JAMES O. BROWNING, District Judge.
At all times relevant to the Second Amended Complaint, Lymon was an inmate at the Central New Mexico Correctional Facility in Los Lunas, Valencia County, New Mexico. See Plaintiff Davon Lymon's Second Amended Complaint for Negligence, Bodily Injury and Claims Under 42 U.S.C. Sections 1983 and 1985 ¶ 1, at 1, filed December 14, 2009 (Doc. 69) ("Second Am. Complaint"). At all relevant times, Sanchez was a NMDOC corrections officer, Hernandez was a NMDOC captain, and Williams was the Secretary of NMDOC. See Second Am. Complaint ¶¶ 2-4, at 2. According to the Second Amended Complaint, Defendant Aramark Corporation managed the prison kitchen at the Central New Mexico Correctional Facility, and Defendants Bertha Benavidez and Charlie Carrizales were employees of Aramark working in the prison kitchen. See Second Am. Complaint ¶¶ 5-6, at 2.
Lymon alleges that he had a pre-existing injury to his left shoulder rotator cuff and did not receive a medical clearance before being assigned to work in the prison kitchen. See Second Am. Complaint ¶ 2, at 1. He alleges that, on September 23, 2004, a prescription was placed in his medical records, stating that he was prohibited from lifting objects with his left arm. See Second Am. Complaint ¶ 13, at 3. He also alleges that Nurse Jessica Garcia issued a prison health services pass/lay-in slip prohibiting him from lifting objects. See Second Am. Complaint ¶ 14, at 3. Lymon alleges that Salazar, a prison classification officer, classified Lymon to work in the prison kitchen. See Second Am. Complaint ¶ 10, at 3.
Lymon's claims, according to his Second Amended Complaint, arise out of events that occurred on July 3, 2005. He alleges that, on July 3, 2005, at 1:00 p.m., Benavidez assigned back-porter work to Lymon, which involved frequent heavy lifting. See Second Am. Complaint ¶ 16, at 4. Lymon alleges that, while lifting heavy trays in the dish room, his shoulder gave out, causing him to slip and fall, and causing him severe pain for which he sought medical care. See Second Am. Complaint ¶ 17, at 4. He alleges damages arising out of the injuries he sustained. See Second Am. Complaint at 20.
Lymon's case was originally filed pro se in state court on August 26, 2005, alleging damages arising out of injuries he sustained from work that he was required to do in the prison kitchen while an inmate at the Central New Mexico Correctional Facility in Valencia County, New Mexico. See Complaint (Doc. 1-4). Counsel for Lymon, Solomon Brown, first appeared for Lymon in the case in state court on September 5, 2007. The case was removed to federal court on April 14, 2008.
On February 9, 2009, the Court granted Lymon's first motion to amend his complaint. See Memorandum Order and Opinion, filed February 4, 2009, 2009 WL 1299842 (Doc. 22). On April 23, 2009, Lymon filed an opposed motion to file a second amended complaint, which would add twenty-one inmates to the complaint either as a class action pursuant to rule 23 of the Federal Rules of Civil Procedure or using rule 20 joinder. See Plaintiff Davon Lymon's Opposed Motion to File a Second Amended Complaint, filed April 23, 2009 (Doc. 35). The Court held a hearing on July 13, 2009, instructed Lymon that he needed to decide whether to proceed under rule 23 or rule 20, and denied his motion without prejudice.
Lymon filed his Second Amended Complaint on December 14, 2009. See Doc. 69. The Second Amended Complaint contains fifteen counts. Counts I through VIII, XIII, and XIV are asserted against either all Defendants, or against one or more of the State Defendants. Counts V through XIV assert federal constitutional claims. Count V is a § 1983 claim against the State Defendants for violations of the Fourteenth Amendment, alleging that the State Defendants deprived Lymon of his liberty interest in protection from abuse of inmate labor. See Second Am. Complaint ¶ 36-43, at 9-11. Count VI alleges violations "of civil rights Section 42 U.S.C.1981 through Section 1983," and alleges that the Defendants
Counts I through IV assert state claims under the NMTCA. Count I asserts claims under the NMTCA of negligence and personal injury that Sanchez caused. Lymon alleges that Sanchez negligently classified Lymon to work in the kitchen. See Second Am. Complaint ¶¶ 19-24, at 4-6. Count II asserts claims under the NMTCA of negligence and personal injury that Hernandez caused, alleging that Hernandez denied Lymon the use of the prison grievance process. See Second Am. Complaint ¶¶ 25-29, at 5-7. Count III against Williams and Count IV against NMDOC allege claims of negligence and respondeat superior because Williams and NMDOC allegedly failed to train corrections officers, failed to monitor private contractors, and maintained a policy of disallowing grievance appeals where inmates are injured while working for private contractors. See Second Am. Complaint ¶¶ 30-35, at 7-9.
Counts IX, X, XI, and XII, against Aramark, Neubauer, Carrizales, and Benavidez ("the Aramark Defendants"), allege § 1983 violations of the Fourteenth Amendment (Counts IX, X, and XI) and claims for intentional infliction of emotional distress (Count XII). See Second Am. Complaint ¶¶ 60-75, at 14-18. Count XV is asserted against Wexford and alleges deliberate indifference to Lymon's medical condition. See Second Am. Complaint ¶¶ 84-88, at 20. Counts IX, X, XI, XII, and XV are not at issue in the State Defendants' motion to dismiss.
The State Defendants move the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claims asserted against them in Lymon's Second Amended Complaint. The State Defendants thus take no position with respect to Counts IX, X, XI, XII, or XV. The State Defendants seek dismissal with prejudice of all counts brought against them, arguing that all the relevant Counts fail to state a claim upon which the Court can grant relief. The State Defendants also argue that Lymon lacks standing to bring the claims in Counts VII, VIII, and XIV. The State Defendants further argue that the individual State Defendants are entitled to qualified immunity.
The States Defendants argue that Lymon has failed to state any federal constitutional claims against them. Specifically, the State Defendants argue that the Court should dismiss Count V, because Lymon's Second Amended Complaint fails to allege a protected liberty or life interest that the State Defendants violated. See Motion at 18-20. The State Defendants further argue that the Court should dismiss Count VI, because Lymon's allegation do not support the existence of any enforceable contract between Lymon and anyone else, and accordingly, they argue, his equal contracting rights under 42 U.S.C. § 1981 could not have been violated. See Motion at 21. The State Defendants also argue that the Court should dismiss Counts VII and VIII because they assert claims about substandard food preparation and kitchen services, which are not related to Lymon's injuries to his shoulder after heavy lifting in the prison kitchen, and thus he fails to allege injury-in-fact necessary for standing. See Motion at 22. See Motion at 23-24. Further, the State Defendants contend that Lymon lacks standing to bring Counts VII and VIII because they assert general grievances appropriately addressed in the representative branches, and not in this Court. See Motion at 24-25.
With respect to Count XIII, which alleges Lymon was forced to do work in prison
In response, Lymon states that he "alleges coercion in making him do heavy lifting in the face of a doctor's note that heavy lifting would be harmful to him." Plaintiff's Response Memorandum to the State Defendants' Motion for Dismissal at 3, filed March 22, 2010 (Doc. 80). Lymon argues that, whereas the State Defendants describe the case as involving a simple shoulder injury, he contends it is a case about civil-rights violations. See Response at 3. Lymon argues that § 41-4-6 of the NMTCA is the applicable waiver for Lymon's claims in Counts I and II because New Mexico courts have expanded the scope of § 41-4-6 beyond premise liability and his claims are within the expanded scope. See Response at 6. Lymon also contends that Sanchez engaged in deliberate, forcible conduct sufficient to invoke the waiver in § 41-4-6. See Response at 7. Lymon further argues that Sanchez was not acting as a "classification" officer, because the medical doctor had already performed the task for him, but rather was acting as a "regular" corrections officer carrying out the directives of the doctor. Response at 8. Lymon contends that, under New Mexico law, sheriffs, deputies, and jailers at the county jail are all law-enforcement officers within § 41-4-12. See Response at 9. Lymon further argues in his response brief that the State Defendants are liable for assault and battery of Lymon, because he was forced to do heavy lifting against his will and the State Defendants knew such lifting could cause him injury, and because immunity is waived under § 41-4-12. See Response at 9.
In response to the State Defendants' argument that the Court should dismiss the due-process claims, Lymon argues that the primary focus of his Second Amended Complaint is substantive due-process violations based on the danger-creation doctrine. See Response at 10. Lymon contends that Aramark had a contractual relationship with the NMDOC which led to his injuries. See Response at 10. He also argues that he had a contract with Aramark because he did work that Aramark accepted and for which it provided remuneration. See Response at 11. As to the State Defendants' argument that Lymon lacks standing to bring Counts VII, VIII, and XIV, Lymon argues that he filed an affidavit which states that he has Hepatitis C, which is one of the illnesses he mentions as a possible disease sustained from the kitchen at the prison, and thus he has asserted an injury-in-fact to establish standing. See Response at 11. Lymon argues, as to his Thirteenth Amendment claim, that "Defendants cite to no authority that assault and battery may be inflicted upon a prison inmate to force him to perform heavy lifting which has been upon medical (doctor's) advice." Response at 11. He also argues that the State Defendants interpretation of the Thirteenth Amendment "is without merit or authority" and therefore the Court should not dismiss Count XIII. Response at 12.
As to Counts III and IV, the State Defendants argue that Lymon does not refute that, if no waiver exceptions are met, vicarious liability may not be imposed under the NMTCA. Lymon also does not dispute that none of his alleged negligence claims in Counts III and IV fall within § 41-4-6's waiver of immunity. See Reply at 8. The State Defendants also contend that Lymon does not argue in his due process claims in Counts V, VII, and VIII that he had any liberty or life interest which the State Defendants' actions impacted. See Reply at 8. Lymon argues, instead, that he is asserting a substantive due-process claim under the danger-creation doctrine. The State Defendants counter that, if Lymon is asserting a substantive due-process claim, he must prove that the challenged government action "shocks the conscience" of federal judges, and that Lymon's allegations have not reached that high standard. Reply at 9. The State Defendants further argue that Lymon does not refute that Counts VII and VIII appear to be generalized grievances that legislation would better address. See Reply at 11. With respect to Lymon's argument that he had a contract with Aramark, the State Defendants argue that there can be no contract without consideration or freely obtained mutual assent, and contend that, as a prisoner, Lymon could be forced to work and thus consideration was not present. See Reply at 11. The State Defendants further contend that Sanchez ordering Lymon to work did not interfere with a contract to do work, and if Sanchez interfered with anything, it was with a medical order from a doctor, and not with a contract with Aramark. See Reply at 11.
