M. at 49, 846 P.2d at 355; Restatement (Third) of Agency § 7.07(2) (2006)). The New Mexico Civil Uniform Jury Instruction on the scope of employment provides:
Civ. U.J.I. 13-407 N.M.R.A. See Childers v. S. Pac. Co., 20 N.M. 366, 372-73, 149 P. 307, 308 (1915) (same). The Supreme Court of New Mexico has also held that employers may sometimes be held liable for torts an employee commits outside his or her scope of duty — including intentional torts — under an aided-in-agency theory of vicarious liability, which requires that the agent "was aided in accomplishing the tort by the existence of the agency relation." Ocana, 2004-NMSC-018, ¶ 30, 135 N.M. 539, 91 P.3d 58 (quoting Restatement (Second) of Agency § 219(2)(d) cl. 2)(internal quotation marks omitted).
The Court will deny the Motion and allow Peña's aided-in-agency theory of vicarious liability to proceed to trial. At trial, the Court will design a special verdict form, and, if the jury finds that Greffet committed battery against Peña, that Greffet's agency relationship with CCA imparted him with extraordinary power over her, and that this extraordinary power aided him in committing battery, then CCA will
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ("Erie"), when dealing with state-law torts like Peña's battery claim, the Court must apply vicarious liability principles as the Supreme Court of New Mexico would define them. Resolving the Motion largely boils down to formulating an Erie prediction about whether and how the Supreme Court of New Mexico would cabin the seemingly limitless vicarious liability that the aided-in-agency theory, read literally as the Restatement and Ocana announce it, would create. To formulate its Erie prediction, the Court will first outline the aided-in-agency theory's relatively sparse history, from its apparent birth in the Restatement (Second) of Agency in 1958, to the Supreme Court of the United States' incorporation of it into Title VII, through Ocana and other state-court precedent applying the theory, and finally to its demise in the Restatement (Third) of Agency. The Court will then predict how the Supreme Court of New Mexico would define the aided-in-agency theory's contours today, guided primarily, of course, by its words in Ocana, but also by policy factors that the Court concludes would influence the Supreme Court to narrow the doctrine from its broad articulation in Ocana. Last, the Court will apply the aided-in-agency theory to this case's facts, concluding that Peña has plausibly alleged the theory, and that the vicarious liability issue must thus go to the jury.
To shed light on the aided-in-agency theory's proper construction, the Court will first summarize its history. The Restatement (Second) of Agency created the theory, which was then adopted — in various ways — by a number of courts, including the Supreme Courts of the United States and New Mexico. The Restatement (Third) of Agency later disclaimed the theory entirely — albeit quietly — leaving its status as a creature of New Mexico common law somewhat uncertain.
Although the Restatements, as their name suggests, are not really supposed to create new legal theories,
Restatement (Second) of Agency § 219 (emphasis added). Section 219's commentary contains a single paragraph devoted to § 219(2)(d); the first two sentences refer to apparent authority — i.e., § 219(2)(d)'s first independent clause — and the remainder of the commentary refers to the aided-in-agency theory:
Restatement (Second) of Agency § 219 cmt. on subsection (2) (citations omitted). It is interesting that the commentary calls apparent authority the "primary" source of liability in § 219(2)(d), as the aided-in-agency theory, read to the full extent of its literal terms, would seem to create the possibility of vicarious liability in a wider array of situations. For one thing, it would seem that most torts committed with apparent authority would also be committed with the aid of the agency relationship, unless the apparent authority was incidental to the commission of tort.
As an initial matter, the Court will point out the obvious defect in the aided-in-agency theory: it comes close to creating strict vicarious liability for employers, and, despite purporting to be an exception, it nearly swallows the general rule that respondeat superior does not attach to intentional torts. If § 219(2)(d) cl. 2 were read literally, a creative plaintiff's lawyer could make a colorable argument for vicarious liability in almost every intentional tort case in which the tortfeasor happens to be gainfully employed. If a barista poisoned a patron's coffee, the patron could sue the coffee shop under the theory that the barista was only able to commit the tort because he or she worked for the coffee shop. If a utility worker used his uniform and credentials to get invited into a woman's home, and then proceeded to sexually assault the woman, the utility worker's agency relationship with the utility company could be said to have aided him in his sexual assault. If a drive-by shooting was committed using a company car or a police department-or security company-issued gun, then the plaintiff could name the issuing employer. Most open-endedly of all, a plaintiff might even be able to name a tortfeasor's employer in a drive-by shooting, even if the employer issued neither the gun nor the car, if the tortfeasor bought the gun or the car using his or her salary — which, after all, he or she obtained by virtue of the employment (i.e., agency) relationship.
