JAMES O. BROWNING, District Judge.
Consistent with the Court's duty to take the plaintiff's allegations as true when considering a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court takes its facts from J.H.'s complaint. See Plaintiffs' Second Amended Complaint for Recovery of Damages Due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act, filed June 28, 2013 (Doc. 85)("Complaint").
Because J.P. had experienced significant emotional difficulty at school in the past, she was placed on an Individualized Educational Plan ("IEP"). Complaint ¶¶ 14-22, at 2-3. IEPs are designed to address a developmentally disabled student's behavior if such behavior will interfere with learning. See Complaint ¶ 21, at 3. As part of her IEP, J.P.'s IEP team issued a Behavioral Intervention Plan ("BIP") that detailed procedures which school officials had to follow before and during the use of physical restraints on J.P.; the Complaint does not describe the procedures other than by alleging that they "did not include handcuffing as an appropriate intervention." Complaint ¶¶ 20-22, at 3; id. ¶ 29-31, at 4.
In the fall of 2011, J.P. was placed in a special education class that regularly included approximately five developmentally disabled students. See Complaint ¶¶ 25-26, at 4. J.H. informed Sharkey — a Deputy Sherriff of the County of Bernalillo and the school resource officer assigned to Roosevelt Middle School — that either restraining her daughter in handcuffs or arresting her daughter would violate her daughter's BIP. See Complaint ¶ 6, at 2; ¶ 38, at 5. On September 26, 2011, J.P. struck a student in her classroom. See Complaint ¶¶ 27-28, at 4. The classroom teacher, Alison Gonzalez contacted Sharkey. See Complaint ¶¶ 25-28, at 4. Gonzales tried to restrain J.P. by grabbing her around the waist. See Complaint ¶¶ 30-32, at 4. Sharkey grabbed J.P. "in violation of the proper method of restraint detailed in [J.P.'s] BIP." Complaint ¶ 33, at 4. Having "decided to press charges against the child for kicking" her teacher, Sharkey "placed J.P. in handcuffs and walked her out of the classroom," and then "transported the 11 year old disabled child to the Juvenile Detention Center in his patrol unit," where she "was held ... for several hours." Complaint ¶¶ 34-37, at 4-5. "Eventually, J.P.'s handcuffs were removed and she was placed in a small cell with only a floor mat to sit on." Complaint ¶ 39, at 5. J.H. was informed of these events only after Sharkey placed J.P. in handcuffs and moved her to the Detention Center. See Complaint ¶ 38, at 4-5. "Defendant Sharkey never notified J.P.'s mother, J.H., that her daughter had been arrested, charged with battery and taken to the Detention Center in violation of her BIP." Complaint ¶ 40, at 5.
J.H. commenced this lawsuit in New Mexico state court on December 5, 2011; Sharkey's co-Defendants removed the case to federal court on February 9, 2012. See Notice of Removal (Doc. 1). On June 28, 2013, J.H. filed the Second Amended Complaint. See Complaint at 1. The Complaint alleges seven causes of action, only one of which is relevant to this Memorandum Opinion and Order: a claim that the Sharkey
On January 16, 2013, Sharkey moved the Court to dismiss J.P.'s substantive due-process claim. See MTD passim. Sharkey asserts the defense of qualified immunity, arguing that the Complaint does not allege that he violated a clearly established right that the Due Process Clause protects. See MTD at 7-14. In his view, only the Fourth Amendment's prohibition on unreasonable searches and seizures protects any rights that he allegedly violated. See MTD at 7-14.
J.H. responded to the MTD on February 11, 2013. See Plaintiff's Response to Deputy Sharkey's Motion to Dismiss No. II: Fourteenth Amendment Due Process Claim, filed February 11, 2013 (Doc. 61)("Response"). In J.H.'s view, "the restraint of a mentally ill child for transport to a jail was clearly a violation of the child's right to be free of liberty deprivations through the use of restraints." Response at 7. Citing cases involving restraints placed upon those with mental difficulties, J.H. argues that the proper standard for evaluating this claim is whether the state actor properly exercised "professional judgment." Response at 3-4 (citing Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Santana v. Collazo, 714 F.2d 1172, 1182 (1st Cir.1983); M.H. v. Bristol Bd. of Educ., 169 F.Supp.2d 21, 31 (D.Conn. 2001)). J.H. argue that "[t]he State of New Mexico has created a comprehensive statutory scheme that requires police officers to refrain from restraining mentally ill children and providing them with treatment or evaluation." Response at 3. For example, J.H. points to various sections of the New Mexico Children's Code that limit the circumstances in which law enforcement can physically restrain or detain a child. See Response at 4-6 (citing N.M. Stat. Ann. §§ 32A-2-2(A); 32A-2-3(B), (H), (J); 32A-2-10; 32A-6A-3). J.H. contends that New Mexico statutes restricting the restraint, transport, and confinement of a delinquent child give rise to a liberty interest that the Due Process Clause protects, and that "the restraint and transport of an eleven year old mentally ill child violated her Fourteenth Amendment rights to be free of restraints." Response at 6. In sum, J.H. argues that Sharkey violated J.P.'s rights under both the Fourth Amendment and the Due Process Clause, and, because she "does not have to choose whether she vindicates one right or another, she may vindicate both constitutional rights simultaneously." Response at 1.