The State Defendants further argue that Lymon did not rebut the assertion that incarcerated persons are excepted from the Thirteenth Amendment's prohibition of forced labor. See Reply at 12. They contend that, even if Lymon was intimidated into doing heavy lifting, as he alleges, he still has no claim under the Thirteenth Amendment. See Reply at 12. The State Defendants also argue that Lymon made no attempt to rebut the argument that the
The State Defendants argue that the Court should dismiss Count I because the tort claims against Sanchez fall outside of the scope of the New Mexico Tort Claims Act's waivers of immunity for state employees. See Motion at 4. The State Defendants argue that Lymon's claims arise from Sanchez' alleged negligent misclassification of Lymon and that neither NMSA 1978, § 41-4-6 or § 41-4-12—both of which Lymon cites in Count I—are applicable. Section 41-4-6 waives immunity for conduct involving "the operation or maintenance of any building, public park, machinery, equipment or furnishings," and the State Defendants contend that a classification that allows an inmate to work in a certain section of the prison has nothing to do with the maintenance and operation of the prison's physical premises, and is thus not within the scope of the waiver. See Motion at 5. The State Defendants also contend that the Supreme Court of New Mexico has directly addressed whether classification of inmates is included in the § 41-4-6 waiver, and has found that it does not. See Motion at 5-6 (citing Archibeque v. Moya, 116 N.M. 616, 619, 866 P.2d 344, 347 (1993)). The State Defendants further contend that § 41-4-12 is inapplicable because Sanchez is a classification officer within the NMDOC engaged in administrative tasks like classifying inmates for work and is not a law-enforcement officer. See Motion at 6-7. Further, the State Defendants contend that, even if the Court concludes that Sanchez is a law-enforcement officer, § 41-4-12 waives immunity only if the damages claimed arise from specific conduct listed in § 41-4-12 and argue that Sanchez' misclassification does not fall within the list of conduct. See Motion at 7-8. The State Defendants argue that, because Sanchez' immunity from suit is not waived, the Court should dismiss Count I.
The State Defendants make a similar argument for why the Court should dismiss Count II. They argue that Lymon's claims against Hernandez also fall outside of the scope of immunity waivers under the NMTCA. In the Second Amended Complaint, Lymon alleges that Hernandez was negligent because he refused to grant Lymon permission to use the prison grievance process. The State Defendants contend that Lymon's claim is beyond § 41-4-6's scope, because Hernandez' action was an administrative function that the waiver of immunity in § 41-4-6 does not cover. See Motion at 9. The State Defendants further argue that Hernandez is not a law-enforcement officer for purposes of the waiver of immunity in § 41-4-12, and, even if he is considered a law-enforcement officer, Hernandez' conduct does not fall within the list of conduct in § 41-4-12. Thus, because no waiver of immunity is applicable to Lymon's negligence claims against Hernandez, the State Defendants argue that the Court should dismiss Count II as a matter of law. See Motion at 10.
The State Defendants further argue that the Court should dismiss the respondeat superior claims in Counts III and IV against Williams and NMDOC because the Court should dismiss Counts I and II and liability cannot be imposed if there is no underlying liability. See Motion at 10-11. The State Defendants further argue that the claims of negligence in Counts III and IV must also fail, as the claims do not fall within the scope of any of the NMTCA's immunity waivers of the NMTCA, nor do they fall within the scope of the Corrections Industries Act, NMSA 1978, § 33-8-3. See Motion at 17-18.
At the hearing, Mr. Brown, Lymon's attorney, conceded that Sanchez and Hernandez
Mr. Junco further argued that Lymon lacks standing to bring Counts III, IV, VII, VIII, and XIV. See Tr. at 33:20-24 (Junco). He argued that broad allegations about general grievances are not appropriate, and that all of those Counts allege general grievances. See id. at 34:1-10 (Junco). Mr. Brown responded that further factual development is needed to determine what is wrong with the building and thus determining at this point whether Lymon has standing is premature. See id. at 34:24-35:15 (Brown). Mr. Junco replied that the hearing was the first time the State Defendants had heard anything about something being wrong with the building and argued that Mr. Brown is
With regards to the due-process claims in Counts V, VII, and VIII, Mr. Junco argued that it was difficult for the State Defendants to determine from the Second Amended Complaint whether Lymon is alleging procedural due-process or substantive due-process violations. See Tr. at 39:3-8 (Junco). Mr. Junco contended that, if the claims are for violations of procedural due process, the Court should dismiss them, because Lymon "is not entitled to any liberty interests, because such interest arises upon release from confinement," and further, there are no allegations in the Second Amended Complaint that a liberty or life interest was impacted in any way. Tr. at 39:8-17 (Junco). Mr. Junco argued that if, on the other hand, the claims are for substantive due-process violations, the allegations in Counts V, VII, and VIII do not rise to the level of shocking the conscience, as the Tenth Circuit requires. See Tr. at 40:6-41:11 (Junco). An inmate reinjuring his shoulder because of misclassification or denial of a grievance procedure, Mr. Junco argued, is not enough to meet the standard. See id. at 41:25-42:7 (Junco). Mr. Brown argued that it appears to him that Mr. Junco is bouncing back and forth between the original complaint and the Second Amended Complaint, and contended that "anybody who think that this case is just about an injury to his shoulder is lost and lost without remission." Tr. at 45:10-46:3 (Brown). Mr. Brown also represented to the Court that Lymon is asserting both procedural and substantive due-process violations, and argued that being a prisoner does not destroy the liberty interest. See Tr. at 48:9-21 (Court, Brown).
Mr. Brown argued that Count VI should remain because oral contracts are permitted under New Mexico law. See Tr. at 57:4-19 (Brown). Mr. Junco argued that, even if there was an oral contract, there is no allegation that, within that alleged contract, prohibiting Lymon from lifting, and thus Sanchez could not have interfered with any contract, oral or otherwise. See id. at 59:17-60:5 (Junco). Mr. Brown argued that the Court should not dismiss Count XIII because an incarcerated individual cannot be subjected to involuntary servitude that forces him to do an action which causes him injury. See id. at 62:5-9 (Brown). Mr. Junco contended that the Thirteenth Amendment does not provide a remedy for one who injures himself during lawfully-compelled labor; it provides only prohibition from forced labor, and that Mr. Brown provided no authority that the Thirteenth Amendment has been extended to apply to his allegations. See id. at 63:14-22 (Junco).
Mr. Junco also argued the Court should dismiss Count XIV, which alleges that there is a federal policy against any decision which places the public at risk from a health hazard, because Lymon's Second Amended Complaint does not allege that Sanchez' misclassification of inmates impacted any member of the general public. See Tr. at 65:8-66:9 (Junco). Moreover, Mr. Junco asserted that Lymon lacks standing because he is not alleging personal
Rule 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which it can grant relief. When ruling on a motion to dismiss, the court must accept as true well-pled factual allegations, but also consider whether "they plausibly give rise to an entitlement to relief." Barrett v. Orman, 373 Fed.Appx. 823, 825 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009)). Under rule 12(b)(6), a motion to dismiss "admits all well-pleaded facts in the complaint as distinguished from conclusory allegations." Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976)(citing Jones v. Hopper, 410 F.2d 1323 (10th Cir.1969)). A motion to dismiss is a request to dismiss a case before discovery has taken place and thus permits only an assessment whether a complaint is sufficient on its face. In adjudicating a motion to dismiss, a court may neither grant the motion because it believes it is unlikely the plaintiff can prove the allegations, see Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008), nor "weigh potential evidence that the parties might present at trial" in assessing the motion's merit, Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir.2001)(quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999)). It is not the court's role to weigh potential evidence that the parties might present a trial, but rather to determine whether the plaintiff's complaint states a legally sufficient claim upon which the court can grant relief. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d at 1236.
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). A complaint does not "suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S.Ct. at 1949 (internal alterations, citations, and quotations omitted). See Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.")(quoting Ashcroft v. Iqbal, 129 S.Ct. at 1949). Dismissal is not appropriate, however, where the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
"[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, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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 555-56, 127 S.Ct. 1955 (internal citation omitted). "The [Supreme] Court
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 ... [must be] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(d). "[F]ederal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C C. Wright & A. Miller, Fed. Prac. & Proc. Civ., § 1366, at 159 (3d ed. 2004). See Dobson v. Anderson, 319 Fed.Appx. 698, 702 (10th Cir.2008); Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir.1998)("[C]ourts have broad discretion in determining whether or not to accept materials beyond the pleadings.").
Section 1983 of Title 42 of the United States Code provides:
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights. Substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989)("Section 1983 does not provide a remedy if federal law does not create enforceable rights."). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant's federally protected rights. To state a claim upon which relief can be
Martinez v. Martinez, No. CIV 09-0281, 2010 WL 1608884, at *11 (D.N.M. Mar. 30, 2010) (Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)(civil-rights statute).
The Supreme Court has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 129 S.Ct. at 1948 ("Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. New York City Dept. ofSoc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Further, the Tenth Circuit has held that supervisors are not liable under § 1983 "unless there is an affirmative link between the constitutional deprivation and the supervisor's exercise of control or direction, his personal participation, or his failure to supervise." Kiesling v. Troughton, 107 F.3d 880 (Table), 1997 WL 111256, at *2 (10th Cir. Mar. 13, 1997)(citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)). They can be held liable only for their own unconstitutional or illegal policies, and not for the tortious acts of their employees. Supervisory liability requires a showing that said policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998) (citations and internal quotations omitted). See Bd. of County Comm'rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged.")(emphasis in original).
These standards apply for allegations of liability based on failure to train and for "official de facto policies" that arise from "failing to adopt various policies to adequately protect" a class of persons. Barney v. Pulsipher, 143 F.3d at 1367, 1309 n. 8. "[W]hen the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm," it is liable. Id. at 1307.
Id. at 1307-08. Most cases, however, will not fall within this "narrow range of circumstances" without "a pattern of violations." Id. at 1308.
The Fourteenth Amendment protects citizens against state actions that deprive them of life, liberty, or property without due process of law. See U.S. Const. amend. XIV. "The right to personal security constitutes a `historic liberty interest' protected substantively by the Due Process Clause." Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)(citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). Persons in state custody have due-process rights to "reasonable care and safety." Youngberg v. Romeo, 457 U.S. at 324, 102 S.Ct. 2452.