Examining transcripts of the committee meetings from the Restatement's drafting sessions is illuminating, but also ultimately fails to reveal any solid limiting principle that the drafters omitted from — or saw implicit in — the clause's text. One of the hypotheticals that the Court listed — that of a utility worker using his badge to gain entry into a home and then raping the housewife — was discussed extensively at the drafting sessions. The Court gets the impression from reading the transcript that the drafters' consensus was that the aided-in-agency theory should not give rise to vicarious liability under that hypothetical's facts, i.e., that the hypothetical was
A.L.I. Discussion at 382 (emphasis added). This statement went unchallenged at the meeting, but was, for reasons unclear to the Court, never incorporated into the final Restatement — either in the above-the-line text or in the commentary.
It seems obvious that the Restatement did not intend to open up virtually limitless vicarious liability by way of a short, unexplained, and uncited clause pinned — almost as an afterthought — to the end of a section devoted primarily to much theoretically narrower grounds of vicarious liability. Courts struggled mightily with § 219(2)(d) cl. 2,
The United States Court of Appeals for the District of Columbia Circuit, for example, added an "instrumentality" requirement to the aided-in-agency theory, relying on the telegraph-operator example in § 219's commentary to hold that "[t]he tort must be one accomplished by an instrumentality, or through conduct[,] associated with the agency status." Barnes v. Costle, 561 F.2d 983, 996 (D.C.Cir.1977). The D.C. Circuit found no instrumentality in its case, but Costos v. Coconut Island Corp. provides a good example of a case that satisfies the requirement. In that case, the United States Court of Appeals
The Supreme Court of the United States gave the aided-in-agency theory its most important application in twin companion cases that it issued on June 26, 1998, holding that the aided-in-agency theory — narrowed significantly by limiting principles that the Supreme Court, by its own admission, made up on the spot
Burlington Indus., Inc. v. Ellerth, 524 U.S. at 764-65, 118 S.Ct. 2257; Faragher v. City of Boca Raton, 524 U.S. at 807-08, 118 S.Ct. 2275. In a nutshell, these decisions limit the aided-in-agency theory's applicability in two important ways: (i) the theory applies only to supervisors' acts against subordinates, and not to coworkers-on-coworker torts, see Burlington Indus., Inc. v. Ellerth, 524 U.S. at 760, 118 S.Ct. 2257 ("Were [the theory interpreted more broadly], an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue."); (ii) vicarious liability is unrebuttable when the supervisor commits a "tangible employment action" — a firing, a passing-over for promotion, or an undesirable reassignment — but is subject to an affirmative defense when the supervisor simply makes the employee uncomfortable, because, where a tangible employment action exists, "there is assurance the injury could not have been inflicted absent the agency relation," i.e., a tangible employment action by a supervisor constitutes an "official act" by the employer, Burlington Indus., Inc. v. Ellerth, 524 U.S. at 761, 762, 118 S.Ct. 2257 ("Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act.").
The Supreme Court's cases are as much about modifying general agency principles for use in the Title VII context as they are about doing a descriptive, retrospective analysis of the common law of agency. They did not necessarily alter what aided-in-agency means, but, rather, set forth the manner in which the aided-in-agency theory should apply in the Title VII context. See Faragher v. City of Boca Raton, 524 U.S. at 802 & n. 3, 118 S.Ct. 2275 (calling § 219(2)(d) cl. 2 a "`starting point[,]' because [the Supreme Court's] obligation here is not to make a pronouncement of agency law in general or to transplant § 219(2)(d) into Title VII[; r]ather, it is to adapt agency concepts to the practical objectives of Title VII"). For instance, district judges in the D.C. Circuit continue to apply an instrumentality limitation on the aided-in-agency theory, despite the fact that neither Supreme Court case used the term. See Doe v. Sipper, 821 F.Supp.2d 384, 391-93 (D.D.C.2011).
