MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Tomas Montoya's Renewed Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, filed January 30, 2012 (Doc. 94)("Jan. 30, 2012 MSJ"). The Court held a hearing on April 5, 2012. The primary issues are: (i) whether Defendant Tomas Montoya is entitled to summary judgment on the basis of qualified immunity under the facts presented; (ii) whether the Court should permit Plaintiff Byron Todd to have additional discovery under rule 56(d) of the Federal Rules of Civil Procedure to challenge Montoya's assertion of qualified immunity; (iii) whether the Court should enter summary judgment on Todd's tort claims under the New Mexico Tort Claims Act, N.M.S.A.1978, §§ 41-4-1 to -30 ("NMTCA"); and (iv) whether the Court should permit Todd to have additional discovery under rule 56(d) to show the existence of a genuine issue of material fact regarding Montoya's liability under the NMTCA. The Court will grant the Jan. 30, 2012 MSJ. The Court concludes that, on the facts presented, Todd has not met his burden to overcome Montoya's qualified-immunity defense. Likewise, Todd has not satisfied the standards under rule 56(d) to obtain additional discovery to overcome Montoya's qualified-immunity defense. Todd has also not met his burden to show the existence of a genuine issue of material fact regarding Montoya's liability under the NMTCA. Lastly, Todd has not met the requirements under rule 56(d) to merit additional discovery regarding his NMTCA claim against Montoya.

FACTUAL BACKGROUND

Todd attempts to dispute many of Montoya's asserted facts. In contravention of D.N.M.LR-Civ. 56.1(b), however, Todd does not distinguish between Montoya's asserted facts which he intends to dispute and additional asserted facts he intends to present. D.N.M.LR-Civ. 56.1(b) provides in relevant part:

D.N.M.LR-Civ. 56.1(b). While the Court does not believe that any sanction is appropriate for Todd's failure to comply with this local rule, the Court notes that it may have some difficulty in determining whether Todd intends to present additional asserted facts or intends to dispute Montoya's asserted facts.

There have been two summary judgment motions filed in this case, with the most recent motion being the Jan. 30, 2012 MSJ and the earlier motion being the motion for summary judgment filed on April 13, 2011. See Defendant Tomas Montoya's Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, and Supporting Memorandum (Doc. 61)("Apr. 13, 2011 MSJ"). Because the parties incorporate their factual sections from their previous filings regarding the Apr. 13, 2011 MSJ, the Court will present both sets of facts in chronological order.

Todd also provides two separate affidavits under rule 56(d) asserting that he needs additional discovery to have the ability to properly dispute Montoya's asserted facts. In his most recent response to Montoya's motion for summary judgment, Todd asserts that he has sufficient evidence to show the existence of a genuine issue of material fact to avoid the entry of summary judgment and requests, as an alternative ground, that the Court permit him to have additional discovery. See Plaintiff's Response to Defendant Montoya's Renewed Motion for Summary Judgment at 3 [Doc. No. 94], filed February 27, 2012 (Doc. 96)("Response to Jan. 30, 2012 MSJ"). Specifically, he states: "Although Plaintiff does not believe it is necessary, should the Court believe that additional discovery is necessary to rule on Defendant's Motion, the Court should defer ruling until said discovery can be completed." Response to Jan. 30, 2012 MSJ at 3. Consequently, the Court will evaluate Todd's requests for additional discovery under rule 56(d) in the analysis section of this Memorandum Opinion and Order once it has determined, on the facts presented, whether entry of summary judgment is appropriate. This course of action is also the more practical one given that Todd, in response to the significant majority of Montoya's asserted facts, has asserted that he "is without sufficient knowledge to admit or deny these allegations, and is in need of further discovery." E.g., Response to Defendant Tomas Montoya's Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, and Supporting Memorandum ¶ 2, at 2, filed May 23, 2011 (Doc. 67)("Response to Apr. 13, 2011 MSJ"). It will be more efficient for the Court to address this argument one time rather than each time Todd makes it — particularly given that Todd makes this argument over fifty times. If Todd makes this argument in response to an asserted fact, the Court will consider the fact undisputed for purposes of deciding the Jan. 30, 2012 MSJ, but will separately consider whether additional discovery under rule 56(d) is appropriate such that the Court should deny the motion for summary judgment. See D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").

This dispute revolves around a fight between several inmates in which an inmate named Patrick Wilks and an inmate named Joseph Armijo attacked Todd. The Bernalillo County Metropolitan Detention Center ("MDC") hired Montoya as a detention center or corrections officer, where he began working on October 19, 2007. See Apr. 13, 2011 MSJ ¶ 1, at 2 (setting forth this fact); Affidavit of Defendant Tomas Montoya ¶ 3, at 1, filed April 13, 2011 (Doc. 61)("Montoya Aff."); Response to Apr. 13, 2011 MSJ ¶ 1, at 2 (not disputing this fact). On January 13, 2008, Montoya was assigned to oversee the inmates in the Fox-7 housing unit ("F-7") at the MDC. See Apr. 13, 2011 MSJ ¶ 2, at 2 (setting forth this fact); Montoya Aff. ¶ 4, at 1; Response to Apr. 13, 2011 MSJ ¶ 2, at 2 (not disputing this fact). Inmates in the F-7 on January 13, 2008 consisted of general population inmates. See Apr. 13, 2011 MSJ ¶ 3, at 2; Montoya Aff. ¶ 5, at 1; Response to Apr. 13, 2011 MSJ ¶ 3, at 2 (not disputing this fact). General population inmates are free to move about F-7 among other general population inmates, except that they cannot enter the cells of other inmates and must remain at all times at least arm's length apart from the staff station area that the corrections officer on duty occupies. See Apr. 13, 2011 MSJ ¶ 4, at 2-3 (setting forth this fact);Montoya Aff. ¶ 7, at 2.1

Montoya had no authority or discretion to determine which inmates were classified as general population inmates and which were permitted to be in F-7. See Apr. 13, 2011 MSJ ¶ 5, at 3 (setting forth this fact); Montoya Aff. ¶ 6, at 2; Response to Apr. 13, 2011 MSJ ¶ 5, at 3 (not disputing this fact).2

On January 13, 2008, and on other dates when Montoya worked in F-7, his work post consisted of the staff station. See Apr. 13, 2011 MSJ ¶ 6, at 3 (setting forth this fact); Montoya Aff. ¶ 6, at 2.3 In front of the staff station is a large brick wall in a half oval, and there is access to the staff station by walking up three steps and then entering around the sides of the half oval brick wall; this wall is about six feet high from the floor level on the inmates' side of the wall. See Apr. 13, 2011 MSJ ¶ 7, at 3 (setting forth this fact); Montoya Aff. ¶ 9, at 2; Response to Apr. 13, 2011 MSJ ¶ 7, at 3 (not disputing this fact). The staff station consists of a top desk with a drop-down computer terminal with a telephone on the top desk and a chair located behind the desk. See Apr. 13, 2011 MSJ ¶ 8, at 3 (setting forth this fact); Montoya Aff. ¶ 10, at 2; Response to Apr. 13, 2011 MSJ ¶ 8, at 3 (not disputing this fact).

Generally, Montoya, during his shift in F-7, would be at the staff station observing inmates from an elevated position. See Apr. 13, 2011 MSJ ¶ 9, at 3 (setting forth this fact); Montoya Aff. ¶ 11, at 2; Response to Apr. 13, 2011 MSJ ¶ 9, at 4 (not disputing this fact). Corrections officers use the drop-down computer terminal located at the staff station desk to look for an open cell for a new inmate who was already classified to be in F-7, to look up account balances of inmates with Canteen Services,4 and to review the legal and criminal history of inmates within MDC's files. See Apr. 13, 2011 MSJ ¶ 10, at 3 (setting forth this fact); Montoya Aff. ¶ 12, at 2; Response to Apr. 13, 2011 MSJ ¶ 10, at 4 (not disputing this fact).

Montoya's review of inmates' legal or criminal history as stated in their MDC files was as a precaution for his safety as a corrections officer. See Apr. 13, 2011 MSJ ¶ 11, at 4 (setting forth this fact); Montoya Aff. ¶ 13, at 3.5 The computer terminal screen was always located down between the knees of the corrections officer sitting at the staff station desk; the corrections officer could raise the computer keyboard to a higher level, but not the computer screen itself. See Apr. 13, 2011 MSJ ¶ 12, at 4 (setting forth this fact); Montoya Aff. ¶¶ 14-15, at 3; Response to Apr. 13, 2011 MSJ ¶ 12, at 5 (not disputing this fact). A corrections officer, such as Montoya, would always be looking at a downward angle at the computer screen. See Apr. 13, 2011 MSJ ¶ 12, at 3 (setting forth this fact); Montoya Aff. ¶¶ 14-15, at 3; Response to Apr. 13, 2011 MSJ ¶ 12, at 5 (not disputing this fact). The computer screen was covered with a plexi-glass shield "that made it difficult even for the corrections officer to view the information on the computer screen." Apr. 13, 2011 MSJ ¶ 13, at 4 (setting forth this fact). Accord Montoya Aff. ¶ 16, at 3; Response to Apr. 13, 2011 MSJ ¶ 13, at 5 (not disputing this fact). The drop-down computer was situated such that no one other than a person sitting in the chair at the staff station desk could view the information on the computer screen. See Apr. 13, 2011 MSJ ¶ 14, at 4 (setting forth this fact); Montoya Aff. ¶ 17, at 3; Response to Apr. 13, 2011 MSJ ¶ 14, at 5 (not disputing this fact).

Both Todd and Wilks were inmates in F-7 on January 13, 2008. See Apr. 13, 2011 MSJ ¶ 15, at 4 (setting forth this fact); Montoya Aff. ¶¶ 18-19, at 3; Response to Apr. 13, 2011 MSJ ¶ 15, at 5 (not disputing this fact). Wilks was at the MDC during the time period his fight with Todd occurred. See Jan. 30, 2012 MSJ ¶ 1, at 3 (setting forth this fact); Deposition of Patrick Wilks at 14:10-12, 15:2-6 (dated September 23, 2011), filed January 30, 2012 (Doc. 94-1)("Wilks Depo."); Plaintiff's Amended Response to Defendant Montoya's Renewed Motion for Summary Judgment [Doc. No. 94] ¶ 1, at 1, filed February 28, 2012 (Doc. 97)("Amended Response to Jan. 30, 2012 MSJ"). Wilks testified in his deposition that the fight occurred in 2006 rather than 2008. See Amended Response to Jan. 30, 2012 MSJ ¶ 1, at 1 (setting forth this fact); Wilks Depo. at 11:17-13:3; Reply to Plaintiff's Response and Amended Response to Defendant Tomas Montoya's Renewed Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, filed March 22, 2012 (Doc. 104)("Reply to Response to Jan. 30, 2012 MSJ")(not disputing this fact). Wilks remembers that Montoya was the guard on duty the day the fight that involved Todd and Wilks took place. See Jan. 30, 2012 MSJ ¶ 2, at 4 (setting forth this fact); Wilks Depo. at 44:20-45:1; Amended Response to Jan. 30, 2012 MSJ ¶ 2, at 1 (not disputing this fact). Before the day of the fight, Todd and Wilks had never fought one another, had not argued with one another, or otherwise had any problems. See Jan. 30, 2012 MSJ ¶ 3, at 4 (setting forth this fact); Wilks Depo. at 24:2-5; Amended Response to Jan. 30, 2012 MSJ ¶ 3, at 1 (not disputing this fact). On the day the fight occurred, Todd and Wilks did not have any conversations with one another before the fight broke out.6 Before and at the time of the fight, Wilks had no knowledge of Todd's criminal or legal background, except that Todd had told Wilks that he had been in the penitentiary. See Jan. 30, 2012 MSJ ¶ 9, at 4 (setting forth this fact); Wilks Depo. at 48:20-49:7.7

Armijo was at the MDC at the time of the fight. See Jan. 30, 2012 MSJ ¶ 29, at 6 (setting forth this fact); Deposition of Joseph Armijo at 5:14-22, 14:3-10 (taken November 29, 2011), filed January 30, 2012 (Doc. 94-5)("Armijo Depo."); Amended Response to Jan. 30, 2012 MSJ ¶ 29, at 5 (not disputing this fact). Todd was a mentor in "God's pod," a place for religious studies for inmates. Jan. 30, 2012 MSJ ¶ 30, at 6 (setting forth this fact). Accord Armijo Depo. at 16:1-11; Amended Response to Jan. 30, 2012 MSJ ¶ 30, at 5 (not disputing this fact). According to Armijo, Todd was acting "like he was a bad ass" and let being a mentor "go to his head." Jan. 30, 2012 MSJ ¶ 31, at 7 (setting forth this fact). Accord Armijo Depo. at 23:10-21; Amended Response to Jan. 30, 2012 MSJ ¶ 31, at 5 (not disputing this fact).8 "Inmates wanted to know why Todd `was acting like he was a bad ass,' i.e., what charges he was in prison for." Jan. 30, 2012 MSJ ¶ 32, at 7 (setting forth this fact). Accord Armijo Depo. at 23:10-25; Amended Response to Jan. 30, 2012 MSJ ¶ 32, at 5 (not disputing this fact). "Armijo found out from an `an outside source' that Plaintiff had `rape charges.'" Jan. 30, 2012 MSJ ¶ 33, at 7 (setting forth this fact). Accord Armijo Depo. at 24:9-20; Amended Response to Jan. 30, 2012 MSJ ¶ 33, at 5-6 (not disputing this fact).9 The outside source was someone's relative who was not in the MDC. See Jan. 30, 2012 MSJ ¶ 34, at 7 (setting forth this fact); Armijo Depo. at 24:9-20; Amended Response to Jan. 30, 2012 MSJ ¶ 34, at 6 (not disputing this fact).10 The outside source was not an MDC employee. See Jan. 30, 2012 MSJ ¶ 35, at 7 (setting forth this fact); Armijo Depo. at 64:1-7; Amended Response to Jan. 30, 2012 MSJ ¶ 35, at 6 (not disputing this fact).11 The outside source informed Armijo that Todd was on a sex-offender website. See Jan. 30, 2012 MSJ ¶ 36, at 7 (setting forth this fact); Armijo Depo. at 55:12-21; Amended Response to Jan. 30, 2012 MSJ ¶ 36, at 6 (not disputing this fact).12