"To set forth an actionable procedural due process claim, a plaintiff must demonstrate: (1) the deprivation of a liberty or property interest and (2) that no due process of law was afforded." Stears v. Sheridan County Mem'l Hosp. Bd. of Trs., 491 F.3d 1160, 1162 (10th Cir.2007). See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)("In procedural due process claims, the deprivation by state action of a constitutionally protected interest in `life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law."). "A due process claim . . . can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered." Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006). The Tenth Circuit has recognized two sources of liberty interests: (i) the due process clause of the Fourteenth Amendment; and (ii) state law. See Boutwell v. Keating, 399 F.3d 1203, 1211-12 (10th Cir.2005).
A state may create a liberty interest. The Supreme Court in Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), explained that "the most common manner in which a State creates a liberty interest is by establishing substantive predicates to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." 490 U.S. at 462, 109 S.Ct. 1904 (internal quotation marks and citation omitted). Before the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), when faced with a due-process claim based on state statutes or prison regulations, courts were required to determine whether language existed creating "substantive predicates" to guide official discretion and whether the regulations contained "explicitly mandatory language." Ky. Dep't of Corr. v. Thompson, 490 U.S. at 463, 109 S.Ct. 1904 (requiring the language to contain "`explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow, in order to create a liberty interest"); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)("We are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest."). In Sandin v. Conner, however, the Supreme Court abandoned
515 U.S. at 484, 115 S.Ct. 2293. See Cordova v. LeMaster, 136 N.M. 217, 222, 96 P.3d 778, 783-84 (2004)("After Sandin, in order to find Petitioner has a constitutionally protected liberty interest in spousal visitation, we must first determine whether regulations exist that limit official discretion in indefinitely depriving Petitioner of spousal visitation, and if so, whether the indefinite deprivation of spousal visitation is an atypical and significant hardship."). In Cordova v. LeMaster, the Supreme Court of New Mexico found that a prisoner has a liberty interest, which NMDOC regulations confers, to spousal visitation, "which if indefinitely deprived would impose upon him an atypical and significant hardship." 136 N.M. at 223, 96 P.3d at 784. The Supreme Court of New Mexico looked to the NMDOC's policies and found that regulations existed which limit prison officials' discretion to bar visitation. See 136 N.M. at 223, 96 P.3d at 784.
Under Sandin v. Conner, inmates have no liberty interest based on regulations regarding disciplinary measures unless those measures "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 484, 115 S.Ct. 2293. In Alvarez v. McCormac, 15 Fed.Appx. 759 (10th Cir.2001), the Tenth Circuit affirmed the district court's dismissal of a prisoner's § 1983 procedural due-process claim because the prisoner "did not have a constitutionally-protected liberty interest under state law that would prevent his twenty-day segregation, since such a sanction did not impose an `atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" 15 Fed.Appx. at 760 (quoting Sandin v. Conner, 515 U.S. at 484, 115 S.Ct. 2293).
Prisoners do not shed all constitutional rights at the prison gate, See Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), but "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system," Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948)). In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court held that an injury arising from a prison officer's negligent actions does not deprive an individual of life, liberty, or property under the Fourteenth Amendment's due-process clause. The Supreme Court explained:
474 U.S. at 332, 106 S.Ct. 662. The Supreme Court found that "mere lack of due care by a state official [will not] `deprive' an individual of life, liberty or property under the Fourteenth Amendment." 474 U.S. at 330-31, 106 S.Ct. 662. See County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."). See also Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)(clarifying that Daniels v. Williams applies to substantive, as well as procedural, due process).
Daniels v. Williams, 474 U.S. at 332, 106 S.Ct. 662.
"Changing a prisoner's classification generally does not deprive him of liberty under the due process clause alone." Sparks v. Foster, 241 Fed.Appx. 467, 471 (10th Cir.2007) (citing Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). "A liberty interest may be implicated, however, when State laws and prison regulations create a liberty interest to which due process protections apply." Sparks v. Foster, 241 Fed. Appx. at 471 (citing Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). In Sparks v. Foster, Sparks, a Colorado state prisoner, brought a § 1983 action against corrections officers and the correctional facility, asserting that the defendants violated his Fourteenth Amendment right to procedural due process because a corrections officer allegedly forced him to cross a prisoner strike to work in the kitchen, despite inmate threats to any prisoner who crossed the line. See 241 Fed.Appx. at 468. The Tenth Circuit noted that, in Colorado, "[c]lassification decisions are within the discretion of the Department of Corrections and a particular classification does not implicate any liberty interest protected by the Fourteenth Amendment Due Process Clause." Sparks v. Foster, 241 Fed.Appx. at 471 (quoting Green v. Nadeau, 70 P.3d 574, 577 (Colo.App.2003)(citing Deason v. Kautzky, 786 P.2d 420, 422 (Colo.1990) (en banc))). The Tenth Circuit therefore found that, because Sparks did not have a liberty interest in a particular classification, he could not maintain an action based on the classification under the Fourteenth Amendment, and thus the district court properly dismissed Sparks' claim. See Sparks v. Foster, 241 Fed.Appx. at 471.
The Due Process Clause provides that "no State shall . . . deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. "[T]he Due Process Clause was intended to prevent government officials from abusing their power, or employing it
In general, state actors may be held liable under § 1983 only for their own acts and not for third parties' acts. See DeShaney v. Winnebago County of Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. Generally, negligence does not trigger the Due Process Clause's protections. See Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
The danger-creation theory provides that a state may be liable for an individual's safety if it created the danger that harmed the individual. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003). The Due Process Clause protects against "deliberately wrongful government decisions rather than merely negligent government conduct." Uhlrig v. Harder, 64 F.3d at 573. The danger-creation exception to this rule applies only when "a state actor affirmatively acts to create, or increases a plaintiff's vulnerability to, or danger from private violence." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). Under a danger-creation theory, there will be no § 1983 liability absent "an intent to harm" or "an intent
The Tenth Circuit has focused on the deliberateness of the conduct at issue. See Christiansen v. City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk and intend to expose the plaintiff to such risks without regard to the consequences to the plaintiff. See id. at 573 n. 8. While "an intent to harm" follows the traditional tort-law concept of intentionality, the Tenth Circuit has defined "an intent to place a person unreasonably at risk," as when a state actor "was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences." Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992).
"It is well settled that negligence is not sufficient to shock the conscience. In addition, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power." Camuglia v. The City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir.2006)(quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.2006)). "[T]he plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Uhlrig v. Harder, 64 F.3d at 574. "This is a `high level of outrageousness.'" Camuglia v. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).
Camuglia v. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).
In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir.2001), the widow of a corrections officer sued the director, deputy director, warden, and deputy wardens of the department of corrections, alleging that the defendants deliberately failed to ensure proper training and supervision of penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective action to protect her husband, all of which resulted in him being killed during the escape of three inmates. See 265 F.3d at 1132. The district court found that the plaintiff failed to state a § 1983 claim for violation of the Due Process Clause under a danger-creation theory because the defendants' actions were "not of such a magnitude that the Court is able to conclude they shock the conscience[.]" 265 F.3d at 1134. The Tenth Circuit agreed with the conclusion of the district court, stating:
In Schaefer v. Las Cruces Public School District, No. CIV 09-1119, 716 F.Supp.2d 1052, 2010 WL 2301141, 2010 U.S. Dist. LEXIS 52303 (D.N.M. Apr. 30, 2010)(Browning, J.), the plaintiffs alleged that the defendants—the school district, superintendent, principal, and vice principal of a middle school—violated the plaintiffs' substantive due process rights when they did not take sufficient action to prevent a student at the school from "racking"
716 F.Supp.2d at 1074-75, 2010 WL 2301141, at **15-16, 2010 U.S. Dist. LEXIS 52303, at **49-52.
42 U.S.C. § 1981 prohibits racial discrimination in the making and enforcement of private contracts:
42 U.S.C. § 1981. To establish a prima-facie case of discrimination under § 1981, a plaintiff must show: (i) that she is a member of a protected class; (ii) that the defendant intended to discriminate on the basis of race; and (iii) that the discrimination interfered with a protected activity as defined in § 1981. See Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir.2001). Tenth Circuit § 1981 jurisprudence "requires that the action interfered with must be based on a contract." Hampton v. Dillard Dep't Stores, Inc., 247 F.3d at 1101. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir.1989)(requiring actual loss of a contract interest for a § 1981 claim for interference with the right to make and enforce a contract). Claims under § 1981 for interference with the right to make or enforce a contract must involve actual loss of a contract interest, not merely the possible loss of future contract opportunities. See Harris v. Allstate Ins. Co. 300 F.3d 1183, 1195 (10th Cir.2002).
To state a claim under 42 U.S.C. § 1981, a claimant must show that a defendant intentionally or purposefully discriminated against him or her. See Lindsey v. Thomson, 275 Fed.Appx. 744, 745 (10th Cir.2007)(finding that the plaintiff's complaint failed to state an actionable claims under 42 U.S.C. § 1981 "because there is no allegation that the Defendants intentionally discriminated against the Plaintiff on the basis of race"); Reynolds v. Sch. Dist. No. 1, Denver, Colorado, 69 F.3d 1523, 1532 (10th Cir.1995); Allen v. Washington Hosp., No. 96-1950, 1997 U.S. Dist. LEXIS 14606, at **5-6 (W.D.Pa. May 30, 1997)(denying motion to dismiss when plaintiff alleged that the defendants refused to provide him with an application for appointment to a medical-staff position solely because of race); Tucker v. Merck & Co., No. Civ. A. 03-5015, 2004 WL 350467, at *3, 2004 U.S. Dist. LEXIS 2658, at *3 (E.D.Pa. Feb. 18, 2004)(holding that second prong was satisfied when "complaint explicitly alleges that defendant intentionally discriminated against [plaintiff] on the basis of race"). "An individual who establishes a cause of action under § 1981 is entitled to both equitable and legal relief including compensatory and, under certain circumstances, punitive damages." Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975)
"Typically, most litigation involving § 1981 claims has emanated from the right to make and enforce employment contracts." Hampton v. Dillard Dep't Stores, Inc., 247 F.3d at 1102. The statute has also been applied to discrimination claims arising in the retail sector and restaurant industry. See Bobbitt v. Rage, Inc., 19 F.Supp.2d 512, 518-20 (W.D.N.C.1998)(allowing action to proceed where plaintiffs, who were forced to prepay for food in pizza restaurant, demonstrated that the restaurant altered a fundamental characteristic of the food service based on race); Washington v. Duty Free Shoppers, Ltd., 710 F.Supp. 1288, 1289-90 (N.D.Cal.1988)(denying summary judgment to defendant where African-American customers were told they needed to show a passport and airline tickets before shopping for duty-paid goods, while other customers were not required to do so).