It is at this point, roughly six years after the Supreme Court of the United States' twin cases, that the Supreme Court of New Mexico issued Ocana. Ocana was the first, and last, case from any New
Ocana, 2004-NMSC-018, ¶¶ 29-32, 135 N.M. 539, 91 P.3d 58 (citations omitted). The Supreme Court appended a footnote to the very end of its aided-in-agency spiel:
Ocana, 2004-NMSC-018, ¶ 32 n. 1, 135 N.M. 539, 91 P.3d 58 (emphasis in original). The above portions outline the Supreme Court of New Mexico's adoption of the aided-in-agency theory in the non-NMHRA context. The last above-the-line paragraph makes it clear that the Supreme Court of New Mexico retained an important limitation on the theory from the Title VII context: the tortfeasor must be the plaintiff's supervisor, and not merely a coworker, for the employer to be held vicariously liable. See Ocana, 2004-NMSC-018, ¶ 32, 135 N.M. 539, 91 P.M. 58. The Supreme Court affirmed the summary judgment that the district court had granted in the employer's favor, because the plaintiff was unable to show that her supervisor "was able to commit his alleged acts by virtue of his supervisor status" — not his agency status. 2004-NMSC-018, ¶ 32, 135 N.M. 539, 91 P.3d 58 (emphasis added). Swapping out "agency relation," Restatement (Second) of Agency § 219(2)(d) cl. 2, with "supervisor status," Ocana, 2004-NMSC-018, ¶ 32, 135 N.M. 539, 91 P.3d 58, narrows the aided-in-agency theory's reach substantially. The supervisor in Ocana was probably — or at least plausibly — aided by his agency relationship with the employer, as he would likely have been unable to stalk the plaintiff at her workplace if he did not also work there. The Supreme Court of New Mexico, however, wanted more: the tort cannot be of a nature that a mere coworker could have just as easily committed; rather, a specifically supervisory relationship must have aided the tort's commission.
A more obvious takeaway from Ocana is nonetheless vitally important. The Supreme Court of New Mexico recognized the aided-in-agency theory as standing distinct, separate, and independent from apparent authority. In an effort to limit the theory's potentially limitless font of vicarious liability, many courts flirted with the notion of conflating aided-in-agency, see Restatement (Second) of Agency § 219(2)(d) cl. 2, with apparent authority, see id. § 129(2)(d) cl. 1, or of construing the concept of being aided in agency as a limitation on vicarious liability by way of apparent authority, despite the illogic of reading two independent clauses separated by an "or" as being cumulative requirements.
In 2004, around the same time that the Supreme Court of New Mexico was deciding Ocana, the Vermont Supreme Court applied the aided-in-agency theory in a context very close to the one that this case presents. In Doe v. Forrest, 2004-VT-37, 176 Vt. 476, 853 A.2d 48 (2004), the court held a sheriff's department vicariously liable for one of its deputies sexually assaulting a citizen. The deputy in question regularly visited a convenience store as part of his community policing function, and, over time, struck up a familiar relationship with the plaintiff, a twenty-year-old cashier at the store. See 2004-VT-37, ¶ 2, 176 Vt. 476, 853 A.2d 48. In the weeks preceding the sexual assault, the deputy's visits to the store "increased in frequency and duration, as he apparently became more personally interested in" the plaintiff. 2004-VT-37, ¶ 2, 176 Vt. 476, 853 A.2d 48. The court described the events on the date of the sexual assault as follows:
2004-VT-37, ¶¶ 3-4, 176 Vt. 476, 853 A.2d 48. In the wake of the incident, the deputy resigned from the department, and later pled guilty to a criminal charge of lewd and lascivious behavior, 13 Vt. Stat. Ann. § 2601. See 2004-VT-37, ¶ 5, 176 Vt. 476, 853 A.2d 48.