At some point during the shift on January 13, 2008, Wilks approached Montoya while both men were standing on the floor level of the area below and outside the confines of the staff station. See Apr. 13, 2011 MSJ ¶ 16, at 4 (setting forth this fact); Montoya Aff. ¶ 20, at 3.13 Wilks asked Montoya if Todd was a "chester." Apr. 13, 2011 MSJ ¶ 17, at 4 (setting forth this fact). Accord Montoya Aff. ¶ 21, at 3; Response to Apr. 13, 2011 MSJ ¶ 17, at 5 (not disputing this fact). Montoya interpreted Wilks' use of the phrase chester to mean that Wilks was asking if Todd was a child molester. See Apr. 13, 2011 MSJ ¶ 17, at 4-5 (setting forth this fact); Montoya Aff. ¶ 22, at 3; Response to Apr. 13, 2011 MSJ ¶ 17, at 5 (not disputing this fact). Montoya told Wilks "that he did not know." Apr. 13, 2011 MSJ ¶ 17, at 5 (setting forth this fact). Accord Montoya Aff. ¶ 22, at 3.14 Wilks then walked away from and departed the staff station area. See Apr. 13, 2011 MSJ ¶ 18, at 5 (setting forth this fact); Montoya Aff. ¶ 24, at 4; Response to Apr. 13, 2011 MSJ ¶ 18, at 5 (not disputing this fact). Other than Todd's statement to him, Wilks had no other knowledge of Todd's criminal history. See Jan. 30, 2012 MSJ ¶ 10, at 4 (setting forth this fact); Wilks Depo. at 49:5-7.15 Other than to tell Wilks that he did not know if Todd was a chester, Montoya did not verbally tell Wilks about any charges or other information regarding Todd.16 Other than to ask Montoya if Todd was a chester, Wilks did not ask Montoya about Todd's criminal charges.17

After Wilks left the staff station area, Montoya began to attempt to access the MDC records on Todd on the staff station computer. See Apr. 13, 2011 MSJ ¶ 19, at 5 (setting forth this fact); Montoya Aff. ¶ 25, at 4.18 A few minutes later, while Montoya was sitting down attempting to access the MDC records on Todd on the staff station computer, Wilks used his arms to raise his upper torso over the six-foot wall for about ten seconds; Wilks was peering over the six-foot wall on the right side of the staff station trying to view the computer terminal screen. See Apr. 13, 2011 MSJ ¶ 20, at 5 (setting forth this fact); Montoya Aff. ¶ 26, at 4.19 Montoya "quickly scooted back his chair a little and told Wilks, `You need to get off the staff station.'" Apr. 13, 2011 MSJ ¶ 21, at 5 (setting forth this fact). Accord Montoya Aff. ¶ 27, at 4.20 After a few seconds, Wilks complied and left the staff station area. See Apr. 13, 2011 MSJ ¶ 21, at 5 (setting forth this fact); Montoya Aff. ¶ 28, at 4.21

From his vantage point or angle on top of the wall, Wilks had a limited view of the information contained on the computer screen. See Apr. 13, 2011 MSJ ¶ 22, at 5 (setting forth this fact); Montoya Aff. ¶ 29, at 4.22 Wilks looked at the computer located on the desk of the corrections officer.23 Wilks came close to the desk of the corrections officer.24

When Wilks was on the staff station wall, Montoya had not yet viewed any MDC records for Todd related to Todd's legal or criminal history. See Apr. 13, 2011 MSJ ¶ 23, at 5 (setting forth this fact); Montoya Aff. ¶ 30, at 4.25 Wilks did not see or view information on Todd from the computer screen. See Jan. 30, 2012 MSJ ¶ 24, at 6 (setting forth this fact); Wilks Depo. at 45:20-46:11.26 Montoya did not show Wilks any charges or other information regarding Todd. See Jan. 30, 2012 MSJ ¶ 24, at 6 (setting forth this fact); Wilks Depo. at 46:12-14.27 Montoya did not communicate to Wilks any information about Todd's criminal or legal history. See Apr. 13, 2011 MSJ ¶ 24, at 5 (setting forth this fact); Montoya Aff. ¶ 31, at 4.28 Wilks' actions on January 13, 2008, in trying to view the computer terminal screen from atop the six-foot wall was the only time during Montoya's employment at MDC that an inmate had tried to view the computer terminal screen located in the staff station. See Apr. 13, 2011 MSJ ¶ 25, at 6 (setting forth this fact); Montoya Aff. ¶ 32, at 4.29 Before Wilks' actions in trying to view the computer terminal screen from atop the six-foot wall, Montoya had no concerns about any inmate attempting to view the computer screen while he was attempting to access Todd's MDC records. See Apr. 13, 2011 MSJ ¶ 26, at 6 (setting forth this fact); Montoya Aff. ¶ 33, at 4-5.30

Before the altercation involving Todd, Armijo did not see Wilks speaking to Montoya. See Jan. 30, 2012 MSJ ¶ 44, at 8 (setting forth this fact); Armijo Depo. at 46:6-9; Amended Response to Jan. 30, 2012 MSJ ¶ 44, at 6 (not disputing this fact). Armijo did not see anyone looking at the computer on the corrections officer's desk on the day of the fight. See Jan. 30, 2012 MSJ ¶ 45, at 8 (setting forth this fact); Armijo Depo. at 46:16-18; Amended Response to Jan. 30, 2012 MSJ ¶ 45, at 6 (not disputing this fact).31 Armijo did not see or view any information regarding Todd on the computer at the guard station at any time. See Jan. 30, 2012 MSJ ¶ 46, at 8 (setting forth this fact); Armijo Depo. at 64:24-65:4.32 The corrections officer on duty on the date of the fight did not show any charges or other information regarding Todd to Armijo. See Jan. 30, 2012 MSJ ¶ 47, at 8 (setting forth this fact); Armijo Depo. at 65:10-13.33 The corrections officer on duty on the date of the fight did not verbally tell Armijo about any charges or other information regarding Todd. See Jan. 30, 2012 MSJ ¶ 48, at 8 (setting forth this fact); Armijo Depo. at 65:14-17.34 The corrections officer on duty on the date of the fight did not instruct or direct Armijo to attack Todd. See Jan. 30, 2012 MSJ ¶ 48, at 8 (setting forth this fact); Armijo Depo. at 65:14-17.35

A couple of minutes after Wilks left the staff station area, a physical altercation took place involving Todd and Wilks; Montoya observed Todd and Wilks exchanging punches with their fists, and then saw them on the floor wrestling with one another. See Apr. 13, 2011 MSJ ¶ 27, at 6 (setting forth this fact); Montoya Aff. ¶¶ 34-35, at 5; Response to Apr. 13, 2011 MSJ ¶ 27, at 6 (not disputing this fact). During the fight, Wilks hit Todd in the face, wrestled with him, and put him in a headlock on the floor. See Jan. 30, 2012 MSJ ¶ 6, at 4 (setting forth this fact); Wilks Depo. at 24:22-25:2, 47:3-6; Amended Response to Jan. 30, 2012 MSJ ¶ 6, at 3 (not disputing this fact). Before the fight, neither Wilks nor Armijo said anything to Todd, and Todd did not say anything to them; Wilks and Armijo attacked Todd without provocation.36

During the altercation between Todd and Wilks, Montoya saw another inmate, Armijo, enter the altercation by kicking Todd in the facial area. See Apr. 13, 2011 MSJ ¶ 28, at 6 (setting forth this fact); Montoya Aff. ¶ 36, at 5; Response to Apr. 13, 2011 MSJ ¶ 28, at 6 (not disputing this fact). Armijo and another inmate did not confront Todd before Wilks attacked Todd.37 Todd and Armijo threw punches at one another.38 "Within seconds after the physical altercation began, Defendant Montoya called a `Code 32' on his radio communicator, indicating that an altercation or `inmate fight' was taking place." Apr. 13, 2011 MSJ ¶ 31, at 6 (setting forth this fact). Accord Montoya Aff. ¶ 39, at 5; Response to Apr. 13, 2011 MSJ ¶ 31, at 7 (not disputing this fact). Guards did not come immediately to break up the fight between Todd and Wilks, and the fight lasted for two to three minutes before guards arrived.39 When the guards arrived, "MDC Sgt. Chris Sanchez and five (5) MDC corrections officers entered F-7 and the altercation was broken up." Apr. 13, 2011 MSJ ¶ 31, at 6-7 (setting forth this fact). Accord Montoya Aff. ¶ 40, at 5; Response to Apr. 13, 2011 MSJ ¶ 31, at 7 (not disputing this fact). These guards placed Todd and Wilks in restraints, and escorted them out of F-7 for medical treatment. See Apr. 13, 2011 MSJ ¶ 32, at 7 (setting forth this fact); Montoya Aff. ¶ 41, at 5; Response to Apr. 13, 2011 MSJ ¶ 32, at 7 (not disputing this fact). After the guards took Wilks for medical treatment, they placed him in a segregation unit. See Jan. 30, 2012 MSJ ¶ 8, at 4 (setting forth this fact); Wilks Depo. at 47:20-22; Amended Response to Jan. 30, 2012 MSJ ¶ 8, at 4 (not disputing this fact).

During the time he was in segregation, Wilks did not speak with anyone regarding Todd's criminal or legal background. See Jan. 30, 2012 MSJ ¶ 11, at 4 (setting forth this fact); Wilks Depo. at 48:20-23.40 Montoya did not instruct or direct Wilks to attack Todd. See Jan. 30, 2012 MSJ ¶ 27, at 6 (setting forth this fact); Wilks Depo. at 46:19-21.41 The fight between Wilks and Todd had nothing to do with Montoya. See Jan. 30, 2012 MSJ ¶ 28, at 6 (setting forth this fact); Wilks Depo. at 46:22-47:6, 57:6-13.42

Armijo was not near the staff station at any time on January 13, 2008, including when Montoya was trying to access Todd's MDC files. See Apr. 13, 2011 MSJ ¶ 29, at 6 (setting forth this fact); Montoya Aff. ¶ 37, at 5; Response to Apr. 13, 2011 MSJ ¶ 29, at 6 (not disputing this fact). Montoya never communicated to Armijo any information about Todd's criminal or legal history. See Apr. 13, 2011 MSJ ¶ 30, at 6 (setting forth this fact); Montoya Aff. ¶ 38, at 5.43 After the fight, Armijo was taken to segregation. See Jan. 30, 2012 MSJ ¶ 40, at 7 (setting forth this fact); Armijo Depo. at 61:4-6; Amended Response to Jan. 30, 2012 MSJ ¶ 40, at 6 (not disputing this fact). Armijo did not talk to Montoya on the date of the fight involving Todd. See Jan. 30, 2012 MSJ ¶ 42, at 7 (setting forth this fact); Armijo Depo. at 32:5-6.44

Before the physical altercation on January 13, 2008 took place, Montoya had never witnessed, nor was he aware of, any contacts or communications between Todd and Wilks. See Apr. 13, 2011 MSJ ¶ 38, at 7 (setting forth this fact); Montoya Aff. ¶ 45, at 6.45 Before the physical altercation on January 13, 2008 taking place, Montoya had never witnessed, nor was he aware of, any contacts or communications between Todd and Armijo. See Apr. 13, 2011 MSJ ¶ 39, at 8 (setting forth this fact); Montoya Aff. ¶ 46, at 6.46 Throughout his employment with MDC, Montoya had never allowed any inmate to have access to the staff station area — including never allowing any inmate access to the computer terminal or computer screen. See Apr. 13, 2011 MSJ ¶ 40, at 8 (setting forth this fact); Montoya Aff. ¶ 47, at 6.47 Before the altercation on January 13, 2008, took place, Montoya was not aware of any excessive risk to the health or safety of Todd, and was not aware of any risk of physical harm to Todd. See Apr. 13, 2011 MSJ ¶ 41, at 8 (setting forth this fact); Montoya Aff. ¶¶ 48-49, at 6.48