Although the Constitution includes, in the Thirteenth Amendment, a general prohibition against involuntary servitude, it expressly excepts from that
Courts have also found that prisoners may work without compensation without violating the Thirteenth Amendment. See Lineberry v. United States, No. 09-40262, 2010 U.S.App. LEXIS 11269, at *6 (5th Cir.2010)(finding that denying an inmate good-time credit because he refuses to work does not support a claim that the inmate is subject to involuntary servitude in violation of the Thirteenth Amendment.); Serra v. Lappin, 600 F.3d 1191, 1196 (9th Cir.2010)("The Constitution does not provide prisoners any substantive entitlement to compensation for their labor."); Piatt v. MacDougall, 773 F.2d at 1035 (holding that the state does not deprive a prisoner of a constitutionally protected liberty interest by forcing him to work without pay); Lockett v. Neubauer, No. 05-3209, 2005 WL 3557780, at *4, 2005 U.S. Dist. LEXIS 36898, at *12 (D.Kan. Dec. 29, 2005)(stating that "the Thirteenth Amendment excludes convicted criminals from its prohibition of involuntary servitude, so prisoners may be required to work without any compensation.").
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. at 807, 102 S.Ct. 2727. Qualified immunity "protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009)(Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the "earliest possible
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a "heavy two-part burden." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). The plaintiff must demonstrate on the facts alleged: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009); Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In assessing whether the right was clearly established, the court asks whether the right was sufficiently clear that a reasonable officer in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d at 1327. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, the Supreme Court held that the court must decide whether there was a constitutional violation first, before it decides whether the law is clearly established. See 533 U.S. at 200-01, 121 S.Ct. 2151. The Supreme Court no longer requires the courts to analyze the issues in that order. See Pearson v. Callahan, 129 S.Ct. at 818.
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, the court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d at 1107 (noting that the Tenth Circuit "accept[s] the facts as the plaintiff alleges them"). In Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained:
Thomson v. Salt Lake County, 584 F.3d at 1312. The Tenth Circuit, in Rhoads v. Miller, 352 Fed.Appx. 289 (10th Cir.2009), recently explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony:
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal citations and quotations omitted). In a concurring opinion in Thomson v. Salt Lake County, Judge Holmes stated that the court must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting) (observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts.")).
A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be "indisputable" and "unquestioned." Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Strepka v. Miller, 28 Fed.Appx. 823, 830 (10th Cir.2001)(citing Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). See Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.' " Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question . . . unlawful." Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that, "while the sequence set forth [in Saucier v. Katz ] is
The New Mexico Legislature enacted the NMTCA because it recognized "the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity." NMSA 1978, § 41-4-2A. The New Mexico Legislature, however, also recognized
NMSA 1978, § 41-4-2A. As a result, it was "declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act." NMSA 1978, § 41-4-2A. The NMTCA is also "based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." NMSA 1978, § 41-4-2C.
NMSA 1978, § 41-4-17A. A plaintiff may not sue a governmental entity of New Mexico or its employees or agents unless the plaintiff's cause of action fits within one of the exceptions granted for governmental entities and public employees in the NMTCA. See Begay v. State, 104 N.M. 483, 486, 723 P.2d 252, 255 (Ct.App.1985)("Consent to be sued may not be implied, but must come within one of the exceptions to immunity under the Tort Claims Act."), rev'd on other grounds by Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). A plaintiff also may not sue a governmental entity or its employees for a damage claim arising out of violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of immunity. See Barreras v. N.M. Corr. Dep't, 133 N.M. 313, 319, 62 P.3d 770, 776 (Ct.App.2003)("In the absence of affirmative legislation, the courts of this state have consistently declined to permit individuals to bring private lawsuits to enforce rights guaranteed by the New Mexico Constitution, based on the absence of an express waiver of immunity under the Tort Claims Act."); Chavez v. City of Albuquerque, 124 N.M. 479, 482, 952 P.2d 474, 477 (Ct.App.1997)(noting that a plaintiff cannot seek damages for violations of rights under the New Mexico Constitution against a city or its employees or agents unless the
Section 41-4-6 exempts from immunity "liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings." NMSA 1978, § 41-4-6. This exception balances the principle that "government should not have the duty to do everything that might be done" with the desire "to compensate those injured by the negligence of public employees and to impose duties of reasonable care." Cobos v. Doña Ana County Hous. Auth., 126 N.M. 418, 420, 970 P.2d 1143, 1145 (1998) (citations and internal quotations omitted). To resolve the tension between these two goals, § 41-4-6 "grant[s] governmental entities and employees a general immunity from tort liability, [and] waives that immunity in certain defined circumstances." Cobos v. Doña Ana County Hous. Auth., 126 N.M. at 420, 970 P.2d at 1145. The Supreme Court of New Mexico has explained that, "[w]hile [§ ] 41-4-6 may appropriately be termed a `premises liability' statute, the liability envisioned by that section is not limited to claims caused by injuries occurring on or off certain `premises,' as the words `machinery' and `equipment' reveal." Cobos v. Doña Ana County Hous. Auth., 126 N.M. at 421, 970 P.2d at 1146. Section 41-4-6 "contemplates waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government." Bober v. New Mexico State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991) (citations and internal quotations omitted). New Mexico courts have found that § 41-4-6's waiver of immunity does not extend to negligent supervision, see Pemberton v. Cordova, 105 N.M. 476, 478, 734 P.2d 254, 256 (Ct.App.1987), negligent design, see Rivera v. King, 108 N.M. 5, 12, 765 P.2d 1187, 1194 (Ct.App.), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988), negligent inspection, see Martinez v. Kaune, 106 N.M. 489, 491-92, 745 P.2d 714, 716-17 (Ct.App.), cert. denied, 106 N.M. 439, 744 P.2d 912 (1987), or negligent classification of a prison inmate, see Archibeque v. Moya, 116 N.M. 616, 620, 866 P.2d 344, 348 (1993).
In the prison context, the Supreme Court of New Mexico has held that "[t]he `operation' and `maintenance' of the penitentiary premises, as these terms are used in [§ ] 41-4-6, does not include the security, custody, and classification of inmates. . . . Section 41-4-6 does not waive immunity when public employees negligently perform such administrative functions." Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347 (citations omitted). In Archibeque v. Moya, Chris Archibeque, an inmate at the Central New Mexico Correction Facility, was transferred to the New Mexico State Penitentiary in Santa Fe, New Mexico. See 116 N.M. at 618, 866 P.2d at 346. Before being released into general population, a prison intake officer, Moya-Martinez, met with Archibeque to discuss whether he had any known enemies
See 116 N.M. at 617, 866 P.2d at 345. Archibeque argued that Moya-Martinez was participating in the operation of the penitentiary when she classified Archibeque as an inmate who could safely be released into the general prison population, and he argued that Moya-Martinez's alleged negligence in misclassifying him and releasing him into the general population constituted negligent operation of the penitentiary, thereby waiving immunity under § 41-4-6. See 116 N.M. at 618-19, 866 P.2d at 346-47. The Supreme Court of New Mexico found that § 41-4-6 did not waive Moya-Martinez' immunity, stating: "The `operation' and `maintenance' of the penitentiary premises, as these terms are used in Section 41-4-6, does not include the security, custody, and classification of inmates." 116 N.M. at 619, 866 P.2d at 347. The Supreme Court of New Mexico reasoned that Moya-Martinez was not operating and maintaining the prison's physical premises when she negligently classified Archibeque.
Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347. The Supreme Court of New Mexico further explained:
116 N.M. at 620, 866 P.2d at 348. According to the Supreme Court of New Mexico, to permit a waiver of immunity under § 41-4-6 whenever injury results from a negligently performed administrative task "would undermine the purpose of the Tort Claims Act by subjecting the State to liability for virtually any mistake made during the administration of corrections facilities that results in injury to an inmate." 116 N.M. at 621, 866 P.2d at 349. The Supreme Court of New Mexico noted that, "[w]hile a segment of the population at risk might justify waiver of immunity under Section 41-4-6, a situation in which a single inmate is put at risk is not comparable." 116 N.M. at 621 n. 3, 866 P.2d at 349 n. 3. The Honorable Richard Ransom, Chief Justice of the Supreme Court of New Mexico, in his concurring opinion, noted:
116 N.M. at 622, 866 P.2d at 350 (Ransom, C.J., concurring).
In Callaway v. New Mexico Department of Corrections, 117 N.M. 637, 642, 875 P.2d 393, 398 (Ct.App.), cert. denied, 118 N.M. 90, 879 P.2d 91 (1994), the New Mexico Court of Appeals held that the NMDOC "knew or should have known that roaming gang members with a known propensity for violence had access to potential weapons in the recreation area, that such gang members created a dangerous condition on the premises of the penitentiary, and that the danger to other inmates was foreseeable." 117 N.M. at 643, 875 P.2d at 399. The New Mexico Court of Appeals found that the "inmate assailant was unusually dangerous and the prison authorities had knowledge of the danger posed by the inmate." 117 N.M. at 643, 875 P.2d at 399.
Section 41-4-12 of the NMTCA provides a waiver of immunity for certain torts committed by law-enforcement officers and for negligence that causes a specified tort. See Oliveros v. Mitchell, 449 F.3d 1091, 1096 (10th Cir.2006)(citing Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234, 238 (1980); Caillouette v. Hercules, Inc., 113 N.M. 492, 827 P.2d 1306, 1311 (Ct.App.1992)). Section 41-4-12 provides:
NMSA 1978, § 41-4-12.
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996).
