Lucero v. Olivas, et al

Filing 133

PARTIAL SUMMARY JUDGMENT by District Judge Kenneth J. Gonzales in favor of Youth Care Specialists as to all the state law tort claims which remain in the consolidated cases. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDUARDO LUCERO,
Plaintiff,
vs.

No. CIV-14-00393-KG-KK

ALBERT OLIVAS, DAVID PENA, DWANE PENA,
SILVERIO PENA, MICHAEL GILBERT,
EDDIE ARAGON, JR., GILBERT MARTINEZ,
MATTHEW STEPHENSON, JOHN DOE, JANE DOE,
JOHN P. SWEENEY and YOLANDA BERUMEN-DEINES
each in their individual capacities, and the NEW MEXICO
CHILDREN, YOUTH AND FAMILIES DEPARTMENT,
Defendants.
Consolidated with:
ISAAC RAMIREZ,
Plaintiff,
vs.

No. CIV-14-00394-KG-KK

OLIVAS, et al.,
Defendants.

Consolidated with:

JACOB GONZALES,
Plaintiff,
vs.

No. CIV-14-00395-KG-KK

OLIVAS, et al.,
Defendants.

Consolidated with:

DANTE WOODS,
Plaintiff,
vs.
OLIVAS, et al.,
Defendants.

No. CIV-14-00396-KG-KK

PARTIAL SUMMARY JUDGMENT
AS TO YOUTH CARE SPECIALISTS
This matter comes before the Court upon (1) Defendants Albert Olivas, David Pena,
Dwane Pena, Michael Gilbert, Gilbert Martinez, and Matthew Stephenson’s Youth Care

Specialists’ Motion for Partial Summary Judgment on Plaintiffs’ State Law Tort Claims Under
the New Mexico Tort Claims Act, filed July 6, 2017, and (2) Defendant Eddie Aragon Jr.’s
Motion for Summary Judgment on All State Tort Claims, filed July 7, 2017. (Docs. 127 and
129). Plaintiffs did not respond to these Motions for Summary Judgment. Notices of
Completion of Briefing (Docs. 131 and 132). In fact, in reply to inquiries by the Court, Plaintiffs
concede to the Motions for Summary Judgment. See also D.N.M. LR-Cv 7.1(b) (“The failure of
a party to file and serve a response in opposition to a motion within the time prescribed for doing
so constitutes consent to grant the motion.”). Consequently, the Court grants the Motions for
Summary Judgment for that reason.
Even so, having reviewed the merits of the Motions for Summary Judgment, the Court
determines that as a matter of law Defendants Albert Olivas, David Pena, Dwane Pena, Michael
Gilbert, Gilbert Martinez, Matthew Stephenson, and Eddie Aragon, Jr. (collectively, Youth Care
Specialists) are not law enforcement officers as defined by the New Mexico Tort Claims Act
(NMTCA). NMSA 1978, § 41-4-3(D) (2015 Cum. Supp.). Accordingly, the Youth Care
Specialists are immune from suit under the NMTCA and, therefore, entitled to summary
judgment on the state law tort claims.
IT IS ORDERED that
1. summary judgment is granted in favor of the Youth Care Specialists as to all the state
law tort claims which remain in the consolidated cases; and
2. those state law tort claims are dismissed with prejudice.

_______________________________
UNITED STATES DISTRICT JUDGE

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