Wilks initially refused to give a statement regarding the incident. See Apr. 13, 2011 MSJ ¶ 33, at 7 (setting forth this fact); Voluntary Statement at 1 (dated January 15, 2008), filed April 13, 2011 (Doc. 61-2)("Wilks' Refusal to Give Statement").49 Wilks did not write the handwritten statement in the Voluntary statement that states: "I found out his charges by a CO Montoya I saw them on the computer." Jan. 30, 2012 MSJ ¶ 12, at 5 (setting forth this fact). Accord Wilks Depo. at 26:9-12; Voluntary Statement at 1 (dated January 15, 2008), filed January 30, 2012 (Doc. 94-2)("Second Copy of Voluntary Statement").50 The handwritten statement in the Second Copy of Voluntary Statement is not in Wilks' handwriting. See Jan. 30, 2012 MSJ ¶ 13, at 5 (setting forth this fact); Wilks Depo. at 26:9-12.51 The handwritten statement of "I found out his charges by a CO Montoya I saw them on the computer" is untrue. Jan. 30, 2012 MSJ ¶ 14, at 5 (setting forth this fact); Wilks Depo. at 49:20-24.52 Wilks signed the back page of another document also entitled "Voluntary Statement." Jan. 30, 2012 MSJ ¶ 15, at 5 (setting forth this fact). Accord Wilks Depo. at 50:12-15; Voluntary Statement at 2 (dated January 15, 2008), filed January 30, 2012 (Doc. 94-3)("Signed Copy of Wilks' Refusal to Give Statement"); Amended Response to Jan. 30, 2012 MSJ ¶ 15, at 4 (not disputing this fact). An MDC employee presented the Signed Copy of Wilks' Refusal to Give Statement when he "was in segregation following the fight with Todd." Jan. 30, 2012 MSJ ¶ 16, at 5 (setting forth this fact). Accord Wilks Depo. at 50:24-51:11; Amended Response to Jan. 30, 2012 MSJ ¶ 16, at 4 (not disputing this fact). Wilks refused to give a written statement, but signed the document upon the request of the MDC employee. See Jan. 30, 2012 MSJ ¶ 16, at 5 (setting forth this fact); Wilks Depo. at 50:24-51:11.53

At some point, Wilks made his only handwritten statement about the fight to Lieutenant Jason Ellis at MDC. Jan. 30, 2012 MSJ ¶ 17, at 5 (setting forth this fact); Wilks Depo. at 52:16-53:20.54 The Statement to Jason Ellis from Patrick Wilks (dated January 21, 2008), filed January 30, 2012 (Doc. 94-4), is the only written statement Wilks made that he provided to MDC personnel regarding his fight with Todd. See Jan. 30, 2012 MSJ ¶ 19, at 5 (setting forth this fact); Wilks Depo. at 54:7-10.55 In his only handwritten statement about the fight, Wilks wrote: "Me and Todd were fighting because he got in my face." Jan. 30, 2012 MSJ ¶ 18, at 5 (setting forth this fact). Accord Wilks Depo. at 52:16-53:20; Statement to Jason Ellis from Patrick Wilks at 1; Amended Response to Jan. 30, 2012 MSJ ¶ 18, at 5 (not disputing this fact). The written statement contained in the Statement to Jason Ellis from Patrick Wilks is an accurate and true statement to the extent that it states that Todd and Wilks did not have any interactions before the fight.56

Armijo also refused to give a statement regarding the incident. See Apr. 13, 2011 MSJ ¶ 34, at 7; Voluntary Statement at 1 (dated January 15, 2008), filed April 13, 2011 (Doc. 61-3)("Armijo's Refusal to Give Statement"); Response to Apr. 13, 2011 MSJ ¶ 34, at 7 (not disputing this fact). "Armijo signed the back page (Page 2 of 2) of a document entitled `Voluntary Statement,' in which Armijo refused to give a written statement." Jan. 30, 2012 MSJ ¶ 43, at 8 (setting forth this fact). Accord Voluntary Statement at 1-2 (dated January 15, 2008), filed January 30, 2012 (Doc. 94-6); Amended Response to Jan. 30, 2012 MSJ ¶ 43, at 6 (not disputing this fact).

Sanchez later directed Montoya to provide a written report on the incident. See Apr. 13, 2011 MSJ ¶ 35, at 7 (setting forth this fact); Montoya Aff. ¶ 42, at 5; Response to Apr. 13, 2011 MSJ ¶ 35, at 7 (not disputing this fact). Montoya provided Sanchez with a written report on the incident. See Apr. 13, 2011 MSJ ¶ 36, at 7 (setting forth this fact); Inter-Office Correspondence from Corrections Officer Tomas Montoya to Sergeant Chris Sanchez at 1 (dated January 13, 2008), filed April 13, 2011 (Doc. 61-4)("Inter-Office Correspondence"); Response to Apr. 13, 2011 MSJ ¶ 36, at 7 (not disputing this fact).

"Subsequently, Defendant Montoya was called into the Deputy Chief's office and told to resign or he would probably be terminated during his probationary period." Apr. 13, 2011 MSJ ¶ 37, at 7 (setting forth this fact). Accord Montoya Aff. ¶ 44, at 6; Response to Apr. 13, 2011 MSJ ¶ 37, at 7 (not disputing this fact). Montoya resigned because of this incident. See Response to Apr. 13, 2011 MSJ ¶ 37, at 7 (setting forth this fact); Transcript of Hearing at 54:3-12, filed January 4, 2011 (Doc. 38)(Johnson, Montoya); Reply to Response to Apr. 13, 2011 MSJ at 1-10 (not disputing this fact). Todd is suing Montoya solely in his individual capacity. See Apr. 13, 2011 MSJ ¶ 42, at 8 (setting forth this fact); Complaint for Civil Rights Violations, Tort Claims and Damages ¶ 6, at 2 (dated January 11, 2010), filed February 8, 2010 (Doc. 2-1)("Complaint")(admitting this fact); Response to Apr. 13, 2011 MSJ ¶ 42, at 8 (not disputing this fact). Todd makes no tort claims against Montoya on the basis of vicarious liability under the tort principle of respondeat superior. See Apr. 13, 2011 MSJ ¶ 43, at 8 (setting forth this fact); Complaint ¶¶ 59-65, at 9-10 (admitting this fact); Response to Apr. 13, 2011 MSJ ¶ 43, at 8 (not disputing this fact).

PROCEDURAL BACKGROUND

On January 11, 2010, Todd filed his Complaint against Montoya, Defendant Ron Torres, the Director of the MDC, and Defendant Board of County Commissioners of Bernalillo County in the Second Judicial District Court. See Doc. 2-1. Todd asserts the following counts against Montoya: (i) Count I — a cause of action under 42 U.S.C. § 1983 for cruel and unusual punishment in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and (ii) Count III — a cause of action under the NMTCA for negligence, gross negligence, and recklessness. Complaint at 6-10. On February 8, 2010, the Defendants filed their Notice of Removal to remove this case to federal court. See Notice of Removal at 1-2 (Doc. 2).

On April 13, 2011, Montoya filed his Apr. 13, 2011 MSJ. See Doc. 61. He "moves for summary judgment on all claims ... on the basis of qualified immunity and other grounds." Apr. 13, 2011 MSJ at 1. Montoya contends that Todd cannot establish that he acted with deliberate indifference in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution — which, given Todd's pre-trial detention, he argues is coterminous with the requirements imposed by the Eighth Amendment to the United States Constitution. See Apr. 13, 2011 MSJ at 12. Montoya concedes that prison officials have a duty to protect prisoners from violence at the hands of other prisoners, but argues that they have no obligation to "prevent all inmate-on-inmate violence." Apr. 13, 2011 MSJ at 13. Montoya asserts that Todd cannot show the existence of a genuine issue of material fact whether he acted with deliberate indifference while Todd was incarcerated in a way that resulted in Todd's injuries. See Apr. 13, 2011 MSJ at 13-14. Montoya contends that Todd can satisfy neither the objective prong nor the subjective prong of the Eighth Amendment analysis given that: (i) Todd cannot show that he, or the inmates who beat him, were wrongly classified within the prison population as general-population prisoners; (ii) Montoya had no involvement in the beating; and (iii) there is no competent evidence that Montoya acted with deliberate indifference to Todd's safety. See Apr. 13, 2011 MSJ at 14-18. Montoya also argues that no competent evidence supports a conclusion that he committed any tort against Todd, specifically, that he acted in a negligent, grossly negligent, or reckless manner. See Apr. 13, 2011 MSJ at 18-19.

On April 13, 2011, Montoya filed his Defendant Tomas Montoya's Motion to Stay Discovery Pending Determination of His Motion for Summary Judgment on Basis of Qualified Immunity. See Doc. 62 ("Motion to Stay"). Montoya seeks a stay of discovery in this proceedings pending a determination of his Apr. 13, 2011 MSJ. See Motion to Stay at 2.

On May 23, 2011, Todd filed his Response to Apr. 13, 2011 MSJ. See Doc. 67. Todd asserts that genuine issues of material fact exist whether Montoya showed the inmates who beat him information regarding Todd's "convictions for offenses that are sexual in nature." Response to Apr. 13, 2011 MSJ at 1-2. Todd requested additional discovery under rule 56(d) of the Federal Rules of Civil Procedure so that he could properly rebut the Apr. 13, 2011 MSJ. See Response to Apr. 13, 2011 MSJ at 10-11. Todd notes that the United States Court of Appeals for the Sixth Circuit rejected a qualified-immunity defense in a similar case where a guard told other inmates about the plaintiff's charges for a sex offense that resulted in the plaintiff's beating. See Response to Apr. 13, 2011 MSJ at 12-13 (citing Leary v. Livingston Cnty., 528 F.3d 438, 442 (6th Cir.2008)). He asserted that there is a clearly established duty for prison officials to protect prisoners from violence. See Response to Apr. 13, 2011 MSJ at 13-14.

On June 20, 2011, Montoya filed his Reply to Response to Apr. 13, 2011 MSJ. See Doc. 80. Montoya asserts that Todd has alleged for the first time in his response brief that Montoya instructed Wilks to attack Todd. See Reply to Response to Apr. 13, 2011 MSJ at 5. Montoya objects to various evidence Todd has presented as hearsay evidence or as otherwise inadmissible. See Reply to Response to Apr. 13, 2011 MSJ at 2.

At the hearing on August 19, 2011, Montoya noted that Wilks' testimony "does appear to be a focal point for plaintiff's claims." Transcript of Hearing at 5:21-22 (taken August 19, 2011)(Quinones)("Aug. 19, 2011 Tr.").57 Montoya then stated that, if Wilks testifies that he never received any information on Todd's charges or criminal history from Montoya, then this case should be dismissed either voluntarily or by the Court. See Aug. 19, 2011 Tr. at 5:22-25 (Quinones). Montoya asserted that if, on the other hand, Wilks testifies that Montoya informed him or showed him anything about Todd's past criminal charges, then the case can go forward. See Aug. 19, 2011 Tr. at 6:1-4 (Quinones). Todd agreed with the Court that he needed to refute Montoya's sworn assertions that he had never shown this information to Wilks to create an issue of fact so that the case could proceed. See Aug. 19, 2011 Tr. at 10:15-11:2 (Court, Villa). Todd acknowledged that he needed to have some evidence that Montoya communicated in some way to Wilks — either via the computer screen or orally — that Todd should be beaten. See Aug. 19, 2011 Tr. at 10:15-11:5 (Court, Villa).

On October 4, 2011, 2011 WL 5238900 the Court filed its Memorandum Opinion and Order granting in part and denying in part the Motion to Stay. See Doc. 88 ("MOO"). The Court recounted that, "[a]t the August 19, 2011 hearing, the parties agreed that the viability of Todd's case turned on inmate Wilks' sworn testimony." MOO at 7. The Court held that "Todd has shown, as best he can without using the Court's subpoena power, that there may be evidence to keep his case alive if he is allowed to take Wilks' deposition." MOO at 8. The Court further stated:

MOO at 9-10. After the Court issued its MOO, the parties conducted a deposition for both Wilks and Armijo. See Certificate of Service at 1, filed November 1, 2011 (Doc. 92); Certificate of Service at 1, filed November 23, 2011 (Doc. 93). Wilks' Deposition took place at the Penitentiary of New Mexico. See Wilks Depo. at 1. Armijo's deposition took place at the MDC. See Armijo Depo. at 4:10-14.

On January 30, 2012, Montoya filed his Jan. 30, 2012 MSJ. See Doc. 94. Montoya seeks summary judgment on qualified-immunity grounds on all claims that Todd has asserted against him. See Jan. 30, 2012 MSJ at 1. Montoya incorporates by reference his Apr. 13, 2011 MSJ and his reply brief as it relates to that motion. See Jan. 30, 2012 MSJ at 1 n. 1. Montoya argues that Todd has not shown the existence of a genuine issue of material fact whether he acted with deliberate indifference. See Jan. 30, 2012 MSJ at 9. Montoya contends that he "cannot be expected to prevent a spur-of-the-moment fight between inmates." Jan. 30, 2012 MSJ at 10.