A law-enforcement officer is a "full-time salaried public employee of a governmental entity 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, or members of the national guard when called to active duty by the governor." NMSA 1978, § 41-4-3. "New Mexico courts have construed this definition strictly." Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-633, 2009 U.S. Dist. LEXIS 47154, at *10 (D.N.M. Apr. 20, 2009)(citing cases). See, e.g., Montes v. Gallegos, 812 F.Supp. 1165, 1172 (D.N.M.1992)(holding that mayor is not a law-enforcement officer under the NMTCA, notwithstanding his statutory authority and obligation to exercise law enforcement functions); Dunn v. McFeeley, 127 N.M. 513, 984 P.2d 760, 767 (Ct.App.)(holding OMI Medical Investigator and crime laboratory technician are not law-enforcement officers under the NMTCA), cert. denied, 127 N.M. 389, 981 P.2d 1207 (1999); Coyazo v. State, 120 N.M. 47, 51, 897 P.2d 234, 238 (Ct.App.1995)(holding that the District Attorney and his staff are not law-enforcement officers under § 41-4-3D); Callaway v. N.M. Dep't of Corr., 117 N.M. at 641, 875 P.2d at 397 (holding that correctional officers at penitentiary are not law-enforcement officers under the NMTCA, notwithstanding their statutory power to make arrests); Dunn v. State ex rel. Tax. and Rev. Dep't, 116 N.M. 1, 4, 859 P.2d 469, 472 (Ct.App.1993)(holding that Director of Motor Vehicle Division is not a law-enforcement officer under the NMTCA, notwithstanding his statutory power to make arrests); Vigil v. Martinez, 113 N.M. 714, 721, 832 P.2d 405, 412 (Ct.App.1992)(holding that probation and parole officers are not law-enforcement officers under the NMTCA); Anchondo v. Corr. Dep't, 100 N.M. 108, 111, 666 P.2d 1255, 1258 (1983)(holding that the Secretary of Corrections and the Warden of a state penitentiary are not law-enforcement officer under the NMTCA). See also Johnson v. Holmes, 377 F.Supp.2d 1069, 1083 (D.N.M.2004)(Browning, J.) ("`Akin' to a law enforcement officer is, as a matter of law, insufficient to waive sovereign immunity under § 41-4-12 NMSA 1978."), aff'd, 455 F.3d 1133 (10th Cir.2006).
The New Mexico Court of Appeals has held that corrections officers who hold convicted persons in custody are not law-enforcement officers under § 41-4-3D, which defines law-enforcement officer as used in § 41-4-12. See Callaway v. N.M. Dep't of Corr., 117 N.M. at 641, 875 P.2d at 397 (stating "we affirm the trial court's determination that corrections officers are not law enforcement officers under Section 41-4-3(D)."). In Anchondo v. Corrections Department, the Supreme Court of New Mexico received a certified question from the Honorable Juan G. Burciaga, United States District Judge for the District of New Mexico, asking: "Are the Secretary of Corrections and the Warden of the State Penitentiary in Santa Fe `law enforcement officers' within the meaning of Section 41-4-3(D), NMSA 1978?" 100 N.M. at 109, 666 P.2d at 1256. The Supreme Court of New Mexico found that the Secretary of Corrections and the Warden are not law-enforcement officers. See 100 N.M. at 109, 666 P.2d at 1256. The Supreme Court of New Mexico explained:
100 N.M. at 109-10, 666 P.2d at 1256-57. "To determine whether positions are of a law enforcement nature, this Court will look at the character of the principal duties involved, those duties to which employees devote the majority of their time." Anchondo v. Corr. Dep't, 100 N.M. at 110, 666 P.2d at 1257. The Supreme Court of New Mexico has stated that "no case has held that simple negligence in the performance of a law enforcement officer's duty amounts to commission of one of the torts listed in [§ 41-4-12]." Bober v. N.M. State Fair, 111 N.M. 644, 653-54, 808 P.2d 614, 623-24 (1991).
The Legislature promulgated the Corrections Industries Act, NMSA 1978, §§ 33-8-1 through 33-8-15, "to enhance the rehabilitation, education and vocational skills of inmates through productive involvement in enterprises and public works of benefit to state agencies and local public bodies and to minimize inmate idleness." NMSA 1978, § 33-8-3. Section 33-8-4 of the Corrections Industries Act provides in pertinent part: "All persons convicted of crime and confined in a facility . . . shall perform labor under such rules and regulations as have been or may hereafter be prescribed by the department." NMSA 1978, § 33-8-4 (2010). The Corrections Industries Act defines "enterprise" as "a manufacturing, agricultural or service operation or group of closely related operations within the bounds of a facility but does not include standard facility maintenance activities and services." NMSA 1978, § 33-8-2C. A "facility" is defined as "a place under the jurisdiction of the department at which individuals are confined pursuant to court order." NMSA 1978, § 33-8-2D. "Public works" constitutes "work that is solely for a public or state purpose and includes but is not limited to the construction, maintenance and improvement of state and local lands, roads, highways and buildings." NMSA 1978, § 33-8-15B. Given the plain language of the Corrections Industries Act, which involves inmates working in enterprises and public works, it does not appear that it encompasses labor in the prison kitchen, which better fits within the scope of "standard facility maintenance and services," an exception to "enterprise" as defined in the Act. NMSA 1978, § 33-8-2C.
The State Defendants move the Court to dismiss all claims in Lymon's Second Amended Complaint asserted against them. Of the fifteen claims asserted, ten of them have been brought either against all Defendants, or against one or more of the State Defendants. The Court has carefully considered the claims in the Second Amended Complaint, and taking all well-pleaded factual allegations as true, the Court finds that Lymon has failed to state federal constitutional claims against the State Defendants upon which the Court can grant relief in Counts V, VI, VII, VIII, XIII, and XIV; the Court therefore will dismiss those Counts as asserted against the State Defendants. The Court also finds that the State Defendants' immunity under the NMTCA is not waived, and the Court will therefore dismiss the state claims in Counts I, II, III, and IV asserted against the State Defendants. The Court
In Count V, Lymon alleges that he has a liberty interest in protection from Sanchez and Hernandez forcing him to work for Aramark. He also alleges:
Second Am. Complaint ¶ 40, at 10. Lymon further alleges that Sanchez' actions affected "basic life needs of medical care and food[.]" Second Am. Complaint ¶ 40, at 10. The State Defendants, in their motion to dismiss, argue that Lymon does not assert a protected liberty interest, nor does he allege that such interest, if it exists, was impaired. See Motion at 19-20. In response, Lymon argues that the case law the State Defendants cited in their motion addresses procedural due process, "while the primary focus of Plaintiff's complaint is Substantive Due Process." Response at 10. At the hearing, however, Mr. Brown stated that Lymon is asserting both procedural and substantive due process claims. See Tr. at 48:9-21 (Court, Brown).
In Count V, Lymon alleges that he "had a liberty interest in protection from abuse of inmate labor by the actions of NMDOC employees John Sanchez and Abner Hernandez." Second Am. Complaint ¶ 37, at 9. To set forth an actionable procedural due-process claim, Lymon must allege: (i) the deprivation of a liberty or property interest; and (ii) that no due process of law was afforded to him. See Stears v. Sheridan County Mem'l Hosp. Bd. of Trs., 491 F.3d at 1162; Steffey v. Orman, 461 F.3d at 1221("A due process claim . . . can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered."). Lymon thus must first demonstrate a constitutionally cognizable liberty interest with which Sanchez and Hernandez interfered.
"A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word `liberty,' or it may arise from an expectation or interest created by state laws or policies." Estate of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1334, 1339 (10th Cir.2007). The States Defendants argue that "the dispositive characteristic that marks the point at which the Due Process Clause itself implies a liberty interest . . . is in fact the release from incarceration." Motion at 19 (quoting Harper v. Young, 64 F.3d 563, 566 (10th Cir.1995)). In Harper v. Young, the Tenth Circuit held that participation in a pre-parole program, which allows convicts to live and work in society, was sufficiently similar to parole or probation to merit protection by the Due Process Clause. See 64 F.3d at 565. Because the liberty interest was implied in Harper v. Young, the Tenth Circuit did not need to find a liberty interest that state law created.
64 F.3d at 564 (citations omitted). "A liberty interest inherent in the Constitution arises when a prisoner has acquired a substantial, although conditional, freedom such that the loss of liberty entailed [by its revocation] is a serious deprivation requiring that the [prisoner] be accorded due process." Harper v. Young, 64 F.3d at 566 (citation omitted). There are no allegations in the Second Amended Complaint that Lymon had acquired a freedom, such as parole or something similar, of which he was deprived. Because Lymon does not allege that he has been deprived of an inherent liberty interest, the Court must determine whether Lymon has alleged a deprivation of a state-created liberty interest.