The plaintiff sued the department alleging several theories of vicarious liability. After concluding that the department could not be held directly liable, and that the deputy's actions had been outside the scope of his employment, the court analyzed the actions under the aided-in-agency theory, ultimately "hold[ing] that if plaintiff can show that an on-duty law enforcement officer was aided in accomplishing an intentional tort involving a sexual assault on the plaintiff by the existence of the employment relationship with the law enforcement agency, vicarious liability will apply." 2004-VT-37, ¶ 48, 176 Vt. 476, 853 A.2d 48. In doing so, the Vermont Supreme Court relied upon similar holdings — both articulated much less robustly than in Doe v. Forrest — by the Supreme
Doe v. Forrest, 2004-VT-37, ¶¶ 33-36, 176 Vt. 476, 853 A.2d 48 (citations omitted); id. ¶ 39, 176 Vt. 476, 853 A.2d 48. The Vermont Supreme Court decided not to extend its holding, at that time, beyond the context of on-duty law enforcement officers, noting that the Supreme Court of California had, in a decision issued years before Mary M. v. City of Los Angeles, declined to extend the aided-in-agency theory of liability to torts that a schoolteacher commits against his or her students. See 2004-VT-37, ¶ 47, 176 Vt. 476, 853 A.2d 48 (citing John R. v. Oakland Unified Sch. Dist., 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948, 956-57 (1989))("[W]e find it best to adopt a rationale as narrow as possible under the circumstances.").
The Vermont Supreme Court ultimately decided that the plaintiff could submit her vicarious liability argument to the jury, reversing the lower court's summary judgment in favor of the department. See 2004-VT-37, ¶¶ 56-58, 176 Vt. 476, 853 A.2d 48. Although the deputy never threatened her, the court concluded that "the extent to which Forrest's position as a law enforcement officer, with the gun and handcuffs, enabled him to force or persuade plaintiff to perform fellatio on him without significant physical resistance or cries for help is disputed," and must go to the jury. 2004-VT-37, ¶ 56, 176 Vt. 476, 853 A.2d 48.
In 2007,
Doe v. Newbury Bible Church, 2007-VT-72, ¶¶ 9-13, 182 Vt. 174, 933 A.2d 196 (citations omitted).
In 2006, the American Law Institute published the Restatement (Third) of Agency, obliterating all above-the-line references to the aided-in-agency theory. The closest analogue to the Second Restatement's § 219 is the Third Restatement's § 7.03, which serves as the new master summary section
Restatement (Third) of Agency § 7.03 (2006).
The Third Restatement's only reference to the aided-in-agency theory comes in the commentary to § 7.08, the new section devoted to apparent authority. See Restatement (Third) of Agency § 7.08 cmt. b. Section 7.08's above-the-line text provides that "[a] principal is subject to vicarious liability for a tort committed by an agent in dealing or communicating with a third party on or purportedly on behalf of the principal when actions taken by the agent with apparent authority constitute the tort or enable the agent to conceal its commission," Restatement (Third) of Agency § 7.08, and its commentary explains:
Restatement (Third) of Agency § 7.08 cmt. b (omission in original).
The Third Restatement's dismissive treatment of the aided-in-agency theory raises questions as to whether courts were ever correct to apply it, and, even if so, whether they should continue to apply it — given that the theory was a whole-cloth creation of an earlier Restatement — in contexts beyond those in which controlling authority mandates its application, e.g., Title VII.
The Court concludes that the Supreme Court of New Mexico, having adopted the aided-in-agency theory in Ocana, would go at least as far as the Supreme Courts of California and Vermont in construing it. The Supreme Court of New Mexico is unabashedly liberal on civil-rights and civil-liberties issues, see, e.g., State v. Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 32-35, 130 N.M. 386, 25 P.3d 225, 237-40 (discussing the court's embrace of "New Federalism," a doctrine of state-level expansion on federal constitutional rights, which the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States, championed), and the Court is relatively confident about how it would balance its people's liberty interests — specifically, their interest in being free from rape at the hands of their state-sanctioned captors — against its contractors' economic interests. The Court concludes that the policy rationales for imposing vicarious liability under the aided-in-agency theory in the police officer-citizen context are as strong as — if not stronger than — they are in the prison guard-inmate context, and, accordingly, the Supreme Court of New Mexico would probably apply the theory in this context. The Court can thus sum up its Erie prediction as follows: if an inmate can establish that a prison official with corporal authority over the inmate committed a tort against the inmate, and that the official's position of authority aided the official in the commission of that tort, then the official's employer
The Court will describe the reasoning behind its Erie prediction, beginning with
Just as a court engaging in statutory interpretation must always begin with a statute's text, a court formulating an Erie prediction should look first to the words of the state supreme court.