On February 27, 2012, Todd filed his Response to Jan. 30, 2012 MSJ. See Doc. 96. Todd asserts that, "[a]lthough Plaintiff does not believe it is necessary, should the Court believe that additional discovery is necessary to rule on Defendant's Motion, the Court should defer ruling until said discovery can be completed." Response to Jan. 30, 2012 MSJ at 3. He asks the Court, if additional discovery is necessary, for depositions from "the two MDC employees who spoke to Mr. Wilkes after the incident, Sgt. Sanchez and CO Gallardo." Response to Jan. 30, 2012 MSJ at 3. He contends that these individuals will have information regarding a statement Wilks made "that Montoya did show him Plaintiff's charges." Response to Jan. 30, 2012 MSJ at 3. Todd asserts that "[i]t is undisputed that eight days after Wilks purportedly made a statement that he found out Plaintiff's charges from Defendant Montoya, Defendant Montoya resigned in lieu of termination." Response to Jan. 30, 2012 MSJ at 10. Todd argues that this resignation supports a determination that there is a genuine issue of material fact regarding Montoya's liability. See Response to Jan. 30, 2012 MSJ at 10-11. Todd contends that Montoya arranged for Wilks and Armijo to attack Todd by showing them his criminal history. See Response to Jan. 30, 2012 MSJ at 11. Todd asserts that Armijo testified that the altercation arose when he and Wilks discovered that Todd is a sex offender. See Response to Jan. 30, 2012 MSJ at 11-12. Todd argues that "a jury could infer that the reason Armijo attacked Plaintiff along with Wilks is because either Wilks, Montoya or another inmate relayed the information about Plaintiff's status to Armijo." Response to Jan. 30, 2012 MSJ at 12. On February 28, 2012, Todd filed his Amended Response to Jan. 30, 2012 MSJ to correct his statement of facts. See Doc. 97. Todd asserts that "[a]ll of the Argument section of the original Response remains unchanged." Amended Response to Jan. 30, 2012 MSJ at 1.

On March 9, 2012, Montoya filed a notice of withdrawal to withdraw his Apr. 13, 2011 MSJ. See Defendant Tomas Montoya's Notice of Withdrawal of Defendant Montoya's Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds Filed April 13, 2011 (Doc. # 61) and Agreement on Consideration of Content of Original Motion for Purposes of Defendant Montoya's Renewed Motion for Summary Judgment (Doc. # 94), filed March 9, 2012 (Doc. 102). On March 22, 2012, Montoya filed his Reply to Response to Jan. 30, 2012 MSJ. See Doc. 104.

At the hearing on April 5, 2012, Montoya emphasized that, while depositions for Wilks and Armijo may have been appropriate, Todd did not request, in response to the Apr. 13, 2011 MSJ, further discovery beyond depositions of those two individuals. See Transcript of Hearing at 6:10-25 (taken April 5, 2012)(Quinones)("Apr. 5, 2012 Tr."). Montoya contended that, in light of the burden he faces in participating in further discovery and the piecemeal nature of Todd's discovery requests, further discovery is not appropriate at this time. See Apr. 5, 2012 Tr. at 7:1-8:16 (Quinones); id. at 23:16-23 (Quinones). Montoya emphasized that no competent evidence supports Todd's assertions that Montoya provided Wilks or Armijo with information about Todd's criminal history. See Apr. 5, 2012 Tr. at 8:8-9:21 (Quinones). Montoya argued that, on the issue of his liability in this lawsuit, it is not relevant that he has been discharged from his position given that he was an at-will employee. See Apr. 5, 2012 Tr. at 10:13-11:19 (Quinones). Montoya asserted that the references to fraternization in some of the documents related to his discharge implicate Montoya's interactions with his brother, whom he represents was incarcerated while he was working at the MDC. See Apr. 5, 2012 Tr. at 12:17-13:9 (Quinones). Montoya argued that the written statement allegedly attributable to Wilks that Montoya showed him Todd's criminal history is hearsay and that Wilks denies ever having written that statement. See Apr. 5, 2012 Tr. at 13:25-14:11 (Quinones). Montoya asserted that the Court should not consider statements that appear in Todd's affidavit which are speculative or which are not based on personal knowledge. See Apr. 5, 2012 Tr. at 23:2-15 (Quinones).

Todd responded that there are cases establishing that a constitutional violation occurs when a prison official shows a prisoner another inmate's criminal history in such a way that other prisoners beat the inmate. See Apr. 5, 2012 Tr. at 30:21-31:5 (Villa). The Court noted that, in its MOO granting Todd some ability to conduct discovery, it was pushing the limit of what it felt comfortable giving in light of the qualified-immunity defense. See Apr. 5, 2012 Tr. at 31:13-32:2 (Court). Todd conceded that both Wilks and Armijo denied in their depositions that Montoya communicated to them any information about Todd's criminal history. See Apr. 5, 2012 Tr. at 34:10-12 (Villa). The Court stated that it was more concerned about entering summary judgment previously when there was a possibility that Montoya showed Wilks or Armijo this information, but noted that there now does not appear to be any disagreement on that issue in light of their deposition testimony. See Apr. 5, 2012 Tr. at 24:13-20 (Court). Todd stated that it is often necessary to prove intent circumstantially. See Apr. 5, 2012 Tr. at 36:5-14 (Villa). Todd represented that he is asserting alternative theories regarding Montoya's conduct, specifically that Montoya either, in an unintentional but constitutionally improper manner, allowed Wilks to see Todd's criminal history, or that Montoya intentionally provided Wilks and/or Armijo with this information. See Apr. 5, 2012 Tr. at 40:12-20 (Villa). Todd asserted that he has pled both of these theories in his pleadings. See Apr. 5, 2012 Tr. at 43:5-44:18 (Villa). Todd contended that a deposition for Abraham Gallardo and/or Chris Sanchez, individuals whom he asserted interviewed Wilks about the fight, would be appropriate to clear up the origin of the statement that Montoya communicated Todd's criminal history to Wilks that is allegedly attributable to Wilks. See Apr. 5, 2012 Tr. at 44:19-45:12 (Villa). Todd asserted that he never conceded that only depositions for Wilks and Armijo would be necessary. See Apr. 5, 2012 Tr. at 46:9-47:5 (Villa).

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). The movant bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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

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

When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

LAW REGARDING RULE 56(d)

Rule 56(d) of the Federal Rules of Civil Procedure states:

Fed.R.Civ.P. 56(d).58 The United States Court of Appeals for the Tenth Circuit reviews a district court's denial of a rule 56(d) motion for abuse of discretion. See Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992). "A prerequisite to granting relief ... is an affidavit furnished by the nonmovant." Comm. for First Amendment v. Campbell, 962 F.2d at 1522 (citing Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 832 (10th Cir.1986)). "Unless dilatory or lacking in merit," a party's rule 56(d) application "should be liberally treated." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir. 1993) (internal quotation marks omitted). "The general principle of Rule 56(f) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000) (internal quotation marks omitted). "Rule 56(f) does not require, however, that summary judgment not be entered until discovery is complete." Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., Nos. 02-1146, 03-1185, 2007 WL 2461629, at *3 (D.N.M. June 5, 2007) (Browning, J.)(citing Price v. W. Res., Inc., 232 F.3d 779, 784 (10th Cir.2000)).

To invoke the shelter that rule 56(d) provides, a party must (i) file an affidavit, see Pasternak v. Lear Petroleum Exploration Inc., 790 F.2d at 832-33; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; (iii) explain why facts precluding summary judgment cannot be presented, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522. "Rule 56( [d] ) may not be invoked based solely upon the assertion that discovery is incomplete or that the specific facts necessary to oppose summary judgment are unavailable." Schaefer v. Antill, No. 06-0460, 2007 WL 709046, at *9 (D.N.M. Jan. 31, 2007) (Browning, J.). "Rule 56( [d] ) is not a license for a fishing expedition." Lewis v. Ft. Collins, 903 F.2d 752, 759 (10th Cir.1990).

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. 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 stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).

Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity 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).

1. Procedural Approach to Qualified Immunity.

The Supreme Court of the United States recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting a mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." Pearson v. Callahan, 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that a mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). Once the plaintiff has established the inference that the defendant's conduct violated a clearly established constitutional right, a qualified-immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).

The Supreme Court recognized seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis:

Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern where guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified-immunity context. Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2031-32 & n. 5, 179 L.Ed.2d 1118 (2011). See Kerns v. Bader, 663 F.3d at 1181. "In general, courts should think hard, and then think hard again, before turning small cases into large ones." Camreta v. Greene, 131 S.Ct. at 2032. Accord Kerns v. Bader, 663 F.3d at 1181. The Supreme Court has also recently emphasized in the qualified immunity context: "Courts should think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'" Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). The Tenth Circuit will normally remand a case to the district court for further consideration when the district court has given cursory treatment to the qualified immunity issue. See Kerns v. Bader, 663 F.3d at 1182.

2. Clearly Established Rights in the Qualified-Immunity Analysis.

In evaluating whether a right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be "indisputable" and "unquestioned." Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question ... unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' a 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 Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).

The Supreme Court further clarified what a plaintiff must show to satisfy the clearly established requirement in Ashcroft v. al-Kidd. The Supreme Court held that, while a case directly on point is not required, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. Conflicting or unclear case law can be the basis for concluding that a right is not clearly established. See Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2096-97, 182 L.Ed.2d 985 (2012) (noting that a circuit court decision from the circuit where the conduct occurred had "injected uncertainty into the law governing retaliatory arrests, particularly in light of" that decision's "rationale and the close relationship between retaliatory arrest and prosecution claims," and that the "uncertainty was only confirmed by subsequent appellate decisions that disagreed over whether the" decision's "reasoning... applied similarly to retaliatory arrests"). "The operation of this [clearly established] standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. "The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established." Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have "reasonable, but mistaken beliefs" as to the application of law to facts and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151.

The Tenth Circuit, in Kerns v. Bader, focused on the Supreme Court's language in Ashcroft v. al-Kidd in its analysis of qualified immunity. In that case, which dealt with a search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." Kerns v. Bader, 663 F.3d at 1183. The Tenth Circuit reiterated that "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing law," but held that, where distinctions "might make a constitutional difference," the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. In Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.2007), the Tenth Circuit re-emphasized its sliding scale approach: "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." 509 F.3d at 1284 (citing Pierce v. Gilchrist, 359 F.3d at 1298). Thus, "when an officer's violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

3. Factual Disputes in the Qualified-Immunity Analysis.

In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a 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 Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).

Rhoads v. Miller, 352 Fed.Appx. 289, 291-92 (10th Cir.2009) (unpublished). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether 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").

4. Effect of Qualified Immunity on Discovery.

"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, 2009 WL 1329834, at *10. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. at 232, 129 S.Ct. 808. The Supreme Court has suggested that, to avoid unnecessary exposure to burdensome discovery, the preferred practice is for the government officials to move to dismiss the action based on qualified immunity before discovery is ordered:

Crawford-El v. Britton 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). When a court permits discovery, the Supreme Court has emphasized that "Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery." Crawford-El v. Britton, 523 U.S. at 598, 118 S.Ct. 1584. "There are, however, exceptions to the rule that no discovery be allowed when government officials claim qualified immunity." Todd v. Montoya, No. 10-0106, 2011 WL 5238900, at *4 (D.N.M. Oct. 4, 2011)(Browning, J.). The officials are not protected from all discovery, "`but only from discovery which is either avoidable or overly broad.'" Garrett v. C.A. Stratman, 254 F.3d 946, 953 (10th Cir.2001) (quoting Maxey v. Fulton, 890 F.2d 279, 282 (10th Cir.1989)).

RELEVANT LAW REGARDING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

When government officials hold an individual in confinement before the formal adjudication of that individual's guilt, the Eighth Amendment does not regulate the conduct of the government officials confining that individual. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). As the Supreme Court has explained:

City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979 (quoting Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). Nevertheless, those government officials must still comply with the protections of the Due Process Clause during that individual's confinement. See City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979 ("The Due Process Clause, however, does require the responsible government or governmental agency to provide medical care to persons, such as Kivlin, who have been injured while being apprehended by the police."). "In fact, the due process rights of a person in [this] situation are at least as great as the Eighth Amendment protections available to a convicted prisoner." City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979. The Tenth Circuit has held that "pretrial detainees have essentially the same rights under the due process clause of the Fourteenth Amendment as convicted prisoners have under the Eighth Amendment." Bauer v. Dantis, 77 F.3d 492, 1996 WL 77037, at *1 n. 1 (10th Cir.1996) (unpublished table decision)(citing City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979). The Tenth Circuit has stated that it is "clearly established that state officials had a duty to protect individuals whom they had taken involuntarily into their physical custody and control." Liebson v. N.M. Corr. Dep't, 73 F.3d 274, 277 (10th Cir.1996).

LAW REGARDING THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION

The Supreme Court has held that "a prison official's `deliberate indifference' to a substantial risk of serious harm" implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners," but "[t]hey are ... responsible for taking reasonable measures to insure the safety of inmates." Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is "sufficiently serious," i.e., an injury that equates to the "denial of the minimal civilized measure of life's necessities"; and (ii) the official has a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970 (internal quotation marks omitted). The second condition represents the functional application of the deliberate indifference standard. See Smith v. Cummings, 445 F.3d 1254, 1258-59 (10th Cir.2006) ("To establish a cognizable Eight Amendment claim for failure to protect [an inmate from harm], the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm, the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component." (quoting Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir.2003))).

Analyzing whether the plaintiff has satisfied the first element, the objective element, "requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused." Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Courts should also consider "whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475 (emphasis in original). "In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475. The Eighth Amendment does not protect against "de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)(internal quotation marks omitted)("That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action.").