"States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. at 483-84, 115 S.Ct. 2293. But those
515 U.S. at 484, 115 S.Ct. 2293. Prison administrators are afforded broad deference in their adoption and execution of policies and practices necessary, in their judgment, to maintain institutional security. See Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Lymon does not specifically identify any state law giving him a liberty interest in protection from corrections officers ordering him to work in the prison kitchen or protection from orders in contravention of a medical order. In Cordova v. LeMaster, the Supreme Court of New Mexico looked to the NMDOC's policies to see if they conferred a liberty interest in spousal visitation rights. See 136 N.M. at 223, 96 P.3d at 784. The Supreme Court of New Mexico found that regulations existed that limited the discretion of prison officials to bar visitation. See 136 N.M. at 223, 96 P.3d at 784. Although Lymon has not pointed the Court to any such regulations that confer a liberty right in protection from labor orders, the Court carefully reviewed the NMDOC's policies
In his response, Lymon argues that he has claimed substantive due-process violations against Sanchez and Hernandez under the danger-creation doctrine. See Response at 10. The Due Process Clause protects against "deliberate wrongful government decisions rather than merely negligent government conduct." Uhlrig v. Harder, 64 F.3d at 573. The danger-creation theory provides that a state may be liable for an individual's safety if it created the danger that harmed the individual. See Christiansen v. City of Tulsa, 332 F.3d at 1280. The exception applies, however, only when "a state actor affirmatively acts to create, or increases a plaintiff[']s vulnerability to, danger from private violence." Currier v. Doran, 242 F.3d at 923. To state a substantive due-process claim based upon the danger-creation theory, Lymon must demonstrate that: (i) the State Defendants created the danger or increased Lymon's vulnerability to the danger in some way; (ii) Lymon was a member of a limited and specifically definable group; (iii) the State Defendants' conduct put Lymon at substantial risk of serious, immediate, and proximate harm; (iv) the risk was obvious or known; (v) the State Defendants acted recklessly in conscious disregard of that risk; and (vi) such conduct, when viewed in total, shocks the conscience. See Ruiz v. McDonnell, 299 F.3d 1173, 1182-83 (10th Cir.2002). Even if Lymon alleges sufficient affirmative conduct, "the ultimate measure of whether conduct by state actors violates due process is whether `the challenged government action `shocks the conscience' of federal judges.'" Marino v. Mayger, 118 Fed.Appx. 393, 402 (10th Cir.2004)(quoting Ruiz v. McDonnell, 299 F.3d at 1183). In assessing whether conduct shocks the court's conscience, it considers: (i) the need for restraint in defining the scope of substantive due-process claims; (ii) the concern that § 1983 not replace state tort law; and (iii) the need for deference to local policymaking bodies in making decisions impacting public safety. See Ruiz v. McDonnell, 299 F.3d at 1184. "These factors counsel that application of danger creation as a basis for § 1983 claims is reserved for exceptional circumstances." 299 F.3d at 1184 (citation and quotation omitted). The Tenth Circuit has noted that "ordinary negligence does not shock the conscience, and that
In Street v. Curry Board of County Commissioners, No. CIV 06-0776, 2008 WL 2397671, 2008 U.S. Dist. LEXIS 42131 (D.N.M. Jan. 30, 2008)(Browning, J.), the plaintiff, a female inmate in the Curry County Detention Center, wished to amend her claims to allege that the County violated her substantive due-process rights when it failed to classify female inmates into separate groups based on supervision needed—minimum, medium, maximum—in the same manner that the male prisoners are classified, and thus exposed her to another inmate who attacked her. The Court did not permit the addition of the claim, finding that such a claim would be futile because "[t]he Court [did] not believe that the County's classification methods shock[ed] the conscience of federal courts." 2008 WL 2397671, at *15, 2008 U.S. Dist. LEXIS 42131, at *41. Similarly, the Court does not believe that any of the allegations in Lymon's Second Amended Complaint, if taken as true, are egregious enough to qualify as shocking to the judicial conscience. Misclassification and denial of a grievance process do not rise to a degree of outrageousness, or a magnitude of potential or actual harm, that is truly conscience-shocking. Because the Court finds that the Sanchez' and Hernandez' conduct, if taken as true, fails to shocks the conscience of the Court, Lymon has failed to state substantive due-process claims. See Ruiz v. McDonnell, 299 F.3d at 1182-83. As Lymon has failed to state either procedural or substantive due-process violations, the Court will dismiss Count V.
In Counts VII and VIII, Lymon asserts § 1983 claims for violations of the Fourteenth Amendment against Williams and the NMDOC. In Count VII, he alleges that Williams' conduct "exhibited a custom, unwritten policy or usage of having his department ignore the substandard food/kitchen service provided by Aramark Corporation." Second Am. Complaint ¶ 52, at 13. He asserts that he seeks prospective legal relief prohibiting "placing inmates with known transmissible diseases on work duty in the prison kitchen." Second Am. Complaint ¶ 52, at 13. Lymon further alleges that, by proving no system of oversight for the quality of services in the kitchen, Williams' conduct shocked the conscience. See Second Am. Complaint ¶ 55, at 13. In Count VIII, Lymon alleges that the NMDOC "had a custom, usage or policy of allowing classification officers wide spread freedom in the placement of inmates irrespective of doctors [sic] orders or the peculiar circumstances of a work place environment." Second Am. Complaint ¶ 58, at 14. He asserts that he seeks prospective relief "enjoining the Corrections Department from placing inmates with known infectious diseases such as tuberculosis and other transmissible diseases from working in the prison kitchen." Second Am. Complaint ¶ 58, at 14. Lymon further alleges that the NMDOC failed to train corrections officers about how to deal with healthcare issues concerning personnel who work around food preparation. See Second Am. Complaint ¶ 59, at 14.
The State Defendants argue that the Court should dismiss Counts VII and VIII because Lymon fails to state a claim upon
First, the Court will not consider Lymon's affidavit as part of its decision on the motion to dismiss.
There are no allegations anywhere in Lymon's Second Amended Complaint that he contracted a disease—Hepatitis C or any other disease—working in the prison kitchen, nor are there any allegations that he suffered injury from substandard food or the conditions in the kitchen. Rather, Lymon alleges that he suffered a shoulder injury when he had to do heavy-lifting in the kitchen, in contravention of his medical restrictions. In Swoboda v. Dubach, 992 F.2d 286, 289 (10th Cir.1993), the Tenth Circuit found that an inmate failed to state claims upon which relief could be granted, explaining:
Swoboda v. Dubach, 992 F.2d at 289. Like in Swoboda v. Dubach, Lymon's allegations in Counts VII and VIII attempt to allege unconstitutional conditions, but he fails to allege any actual injury he has suffered because of these conditions. Lymon has thus failed to allege sufficient facts to establish his claims for relief in Counts VII and VIII. Moreover, Lymon lacks standing to bring claims against Williams and the NMDOC for constitutional violations alleging improper oversight of kitchen conditions and Aramark's food services when he has not alleged that he suffered any "actual or threatened injury as a result of the putatively illegal conduct" alleged in Counts VII and VIII. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)("A plaintiff must always have suffered a distinct and palpable injury to himself, that is likely to be redressed if the requested relief is granted.")(internal citation and quotation omitted). Lymon's Second Amended Complaint also states: "One area where Plaintiff seeks prospective legal relief is the prohibition of placing inmates with known transmissible diseases on work duty in the prison kitchen," Second Am. Complaint ¶ 52, at 13, and states: "Plaintiff seeks prospective relief, enjoining the Corrections Department from placing inmates with known infectious diseases such as tuberculosis and other transmissible diseases from working in the prison kitchens," Second Am. Complaint ¶ 58, at 14. To the extent that Lymon makes allegations for prospective relief, "[a]llegations of possible future injury do not satisfy the injury in fact requirement." Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1087 (10th Cir.2006)(internal quotations and citations omitted). Because Lymon fails to state claims upon which relief can be granted, the Court will dismiss Counts VII and VIII.
In Count VI, Lymon states that he is an African-American and alleges that "several contractual relationships" existed among the various actors described in the Second Amended Complaint: (i) a written contract between Aramark Corporation and the NMDOC; and (ii) an oral contract between Lymon and Aramark Corporation. Second Am. Complaint ¶¶ 45-46, at 12. To establish a prima-facie case of discrimination under § 1981, Lymon must allege: (i) that he is a member of a protected class; (ii) that the State Defendants intended to discriminate against him on the basis of race; and (iii) that the discrimination interfered with a protected activity as defined in § 1981. See Hampton v. Dillard Department Stores, Inc., 247 F.3d at 1101-02. Section 1981 provides that all persons shall have the same right to "make and enforce contracts," and the right to "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(a)-(b). "A claim for interference with the right to make and enforce a contract must allege the actual loss of a contract interest, not merely the possible loss of future contract opportunities." Hampton v. Dillard Dep't Stores, Inc., 247 F.3d at 1104 (citation omitted).
Even though pleadings at the motion to dismiss stage are liberally construed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010). Lymon alleges that he had an oral contract with Aramark to work in the prison kitchen. Lymon argues that evidence of his contractual relationship with Aramark was the work that he did for Aramark, which it accepted, and for which it provided him remuneration. He also alleges that he was discriminated against because of his race—African-American. Even if a contract existed between Lymon and Aramark, Lymon must allege sufficient facts to establish a prima-facie case of discrimination under § 1981. Lymon alleges that he is a member of a protected class, and he also alleges that Sanchez' actions show his "racist animus toward Plaintiff." Second Am. Complaint ¶ 49. Lymon, however, has not alleged sufficient facts to establish the third element of § 1981 discrimination—that it interfered with his right to make and enforce a contract. Under Tenth Circuit law, he must allege actual loss of a contract interest-here, the actual loss would be no longer working for Aramark. Lymon's Second Amended Complaint, however, alleges that when Sanchez "over-ruled the doctors [sic] orders and the nurse's note prohibiting heavy lifting by Plaintiff, he terminated the contract" between Aramark and Lymon. See Second Am. Complaint ¶ 46. Lymon's response to the motion makes no argument addressing how Sanchez' actions—classifying Lymon to work in the kitchen, which led to Lymon forming the alleged oral contract with Aramark to work in the kitchen—interfered with his right to make and enforce a contract, or caused actual loss of a contract interest. See Hampton v. Dillard Dep't Stores, Inc., 247 F.3d at 1104. Lymon's allegations do not support a prima-facie claim of discrimination under § 1981 under Tenth Circuit law, and therefore the Court will dismiss Count VI against the State Defendants.
In Count XIII, Lymon alleges a § 1983 claim against the State Defendants for violating the Thirteenth Amendment by forcing Lymon to work in the prison kitchen. See Second Am. Complaint ¶ 77, at 18. Lymon's claim fails as a matter of law. It is well-established that forcing an inmate to do labor as part of his incarceration for a crime is not involuntary servitude in violation of the Thirteenth Amendment. See Tracy v. Keating, 42 Fed.Appx. 113, 116 (10th Cir.2002) ("[B]y its express language, the Thirteenth Amendment's prohibition of slavery does not apply to the imprisonment of a person lawfully convicted of a crime."); Bowen v. Quarterman, 339 Fed.Appx. at 481 (rejecting the inmate's argument that prison officials forced him to perform labor in violation of the Thirteenth Amendment "because requiring an inmate to perform labor is not involuntary servitude under the Amendment."); O'Connell v. Johnson, 245 Fed. Appx. at 194 ("O'Connell was a duly convicted prisoner during the time period at issue and his claim under the Thirteenth Amendment fails."); Piatt v. MacDougall, 773 F.2d at 1035 ("The Thirteenth Amendment does not prohibit involuntary servitude as part of imprisonment for a crime."). In his response, Lymon cites no legal authority to contradict this weight of legal authority.