The Supreme Court's adoption of the theory into New Mexico common law comes in two paragraphs near the end of Ocana, and contains no explicit limiting principles:
Ocana, 2004-NMSC-018, ¶¶ 30-31, 135 N.M. 539, 91 P.3d 58. See id. ¶ 32 n. 1, 135 N.M. 539, 91 P.3d 58. ("[T]he result reached in this section ... relies on the Restatement."). Despite seemingly adopting the Restatement wholesale, in the lead-up to its analysis, the Supreme Court of New Mexico made the following statement: "As a result of the parties' arguments, we discuss whether we should adopt the aided-in-agency theory in the context of sexual harassment." Ocana, 2004-NMSC-018, ¶ 30, 135 N.M. 539, 91 P.3d 58 (emphasis added). The question, then, is whether the Supreme Court intended to limit the theory's application to the employment context. No such limitation exists under a natural reading of Ocana, but, reading the case to the full extent of its terms — and applying it outside the employment context — there would be nothing to stop the parade of horribles to which the Court has alluded throughout this opinion.
There are, however, a number of limiting principles — short of limiting the theory to the employment context — that the Supreme Court of New Mexico can graft onto Ocana to avoid these results and prevent the aided-in-agency theory from becoming strict vicarious liability. The Court will discuss how it believes that the Supreme
As a federal court, the Court cannot impose limiting principles on New Mexico common-law rules. The Court can, however, predict limiting principles that the Supreme Court of New Mexico might impose, and, if those limiting principles would render the rule more attractive, then they can influence the Court's prediction whether the Supreme Court would adopt the rule in the first place. Here, the question is not whether the Supreme Court would adopt the aided-in-agency theory — it already has — but whether it would extend it out-side of the employment context. To put the Court's overall analysis in simpler terms: (i) Ocana appears to adopt the aided-in-agency theory without qualification; (ii) adopting the aided-in-agency theory without qualification would produce absurd results, and it thus seems improbable that the Supreme Court of New Mexico would not qualify the theory if faced with its consequences; (iii) the Court must decide, then, how the Supreme Court would qualify the theory; (iv) one way the Supreme Court could qualify the theory — which, while not the most natural reading of Ocana, could be reconciled with the case — is by limiting the theory to the employment context; and (v) the Court must determine whether the Supreme Court would limit the theory in that manner or if it would use other limiting principles, such as those that the Supreme Courts of California and Vermont used.
The Court concludes that the Supreme Court of New Mexico would not limit the aided-in-agency theory's application to the employment context, but, rather, would do as the Supreme Courts of California and Vermont have done, and apply it outside the employment context in cases where the tortfeasor's relationship with his employer gives him "extraordinary power" over his victim. Doe v. Forrest, 2004-VT-37, ¶ 34, 176 Vt. 476, 853 A.2d 48 ("What makes the circumstances of this case virtually unique from a policy perspective is the extraordinary power that a law enforcement officer has over a citizen."). Extending the aided-in-agency theory's reach to these cases — which include prison guard-inmate and police officer-citizen cases — carries forward the same rationale that Ocana and the Supreme Court of the United States used to justify applying the theory to supervisor-subordinate torts: the employer created the opportunity for the tort by giving the tortfeasor power over the victim. See Ocana, 2004-NMSC-018, ¶ 32, 135 N.M. 539, 91 P.3d 58 ("It is this authority, bestowed by the employer, that gives the supervising employee the ability to injure the subordinate employee. In this sense, the supervising employee is `aided-in-agency.'"). A prison guard has even more employer-vested power over an inmate than a private-sector supervisor has over a subordinate: the control that a prison guard exerts over an inmate extends into virtually every facet of the inmate's life; the relationship, unlike a private-sector supervisor-subordinate relationship, often involves the use of legitimate bodily force and physical violence; and, unlike a private-sector employee, an inmate cannot simply quit the job of being a prisoner.