The second element regarding the government official's state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Courts apply this subjective inquiry whether the allegations are that a "short-term" or "one-time" violation occurred, or that "continuing" or "systemic" violations occurred. Wilson v. Seiter, 501 U.S. at 299, 111 S.Ct. 2321. The Supreme Court has stated: "With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness." Farmer v. Brennan, 511 U.S. at 836, 114 S.Ct. 1970. The Supreme Court provided the following test for determining when this subjective element is met:

Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970. For the purpose of Eighth Amendment analysis, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 Fed.Appx. 821, 823-24 (10th Cir.2007) (unpublished) (quoting Smith v. Cummings, 445 F.3d at 1258).

LAW REGARDING THE NEW MEXICO TORT CLAIMS ACT

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." N.M.S.A.1978, § 41-4-2(A). The New Mexico Legislature, however, also recognized

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

N.M.S.A.1978, § 41-4-17(A).

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." Lymon v. Aramark Corp., 728 F.Supp.2d at 1251. Accord Barreras v. State of 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 NMTCA waives immunity); Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 449, 744 P.2d 919, 922 (Ct.App. 1987) (holding that no waiver of immunity exists for damages arising out of alleged educational malpractice claim against a school board); Begay v. State, 104 N.M. at 488, 723 P.2d at 257 (finding that no waiver existed in NMTCA for suit for damages under Article II, § 11 of the New Mexico Constitution — a provision that protects the "free exercise of religion"). The NMTCA does not limit the availability of many forms of equitable relief. See N.M.S.A. 1978, § 41-4-17(A) ("Nothing in this section shall be construed to prohibit any proceedings for mandamus, prohibition, habeas corpus, certiorari, injunction or quo warranto."); El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation Dist., 137 N.M. 217, 224, 109 P.3d 305, 312 (Ct. App.2005) ("To the extent Plaintiffs seek compensatory damages based on the District's alleged tortious conduct, the Tort Claims Act bars such a claim, as discussed above. The Tort Claims Act would not bar a claim for injunctive relief."). Thus, if no specific waiver can be found in the NMTCA, a plaintiff's complaint against the governmental entity or its employees must be dismissed. See Begay v. State, 104 N.M. at 486, 723 P.2d at 255.

ANALYSIS

The Court will grant the Jan. 30, 2012 MSJ. The Court concludes that, on the facts presented, Todd has not met his burden to overcome Montoya's qualified-immunity defense. Likewise, Todd has not satisfied the standards under rule 56(d) to obtain additional discovery to overcome Montoya's qualified-immunity defense. Todd has also not met his burden to show the existence of a genuine issue of material fact regarding Montoya's liability under the NMTCA. Lastly, Todd has not met the requirements under rule 56(d) to merit additional discovery regarding his NMTCA claim against Montoya.

I. MONTOYA IS ENTITLED TO QUALIFIED IMMUNITY ON THE CONSTITUTIONAL CLAIM ASSERTED AGAINST HIM.

When government officials hold an individual in confinement before the formal adjudication of that individual's guilt, the Eighth Amendment does not regulate the conduct of the government officials confining that individual. See City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979. Nevertheless, those government officials must still comply with the protections of the Due Process Clause during that individual's confinement. See City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244, 103 S.Ct. 2979. The Tenth Circuit has held that "pretrial detainees have essentially the same rights under the due process clause of the Fourteenth Amendment as convicted prisoners have under the Eighth Amendment." Bauer v. Dantis, 1996 WL 77037, at *1 n. 1.

"[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners," but "[t]hey are ... responsible for taking reasonable measures to insure the safety of inmates." Lopez v. LeMaster, 172 F.3d at 759. The Supreme Court has held that "a prison official's `deliberate indifference' to a substantial risk of serious harm" implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S. at 828, 114 S.Ct. 1970. An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is "sufficiently serious," i.e., an injury that equates to the "denial of the minimal civilized measure of life's necessities"; and (ii) the official has a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970 (internal quotation marks omitted).

Analyzing whether the plaintiff has satisfied the first element, the objective element, "requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused." Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475. Courts should also consider "whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475 (emphasis in original). "In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475. The Eighth Amendment does not protect against "de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. at 9-10, 112 S.Ct. 995 (internal quotation marks omitted).

The second element regarding the government official's state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. at 298, 111 S.Ct. 2321. Courts making this subjective inquiry ask whether the allegations are that a "short-term" or "one-time" violation occurred, or that "continuing" or "systemic" violations occurred. Wilson v. Seiter, 501 U.S. at 299, 111 S.Ct. 2321. The Supreme Court has stated: "With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness." Farmer v. Brennan, 511 U.S. at 836, 114 S.Ct. 1970. The Supreme Court provided the following test for determining when this subjective element is met:

Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970. For the purpose of Eighth Amendment analysis, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 Fed.Appx. at 823-24.

While Montoya disputes that Todd can meet the first element to establish an Eighth Amendment violation, the objective prong, a prisoner's risk of exposure to a beating by other prisoners is a sufficiently serious harm to fall within the Eighth Amendment's scope. Here, there is evidence showing that Todd received a beating from two other prisoners, including having them hit him in the face and attacking him for two to three minutes. Various courts have recognized that a beating can rise to the level of an Eighth Amendment violation. See, e.g., Hudson v. McMillian, 503 U.S. at 9-10, 112 S.Ct. 995 ("Yet the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes. The extent of Hudson's injuries thus provides no basis for dismissal of his § 1983 claim."); Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) ("Here, no one contests the objective element of Romano's Eighth Amendment claim, and indeed, there can be no question that the beating Romano described was more than de minimis."). Drawing all reasonable inferences in Todd's favor and viewing the facts in the light most favorable to him, his beating was not a de minimis one. Thus, the objective element of the Eighth Amendment analysis is satisfied.

Nevertheless, Todd cannot show the existence of a genuine issue of material fact regarding the subjective element of this test. Because Montoya has invoked qualified immunity, the burden shifts to Todd to show the existence of a genuine issue of material fact that a constitutional violation occurred. 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 at 1128. 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 at 1107.

Much of the evidence upon which Todd relies is hearsay evidence, such as the handwritten statement allegedly attributable to Wilks in the Voluntary Statement, which Wilks denies ever making. See Voluntary Statement at 1. Montoya objects to Todd's use of the hearsay evidence he has presented. Todd tries to present, in various forms, hearsay statements relating that Montoya showed Wilks information regarding Todd's criminal history. For instance, in the Jan. 13, 2008 Letter, Sanchez states: "Inmate Todd made a statement in which he accused CO Montoya of abusing the pod radio and showing his charges to inmate Wilks." Jan. 13, 2008 Letter at 2. Gallardo relates in the Jan. 15, 2008 Letter that "Inmate Todd stated `that Officer Montoya had gotten in the Internet in the unit pod computer on Sunday and shown all the Inmates in the pod his past charges.'" Jan. 15, 2008 Letter at 1. Likewise, Todd relies on his own affidavit wherein he states that Wilks related to prison guards "that Defendant Montoya showed him my criminal history on the computer." Todd Aff. ¶ 15, at 2. Todd makes other similar statements in his affidavit: (i) "Officer Gallardo told me that in Mr. Wilks['] statement he admitted that Defendant Montoya showed him my criminal history"; and (ii) "Officer Gallardo also informed me that he spoke to Officer Montoya, who admitted to either showing or telling Mr. Wilks my criminal history." Todd Aff. ¶ 18-19, at 2.

Some of those hearsay statements, while not admissible, caused the Court enough concern that it permitted Todd to take Wilks' and Armijo's depositions. The hearsay statements were a sound basis to perhaps launch an investigation and file this case, but they are not enough to get Todd to trial. Todd admitted at the last hearing that, if he could not dispute what is in Montoya's affidavit, "we don't have a case." Aug. 19, 2011 Tr. at 11:3-5 (Villa). The Court then permitted limited discovery before resolving the merits of Montoya's qualified immunity defense. After it permitted depositions of Wilks and Armijo, however, both men denied: (i) that Montoya showed either of them information about Todd's criminal history; (ii) that Montoya in some way permitted them, accidentally or intentionally, to view this information on a computer screen or otherwise; (iii) that he played a role in instigating the fight; or (iv) that Montoya otherwise had any substantial communication with Wilks on the day of the incident or any communications with Armijo. Armijo further related that the inmates received information that Todd was on a sex-offender website from someone outside the prison. Todd has not been able to present competent evidence to specifically controvert Wilks' and Armijo's assertions. One of Montoya's uncontroverted facts also established that he called other prison guards to come stop the fight almost immediately after the physical altercation involving Todd began. See Apr. 13, 2011 MSJ ¶ 31, at 6 (setting forth this fact); Montoya Aff. ¶ 39, at 5.

In light of these facts, it would be difficult to establish that Montoya acted in a negligent manner, let alone in a deliberately indifferent manner. The Supreme Court provided the following test for determining when this subjective element is met:

Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970. While Montoya may have been aware of a significant risk to Todd's safety given Todd's criminal history, and while Wilks had alerted Montoya that Todd might be a child molester, there are no indications that he disregarded that risk. When Wilks attempted to climb up and see the computer screen, the uncontroverted facts indicate that there was nothing on the computer screen for Wilks to see, that Wilks tried to look at the screen and could not successfully do so, and that it was highly difficult for even the person at the computer terminal to view what was on the screen. Both Wilks and Montoya stated that Wilks could not see anything on the computer screen. There is no causation linking any of Montoya's conduct to Todd's injuries given that Wilks and Armijo both deny that Montoya played any role in their altercation with Todd.

Likewise, there are no indications that Montoya created a risk that Wilks and Montoya would discover information about Todd's criminal history. While Wilks and Armijo may have discovered, through means unrelated to Montoya, that Todd had some criminal history related to sex offenses, "neither prison officials nor municipalities can absolutely guarantee the safety of their prisoners." Lopez v. LeMaster, 172 F.3d at 759. The computer screen where Montoya could have accessed the records was approximately six feet off the ground, and Wilks was unable, even after trying, to read anything regarding Todd on the computer screen. Furthermore, when Wilks asked Montoya if Todd was a chester — a child molester — Montoya responded that he did not know. On the facts presented, it is difficult to characterize Montoya's conduct as rising to the level of deliberate indifference when it does not appear that Montoya acted with even negligence. Todd has not raised a genuine issue of material fact as to Montoya's deliberate indifference — a significantly higher standard than negligence.

Todd relies heavily on Montoya's acknowledgment that he resigned because of this incident, given that he was about to face termination. While this evidence is not irrelevant in the sense that it has no relevance under rule 401 of the Federal Rules of Evidence, this piece of evidence is not enough, by itself, to satisfy Todd's burden of production. Notably, this evidence would be excludable under rule 407 as a subsequent remedial measure, although Montoya has not objected to the evidence on this basis. See Nolan v. Memphis City Sch., 589 F.3d 257, 274 (6th Cir.2009)("Evidence that an employer subsequently discharged an employee accused of causing a plaintiff's injury may be properly excluded as a subsequent remedial measure under Rule 407." (citing Hull v. Chevron USA, Inc., 812 F.2d 584, 586-87 (10th Cir.1987))). He, in fact, presented this evidence himself. The MDC and Montoya both took the remedial actions, with the MDC recommending that Montoya resign instead of face termination and Montoya deciding to resign. Whether Montoya engaged in inappropriate conduct and the appropriateness of his employment in light of his potential involvement in Todd's beating are "the subject[s] of this lawsuit, and as a result, [his termination] is a measure that `if taken previously, would have made the injury or harm less likely to occur'" within the meaning of rule 407. Stahl v. Bd. of Cnty. Comm'rs of the Unified Gov't of Wynandotte Cnty/Kan., 101 Fed.Appx. 316, 321 (10th Cir.2004)(unpublished). Furthermore, both the MDC and Montoya are defendants in this lawsuit, so their actions fall within rule 407's scope. See Mehojah v. Drummond, 56 F.3d 1213, 1215 (10th Cir.1995)("We reject the rule crafted by the dissent, as unsupported by the cases and unworkable, that Rule 407 applies not only to actual defendants, but also to obvious potential defendants." (emphasis in original)). Todd is offering the evidence to establish Montoya's wrongful conduct, so none of the exceptions to rule 407 applies.

Rule 407's considerations, however, are still relevant to assess the relative probative value of this evidence. As the advisory committee's note to rule 407 relates, the inference one draws from a subsequent remedial measure as proof of an admission of fault is relatively weak:

Fed.R.Evid. 407 advisory committee's note to 1972 proposed rules. The Tenth Circuit, relying on this advisory committee's note, has similarly stated: "First, as an admission of fault, the probative value of subsequent remedial measures is limited." Hull v. Chevron USA, Inc., 812 F.2d at 586-87 (citing Fed.R.Evid. 407 advisory committee's note to 1972 proposed rules)(noting that the district court properly excluded testimony from a former employee who had been fired as a result of the incident underlying the lawsuit). While this evidence may create a weak inference of wrongdoing, it is not probative enough to meet Todd's burden of production that Montoya acted with deliberate indifference. See In re Air Crash Disaster, 86 F.3d 498, 528-29 (6th Cir.1996) ("Northwest's rewiring of the CAWS is circumstantial evidence, if only of a weak and suspect sort, that the CAWS as it existed at the time of the accident was not foolproof."). Even if the evidence is not technically with rule 407's scope: (i) rule 407's underlying concerns are persuasive when evaluating the probative value of the evidence; and (ii) the circumstances of Montoya's resignation in light of the other evidence in the record make the inference of wrongdoing one can draw from his resignation a weak one. See Gray v. Hoffman-La Roche, Inc., 82 Fed.Appx. 639, 646-47 (10th Cir.2003) (unpublished)(recognizing that, while the evidence at issue was "admissible under Rule 407," its "probative value was minimal"). It is the proverbial scintilla of evidence that cannot properly prevent entry of summary judgment.