Sharkey replied to the Response on February 20, 2013. See Deputy Sharkey's Reply to Response to Motion to Dismiss No. II: Dismissal of Fourteenth Amendment Substantive Due Process Claim, filed February 20, 2013 (Doc. 64)("Reply"). Sharkey reiterates that "controlling precedent requires analysis of Plaintiff's ... claims under the objective reasonableness and probable cause standard of the Fourth Amendment and not the substantive due-process clause of the Fourteenth Amendment." Reply at 3. Sharkey further emphasizes
The Court held a hearing on the MTD on April 25, 2013. See Transcript of Hearing (taken Apr. 25, 2013)(Doc. 105)("Tr."). Sharkey underscored that he acted as a law enforcement officer when he responded to what he believed to be criminal activity and that, regardless of the presence of a minor who suffers from a behavioral disorder, the Court should evaluate the claim that J.P.'s arrest was unlawful only under the Fourth Amendment rather than under the Fourteenth Amendment. See Tr. at 2:24-4:19 (Court, Robles). The Court asked Sharkey whether he is arguing that the Fourth and Fourteenth Amendment claims are mutually exclusive as a matter of law, or that the facts alleged do not satisfy the shocks-the-conscience standard for liability under the Fourteenth Amendment. See Tr. at 4:20-25 (Court). Sharkey indicated that he advances both arguments. See Tr. at 5:1-18 (Robles). The Court asked Sharkey to identify the best case indicating the claims are mutually exclusive; Sharkey cited the decision of the Supreme Court of the United States in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), for the proposition that "the more specific amendment should be the one that controls and determines which cause of action should be brought." Tr. at 5:19-6:13 (Court, Robles). Sharkey also pointed to the Court's decision in James v. Chavez, 830 F.Supp.2d 1208 (D.N.M.2011) (Browning, J.), as evidence that whether the Fourteenth Amendment or the Fourth Amendment applies turns on whether there was a seizure. See Tr. at 6:14-7:15 (Court, Robles). Sharkey argued that, if there was a seizure, the Fourth Amendment applies; if there was no seizure, the Fourteenth Amendment applies. See Tr. at 6:14-7:15 (Court, Robles). Sharkey also pointed to cases cited in the MTD that analyze similar claims under Fourth Amendment law. See Tr. 7:16-9:9 (Robles).
The Court then asked Sharkey to clarify the "clearly established" prong of the qualified immunity analysis; specifically, the Court asked Sharkey to explain whether the officer must know what the specific cause of action will be or simply that there would be some sort of claim. See Tr. 9:10-21 (Court). Sharkey responded by reiterating his argument that "[t]he law is clearly established as to the type of claim that the plaintiff actually has." Tr. 10:3-4 (Robles). The Court further asked whether it could dispose of this motion by "simply say[ing] there is no cause of action there under the Fourteenth Amendment... [b]ut not getting into the clearly established prong." Tr. 10:17-21 (Court); id. at 10:23-24 (Court). Sharkey responded that the Court could so limit its decision. See Tr. at 10:22 (Robles).
Sharkey then turned the Court's attention to cases that J.H. cites that touch on state actors' treatment of mental health patients. See Tr. at 10:25-11:22 (Court, Robles). Sharkey emphasized that the standard applied under the Fourteenth Amendment in cases involving mental health patients differs from the reasonableness
J.H. first argued that the Fourth Amendment and Fourteenth Amendment rights differ, because, when an individual is restrained, a "special relationship" is created between the individual and the state. Tr. at 13:19-25 (Kennedy). J.H. reiterated her reliance on cases dealing with state actors taking care of the developmentally disabled. See Tr. at 14:1-17 (Court). The Court pointed out that none of those cases dealt with law enforcement officers and suggested that a different framework might apply in those cases. See Tr. at 14:18-25 (Court). J.H. disagreed, arguing that the activity in this case is not a traditional law enforcement activity, but that Sharkey was instead acting as a "community caretaker[]" with a "duty to recognize medical needs." Tr. at 15:1-6 (Kennedy). The Court asked J.H. why it was necessary to impose this new framework when the Fourth Amendment provides a remedy for anything happening after a lawful arrest. See Tr. at 15:7-11 (Court). J.H. responded that the additional remedy was necessary, because probable cause might support the arrest and thus be lawful under the Fourth Amendment, which would leave disabled child J.H. in cases like this one without a remedy for violations of rights arising under the special relationship that New Mexico law arguably creates. See Tr. at 15:17-16:11 (Court, Kennedy).
The Court asked J.H. to clarify the role of state law in this case. See Tr. at 16:12-15 (Court). J.H. argued that the state statutory framework regulating the treatment of children creates a liberty interest that the Due Process Clause protects, and that law enforcement violates that interest when, as here, it arrests an eleven-year-old child and takes her to jail. See Tr. at 16:16-17:19 (Kennedy). The Court asked whether the shock-the-conscience standard applies in this case. See Tr. at 17:20-22 (Court). J.H. argued that the standard does not apply to special-relationship cases, but the Court recalled case law saying that the shock-the-conscience standard applies to all substantive due-process claims. See Tr. at 17:20-19:2 (Court, Kennedy). J.H. pointed out that, because Sharkey had not raised that argument in the MTD, they did not address it. See Tr. at 19:3-22 (Court, Kennedy, Robles). J.H. then clarified her position by stating that, once Sharkey arrested J.P., it became a special-relationship case, so the shock-the-conscience standard did not apply. See Tr. at 19:23-20:8 (Court, Kennedy).