In Count XIV of the Second Amended Complaint, Lymon alleges that Sanchez' classification of prisoners "represent a threat to public health" because he was classifying prisoners "with obvious infectious diseases to work in the prison kitchen." Second Am. Complaint ¶ 82, at 19. The State Defendants argue that Lymon fails to state a claim upon which relief can be granted, as there is no claim that Sanchez' classification of Lymon or anyone else impacted anyone outside of the prison. See Motion at 26. They further contend that Lymon lacks standing because he did not personally suffer the alleged injury— contracting an infections disease—as a result of Sanchez' classification. See Motion at 26. Lymon's response makes no attempt to rebut the State Defendants' arguments. As the Court found when addressing Lymon's claims in Count VII and Count VIII, nowhere in Lymon's Second Amended Complaint is there an allegation that Lymon contracted an infectious disease as a result of Sanchez' classification, or as a result of the other State Defendants' actions. Lymon lacks standing to bring a claim—that Sanchez' classifications of prisoners represent a threat to public health—when he has not alleged that he suffered any "actual or threatened injury as a result of the putatively illegal conduct" alleged in Count XIV. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 99, 99 S.Ct. 1601 ("A plaintiff must always have suffered a distinct and palpable injury to himself, that is likely to be redressed
As the Court finds that Lymon has failed to assert federal constitutional claims against the State Defendants upon which relief can be granted, and is dismissing all claims asserted against them pursuant to rule 12(b)(6), the State Defendants also enjoy the protection that the qualified immunity affirmative defense affords. Lymon's claims fail both prongs of his two-prong burden to defeat qualified immunity because he has not established that the State Defendants' actions violated his constitutional rights. See Riggins v. Goodman, 572 F.3d at 1107.
The State Defendants argue that the Court should dismiss Counts I and II, asserted against Sanchez and Hernandez respectively, because the claims of negligence under the NMTCA asserted against them fall outside of the waivers of immunity set forth in the NMTCA. Lymon does not dispute that Sanchez and Hernandez are public employees acting within the scope of their duties, and thus "[c]onsent to be sued may not be implied but must come within one of the exceptions to immunity under the Tort Claims Act." Begay v. State, 104 N.M. at 486-87, 723 P.2d at 255-56. If no specific waiver can be found in the NMTCA, the Court must dismiss Lymon's NMTCA claims. See Begay v. State, 104 N.M. at 486-87, 723 P.2d at 255-56. "The areas for which immunity is waived in the Tort Claims Act are quite specific." Luboyeski v. Hill, 117 N.M. 380, 383, 872 P.2d 353, 356 (1994)(citing § 41-4-6 (waiver of immunity for negligence of public employees acting within scope of employment in operation or maintenance of buildings, public parks, machines, or equipment), § 41-4-7 (operation of airports), 41-4-9 (medical facilities), § 41-4-10 (health care providers), § 41-4-11 (highways and streets)). Lymon argues that Sanchez and Hernandez fall within the waivers in § 41-4-6 and § 41-4-12.
In Count I of the Second Amended Complaint, Lymon alleges that Sanchez negligently misclassified him for work in the prison kitchen contrary to his medically ordered restriction prohibiting heavy lifting. See Second Am. Complaint ¶¶ 10, 21-24, at 3, 5. While other legal claims are made against Sanchez in the Second Amended Complaint, Lymon's claim of negligence against Sanchez is based only on the alleged misclassification.
Section 41-4-6 exempts from immunity "liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment, or furnishings." NMSA 1978, § 41-4-6. This waiver "contemplates waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government." Bober v. N.M. State Fair, 111 N.M. at 653, 808 P.2d at 623. The Supreme Court of New Mexico has addressed whether the negligent classification of a prison inmate falls within § 41-4-6's scope and has held that "Section 41-4-6 does not waive immunity when public employees negligently perform such administrative functions." Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347. In Archibeque v. Moya, the Supreme Court of New Mexico found: "The `operation' and `maintenance' of the penitentiary premises, as these terms are used in Section 41-4-6, does not include the security, custody, and classification of inmates." 116 N.M. at 619, 866 P.2d at 347. As in the circumstances in Archibeque v. Moya, Lymon alleges that Sanchez' misclassification of him caused him injury. The Court finds the Supreme Court of New Mexico's holding that § 41-4-6's waiver of immunity does not apply to negligent classification of an inmate to be on point in this case.
Lymon argues that the Court should follow the dicta of a footnote in Archibeque v. Moya, which states: "While a segment of the population at risk might justify a waiver of immunity under Section 41-4-6, a situation in which a single inmate is put at risk is not comparable." 116 N.M. at 621 n. 3, 866 P.2d at 349 n. 3. Chief Justice Ransom, in his concurrence, elaborated on the significance between a "discrete administrative decision," which does not waive immunity, and "a general condition of unreasonable risk from negligent security practices," which could waive immunity. 116 N.M. at 622, 866 P.2d at 350 (Ransom, C.J., concurring). Chief Justice Ransom stated that the classification of Archibeque did not change the condition of the premises, and that Archibeque's injuries did not arise from a condition of the premises, but from the classification itself. See id. at 622, 866 P.2d at 350. Lymon argues that he pled in his Second Amended Complaint that Sanchez misclassified hundreds of inmates. See Response at 2; Second Am. Complaint ¶ 10, at 3 ("Sanchez has done this [misclassification] to hundreds of men in the prison."); Second Am. Complaint ¶ 22, at 5 ("John Sanchez has negligently misclassified other inmates with medical conditions creating a danger for the inmate population."). The Court, however, does not believe that Lymon's factual allegation that others have been misclassified and his conclusory allegation that it creates a danger for the inmate population is sufficient to support finding a waiver under § 41-4-6. To come within Chief Justice Ransom's footnote, this misclassification must raise security risks, not health risks. Security is not at issue here. The Court is reluctant to expand Chief Justice
Second, Lymon does not allege that Sanchez' alleged misclassifications have injured any other inmate besides Lymon. While the he alleges the misclassifications created a "danger," no injury is alleged from the alleged danger with respect to others. Under rule 12(b)(6), a motion to dismiss "admits all well-pleaded facts in the complaint as distinguished from conclusory allegations." Mitchell v. King, 537 F.2d at 386 (citation omitted). The Court does not believe that Lymon's threadbare allegations that other inmates were misclassified rises to a level of "a dangerous condition on the premises of the penitentiary," Callaway v. N.M. Dep't of Corr., 117 N.M. at 643, 875 P.2d at 399, and thus does not believe that Lymon's claim is one which "might justify waiver of immunity under § 41-4-6." 116 N.M. at 621 n. 3, 866 P.2d at 349 n. 3. In Callaway v. New Mexico Department of Corrections, roving gang members in the recreation area created a dangerous condition on the premises of the prison. 117 N.M. at 643, 875 P.2d at 399. Sanchez' alleged misclassifications do not rise to the level of a dangerous condition on the prison premises found in Callaway v. New Mexico Department of Corrections. The well-pleaded factual allegations support only a claim against Sanchez for negligent classification of Lymon which resulted in injury and such a negligently performed administrative task does not waive Sanchez' immunity. See Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347. To find otherwise would go against the Supreme Court of New Mexico's finding that holding a corrections officer liable for negligent classification of an inmate resulting in injury "would undermine the purposes of the Tort Claims Act by subjecting the State to liability for virtually any mistake made during the administration of corrections facilities that results in injury to an inmate." Archibeque v. Moya, 116 N.M. at 621, 866 P.2d at 349. The Court, therefore, will not waive Sanchez' immunity under § 41-4-6.
In Count II, Lymon alleges that Hernandez denied Lymon the use of the prison grievance process, and that such action "constitutes a negligent action in maintaining and operating the prison's physical premises because it maintains a certain policy." Second Am. Complaint ¶ 28, at 6. He alleges that, "[b]y denying Plaintiff the opportunity for a Hearing, Abner Hernandez maintained a policy which affects a whole segment of inmates." Second Am. Complaint ¶ 28, at 6. The State Defendants argue that § 41-4-6 is inapplicable to Lymon's claim that Hernandez negligently denied him access to the grievance process because the prison grievance process is an administrative procedure, and the grant or denial of its use is an administrative function. See Motion at 9. Lymon did not respond to the State Defendants' argument in his brief, stating only that "Plaintiff states the actions of officer Hernandez interfered with his ability to Exhaust his Administrative Remedies with the law, the Department of Corrections and the Court." Response at 11. At the hearing, Mr. Brown argued that § 41-4-6's purpose is to protect the public and that therefore Hernandez' action in refusing
Lymon argues, in the alternative, that Sanchez and Hernandez are law-enforcement officers and the waiver of immunity in § 41-4-12 applies. Section 41-4-12 provides a waiver of immunity for law-enforcement officers who have committed certain torts. See Oliveros v. Mitchell, 449 F.3d at 1096.
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 121 N.M. at 649, 916 P.2d at 1316.
The NMTCA defines "law enforcement officer" as "any full-time salaried public employee of a governmental entity 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, or members of the national guard when called to active duty by the governor." NMSA, 1978, § 41-4-3D. In Callaway v. New Mexico Department of Corrections, the New Mexico Court of Appeals affirmed the trial court's determination that corrections officers are not law-enforcement officers under § 41-4-3D. See 117 N.M. at 641, 875 P.2d at 397. The New Mexico Court of Appeals found persuasive the holding of the Honorable Santiago E. Campos, United States District Judge, in Osborn v. Governor of New Mexico, Civ. No. 80-178 (D.N.M.1983)(Campos, J.), in which Judge Campos held that prison guards in the department of corrections are not law-enforcement officers for purposes of § 41-4-3D because: (i) the principal duties of prison guards are to hold in custody persons who have already been convicted rather than merely accused of a criminal offense; (ii) maintenance of public order relates to a public not a penitentiary setting; and (iii) although prison guards may have the supplemental power to arrest pursuant to the guidelines of § 33-1-10, their principal statutory duties are those set forth in § 33-2-15. See Callaway v.