While the Bernalillo County Personnel Action Form refers to Montoya resigning based on fraternization issues, that statement is relatively ambiguous, as the document provides no elaboration on what those fraternization issues are. See Bernalillo County Personnel Action Form at 1. Any additional inference that a factfinder could draw from that evidence is weak. Montoya explained at the April 5, 2012 hearing that the fraternization refers to his interactions with his brother — who was incarcerated at MDC at the time of Montoya's employment. See Apr. 5, 2012 Tr. at 12:5-13:9 (Quinones). In his Reply to Response to Jan. 30, 2012 MSJ, Montoya attaches a portion of an interview Todd's counsel, Ryan Villa, conducted with him, in which Montoya relates that the statement regarding fraternization relates to this incident with his brother. See Interview of Officer Tomas Montoya at 5:10-6:1 (dated October 14, 2009), filed May 23, 2011 (Doc. 104-2)("Second Copy of Montoya Interview"). Todd has presented a few pages from this same interview as well in his Response to Apr. 13, 2011 MSJ, see Fed. R.Evid. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time."), and has not objected to its admissibility. Montoya's statements in this interview undercut an inference that the reference to fraternization implicates Montoya's interactions with Wilks or Armijo. Todd has the burden to present evidence to meet his burden of production to show the existence of a genuine issue of material fact whether Montoya: (i) knew of and disregarded an excessive risk to inmate health or safety; (ii) the guards were aware of facts from which the inference could be drawn that a substantial risk of serious harm existed; (iii) and drew that inference. See Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970. Montoya's resignation alone, particularly when taking into account the evidence that Montoya has presented which undercuts inferences of wrongdoing, is not sufficiently probative to meet this burden of production.

Any other disputed facts are not material such that they change the appropriate disposition of the qualified-immunity issue. For instance, Todd created a dispute regarding Wilks' and Armijo's motivation to attack Todd — whether he had made statements that provoked them or whether they had attacked him without provocation. He presented facts, however, that Todd stated the attack was unprovoked. Under either scenario, however, Montoya still has no involvement in Todd's beating absent additional evidence making such a connection. Todd successfully controverts evidence that the guards came immediately to break to break up the fight between Todd and Wilks, presenting evidence that there may have been two to three minutes that passed before guards arrived. It is not disputed, however, that Montoya almost immediately called for the assistance of other guards when the altercation between Todd and Wilks began — conduct which does not support a finding that Montoya acted with deliberate indifference. More importantly, Todd has never pled in his Complaint or raised as an argument that Montoya should have acted differently once the beating began, but rather has argued and pled that Montoya was the one who caused the beating — either recklessly or intentionally. See Complaint ¶¶ 42-49, at 6-7. He has not raised any theory that Montoya failed to intervene in the beating. Because Todd has not shown the existence of a genuine issue of material fact whether Montoya acted with deliberate indifference, Montoya is entitled to qualified immunity on Todd's Fourteenth Amendment claim asserted under 42 U.S.C. § 1983.

II. THE COURT WILL NOT PERMIT ADDITIONAL DISCOVERY REGARDING THE CONSTITUTIONAL CLAIM ASSERTED AGAINST MONTOYA.

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, 2009 WL 1329834, at *10. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. 2806. Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. at 232, 129 S.Ct. 808.

The Supreme Court has suggested that, to avoid unnecessary exposure to burdensome discovery, the preferred practice is for the government officials to move to dismiss the action based on qualified immunity before discovery is ordered:

Crawford-El v. Britton, 523 U.S. at 598, 118 S.Ct. 1584. When a court permits discovery, the Supreme Court has emphasized that "Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery." Crawford-El v. Britton, 523 U.S. at 598, 118 S.Ct. 1584. "There are, however, exceptions to the rule that no discovery be allowed when government officials claim qualified immunity." Todd v. Montoya, 2011 WL 5238900, at *4. The officials are not protected from all discovery, "`but only from discovery which is either avoidable or overly broad.'" Garrett v. C.A. Stratman, 254 F.3d at 953 (quoting Maxey v. Fulton, 890 F.2d at 282).

Notably, the Court has already permitted Todd to have some discovery in that Todd has now taken Wilks' and Armijo's depositions. Todd admitted at the last hearing that, if he could not dispute what is in Montoya's affidavit, "we don't have a case." Aug. 19, 2011 Tr. at 11:3-5 (Villa). Todd requests additional discovery under rule 56(d). See Plaintiff's Supplemental Rule 56(d) Affidavit ¶¶ 2-3, at 1 (executed February 27, 2012), filed February 7, 2012 (Doc. 96-1). Specifically, he requests the following evidence:

Plaintiff's Supplemental Rule 56(d) Affidavit ¶¶ 2-3, at 1. Todd also relates, in his first rule 56 affidavit, that he needs some discovery regarding "the policies and procedures and any training that Montoya has received" regarding certain procedures in F-7, such as where inmates may go, how much discretion Montoya had to classify inmates. Plaintiff's Rule 56(f) Affidavit ¶¶ 8-9, at 2-3 (executed May 23, 2011), filed May 23, 2011 (Doc. 67-1). Todd asserts that he still needs additional discovery to controvert some of Montoya's asserted facts regarding the layout of the F-7 area and the staff station. See Plaintiff's Rule 56(f) Affidavit ¶ 11, at 3. Todd represents that he needs additional discovery to confirm whether a similar incident had ever occurred where an inmate looked at a computer screen. See Plaintiff's Rule 56(f) Affidavit ¶ 13, at 4. Todd contends that he needs additional discovery regarding how long it took Montoya to call for additional guards to come to the area where the fight occurred. See Plaintiff's Rule 56(f) Affidavit ¶ 15, at 4. Todd also asserts that he "intends to hire an expert, who will opine that it is common knowledge in the corrections business that some inmates will attack other inmates who they know have been convicted of sexual offenses and that officers should be trained to this effect." Plaintiff's Rule 56(f) Affidavit ¶ 16, at 4.

Rule 56(d) of the Federal Rules of Civil Procedure states:

Fed.R.Civ.P. 56(d). The Tenth Circuit reviews a district court's denial of a rule 56(d) motion for abuse of discretion. See Comm. for First Amendment v. Campbell, 962 F.2d at 1522. "The general principle of Rule 56(f) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Price v. W. Res., Inc., 232 F.3d at 783 (internal quotation marks omitted). "Rule 56(f) does not require, however, that summary judgment not be entered until discovery is complete." Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., 2007 WL 2461629, at *3. Nevertheless:

Lewis v. City of Ft. Collins, 903 F.2d at 758 (alterations in original). To invoke the shelter that rule 56(d) provides, a party must (i) file an affidavit, see Pasternak v. Lear Petroleum Exploration Inc., 790 F.2d at 832-33; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; (iii) explain why facts precluding summary judgment cannot be presented, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522.

The Court does not believe that additional discovery regarding the constitutional claim against Montoya is appropriate. After asking the Court for permission to conduct a deposition for Wilks and Armijo, Todd now asks for additional discovery. There is little difference between the discovery he seeks and what he would seek if Montoya had not raised a qualified-immunity defense. He is essentially now on a fishing expedition. Rather than finding a silver bullet — which Wilks' deposition could have been — Todd has not found what he sought and is now trying to salvage a case that has gone south. This lawsuit has now been before the Court for over two years. The Court has also gone to great lengths under Anderson v. Creighton to permit Todd to have some significant discovery. Todd has now taken depositions of both Wilks and Armijo — whose testimony is central to this case. The Court permitted such discovery, because, as the Court stated in its MOO resolving the discovery issue previously before the Court: "Todd has shown, as best he can without using the Court's subpoena power, that there may be evidence to keep his case alive if he is allowed to take Wilks' deposition." MOO at 8. Now that Wilks' and Armijo's depositions are before the Court, however, both unequivocally deny that Montoya played a role in their attack on Todd. While there is always the possibility that they are speaking untruthfully to avoid retribution while incarcerated, the fact remains that Montoya no longer works at the MDC such that they have little to fear from him in terms of repercussions. Furthermore, although Armijo is still at the MDC, Wilks is now at the Penitentiary of New Mexico. Each of their depositions reveals the locations where they are incarcerated. See Wilks Depo. at 1; Armijo Depo. at 4:10-14. Thus, the Court has less concerns about their credibility than it would if Montoya still worked at the MDC. While there is a remote possibility Todd will discover additional information from Gallardo regarding his interview with Wilks, the fact remains that both Wilks and Armijo have denied that Montoya had any involvement in Todd's beating. At most, Gallardo's testimony will be impeachment evidence. Todd also does not explain how he will be able to present evidence from Gallardo in a competent form to fend off summary judgment given that: (i) any statements Gallardo relates that Wilks made would be hearsay; and (ii) the most Todd could do with those statements is impeach Wilks given that those prior statements were not made under oath. See Fed.R.Evid. 801(d)(1)(A) (defining as non-hearsay a statement that "is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition"). Todd does not explain how this evidence will help him defend against summary judgment given that the Court cannot decide issues of credibility on summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

Regarding Sanchez' testimony, Todd relates that Sanchez' deposition will provide "insight into the reasons why Defendant Montoya resigned." Plaintiff's Supplemental Rule 56(d) Affidavit ¶ 3, at 1. That is largely a conclusory assertion, and Todd does not explain what facts he would obtain from Sanchez that would show the existence of a genuine issue of material fact or what he would do with those facts. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1179-80 (10th Cir.2008)("Regardless, the affidavit submitted by the Garcias' counsel failed to identify any specific facts which would create a genuine issue of material fact, let alone identify what steps had been taken to obtain such facts and a plan for the future."). Montoya has also already conceded that he resigned as a result of the altercation. Both Wilks and Armijo's depositions are now available, and each inmate unambiguously testified that Montoya had no involvement in the altercation.

Given that Todd is not alleging that Montoya behaved improperly after the altercation occurred in terms of acting with delay in calling guards to arrive, evidence to that effect is not relevant. Additionally, while information about some of Montoya's work responsibilities, training, and prior knowledge may be helpful as background, that information is only loosely related to the issue of qualified immunity and the problems with Todd's theory the Court has identified.59 Even if a prisoner has tried to view the computer screen at the staff station on a past occasion, Todd has not provided an explanation for how he will obtain evidence raising a fact issue whether Wilks looked at the screen on this occasion. The same rationale applies to Todd's proposed expert; that evidence may be helpful, but it does not explain how Montoya engaged in any actionable conduct on this occasion. While the Court has stayed discovery, there is nothing preventing Todd from hiring an expert. Furthermore, while evidence of the layout of the F-7 area and the desk arrangement of the staff station might be helpful to Todd, he does not explain what evidence he would discover regarding those matters that would help him oppose a qualified-immunity defense. Todd also does not explain why he himself could not provide much of that information to his attorney given that Todd was housed in this area of the prison. Todd does not relate what prevents him from providing some of this information, what steps he has taken to obtain this information, or why Wilks and Armijo could not have provided this information.

Permitting Todd to take Montoya's deposition would also begin to place too much of a burden on Montoya in light of the amount of litigation and participation in discovery the Court has already required. Todd further makes various arguments about Montoya's credibility given that Wilks and Montoya made slightly different statements regarding whether Wilks was able to look at the computer screen on the staff station desk — although both men agree that Wilks was not able to see anything on the screen. See Response to Jan. 30, 2012 MSJ at 14-15. None of these arguments appear in Todd's rule 56(d) affidavits. Beyond the inability of the Court to consider evidence regarding credibility on summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 — such that it is doubtful whether Todd could obtain any evidence to overcome qualified immunity in light of his arguments that he intends to attack credibility — Todd does not explain why additional discovery would uncover, in the face of Montoya and Wilks both denying that Wilks could see anything on the computer, anything different. Also, given that Montoya has filed an affidavit, the Court and the parties have before them his likely deposition testimony. He also gave an interview with Todd's counsel. Todd asserts in his filings, but not in any of his rule 56(d) affidavits, that he may be able to find out more information about the fraternization issue that the Bernalillo County Personnel Action Form mentions as grounds for Montoya's resignation. While none of this information appears in Montoya's affidavit, Montoya explained at the April 5, 2012 hearing that the fraternization refers to his interactions with his brother — who was incarcerated at MDC at the time of Montoya's employment. See Apr. 5, 2012 Tr. at 12:5-13:9 (Quinones). In his Reply to Response to Jan. 30, 2012 MSJ, Montoya attaches a portion of an interview Mr. Villa conducted with him, in which Montoya relates that the statement regarding fraternization relates to this incident with his brother. See Second Copy of Montoya Interview at 5:10-6:1. Todd has presented a few pages from this same interview in his Response to Apr. 13, 2011 MSJ, see Fed.R.Evid. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time."), and has not objected to its admissibility. Montoya's statements in this interview undercut an inference that the reference to fraternization implicate Montoya's interactions with Wilks or Armijo. The Court found that statement regarding fraternization more troubling before it had Wilks and Armijo's depositions before it. The Court also has Montoya's explanation for that statement regarding fraternization before it. Montoya, Wilks, and Armijo have, under oath, all denied that Montoya communicated to Wilks and Armijo any information about Todd's charges, or otherwise had anything to do with the fight that occurred. Todd has not explained what a deposition of Montoya would reveal that is not already available. The Court has considered his affidavits and concludes that they raise speculative assertions that he will find something helpful.