The Court then asked J.H. to clarify her views of the issues in the case. See Tr. at 20:14-17 (Court). After some argument, the parties seemed to agree that the case implicates two issues: (i) whether J.H. could have both a Fourth Amendment claim and a Fourteenth Amendment claim; and (ii) whether the state statutes governing the treatment of children create a liberty interest that the Due Process Clause protects. See Tr. at 20:18-23:8 (Court, Kennedy, Robles). J.H. then sought to give hypotheticals where both the Fourteenth
The Court asked Sharkey about J.H.'s argument that, if the Court dismisses the Fourth Amendment claim because Sharkey made the arrest with probable cause, J.H. would lack a claim for events after the handcuffing. See Tr. at 15:11-17 (Court). Sharkey argued that cases both from the Supreme Court of the United States and from the United States Court of Appeals for the Tenth Circuit mandate that out-come. See Tr. at 25:18-26:1 (Robles). The Court asked Sharkey when the claim converted from a Fourth Amendment claim to a Fourteenth Amendment claim. See Tr. at 26:2-7 (Court). Sharkey argued that, once he dropped off J.P. at the Juvenile Detention Center, his duties under the Fourth Amendment ceased, because Sharkey no longer had her in custody. See Tr. at 28:18-24 (Robles). At that point, according to Sharkey, employees of the Judicial Detention Center took responsibility for J.P., and they were "required by the Constitution to observe her Fourteenth Amendment rights." Tr. at 28:24-29:3 (Kennedy).
The Court asked J.H. why it was necessary to have Fourteenth Amendment and Fourth Amendment claims. See Tr. at 30:22-31:2 (Court). J.H. suggested that the Fourteenth Amendment claim is necessary, because Sharkey could file a summary judgment motion regarding the Fourth Amendment claim on the basis that probable cause supported the arrest. See Tr. at 31:3-32:14 (Court, Kennedy). The Court asked J.H. how old a person must be to be considered a criminal defendant. See Tr. at 33:2-4 (Court). J.H. answered that a person must be eighteen years old to be considered a criminal defendant, and also indicated that, because New Mexico law does not permit a Juvenile Detention Center to accept a juvenile who has committed only a misdemeanor, such a person should not be taken to a Juvenile Detention Center. See Tr. at 33:2-33:16 (Court, Kennedy).
Sharkey reiterated his view that, under controlling precedent, the Fourth Amendment secures rights that "include liberty, property, and privacy interests, a person's sense of security and individual dignity." Tr. at 33:19-34:5 (Court, Robles). For this reason, Sharkey argued, the Fourth Amendment provides a sufficient remedy for J.H. See Tr. at 34:6-34:25 (Court, Robles). In Sharkey's view, "[i]t is the Fourth Amendment that's meant to protect not only [a] wrongfully charged criminal defendant, but also to protect those criminal defendants who have disabilities that are particular to them that make them more vulnerable than other criminal defendants." See Tr. at 35:7-12 (Robles).
Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a
A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).
To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010) ("To determine whether a motion to dismiss was properly granted, we apply a plausibility standard to ascertain whether the complaint includes enough facts that, if assumed to be true, state a claim to relief that is plausible on its face."). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007).
The Tenth Circuit has held that "Iqbal establishes the importance of context to a plausibility determination." Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir.2010).
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (citations omitted).
Section 1983 of Title 42 of the United States Code provides:
42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) ("The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.")(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 ("Because vicarious liability is inapplicable to Bivens[
"Under Section 1983, liability attaches only to conduct occurring `under
In the context of a public employee, the Tenth Circuit has directed that, while "`state employment is generally sufficient to render the defendant a state actor ... [,]' at the same time, it is `well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:
David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996) (citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).
Government actors may be liable for the constitutional violations that another committed, if the actors "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights," thus establishing the "requisite causal connection" between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be "`read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'" Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167,
The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the "conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant]," so long as there was not a superseding-intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors "may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability." Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, Associate Justice for the Supreme Court:
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, "[f]oreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant's responsibility." Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link... between the constitutional deprivation and either the supervisor's personal participation,... exercise of control or direction, or ... failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)) (alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." (emphasis in original)).
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:
614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal "does not purport to overrule existing Supreme Court precedent," but stated that "Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory
Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court's opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:
Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "an `affirmative' link ... between the unconstitutional acts by their subordinates and their `adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.'" Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)).
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181 JB/ LFG, 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)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir.1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir.2001).
Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011).
Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant's actions violated the Constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not "clearly established" by prior case law "comports with our usual reluctance to decide constitutional questions unnecessarily"). Once the plaintiff establishes an inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage," and "the precise factual basis for the ... claim ... may be hard to identify"; (v) tackling the first element "may create a risk of bad decisionmaking," because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808) (internal quotation marks omitted). Regarding the last of these seven circumstances, the Supreme
To determine whether a right was clearly established, a court must consider 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
"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). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question ... unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "In other words, `existing precedent must have placed the statutory or constitutional question beyond debate.'" Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). "The operation of this standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. "The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the 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 Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) ("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation ... is particularly clear..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. at 741, 122 S.Ct. 2508.
In Rivera v. Bates, No. CIV 12-0473 JB/RHS, 2014 WL 3421050 (D.N.M. June 21, 2014) (Browning, J.), the Court used the Kerns v. Bader qualified-immunity framework to determine if it was clearly established that arresting a suspect in his underwear and failing to retrieve his clothing to cover him up while he is transported from his house to a patrol car makes the arrest unreasonable. See 2014 WL 3421050, at *54. The Court stated:
Rivera v. Bates, 2014 WL 3421050, at *54 (emphasis in original).
The Fourteenth Amendment's Due Process Clause provides that "no State shall ... deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiff's due process rights and not for third parties' acts. See Robbins v. Oklahoma, 519 F.3d at 1251 (citing DeShaney v. Winnebago Cnty., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors." DeShaney v. Winnebago Cnty., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney v. Winnebago Cnty., 489 U.S. at 195, 109 S.Ct. 998.
There are, however, two exceptions to this general rule. The first — the special-relationship exception — arises when the state has a custodial relationship with the victim, which triggers an affirmative duty to provide protection to that individual. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-95 (10th Cir.1994). The second — the danger-creation exception — provides that a state may also be liable for an individual's safety "only when `a state actor affirmatively acts to create, or increases a plaintiff's vulnerability to, or danger from private violence.'" Robbins v. Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). "If either the special-relationship or danger-creation exception applies, the conduct of the state actor must go beyond negligence to the point of `shocking the conscience.'" Glover v. Gartman, 899 F.Supp.2d 1115, 1135 (D.N.M.2012) (Browning, J.)(citing Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir.2006)). The Court's decision in Glover v. Gartman was also consistent with a previous Tenth Circuit decision — Radecki v. Barela, 146 F.3d 1227 (10th Cir.1998) — in which the Tenth Circuit stated:
Radecki v. Barela, 146 F.3d at 1230 (emphasis added).
The first exception to the general principle that a state's negligent failure to protect an individual cannot trigger liability under the due-process clause is the special-relationship doctrine. A plaintiff must show that they were involuntarily committed to state custody to establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep't, 73 F.3d 274, 276 (10th Cir.1996). "A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g., when the individual is a prisoner or involuntarily committed mental patient)." Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995).
The Due Process Clause protects against "deliberately wrongful government decisions rather than merely negligent government conduct." Uhlrig v. Harder, 64 F.3d at 573. The danger-creation exception to this rule applies only when "a state actor affirmatively acts to create, or increases a plaintiff's vulnerability to, or danger from private violence." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Estate of B.I.C. v. Gillen, 702 F.3d 1182, 1187 (10th Cir.2012) ("[S]tate officials can be liable for the acts of private parties where those officials created the very danger that caused the harm."). Under a danger-creation theory, there is no § 1983 liability absent "an intent to harm" or "an intent to place a person unreasonably at risk of harm." Uhlrig v. Harder, 64 F.3d at 573. A plaintiff must show "sufficient[] `affirmative conduct on the part of the state in placing the plaintiff in danger.'" Estate of B.I.C. v. Gillen, 702 F.3d at 1187 (quoting Gray v. Univ. Colo. Hosp. Auth., 672 F.3d 909, 916 (10th Cir.2012)). To state a prima-facie case, the plaintiff must show that his or her danger-creation claim for due-process violations meets a six-part test: (i) the state and individual actors must have created the danger or increased plaintiff's vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant's conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) and the defendant must have acted recklessly in conscious disregard of that risk. See Pena v. Greffet, 922 F.Supp.2d 1187, 1227 (D.N.M.2013) (Browning, J.)(citing Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir.2008)).
In determining whether the danger-creation exception applies, the Tenth Circuit has focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v. City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk of the conduct and act "with an intent to place a person unreasonably at risk." Medina v. City & Cnty. of Denver,
A government actor's official conduct intended to injure in a way that cannot reasonably be justified by any government interest most likely shocks the conscience. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level."). "[A] plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power." Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir.2006) (quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006) (internal quotation marks omitted)). "The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Camuglia v. City of Albuquerque, 448 F.3d at 1222-23 (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995)) (internal quotation marks omitted).
Camuglia v. City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).
"Whether the conduct shocks the conscience is an objective test, based on the circumstances, rather than a subjective test based on the government actor's knowledge." Pena v. Greffet, 922 F.Supp.2d at 1227 (citing James v. Chavez, 830 F.Supp.2d 1208, 1276 (D.N.M.2011) (Browning, J.), aff'd, 511 Fed.Appx. 742 (10th Cir.2013) (finding that the use of deadly force did not shock the conscience even if the suspect did not have an intent to harm the officer, because the officer "had sufficient facts before him to conclude that there was a threat of serious physical harm" and the "courts must evaluate a [government actor's] conduct objectively")).