There are additional policy reasons for applying the aided-in-agency theory to prison guard-inmate torts, most of which the Vermont Supreme Court canvassed in Doe v. Forrest. The Court will not rehash that case's reasoning, but will add a few points of its own. First, although conduct like Greffet's certainly does not fall under apparent authority — which requires an objectively reasonable perception that the agent was acting pursuant to the principal's orders — some attention should be paid to the level of sophistication and, frankly, desperation, typical among inmates, and how those factors affect their reasonable perception of a prison guard's authority. In an inmate's eyes, the State authority that prison guards wield appears delegated, and not merely representatively exercised. In other words, an inmate — especially one, like Peña, whom a guard has consistently singled out for attention — likely feels as if she is not merely under the State's control, by way of its guards, but that she is under the control of the guard himself.
Second, a prison guard who harasses an inmate does so with a built-in quasi-claim of right. An inmate who challenges a prison guard's actions as being outside the scope of his agency relationship — i.e., out-side his or her lawful authority — does so in the face of substantial risk of retaliation, not merely from the prison guard, but from the guard's employer — the prison higher-ups — as well. The credibility gap between prison guards and inmates is enormous in everyone's eyes, but especially in the eyes of the jail employees directly responsible for handling complaints — who are, after all, the tortfeasor's coworkers.
Both of these reasons apply more strongly in the prison guard-inmate context than in the police officer-citizen context. As to the first reason, while citizens and police officers alike may feel, to some extent, like a police officer on the scene "is the law," interactions between any one police officer and any one citizen happen only occasionally, and are usually brief. Conversely, a prison guard's interactions with an inmate are more-or-less continuous, usually over an extended period of time, thus furthering the impression that it is the guard, not the guard's employer, to
The Court thus concludes that applying the aided-in-agency theory to cases where a principal vests an agent with extraordinary control over a third party, which the agent then uses to commit a tort against the third party, (i) is true to Ocana's text and rationale; (ii) is a workable rule, which does not give rise to limitless vicarious liability; and (iii) is a sensible rule, which furthers policy considerations — such as deterrence and accountability on the principal's part, and providing compensation to injured victims — which would likely motivate the Supreme Court of New Mexico to adopt the rule.
There is another consideration that cuts in favor of adopting the Vermont and California supreme courts' construction of the aided-in-agency theory: it puts inmates of privately run correctional facilities on an equal footing with those of state-run facilities in terms of inmates' ability to recover from the "deep pocket" — the corporation and the State, respectively. As it stands presently, it is easier to recover from the State than from a private corrections corporation on state-law intentional tort claims arising from prisoner abuse. This disparity is not immediately evident, so the Court will explain how recovery is sought from both classes of prison guards.
State-employee prison guards, unlike private ones, are entitled to immunity under the NMTCA. See N.M. Stat. Ann. § 41-4-4A ("A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort...."); id. § 41-4-3 ("`[P]ublic employee' means an officer, employee or servant of a governmental entity, excluding independent contractors...."); Giron v. Corr. Corp. of Am., 14 F.Supp.2d 1245, 1252 (D.N.M. 1998) (Hansen, J.). At facilities where the majority of those held have not yet been convicted and are being held pending trial — most "jails" — guards are considered "law enforcement officers" under the NMTCA, and, as a result, do not have immunity against most intentional-tort claims, including assault and battery. See N.M. Stat. Ann. § 41-4-12 (waiving immunity for injuries "resulting from assault, battery, false imprisonment, false arrest," and other intentional torts); id. § 41-4-3D (defining "law enforcement officer" as one "whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes" (emphasis added)); Callaway v. N.M. Dep't of Corr., 1994-NMCA-049, ¶ 12, 117 N.M. 637, 875 P.2d 393, 397 (holding that, at facilities with mostly post-conviction prisoners, "corrections officers are not law enforcement
If an inmate at a state-run facility manages to sue and obtain a judgment against one of his or her prison guards, however, payment by the State is essentially automatic. Although the Supreme Court of New Mexico purports to have a nuanced vicarious-liability standard for NMTCA cases, see Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021, ¶¶ 14-17, 121 N.M. 646, 916 P.2d 1313, 1318-19, the reality is that, if an inmate can recover a judgment against a state-employee prison guard — whether under state law or § 1983 — the State has to pay it:
To recover against a private corrections corporation, however — rather than just against the often judgment-proof prison guard — the inmate must establish supervisory liability, which requires showing that the employer was "negligen[t] in selecting, training, retaining, supervising, or otherwise controlling the agent." Restatement (Third) of Agency § 7.05(1). Applying the aided-in-agency theory to private prison guards and their corporate employers brings consistency to the civil-rights vicarious-liability landscape.