While the situation was different before Todd had depositions for both Wilks and Armijo, the Court is much less concerned about denying additional discovery now that it has seen their deposition testimony. The Court understands the hardship that Todd faces if the Court does not permit him to have additional discovery regarding the constitutional claims, but the Court does not believe that Montoya should face the additional burdens of litigation that more discovery would entail. This case is not one where additional discovery would yield as much regarding the facts of the case as discovery in a document-intensive case, in a case involving a highly complex set of facts, or in a case that required a great deal of expert testimony. The Court is not yet entering judgment on the entire case. If Todd uncovers something more about Montoya's conduct — either in formal discovery or informal discovery — he can approach the Court to reconsider the issue of Montoya's liability. At this stage, however, Todd has not presented persuasive arguments for additional discovery or presented evidence sufficient to overcome Montoya's qualified-immunity defense. Thus, the Court enters summary judgment on Count I in favor of Montoya.

III. TODD HAS NOT RAISED A GENUINE ISSUE OF MATERIAL FACT REGARDING THE NMTCA CLAIM ASSERTED AGAINST MONTOYA.

The Court notes that, as a threshold matter, while Montoya has asserted in his answer as an affirmative defense that there is no waiver of sovereign immunity under the NMTCA, see Defendant Tomas Montoya's Answer and Affirmative Defenses to Complaint for Civil Rights Violations, Tort Claims and Damages at 11, filed February 15, 2010 (Doc. 6), he has not raised lack of waiver of sovereign immunity under the NMTCA as a grounds for summary judgment in either of his summary judgment motions, see Apr. 13, 2011 MSJ at 18-19; Jan. 30, 2012 MSJ at 13. The Court has not located any New Mexico authority indicating that a waiver under the NMTCA is a jurisdictional prerequisite to suit.60 Thus, because raising this issue sua sponte does not appear appropriate, the Court will proceed to address the parties' arguments regarding Todd's NMTCA claims. Todd has asserted claims against Montoya for: (i) negligence; (ii) gross negligence; and (iii) recklessness. See Complaint at 9-10. Montoya has not argued that the NMTCA imposes any limitations on the scope of these tort causes of action.

A. TODD HAS NOT RAISED A GENUINE ISSUE OF MATERIAL FACT REGARDING WHETHER MONTOYA ACTED NEGLIGENTLY.

Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty — which is typically based on a standard of reasonable care — and the breach being a cause in fact and proximate cause of the plaintiff's damages. See Herrera v. Quality Pontiac, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86 (2003). Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). Once courts recognize that a duty exists, that duty triggers "a legal obligation to conform to a certain standard of conduct to reduce the risk of harm to an individual or class of persons." Baxter v. Noce, 107 N.M. 48, 51, 752 P.2d 240, 243 (1988).

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

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

Notably, qualified immunity does not apply to Todd's claims under the NMTCA. While the Supreme Court of New Mexico has not specifically reached this holding, it has stated the following:

Romero v. Sanchez, 119 N.M. 690, 696, 895 P.2d 212, 218 (1995). The Honorable Monroe G. McKay, Senior Judge for the Tenth Circuit, cited this language from Romero v. Sanchez in an opinion concurring in part and dissenting in part; he also criticized the majority and the district court for not addressing this issue:

Painter v. City of Albuquerque, 383 Fed. Appx. 795, 804 (10th Cir.2010) (unpublished)(McKay, J., concurring in part and dissenting in part). In a different context, the Tenth Circuit noted that it had "interlocutory jurisdiction over denials of qualified immunity at the summary judgment" under some circumstances, but held that it lacked interlocutory jurisdiction over the denial of summary judgment on state law claims and that it had only pendent appellate jurisdiction over those state law claims. Fogarty v. Gallegos, 523 F.3d 1147, 1153-54 (10th Cir.2008). It noted that the issue of the disposition of the state law claims "is not `inextricably intertwined with [the district court's] decision to deny... qualified immunity,' nor is consideration of the issue `necessary to ensure meaningful review of the' qualified immunity rulings." Fogarty v. Gallegos, 523 F.3d at 1155.

Case law from other circuits supports the conclusion that state law controls the determination of immunity and liability under a state tort claims act. The United States Court of Appeals for the Fourth Circuit held that Maryland law controlled in analyzing qualified immunity under a Maryland law. See Henry v. Purnell, 652 F.3d 524, 536 (4th Cir.2011). As the Fourth Circuit explained:

Henry v. Purnell, 652 F.3d at 536. In a case involving New Jersey law, the United States Court of Appeals for the Third Circuit similarly held, in an unpublished opinion:

Ciardiello v. Sexton, 390 Fed.Appx. 193, 199 (3d Cir.2010) (unpublished). The United States Court of Appeals for the First Circuit also held, when applying Massachusetts law:

Horta v. Sullivan, 4 F.3d 2, 15-16 (1st Cir.1993) (alterations in original).

The Court concludes that, given the Supreme Court of New Mexico's statements in Romero v. Sanchez, qualified immunity does not apply to claims brought under the NMTCA. Thus, for Todd's claims under the NMTCA, Montoya has the initial burden of production to show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). It is worth noting that Montoya does not contest that he owed a duty to Todd. Todd has never pled in his Complaint or raised as an argument that Montoya should have acted differently once the beating began, but rather that Montoya was the one who caused the beating — either recklessly or intentionally. Instead, he has alleged: (i) "Defendant Montoya knew or should have known that by disclosing Mr. Todd's criminal history to other inmates, Mr. Todd would be subjected to physical attack by other inmates"; and (ii) "Defendant Montoya failed to use ordinary and reasonable care in allowing and/or failing to prevent Patrick Wilks and Joseph Armijo from viewing Mr. Todd's criminal record, which Defendant knew... would lead to Wilks and Armijo committing the torts of battery, assault and false imprisonment on Mr. Todd." Complaint ¶¶ 59-64, at 9.

Montoya has met his initial summary-judgment burden of production regarding the elements of breach and causation, because he has come forward with sufficient evidence to make an initial demonstration that there is no genuine issue whether he acted negligently or whether he caused Todd's injuries. The allegations against Montoya are that he negligently permitted Wilks and/or Armijo to discover Todd's criminal history in such a way that caused Todd's beating. Todd has also argued that Montoya showed them Todd's criminal history intentionally. Both Wilks and Armijo have denied, however: (i) that Montoya showed either of them information about Todd's criminal history; (ii) that Montoya in some way permitted them, accidentally or intentionally, to view this information on a computer screen or otherwise; (iii) that he played a role in instigating the fight; or (iv) that Montoya otherwise had any substantial communication with Wilks on the day of the incident or any communications with Armijo. Armijo further related that the inmates received information that Todd was on a sex-offender website from someone outside the prison. Todd has not been able to present competent evidence to specifically controvert Wilks' and Armijo's assertions. One of Montoya's uncontroverted facts also established that he called other prison guards to come stop the fight almost immediately after the physical altercation involving Todd began. See Apr. 13, 2011 MSJ ¶ 31, at 6 (setting forth this fact); Montoya Aff. ¶ 39, at 5.

Likewise, other evidence Montoya has presented undercuts the conclusion that he breached a duty of ordinary care or caused Todd's injuries in that it does not appear that he acted in a manner that would create a risk that Wilks and Montoya would discover information about Todd's criminal history. While Wilks and Armijo may have discovered, through means unrelated to Montoya, that Todd had some criminal history related to sex offenses, Montoya has met his burden of production to show that he acted reasonably and that his conduct did not proximately cause Todd's harm. The computer screen where Montoya could have accessed the records was approximately six feet off the ground, and Wilks was unable, even after trying, to read anything regarding Todd on the computer screen. Furthermore, when Wilks asked Montoya if Todd was a chester — a child molester — Montoya responded that he did not know. On the facts presented, it is not sound to characterize Montoya's conduct as rising to the level of negligence.

In light of this evidence, Todd has the burden to come forward with evidence showing the existence of a genuine issue of material fact whether Montoya breached his duty to Todd and that his conduct was a proximate cause of Todd's injuries. "[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried." Otteson v. United States, 622 F.2d at 519. Todd has not met this burden. It is worth mentioning again that much of the evidence upon which Todd relies is hearsay evidence, such as the handwritten statement allegedly attributable to Wilks in the Voluntary Statement, which Wilks has denied ever making. See Voluntary Statement at 1. Todd also tries to present, in various forms, hearsay statements relating that Montoya showed Wilks information regarding Todd's criminal history. For instance, in the Jan. 13, 2008 Letter, Sanchez states: "Inmate Todd made a statement in which he accused CO Montoya of abusing the pod radio and showing his charges to inmate Wilks." Jan. 13, 2008 Letter at 2. Gallardo relates in the Jan. 15, 2008 Letter that "Inmate Todd stated `that Officer Montoya had gotten in the Internet in the unit pod computer on Sunday and shown all the Inmates in the pod his past charges.'" Jan. 15, 2008 Letter at 1. Likewise, Todd relies on his own affidavit wherein he states that, after the altercation, Wilks related "that Defendant Montoya showed him my criminal history on the computer." Todd Aff. ¶ 15, at 2. Todd makes other similar statements in his affidavit: (i) "Officer Gallardo told me that in Mr. Wilks['] statement he admitted that Defendant Montoya showed him my criminal history"; and (ii) "Officer Gallardo also informed me that he spoke to Officer Montoya, who admitted to either showing or telling Mr. Wilks my criminal history." Todd Aff. ¶¶ 18-19, at 2.

Todd relies heavily on Montoya's acknowledgment that he resigned because of this incident, given that he was about to face termination. While this evidence is not irrelevant in the sense that it has no relevance under rule 401, this piece of evidence is not enough, by itself, to satisfy Todd's burden of production. Notably, this evidence would be excludable under rule 407 as a subsequent remedial measure, although Montoya has not objected to the evidence on this basis. See Nolan v. Memphis City Sch., 589 F.3d at 274 ("Evidence that an employer subsequently discharged an employee accused of causing a plaintiff's injury may be properly excluded as a subsequent remedial measure under Rule 407.") (citing Hull v. Chevron USA, Inc., 812 F.2d at 586-87). He, in fact, presented this evidence himself. The MDC and Montoya both took the remedial actions, with the MDC recommending that Montoya resign instead of face termination and Montoya deciding to resign. Whether Montoya engaged in inappropriate conduct and the appropriateness of his employment in light of his potential involvement in Todd's beating are "the subject[s] of this lawsuit, and as a result, [his termination] is a measure that `if taken previously, would have made the injury or harm less likely to occur'" within the meaning of rule 407. Stahl v. Bd. of Cnty. Comm'rs of the Unified Gov't of Wynandotte Cnty/Kan., 101 Fed.Appx. at 321. Furthermore, both the MDC and Montoya are defendants in this lawsuit, so their actions fall within rule 407's contemplation. See Mehojah v. Drummond, 56 F.3d at 1215 ("We reject the rule crafted by the dissent, as unsupported by the cases and unworkable, that Rule 407 applies not only to actual defendants, but also to obvious potential defendants." (emphasis in original)). Todd is offering the evidence to establish Montoya's wrongful conduct, so none of the exceptions to rule 407 applies.

To evaluate whether this evidence satisfies Todd's burden of production to raise a genuine issue of material fact, rule 407's considerations are still relevant to assess the relative probative value of this evidence. As the advisory committee's note to rule 407 relates, the inference one draws from a subsequent remedial measure as proof of an admission of fault is relatively weak:

Fed.R.Evid. 407 advisory committee's note to 1972 proposed rules. The Tenth Circuit, relying on this advisory committee's note, has similarly stated: "First, as an admission of fault, the probative value of subsequent remedial measures is limited." Hull v. Chevron USA, Inc., 812 F.2d at 586-87 (citing Fed.R.Evid. 407 advisory committee's note to 1972 proposed rules)(noting that the district court properly excluded testimony from a former employee who had been fired as a result of the incident underlying the lawsuit). While this evidence may create a weak inference of wrongdoing, it is not probative enough to meet Todd's burden of production that Montoya acted in a negligent manner or that Montoya proximately caused his injury. See In re Air Crash Disaster, 86 F.3d at 528-29 ("Northwest's rewiring of the CAWS is circumstantial evidence, if only of a weak and suspect sort, that the CAWS as it existed at the time of the accident was not foolproof."). Even if the evidence is not technically within rule 407's scope: (i) rule 407's underlying concerns are persuasive when evaluating the probative value of the evidence; and (ii) the circumstances of Montoya's resignation in light of the other evidence in the record make the inference of wrongdoing one can draw from his resignation a weak one. See Gray v. Hoffman-La Roche, Inc., 82 Fed. Appx. at 646-47 (recognizing that, while the evidence at issue was "admissible under Rule 407," its "probative value was minimal"). It is the proverbial scintilla of evidence that cannot properly prevent entry of summary judgment.