In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir.2001), the widow of a corrections officer sued the director, deputy director, warden, and deputy wardens of the department of corrections, alleging that the defendants deliberately failed to ensure proper training and supervision of penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective action to protect her husband, all of which resulted in him being killed during the escape of three inmates. See 265 F.3d at 1132. The district court found that the plaintiff failed to state a § 1983 claim for violation of the Due Process Clause under a danger-creation theory, because the defendants' actions were "not of such a magnitude that the Court is able to conclude they shock the conscience." 265 F.3d at 1134. The Tenth Circuit agreed with the district court's conclusion, stating: "[U]nder the circumstances of this case, inaction in the face of known dangers or risks [was]
In Schaefer v. Las Cruces Public School District, 716 F.Supp.2d 1052 (D.N.M.2010) (Browning, J.), the plaintiff alleged that the defendants — the school district, superintendent, principal, and vice principal of a middle school — violated the plaintiff's substantive due-process rights when they did not take sufficient action to prevent a student at the school from "racking"
716 F.Supp.2d at 1074-75.
The Court will grant the MTD for three reasons. First, J.H. cannot simultaneously bring claims under the Fourth and Fourteenth Amendments for Sharkey's alleged unlawful seizure of J.P. Second, even if J.H. could bring a separate Fourteenth Amendment claim, Sharkey did not violate J.P.'s substantive due-process rights. Third, even if Sharkey violated J.P.'s substantive due-process rights, those rights were not clearly established and Sharkey is entitled to qualified immunity. Accordingly, the Court will grant the MTD.
The Court first must address whether J.H. may simultaneously being claims under both the Fourth and the Fourteenth Amendments. The Supreme Court has explained that, "where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Cnty. of Sacramento v. Lewis, 523 U.S. at 842, 118 S.Ct. 1708 (citations
While the Supreme Court has not resolved the question whether the Fourth Amendment protects individuals after formal arrest and before pretrial detention, see Graham v. Connor, 490 U.S. at 395 n. 10, 109 S.Ct. 1865, the Tenth Circuit has held that the Fourth Amendment applies to an officer's treatment of an arrestee from the formal arrest until the probable-cause hearing, see Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir.1991) ("We think the Fourth Amendment standard probably should be applied at least to the period prior to the time when the person arrested ... is arraigned or formally charged." (citation omitted)(internal quotation marks omitted)). As the Supreme Court indicated in County of Sacramento v. Lewis, where the Fourth Amendment directly addresses the alleged unconstitutional conduct, a plaintiff cannot also bring a substantive due-process claim for that conduct. See 523 U.S. at 842, 118 S.Ct. 1708. Because J.H.'s claims focus on Sharkey's treatment of J.P. from her arrest until he transported her to the Juvenile Detention Center, Tenth Circuit precedent indicates the Fourth Amendment directly addresses Sharkey's alleged unconstitutional conduct. Consequently, J.H. cannot bring a substantive due-process claim for that conduct.
J.H. contends that: (i) the New Mexico statutes governing the treatment of children create a constitutionally protected liberty interest that J.P. can enforce under the Due Process Clause; (ii) Sharkey violated those state statutes; and (iii) he thereby violated J.P.'s due-process rights. This argument misunderstands the nature of the interests that the substantive due-process doctrine protects. It is true that statutes can create property and liberty interests, but that is a procedural due process concept. Procedural due process — which Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and its progeny govern — mandate the procedures that the government must follow before it deprives an individual of certain liberty or property interests. See 424 U.S. at 332, 96 S.Ct. 893. By contrast, substantive due process — which is the only due process doctrine potentially implicated in this case — protects an entirely different collection of rights: "fundamental rights and liberties which are `deeply rooted in this Nation's history and tradition' and `implicit in the concept of ordered liberty' qualify for such protection." Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). As the Tenth Circuit has made clear: "Substantive due process claims are not based on state law but are founded upon deeply rooted notions of fundamental personal interests derived from the Constitution." Graves v. Thomas, 450 F.3d at 1220 (quoting Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir.1998)). Accordingly, J.H.'s reliance on New Mexico statutory law to establish a violation of substantive due-process is misplaced.
Because New Mexico statutory law is irrelevant, what remains of J.H.'s claim is, substantially, a challenge to the reasonableness of her daughter's arrest. The Fourth Amendment protects this dimension of J.P.'s liberty, and controlling precedent requires her to pursue relief under that doctrine. The Court has already decided that Sharkey did not violate J.P.'s
Even if J.H. could simultaneously bring Fourth and Fourteenth Amendment claims in this case, J.H. has failed to state a substantive due-process claim. Sharkey's conduct neither shocked the Court's conscience nor violated the professional judgment standard. Consequently, he did not violate J.P.'s substantive due-process rights.