The Supreme Court of New Mexico in State v. Young, 135 N.M. 458, 90 P.3d 477 (2004), noted in a footnote that it has found that jailers at county jails are law-enforcement officers within the meaning of § 41-4-3D and declined to address any "potential conflict in the cases interpreting Section 41-4-3(D)." 135 N.M. at 467 n. 2, 90 P.3d at 486 n. 2. There is a distinction, however, between officers holding, in the plain language of § 41-4-3D, "in custody any persons accused of a criminal offense" and those officers who are holding in custody persons already convicted. The Court believes that the reasoning of Judge Campos, which the New Mexico Court of Appeals adopted, remains sound. The cases finding jailers to be law-enforcement officers are distinguishable from the cases that have found that corrections officers are not law-enforcement officers. The former have found that persons in charge of inmates accused of crimes and awaiting trial, which fits within the plain language of § 41-4-3D, are different from corrections officers, who manage persons already convicted and sentenced. See Davis v. Bd. of County Comm'rs, 127 N.M. 785, 796, 987 P.2d 1172, 1183 (Ct.App.1999)("It is settled New Mexico law that directors of a county detention center, in which the inmates are primarily accused of a criminal offense and awaiting trial, fall within the definition of law enforcement officers under the Act.")(quotation omitted); Abalos v. Bernalillo County Dist. Attorney's Office, 105 N.M. 554, 560, 734 P.2d 794, 800 (Ct.App.1987) ("We hold as a matter of law that the director [of the Bernalillo County Detention Center's] duties are principally to hold in custody persons accused of a criminal offense."). Compare Callaway v. N.M. Dep't of Corr., 117 N.M. at 641, 875 P.2d at 397 (holding that corrections officers who hold convicted persons in custody are not law-enforcement officers under § 41-4-3D); Anchondo v. Corr. Dep't, 100 N.M. at 111, 666 P.2d at 1258 (stating that "[t]he fact that a person is employed at the penitentiary is not sufficient to establish that his job is one in law enforcement," and holding that the Warden and the Secretary of Corrections are not law-enforcement officers under § 41-4-3 because the majority of their time is devoted to administrative duties and they have no authority to make arrests for crimes). There are rational reasons that the New Mexico Legislature has made a distinction between detention officers and prison guards. For those citizens presumed innocent or still only accused, the Legislature was willing to waive immunity for certain torts; for those already convicted of crimes, the Legislature was not willing to waive immunity. The Legislature could have drawn the line differently, but there is nothing irrational or unsound with its policy decision. Moreover, Judge Campos' opinion in Osborn v. Governor of New Mexico and the New Mexico Court of Appeals' decision in Callaway v. New Mexico Department of Corrections have been around for twenty-seven years and sixteen years, respectively, and
The Court believes that the Supreme Court of New Mexico would uphold the New Mexico Court of Appeals' holding in Callaway v. New Mexico Department of Corrections, and find that corrections officers do not fit within the plain language of § 41-4-3D, and thus that § 41-4-12 does not waive immunity. The Court notes, however, that, even if Sanchez and Hernandez were considered law-enforcement officers, their alleged actions—negligent classification and negligent denial of the grievance process—are not considered within the torts listed in § 41-4-12. The Supreme Court of New Mexico in Bober v. New Mexico State Fair stated: "[N]o case has held that simple negligence in the performance of a law enforcement officer's duty amount to commission of one of the torts listed in [§ 41-4-12]." 111 N.M. at 653-54, 808 P.2d at 623-24.
In Count III, Lymon alleges that Williams, as Secretary of the NMDOC, is liable under a theory of respondeat superior, and also alleges that Williams and the NMDOC were independently negligent. See Second Am. Complaint ¶¶ 31-32, 35, at 7-9. The State Defendants argue there can be no respondeat superior liability without underlying tort liability of Sanchez and Hernandez, of which there is none. They also argue that the waivers Lymon has asserted— § 41-4-6 and § 41-4-12-are not applicable to Lymon's claims against Williams and the NMDOC.
In Counts III and IV, Lymon alleges that Williams and the NMDOC are liable under a theory of respondeat superior for the actions of NMDOC employees Sanchez and Hernandez. "Under basic respondeat superior principles, an employer is liable for an employee's torts committed within the scope of his or her employment." Ocana v. Am. Furniture Co., 135 N.M. 539, 551, 91 P.3d 58, 70 (2004)(citing Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 226, 861 P.2d 263, 267 (Ct.App. 1993)). In Silva v. State, 106 N.M. 472, 745 P.2d 380 (1987), the Supreme Court of New Mexico set forth what is required for a respondeat superior claim:
106 N.M. at 477, 745 P.2d at 385 (quoting Abalos v. Bernalillo County Dist. Attorney's Office, 105 N.M. at 559, 734 P.2d at 799). The Court cannot properly impose respondent superior liability, because the allegedly negligent employees—Sanchez and Hernandez—do not meet any of the NMTCA's waiver exceptions, and therefore no underlying liability exits on which to impose such vicarious liability. The Court, therefore, dismisses the respondeat superior claims in Count III and Count IV.
Lymon alleges that Williams negligently: (i) failed to establish standards, practices, policies, and procedures to deal with medical complications which arise from the placement of inmates who are given work which exceeds the limitations ordered by their physicians; (ii) failed to select, hire, and supervise kitchen contractors like Aramark; (iii) failed to train corrections officers about how to handle prisoners who have pre-existing medical conditions and are required to do work for private contractors, where the limitations ordered by a physician restrict what the inmate can do; (iv) failed to train corrections officers concerning the importance of honoring additional medical evidence of disability; (v) failed to monitor private contractors to make certain that inmates classified to work for private contractors are provided with a safe, healthy work environment; and (vi) maintained a policy of disallowing grievance appeals where inmates are injured while working for private contractors. See Second Am. Complaint ¶¶ 31-32, at 7-8. In Count IV, Lymon alleges that the NMDOC is liable under a theory of respondeat superior and also alleges that the NMDOC is liable for negligently (i) failing to provide day-to-day supervision of Aramark; (ii) failing to provide a grievance procedure for the specific problem Lymon encountered; (iii) failing to have in place policies, procedures, and practices that require medical clearance before assigning inmates to work in the prison kitchen; (iv) violating the Corrections Industry Act pertaining to inmate work for private contractors; and (v) failing to require Aramark and its employees to abide by all New Mexico State laws and prison policies in dealing
In response to the State Defendants' argument that no waiver of immunity applies to Lymon's negligence claims against Williams and the NMDOC, Lymon does not dispute that his claims are not within the scope of these waivers. Rather, Lymon cites to Silva v. State for the proposition that "the finder of fact [will] determine whether [the Secretary of Corrections] failed to exercise ordinary care in the discharge of these duties as they may be found to include the operation or maintenance of the corrections and medical care facilities and health care services proximately related to the death of Silva," and argues that it benefits his case. Response at 10 (quoting Silva v. State, 106 N.M. at 478, 745 P.2d at 386). The Court does not believe that the quotation plucked from Silva v. State with no explanation as to why it applies to Lymon's claims defeats the State Defendants' argument that Lymon's claims are not within § 41-4-6's scope. In Silva v. State, an inmate with serious psychiatric problems committed suicide while incarcerated, and the plaintiffs brought a wrongful death action, alleging that the negligent failure to provide Silva with special care for his condition caused his death. See 106 N.M. at 473, 745 P.2d at 381. The Supreme Court of New Mexico held that the trial court erred by concluding that the NMTCA's waivers of immunity were inapplicable to acts or omissions that the Secretary of Corrections committed while acting within the scope of his duties. See 106 N.M. at 477, 745 P.2d at 385 ("We hold only that Francke's management and enforcement duties may be found to have included staffing, training and provision for facilities which would have provided Silva a course of treatment, health care and protection to address the mental disorder undergirding his basic prison classification."). In Archibeque v. Moya, however, the Supreme Court of New Mexico noted that its decision in Silva v. State provided "no generally applicable principle pertaining to the interpretation of Section 41-4-6," and the decision in Silva v. State noted only that the Secretary of Correction's immunity
Archibeque v. Moya, 116 N.M. at 621, 866 P.2d at 349. The Supreme Court of New Mexico in Archibeque v. Moya also noted that the decision in Silva v. State then "required the finder of fact to determine whether the Secretary breached duties related to any one of the three waiver provisions listed above following further factual development at trial." Archibeque v. Moya, 116 N.M. at 621, 866 P.2d at 349. The Supreme Court of New Mexico explained:
Archibeque v. Moya, 116 N.M. at 621, 866 P.2d at 349. The situation in Silva v. State is distinguishable from this case. In that case, the issue was whether "the operation or maintenance of the corrections and medical care facilities and health care services proximately related to the death of Silva." 106 N.M. at 478, 745 P.2d at 386. Lymon's Second Amended Complaint does not allege that the operation or maintenance of the prison kitchen or other facilities caused his injuries; he alleges that Sanchez' negligent misclassification and refusal to follow a medical order caused his injuries. Moreover, all of Lymon's allegations of negligence against Williams and the NMDOC are claims of negligent administration of the prison. Section 41-4-6 is not intended to waive immunity for negligent performance of administrative functions. See Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347 ("To read Section 41-4-6 as waiving immunity for negligent performance of administrative functions would be contrary to the plain language and intended purpose of the statute."). The Court, therefore, finds that Lymon's claims are not within the scope of § 41-4-6's waiver of immunity.
Section 41-4-12 also does not waive Williams' or the NMDOC's immunity. The Supreme Court of New Mexico has held as a matter of law that the Secretary of Corrections is not a law-enforcement officer as the NMTCA defines the phrase. See Anchondo v. Corr. Dep't, 100 N.M. at 111, 666 P.2d at 1258 ("[W]e see that neither the Secretary of Corrections nor the Warden engage in any of the traditional duties of `law enforcement officers.' . . . They are merely administrative officers appointed by the governor to oversee, administer, and supervise the state's corrections system."). The NMDOC is also not a law-enforcement officer within the definition set forth in § 41-4-3D. See Silva v. State, 106 N.M. at 479, 745 P.2d at 387 ("Since the [Corrections and Criminal Rehabilitation Department] is neither a public employee nor a law enforcement officer, the trial court properly dismissed plaintiffs' Tort Claims Act claim against the CCRD."); Wittkowski v. State, 103 N.M. 526, 529, 710 P.2d 93, 96 (Ct.App.)("The corrections department is not within the definition [of § 41-4-3]"), cert. quashed, 103 N.M. 446, 708 P.2d 1047 (1985), overruled on other grounds by Silva v. State, 106 N.M. at 477, 745 P.2d at 385. Because neither Williams nor the NMDOC fall within the waivers in § 41-4-6 or § 41-4-12, the Court will dismiss Lymon's claims asserted in Counts III and IV.
Tr. at 69:1-5 (Brown). The docket does not, however, support Mr. Brown's representation to the Court. The Second Amended Complaint was filed on December 14, 2009 (Doc. 69). No affidavit follows the filing of the Second Amended Complaint. Lymon filed an affidavit on July 24, 2009, following the filing of his motion for reconsideration, which appears to be in support of his motion. See Affidavit of Davon Lymon (executed July 22, 2009), filed July 24, 2009 (Doc. 48). Because the operative complaint is the Second Amended Complaint, filed December 14, 2009, and there are no exhibits attached or filed subsequent to the Second Amended Complaint, the Court will not consider the affidavit to be an exhibit to the Second Amended Complaint.
NMSA 1978, § 33-2-15.