After itself creating the aided-in-agency theory in 1958, the Restatement of Agency series now distances itself from the theory — more-or-less pretending that it never existed. The Third Restatement, however, has little to no bearing on this case. The Supreme Court of New Mexico has cited to the Restatement (Third) of Agency only four times — never for any principle that contradicts the Restatement (Second) of Agency, and never for anything having to do with the aided-in-agency theory or intentional-tort liability, more generally. See Baker v. Hedstrom, 2013-NMSC-043, ¶ 32, 309 P.3d 1047, 1056; San Juan Agri. Water Users Ass'n v. KNME-TV, 2011-NMSC-011, ¶¶ 23-24, 43, 150 N.M. 64, 257 P.3d 884, 890, 894; Hamberg v. Sandia Corp., 2008-NMSC-015, ¶ 13, 143 N.M. 601, 179 P.3d 1209, 1212; Maes v. Audubon Indem. Ins. Grp., 2007-NMSC-046, ¶ 17, 142 N.M. 235, 164 P.3d 934, 939. While it may initially seem unsettling to stick with a theory after its creator and chief proponent renounces it — especially given that judicial acceptance of the theory was almost entirely predicated on trust in the creator — it is appropriate here. First, neither the American Law Institute nor the Restatement of Agency "series" is a monolithic or continuous institution to which the Court should necessarily ascribe internally consistent decisionmaking. None of the Second Restatement's authors participated in the Third Restatement, and the Third Restatement's authors may not be any more in-the-know regarding the aided-in-agency theory than the Court is. Nor is the American Law Institute or the Restatement of Agency series an institution — like, say, the Supreme Court — to which the Court must, as a matter of law — in the Supreme Court's case, as a matter of stare decisis — impute an artificial internal consistency that spans across changes in membership. The Restatements are each separate treatises whose persuasive weight should be judged individually, and the Court can no more assume trans-edition internal consistency from them than it can from two separate articles published in the same law review.
The Restatement brought the aided-in-agency theory into the world, and it now wishes to take it out. The Third Restatement has no right to do so, however. In the forty-eight years that § 219(2)(d) cl. 2 spent floating around the American legal system, it took on a life of its own in the case law — including from such authoritative sources as the Supreme Courts of the United States and of New Mexico. It is that life — not the Second Restatement's unexplained and probably wrongheaded initial articulation of the theory, or the Third Restatement's attempts to wish it away — that the Court must apply.
Having formulated its Erie prediction, the Court now applies the aided-in-agency theory to Peña's allegations that Greffet raped her at the NMWCF. The Court concludes that Peña has plausibly alleged that Greffet's employment with CCA imbued him with extraordinary power over Peña and that this power aided Greffet in committing sexual battery against her. Greffet's job did not merely give him the opportunity to batter Peña — in the way that an NMWCF janitor might have an agency-aided opportunity to batter her by virtue of having access to her — but, rather, it gave him an extraordinary power over Peña, which Greffet used, in much the same manner as the deputy in Doe v. Forrest, to coerce Peña into oral sex.
The Court has already summarized Peña's factual allegations. See infra Factual Background. She articulates the legal theory through which she seeks relief from CCA as follows:
Complaint ¶¶ 77-78, at 12; id. ¶¶ 80-81, at 12. While sparse, and seemingly aimed more squarely at an apparent-authority theory than an aided-in-agency one, these allegations suffice to state a claim against CCA under the aided-in-agency theory of vicarious liability.