The Supreme Court has instructed that courts should use the "shocks-the-conscience" standard to evaluate substantive due-process claims against police officers. Cnty. of Sacramento v. Lewis, 523 U.S. at 847, 118 S.Ct. 1708 (using the shocks-the-conscience standard to determine whether police officers' conduct during a high-speed car chase violated the plaintiff's substantive due-process rights). Cf. Rochin v. California, 342 U.S. 165, 170-71, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (finding that officers' actions of breaking into the defendant's home, trying to pull two capsules out of his mouth, forcibly taking him to the hospital, and pumping his stomach, violated the defendant's substantive due-process rights). To satisfy this demanding standard, Sharkey's conduct "must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Camuglia v. City of Albuquerque, 448 F.3d 1214, 1223 (10th Cir.2006) (quoting Uhlrig v. Harder, 64 F.3d at 574). More specifically, "a § 1983 violation based on substantive due process `must be predicated on a state action manifesting one of two traditional forms of wrongful intent — that is, either (1) an intent to harm; or (2) an intent to place a person unreasonably at risk of harm.'" Ward v. Anderson, 494 F.3d 929, 938 (10th Cir.2007) (quoting Uhlrig v. Harder, 64 F.3d at 573). Sharkey's conduct exhibits neither.
The Complaint alleges that, on September 26, 2011, J.P. struck another student in her classroom. See Complaint ¶¶ 27-28, at 4. Gonzalez, J.P.'s teacher, then contacted Sharkey. See Complaint ¶ 25-28, at 4. Gonzales tried to restrain J.P. by grabbing her around the waist. See Complaint ¶¶ 30-32, at 4. Sharkey grabbed J.P. "in violation of the proper method of restraint detailed in [J.P.'s] BIP." Complaint ¶ 33, at 4. Having "decided to press charges against the child for kicking" her teacher, Sharkey "placed J.P. in handcuffs and walked her out of the classroom," and then "transported the 11 year old disabled child to the Juvenile Detention Center in his patrol unit," where she "was held ... for several hours." Complaint ¶¶ 34-37, at 4-5. These actions simply do not manifest either an intent to harm J.P. or an intent to place J.P. unreasonably at risk of harm, as Ward v. Anderson, required, 494 F.3d at 929, nor do they "demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking," Camuglia v. City of Albuquerque, 448 F.3d at 1223, as they must to state a claim that Sharkey violated the Due Process Clause. J.H. wants the Court to focus on Sharkey's handcuffing a disabled minor and transporting her to the Juvenile Detention Center. Those events, however,
J.H. has also suggested that, when Sharkey restrained J.P., he created a custodial relationship governed by the "special relationship" exception, and that she has a valid substantive due-process claim under that exception. Tr. at 13:19-25 (Kennedy). The Court disagrees for two reasons. First, the special-relationship exception does not apply. The special-relationship exception is an exception to the general rule that "a state's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Schaefer v. Las Cruces Pub. Sch. Dist., 716 F.Supp.2d at 1064 (quoting DeShaney v. Winnebago County of Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). The special relationship exception requires state actors to protect individuals in the state's custody — e.g., foster children, prison inmates, and developmentally disabled individuals who have been involuntarily committed to the state — from harm at the hands of private individuals. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-95 (10th Cir.1994). In other words, the special relationship exception does not apply when, as in this case, a state actor harms the plaintiff. J.H. does not cite — and the Court has been unable to find — a case in which a court has applied the special-relationship exception to a police officer's allegedly unconstitutional conduct. The cases that J.H. cites deal with circumstances different from those that this case presents. For example, Youngberg v. Romeo dealt with the duties that state caretakers owe to an individual with mental health problems who had been involuntarily committed to their care in state institutions. See 457 U.S. at 309-13, 102 S.Ct. 2452. The principal relevant issue in a second case J.H. cites, Santana v. Collazo, 714 F.2d 1172 (1st Cir.1983), was whether the Mayaguez Industrial School violated the Constitution by placing juveniles in solitary confinement. See 714 F.2d at 1175-82. In the third case on which J.H. relies, M.H. v. Bristol Bd. of Educ., 169 F.Supp.2d 21 (D.Conn.2001), a disabled child's teacher spat in his face and, on a different occasion, tied him to a chair with a belt, among other actions. See 169 F.Supp.2d at 24-26. As these cases demonstrate, Youngberg v. Romeo's professional judgment standard applies in a very different context: reviewing the acts of individuals or institutions specially charged with the care or education of juveniles or those with developmental disabilities. Consequently, those cases are inapposite.
Second, even if the special-relationship applied, it would not affect the Court's decision. Where the special relationship applies, courts use the professional judgment standard to evaluate the plaintiff's substantive due-process claims. See, e.g., A.M. ex rel. Youngers v. N.M. Dep't of Health, No. CIV 13-0692 JB/WPL, ___ F.Supp.3d ___, ___-___, 2014 WL 6969684, *47-49 (D.N.M. Dec. 5, 2014) (Browning, J.)(concluding that New Mexico Department of Health officials violated the professional judgment standard by failing to properly supervise and provide treatment to the plaintiff, a developmentally disabled individual committed to state custody). Under the professional judgment standard, a state official is liable for
Unlike the facts that the plaintiff alleged in A.M. ex rel. Youngers v. New Mexico Department of Health, the facts that the Complaint alleges indicate that Sharkey properly exercised his professional judgment. When he encountered a child who had attacked another student, he restrained her to prevent further violence from occurring. Moreover, he did not use any more force than was necessary to restrain her — he did not throw J.P. to the ground or up against the wall; he did not strike her, injure her, scratch her; he did not pull out any sort of weapon or threaten to use a weapon; he did not even yell at her. Aside from allowing J.P. to continue attacking the other student, the Court questions what else Sharkey could have done to exercise restraint in this situation. Perhaps he could have released J.P. from the handcuffs and not taken her to the Juvenile Detention Center, but even those decisions were reasonable in light of the fact that she had just committed a crime. Consequently, Sharkey did not violate the professional judgment standard when he arrested J.P. and took her to the Juvenile Detention Center.