While the Bernalillo County Personnel Action Form refers to Montoya resigning based on fraternization issues, that statement is relatively ambiguous as the document provides no elaboration on what those fraternization issues are. See Bernalillo County Personnel Action Form at 1. Montoya explained at the April 5, 2012 hearing that the fraternization refers to his interactions with his brother — who was incarcerated at MDC at the time of Montoya's employment. See Apr. 5, 2012 Tr. at 12:5-13:9 (Quinones). In his Reply to Response to Jan. 30, 2012 MSJ, Montoya attaches a portion of an interview Todd's counsel, Ryan Villa, conducted with him, in which Montoya relates that the statement regarding fraternization relates to this incident with his brother. See Second Copy of Montoya Interview at 5:10-6:1. Todd has presented a few pages from this same interview in his Response to Apr. 13, 2011 MSJ, see Fed.R.Evid. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time."), and has not objected to its admissibility. Montoya's statements in this interview undercut an inference that the reference to fraternization implicate Montoya's interactions with Wilks or Armijo. The evidence of his resignation alone, particularly when taking into account the various pieces of evidence Montoya has presented that undercut inferences of wrongdoing, is not sufficiently probative to meet this burden of production.

Any other disputed facts are not material such that they change the appropriate disposition of this negligence issue. For instance, Todd created a dispute regarding Wilks' and Armijo's motivation to attack Todd — whether he had made statements that provoked them or whether they had attacked him without provocation. Under either scenario, however, Montoya still has no involvement in Todd's beating absent additional evidence making such a connection. Todd successfully controverts evidence that the guards came immediately to break to break up the fight between Todd and Wilks, presenting evidence that there may have been two to three minutes that passed before guards arrived. It is not disputed, however, that Montoya almost immediately called for the assistance of other guards when the altercation between Todd and Wilks began — conduct which does not support a finding of negligence. More importantly, as the Court has already noted, Todd has not alleged that Montoya acted improperly after the beating began — such as Montoya failing to intervene in the beating. See Complaint ¶¶ 59-64, at 9. Accordingly, Todd has failed to meet his burden to show the existence of a genuine issue of material fact regarding Montoya's negligence.

B. TODD HAS NOT SHOWN THE EXISTENCE OF A GENUINE ISSUE OF MATERIAL FACT WHETHER MONTOYA ACTED IN A GROSSLY NEGLIGENT OR RECKLESS MANNER.

Quoting from Prosser & Keeton on the Law of Torts, the Supreme Court of New Mexico has stated with regard to gross negligence: "[M]ost courts consider that `gross negligence' falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind." Paiz v. State Farm Fire and Cas. Co., 118 N.M. 203, 212, 880 P.2d 300, 308 (1994)(quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 34, at 212 (5th ed.1984)). Furthermore, the Supreme Court of New Mexico has stated that it has "formally abolished the distinction between ordinary and gross negligence when it adopted the doctrine of comparative negligence." Paiz v. State Farm Fire and Cas. Co., 118 N.M. at 211, 880 P.2d at 309 (citing Scott v. Rizzo, 96 N.M. 682, 687, 634 P.2d 1234, 1239 (1981)). Thus, given that New Mexico law does not recognize a separate concept of gross negligence, there is no separate analysis for the Court to conduct regarding gross negligence. The two are the same under New Mexico law.

Regarding recklessness, the Court of Appeals of New Mexico has stated, relying on a uniform jury instruction:61 "`Reckless conduct,' by contrast, is defined as `the intentional doing of an act with utter indifference to the consequences.'" Pub. Serv. Co. of N.M. v. Diamond D. Constr. Co., Inc., 131 N.M. 100, 117, 33 P.3d 651, 668 (Ct.App.2001).62 For the purpose of Eighth Amendment analysis, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 Fed.Appx. at 823-24. Todd could not show the existence of a genuine issue of material fact regarding Montoya's deliberate indifference or his negligence, so it follows that Todd can similarly not show the existence of a genuine issue of material fact regarding Montoya's recklessness. Thus, Todd has not raised a genuine issue of material fact on his NMTCA claims.

IV. TODD HAS NOT MET THE STANDARD FOR DELAYING OR DEFERRING ENTRY OF SUMMARY JUDGMENT UNDER RULE 56(d).

Because qualified immunity does not apply to Todd's claims under the NMTCA, the Court will separately address his rule 56(d) affidavits in regards to his NMTCA claims. Rule 56(d) of the Federal Rules of Civil Procedure states:

Fed.R.Civ.P. 56(d). "The general principle of Rule 56[d] is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Price v. W. Res., Inc., 232 F.3d at 783 (internal quotation marks omitted). "Rule 56[d] does not require, however, that summary judgment not be entered until discovery is complete." Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., 2007 WL 2461629, at *3. To invoke the shelter that rule 56(d) provides, a party must (i) file an affidavit, see Pasternak v. Lear Petroleum Exploration Inc., 790 F.2d at 832-33; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; (iii) explain why facts precluding summary judgment cannot be presented, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522.

Notably, the Court has already permitted Todd to have some discovery in that Todd has now taken Wilks' and Armijo's depositions. Todd requests additional discovery under rule 56(d). See Plaintiff's Supplemental Rule 56(d) Affidavit ¶¶ 2-3, at 1. Specifically, he requests the following evidence:

Plaintiff's Supplemental Rule 56(d) Affidavit ¶¶ 2-3, at 1. Todd also relates, in his first rule 56 affidavit, that he needs some discovery regarding "the policies and procedures and any training that Montoya has received" about certain procedures in F-7, such as where inmates may go, how much discretion Montoya had to classify inmates. See Plaintiff's Rule 56(f) Affidavit ¶¶ 8-9, at 2-3. Todd asserts that he still needs additional discovery to controvert some of Montoya's asserted facts regarding the layout of the F-7 area and the staff station. See Plaintiff's Rule 56(f) Affidavit ¶ 11, at 3. Todd represents that he needs additional discovery to confirm whether a similar incident had ever occurred where an inmate looked at a computer screen. See Plaintiff's Rule 56(f) Affidavit ¶ 13, at 4. Todd contends that he needs additional discovery regarding how long it took Montoya to call for additional guards to come to the area where the fight occurred. See Plaintiff's Rule 56(f) Affidavit ¶ 15, at 4. Todd also asserts that he "intends to hire an expert, who will opine that it is common knowledge in the corrections business that some inmates will attack other inmates who they know have been convicted of sexual offenses and that officers should be trained to this effect." Plaintiff's Rule 56(f) Affidavit ¶ 16, at 4.

To invoke the shelter that rule 56(d) provides, a party must (i) file an affidavit; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts; (iii) explain why facts precluding summary judgment cannot be presented; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment. Compared to its analysis regarding qualified immunity, the Court is conscious that courts are less willing to permit early summary judgment motions in other contexts outside of the qualified-immunity context given the unique nature of qualified immunity. "Unless dilatory or lacking in merit," a party's rule 56(d) application "should be liberally treated." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1553-54. "Rule 56(f) does not require, however, that summary judgment not be entered until discovery is complete." Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., 2007 WL 2461629, at *3.

Todd's ultimate problem is that his rule 56(d) application is not sound. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1553-54. Regarding a deposition of Gallardo, while there is a possibility that Todd will discover additional information from Gallardo regarding his interview with Wilks, both Wilks and Armijo have denied that Montoya had any involvement in Todd's beating. More importantly, Todd does not explain how he will be able to present any evidence he obtains from Gallardo in a competent form to fend off summary judgment given that: (i) any statements Gallardo relates that Wilks made will be hearsay; and (ii) the most Todd could do with those statements is impeach Wilks given that those prior statements were not made under oath. See Fed.R.Evid. 801(d)(1)(A) (defining as non-hearsay a statement that "is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition"). Todd does not explain how this evidence would help him defend against summary judgment given that the Court cannot decide issues of credibility on summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

Regarding Sanchez' testimony, Todd relates that Sanchez' deposition will provide "insight into the reasons why Defendant Montoya resigned." Plaintiff's Supplemental Rule 56(d) Affidavit ¶ 3, at 1. That is largely a conclusory assertion, and Todd does not explain what facts he would obtain from Sanchez that would show the existence of a genuine issue of material fact or what he would do with those facts. See Garcia v. U.S. Air Force, 533 F.3d at 1179-80. Montoya has also already conceded that he resigned as a result of the altercation. Both Wilks' and Armijo's depositions are available, and each inmate unambiguously testified that Montoya had no involvement in the altercation.

Given that Todd is not alleging that Montoya acted improperly after the altercation occurred in terms of acting with delay in calling guards to arrive, evidence to that effect is not relevant. Todd does not explain why this factual issue will help him defeat summary judgment, or what evidence is not already available to him given that Armijo has testified that there was a two to three minute delay in guards arriving to break up the fight. See Comm. for the First Amendment v. Campbell, 962 F.2d at 1522 (requiring a party under rule 56(d) to identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts). Additionally, while information about some of Montoya's work responsibilities, training, and prior knowledge may be helpful as background, those issues are only loosely related to Montoya's liability given that Todd has not identified any evidence that raises fact issues regarding whether Montoya breached a duty to him and that the breach caused his injuries.63 Even if a prisoner has tried to view the computer screen at the staff station on a past occasion, Todd has not provided an explanation for how he will obtain evidence raising a fact issue whether Wilks looked at the screen on this occasion. The same rationale applies to Todd's proposed expert; that evidence may be helpful, but it does not explain how Montoya engaged in any actionable conduct on this occasion. Nothing has prevented Todd from hiring his proposed expert and presenting that testimony — through an affidavit or other means. Furthermore, while evidence of the layout of the F-7 area and the desk arrangement of the staff station there might be helpful to Todd, he does not explain what evidence he would discover regarding those matter that would help him oppose summary judgment. Todd also does not explain why he himself could not provide much of that information to his attorney given that Todd was housed in this prison area. Todd does not relate what prevents him from providing some of this information or what steps he has taken to obtain this information, or why Wilks and Armijo could not have provided this information.

While Todd might obtain some useful information from Montoya if he took Montoya's deposition, Todd does not explain what he would find and why it would help him show the existence of a genuine issue of material fact regarding Montoya's liability. He also does not explain why the interview he already conducted with Montoya was insufficient. Todd makes various arguments about Montoya's credibility given that Wilks and Montoya made slightly different statements regarding whether Wilks was able to look at the computer screen on the staff station desk — although both men agree that Wilks was not able to see anything on the screen. See Response to Jan. 30, 2012 MSJ at 14-15. None of these arguments appear in Todd's rule 56(d) affidavits. Beyond the inability of the Court to consider evidence regarding credibility on summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 — such that it is doubtful whether Todd could obtain any evidence to overcome qualified immunity in light of his arguments that he intends to attack credibility — Todd does not explain why additional discovery would uncover, in the face of Montoya and Wilks both denying that Wilks could see anything on the computer, beyond speculative assertions that he will find something helpful. Also, given that Montoya has filed an affidavit, the Court and the parties have before them his likely deposition testimony. Todd asserts in his filings, but not in any of his rule 56(d) affidavits, that he may be able to find out more information about the fraternization issue that the Bernalillo County Personnel Action Form mentions as grounds for Montoya's resignation. While none of this information appears in Montoya's affidavit, Montoya explained at the April 5, 2012 hearing that the fraternization refers to his interactions with his brother — who was incarcerated at MDC at the time of Montoya's employment. See Apr. 5, 2012 Tr. at 12:5-13:9 (Quinones). In his Reply to Response to Jan. 30, 2012 MSJ, Montoya attaches a portion of an interview Todd's counsel, Ryan Villa, conducted with him, in which Montoya relates that the statement regarding fraternization relates to this incident with his brother. See Second Copy of Montoya Interview at 5:10-6:1. Todd has presented a few pages from this same interview in his Response to Apr. 13, 2011 MSJ, see Fed. R.Evid. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time."), and has not objected to its admissibility. Montoya's statements in this interview undercut an inference that the reference to fraternization implicate Montoya's interactions with Wilks or Armijo. The Court found that statement regarding fraternization more troubling before it had Wilks and Armijo's deposition before it. It also has Montoya's explanation for that statement before it. Montoya, Wilks, and Armijo have, under oath, all denied that Montoya communicated to Wilks and Armijo any information about Todd's charges, or otherwise had anything to do with the fight that occurred. Todd has not explained what an additional deposition for Montoya would reveal that is not already available.

The Court would be much more concerned about entering summary judgment if Todd had not had an opportunity to take Wilks' or Armijo's depositions. Their depositions clarified many of the otherwise ambiguous circumstances regarding what occurred. Todd did not uncover what he hoped he would when he took their depositions. He has not identified why another potential discovery source would help him show the existence of a genuine issue of material fact regarding Montoya's liability. Furthermore, this case is not the kind where additional discovery would yield as much regarding the facts of the case as discovery in a document-intensive case, in a case involving a highly complex set of facts, or in a case that required a great deal of expert testimony. Thus, the Court concludes that entering summary judgment on Count III — Todd's NMTCA claim — in favor of Montoya is appropriate. Again, the Court is not yet entering judgment on the entire case. If Todd uncovers something more about Montoya's conduct — either in formal discovery or informal discovery — he can approach the Court to reconsider the issue of Montoya's liability. On the rather robust record before the Court, and on which was able to obtain some significant formal discovery, Todd has not presented persuasive arguments for additional discovery or presented evidence sufficient to overcome Montoya's qualified-immunity defense.

IT IS ORDERED that Defendant Tomas Montoya's Renewed Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, filed January 30, 2012 (Doc. 94), is granted.