These allegations set forth facts that render it plausible that Greffet was able to sexually batter Peña only by abusing the extraordinary power his position vested in him, and manipulating the submission Peña was required to show to someone in his position of authority. They therefore suffice to state a claim, which the jury can accept or reject at trial. The Court will add that this case implicates many of the policy considerations that led it to conclude that the aided-in-agency theory applies to prison guard-inmate torts in the first place. The State of New Mexico entrusts CCA with executing a core governmental function — something only the government can do — and CCA does not do it for free. CCA makes a taxpayer-funded profit operating prisons, administering the deliberate and controlled deprivation of basic liberties of citizens of the State of New Mexico as part of their state-sanctioned criminal punishment. CCA knows the standards that pertain to imprisonment in the United States, it knows how important those standards are, and it knows that one of the biggest concerns that the State of New Mexico has in outsourcing its incarceration functions is the maintenance of those standards. Sexual bodily integrity is not, never has been, and never will be one of the rights relinquished upon receipt of a criminal conviction in this country. If Peña's allegations are indeed true, and Greffet was able have undetected sex with a prisoner on the premises of a New Mexico correctional facility, then the Court cannot say that the law will, or should, be all that sympathetic to CCA's arguments that it should not have to assume the economic risk of hiring a rogue officer. The State of New Mexico pays CCA not to hire bad apples, and the Supreme Court of New Mexico would likely conclude that the harms that incidents like this one inflict on the public's trust in the penal system justify any dent that the imposition of vicarious liability might make in CCA's coffers.
Kansas v. Nebraska, ___ U.S. ___, 135 S.Ct. 1042, 1064, 191 L.Ed.2d 1 (2015) (Scalia, J., dissenting). The Court agrees with Justice Scalia's criticisms, but it notes that, in this case, whether the Restatement's rule was descriptive or prescriptive at the time it was written is irrelevant. The Supreme Court of New Mexico explicitly adopted it in Ocana, thus elevating its status above that of mere persuasive authority — which is all the Restatements usually are, in the absence of express incorporation in controlling authority.
Restatement (First) of Agency § 219 (1933). The sections to which § 219(2) refers relate to situations where the principal intends to bring about the agent's actions or their consequences, see Restatement (First) of Agency § 212, agent negligence, see id. § 213, situations where a principal fails to perform what should be a non-delegable duty, see id. § 214, and situations where the agent had apparent authority, see id. §§ 265-267.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Kennedy, J.); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (Souter, J.). These opinions are not likely to win any awards for the tightness of their analyses, cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 771-72, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Thomas, J., dissenting)("This rule is a whole-cloth creation that draws no support from the legal principles on which the Court claims it is based.... [This] holding is a product of willful policymaking, pure and simple."), but, in fairness to the Supreme Court, the Circuit-level law on Title VII harassment claims was all over the place — sometimes even within the same Circuit — and an authoritative, final construction was sorely needed, see Burlington Indus., Inc. v. Ellerth, 524 U.S. at 749, 118 S.Ct. 2257 ("The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale.").
Faragher v. City of Boca Raton, 524 U.S. at 801-02, 118 S.Ct. 2275 (citations omitted).
The Supreme Court of New Mexico unanimously decided Ocana, and it did so only eleven years ago. As a result, three of the five justices who were on the Supreme Court of New Mexico at the time that it decided Ocana are still on the court today. Compare Ocana, 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58 (Maes, CJ., joined by Minzner, Serna, Bosson & Chavez, JJ.), with Justices of the Supreme Court, New Mexico Supreme Court, https://nmsupremecourt.nmcourts.gov/bios/index.php (last visited June 16, 2015)(listing the Supreme Court of New Mexico's current membership as Vigil, C.J., and Maes, Bosson, Chavez, & Daniels, JJ.). The aided-in-agency theory has not flourished doctrinally in the New Mexico courts — in fact, it was never brought up again after Ocana — but nor has it ever been called into question. New Mexico courts have cited Ocana for propositions unrelated to the aided-in-agency theory on at least twenty-eight occasions, including three times by the Supreme Court of New Mexico. For these reasons, the Court does not conclude that the Supreme Court of New Mexico would, if faced with the facts now before the Court, overrule Ocana. Rather, the Court will — in line with the usual practice — reconcile its Erie prediction with Ocana.