That Sharkey allegedly violated J.P.'s BIP and IEP when he arrested her does not dictate a different outcome for three reasons. First, J.H. has not cited — and the Court has been unable to find — a case in which a police officer, teacher, or school official violated an individual's substantive due-process rights by violating his or her IEP or BIP. To the contrary, the Supreme Court has repeatedly emphasized that substantive due process protects only "fundamental rights and liberties which are `deeply rooted in this Nation's history and tradition' and `implicit in the concept of ordered liberty' qualify for such protection." Chavez v. Martinez, 538 U.S. at 775, 123 S.Ct. 1994 (quoting Washington v. Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258). The Court finds it difficult to conclude that not arresting a child who has committed a crime — even if that is what the child's BIP and IEP prescribe — is a fundamental right that is "deeply rooted in this Nation's history and tradition." Chavez v. Martinez, 538 U.S. at 775, 123 S.Ct. 1994
20 U.S.C. § 1415(k)(6)(A). For these reasons, the Court concludes that, even if J.P.'s BIP or IEP prohibited Sharkey from arresting her, Sharkey did not violate her substantive due-process rights.
Even if the Complaint plausibly stated a substantive due-process claim, the qualified immunity doctrine would pose a second independent obstacle to J.H.'s claim. The Complaint must demonstrate not only that the defendant violated a constitutional right, but also that that constitutional right is "clearly established" within the meaning of the qualified immunity jurisprudence. The Complaint does not satisfy that burden.
The clearly established prong of the qualified immunity test places a burden on the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "A clearly established right is generally defined as a right so thoroughly
J.H. has not carried this burden. To demonstrate that J.P.'s substantive due-process rights were clearly established, J.H. cites Youngberg v. Romeo and Armijo ex rel. Chavez v. Wagon Mound Public Schools, 159 F.3d 1253 (10th Cir.1998). Youngberg v. Romeo involved a thirty-three year old developmentally disabled individual — Nicholas Romeo — who was involuntarily committed to a state institution. See 457 U.S. at 309, 102 S.Ct. 2452. While at that institution, Romeo suffered numerous injuries — some self-inflicted and some that the other residents caused. See 457 U.S. at 310, 102 S.Ct. 2452. After objecting multiple times to the state's failure to care for her son properly, Romeo's mother brought a § 1983 action, alleging, among other things, that state officials had violated her son's substantive due-process rights to reasonable care and safety. See 457 U.S. at 310, 102 S.Ct. 2452.
Before the Supreme Court, the defendants conceded that Romeo had "a right to adequate food, shelter, clothing, and medical care," but disputed his right to "safety, freedom of movement, and training." 457 U.S. at 314, 102 S.Ct. 2452. In an opinion that the Honorable Lewis F. Powell, then-Associate Justice of the Supreme Court, authored, the Supreme Court began its analysis by noting that, "[a]s a general matter, a State is under no constitutional duty to provide substantive services for those within its border." 457 U.S. at 317, 102 S.Ct. 2452 (citations omitted). Justice Powell stated, however, that "[w]hen a person is institutionalized — and wholly dependent on the State — ... a duty to provide certain services and care does exist." 457 U.S. at 317, 102 S.Ct. 2452. Justice Powell concluded that developmentally disabled individuals involuntarily committed to the state have "constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests." 457 U.S. at 324, 102 S.Ct. 2452.
In Armijo ex rel. Chavez v. Wagon Mound Public Schools, the plaintiff's developmentally disabled son — Philadelfio Armijo — committed suicide after he was suspended from school. See 159 F.3d at 1256. Although school policy dictated that Armijo should be placed on in-school suspension because his parents were not home to supervise him, a school official dropped Armijo off at home without informing his parents. See 159 F.3d at 1257. The Tenth Circuit, in an opinion that the Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, authored, and Judges Holloway and Murphy joined, held that the special-relationship exception did not apply, because Armijo ended his life after the school official dropped him off at home. See 159 F.3d at 1260-62.
Neither of these cases clearly establish that a law enforcement officer violates the Due Process Clause when he arrests a developmentally disabled child and transports her to a juvenile detention facility. Unlike the developmentally disabled individuals in Youngberg v. Romeo and Armijo ex rel. Chavez v. Wagon Mound Public Schools, who committed no crime before state officials allegedly restrained them, J.P. attacked another student before Sharkey arrested her. Unlike the defendants in Youngberg v. Romeo and Armijo ex rel.
C. Wright & A. Miller, supra, at 638. In this case, the First and Second Amended Complaints are almost identical in their presentations of the relevant facts, and in their statements of the due-process claim. The Court therefore considers the MTD as addressed to the Second Amended Complaint and cites that document.
663 F.3d at 1183-84. The Tenth Circuit did not analyze whether the officer violated the plaintiff's constitutional rights and stated that guidance on the particular constitutional issue would be more appropriate in a case not involving qualified immunity: "Neither do we doubt that the scope of the Constitution's protection for a patient's hospital records can be adequately decided in future cases where the qualified immunity overlay isn't in play (e.g., through motions to suppress wrongly seized records or claims for injunctive or declaratory relief)." 663 F.3d at 1187 n. 5. On remand, the Court stated:
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and held that officials were not liable for constitutional violations where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the "clearly established" prong in reference to an officer's good faith and held that a compensatory award would only be appropriate if an officer "acted with such an impermissible motivation or with such disregard of the [individual's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See 457 U.S. at 818, 102 S.Ct. 2727 ("We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights."). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations — presumably the rights of innocent people — and discourage case law development on the civil side — and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, "[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in" exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L.Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more — not less — civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L.Rev. 363, 390-91 (1999)("Behavioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving.... These theories also suggest that a judicially administered damages regime ... would fare significantly better at changing behavior at an officer level."); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and recommending alternatives). In Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), the Supreme Court noted that civil remedies were a viable alternative to a motion to suppress when it held that the exclusionary rule was inapplicable to cases in which police officers violate the Fourth Amendment when they fail to knock and announce their presence before entering. See 547 U.S. at 596-97, 126 S.Ct. 2159. Rather than being a poor or discouraged means of developing constitutional law, § 1983 seems the better and preferable alternative to a motion to suppress. It is interesting that the current Supreme Court and Tenth Circuit appear more willing to suppress evidence and let criminal defendants go free, than have police pay damages for violations of innocent citizens' civil rights. It is odd that the Supreme Court has not adopted a clearly established prong for suppression claims; it seems strange to punish society for police violating unclear law in criminal cases, but protect municipalities from damages in § 1983 cases. Kerns v. Bd. of Comm'rs, 888 F.Supp.2d 1176, 1224 n. 36 (D.N.M.2012) (Browning, J.), abrogated on other grounds as recognized in Ysasi v. Brown, 3 F.Supp.3d 1088, 1131 n. 24 (D.N.M.2014) (Browning, J.). See Fourth Amendment Small Claims Court, 10 Ohio St. J.Crim. L. 571, 590-97 (2013)(arguing that municipalities should establish small-claims courts to adjudicate police officers' Fourth Amendment violations).
If, perhaps, a "large" case is a Supreme Court case or one that comes from the East Coast or California, rather than one in a district court in New Mexico, then it helps to look at what cases the Supreme Court has decided for the plaintiff. The three most recent qualified immunity cases, the Supreme Court dealt with are: (i) Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012); (ii) Filarsky v. Delia, ___ U.S. ___, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012); and (iii) Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012). In Reichle v. Howards, the Supreme Court determined that secret service agents were entitled to qualified immunity for arresting a protestor who touched the Vice President and held that it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. See 132 S.Ct. at 2092, 2097. In Filarsky v. Delia, the Supreme Court held that a private individual that the government hires to do its work, an internal affairs review, is entitled to seek qualified immunity for Fourth and Fourteenth Amendment violations. See 132 S.Ct. at 1660, 1668. In Messerschmidt v. Millender, the Supreme Court held that police officers in Los Angeles, California were entitled to qualified immunity when they relied on an invalid warrant to search a home, because a reasonable officer would not have realized the error. See 132 S.Ct. at 1241, 1250. The Supreme Court has not denied qualified immunity since 2004 in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), where it held that an officer unreasonably relied on a deficient warrant. See 540 U.S. at 565, 124 S.Ct. 1284. The Court does not think those presumably "large" cases (they are Supreme Court cases, after all) are any different — substantively, legally, or factually — than this case involving the search of a citizen's home after someone shot down a police helicopter and then detained that suspect for nine months until the United States realized that J. Kerns could not have shot down the helicopter.
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants — that only big cases deserve the Court's attention. A trial judge can overwork a "large" case. It is better to treat even "large" cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court's docket, and realize that the scarcity of judicial resources applies to them too.
Kerns v. Bd. of Comm'rs, 888 F.Supp.2d at 1222 n. 35.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that Lobozzo v. Colo. Department of Corrections has persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion.
20 U.S.C. § 1232g(b)(1). Consequently, even if Sharkey wanted to review J.P.'s BIP and IEP to determine what those plans prescribe and prohibit, federal law prevented him from doing so.
Kerns v. Bd. of Comm'rs, 888 F.Supp.2d at 1204-05 (footnotes omitted). Given that the Tenth Circuit concluded that the party requesting the records was law enforcement in Kerns v. Bader might make a constitutional difference, and given how quick the majority in Kerns v. Bader was to seize on any factual or legal differences in prior cases, the Court is confident that the differences between the closest cases that J.H. cites "might make a constitutional difference" in the determination of this case. Kerns v. Bader, 663 F.3d at 1187
