Bevan v. Santa Fe County et al

Filing 222

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting in part 166 Motion for Summary Judgment of Defendants Gabriel Valencia, Matthew Edmunds and John Ortega. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AIMEE BEVAN, as Personal Representative of
the Estate of Desiree Gonzales, deceased,
Plaintiff,
vs.

Civ. No. 15-73 KG/SCY

SANTA FE COUNTY, GABRIEL VALENCIA,
Youth Development Administrator, Individually,
MATTHEW EDMUNDS, Corrections Officer,
individually, JOHN ORTEGA, Corrections Officer,
MOLLY ARCHULETA, Corrections Nurse,
Individually, ST. VINCENT HOSPITAL, and
NATHAN PAUL UNKEFER, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon the Motion for Summary Judgment of
Defendants Gabriel Valencia, Matthew Edmunds and John Ortega (Motion for Summary
Judgment), filed on April 15, 2016. (Doc. 166). Plaintiff filed a response1 on May 17, 2016, and
exhibits on May 19, 2016. (Docs. 183 and 185). Defendants filed a reply on June 22, 2016.
(Doc. 206). Having considered the Motion for Summary Judgment, the briefing, and the relevant
evidence, the Court grants, in part, the Motion for Summary Judgment as described below.

1

Defendants Gabriel Valencia, Matthew Edmunds, and John Ortega (collectively, Defendants)
complain that Plaintiff violated D.N.M. LR Cv 56.1(b) by presenting her lettered additional facts
before addressing Defendants’ numbered facts. Local Rule 56.1(b) requires a respondent to a
motion for summary judgment to “state the number of the movant’s fact that is disputed” and
letter additional facts. Local Rule 56.1(b), however, does not specify that the respondent must
address the movant’s numbered facts first.

A. Background
This case involves, in part, whether Desiree Gonzales received adequate medical care
while incarcerated at the Santa Fe Youth Development Program (YDP). Just prior to Gonzales’
incarceration at the YDP, Gonzales had been treated for a heroin overdose and medically cleared
for incarceration. It is undisputed Gonzales stopped breathing while at the YDP. It is also
undisputed that when Gonzales stopped breathing and became nonresponsive YDP staff called
911. Several hours later, Gonzales died at St. Vincent Hospital. The Office of the Medical
Investigator determined that the cause of death was “Toxic effects of heroin.” (Doc. 145-4) at 1.
1. The Complaint for Wrongful Death (Complaint) (Doc. 1) at 4-19
This is a removed lawsuit in which Plaintiff is suing, among others, Gabriel Valencia
(Valencia) in his individual capacity as a YDP shift supervisor, Matthew Edmunds (Edmunds) in
his individual capacity as a YDP assistant shift supervisor, and John Ortega (Ortega) in his
individual capacity as a YDP Life Skills Worker. (Doc. 1) at 5-6, ¶¶ 9-11. Plaintiff brings the
following claims against Defendants in Count One of the Complaint: (1) 42 U.S.C. § 1983
Fourteenth Amendment due process claims; (2) Section 1983 Eighth Amendment cruel and
unusual punishment claims; and (3) cruel and unusual punishment claims under the New Mexico
Constitution, Article II, Section 13.
In Count Three of the Complaint, Plaintiff brings New Mexico Tort Claims Act
(NMTCA) negligence and wrongful death claims against Defendants for failing to provide
Gonzales with adequate medical care. (Doc. 1) at 15, ¶ 82. Plaintiff specifies in Count Three
that NMSA 1978, § 41-4-12 of the NMTCA waives immunity from suit. Id. at ¶ 80. Section 414-12 provides waiver of immunity “when law enforcement officers cause wrongful death through
the deprivation of rights, privileges and immunities secured by the U.S. Constitution or New

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Mexico Constitution.” Id. Plaintiff further alleges in Count Three that Defendants Santa Fe
County and Mark Gallegos negligently operated the building housing the YDP. Id. at ¶ 83.
Defendants move for summary judgment on all claims against them and assert qualified
immunity as to the Section 1983 claims. Plaintiff opposes the Motion for Summary Judgment in
its entirety.
2. Facts Relevant to the Motion for Summary Judgment2
a. Facts Pertinent to Valencia
After receiving care for a heroin overdose at St. Vincent Hospital, Gonzales was
discharged at 9:52 p.m. with a medical clearance noting “No further cares [sic].” (Doc. 166-1);
(Doc. 166) at 2. Gonzales arrived at the YDP at 10:35 p.m. (Doc. 166) at 2. Valencia and YDP
staff member Esmeralda Coronado interacted with Gonzales in the booking process.
While in the booking area, Valencia had a conversation with Gonzales about how a judge
was going to proceed with her case. (Doc. 166-2) at 2, depo. at 32. Valencia looked over the
arrest paperwork including the medical clearance from St. Vincent Hospital.3 Id. at 2, depo. at
33. Valencia observed that Gonzales was coherent but was tired and “a little fogy [sic].” Id. at
3, depo. at 34-35; (Doc. 67-13). Valencia also retrieved a trash can for Gonzales because she
was nauseous. (Doc. 166-2) at 3, depo. at 35. Valencia, however, did not see Gonzales either
dry heave or vomit. Id. Coronado, who saw Gonzales dry heaving, expressed a concern about
the dry heaving to Valencia who indicated that Gonzales had a medical clearance to be there.
(Doc. 185-8) at 3-4, depo. at 41-42. Because Gonzales was tired, Valencia told Gonzales that
2

Unless otherwise noted, the factual summary reflects the evidence viewed in the light most
favorable to Plaintiff.
3

Plaintiff asserts that Valencia must also have had the hospital release information entitled
“Emergency Documentation,” which provides follow-up instructions after the hospital discharge.
(Doc. 185-1). However, there is no evidence in the record that Valencia had this document.
3

she could sign the booking paperwork in the morning. (Doc. 166-3) at 2, depo. at 30-31; (Doc.
166-4); (Doc. 166-2) at 3, depo. at 35. Valencia then processed Gonzales’ intake at a computer
while Coronado finished the booking process. (Doc. 166-2) at 3, depo. at 36-37.
Coronado then dressed Gonzales out, finger printed her, and added her “to board and
count at 10:55 pm and escorted her to the Anasazi C-pod living unit ….” (Doc. 166-4). Once at
the Anasazi C-pod, Gonzales telephoned her mother and spoke with her for about five minutes.
Id. About that same time, Edmunds called the on-call nurse, Defendant Molly Archuleta, “about
the intake….” Id. Edmunds relayed to Valencia, who was apparently now in the Anasazi C-pod,
that Archuleta advised them “to monitor [Gonzales] in the Anasazi C-pod dayroom….” Id. See
(Doc. 166-2) at 3, depo. at 37. Valencia understood that this monitoring included watching
Gonzales’ “breathing patterns, and whether she was having difficulty breathing[.]” (Doc. 185-7)
at 4, depo. at 90. Edmunds and Valencia placed Gonzales in a “boat” or bed in the dayroom of
the Anasazi C-pod. (Doc. 166-4). Gonzales was initially “upset about sleeping [in] the
dayroom, but understood.” Id. Edmunds and Ortega were tasked with checking on Gonzales
every 15 minutes. Id.
Valencia evidently left the Anasazi C-pod around the time Gonzales went to sleep at
around 11:15 p.m. (Doc. 166-2) at 3, depo. at 37; (Doc. 185-2) at 6, transcript at 33. Valencia
apparently returned to the Anasazi C-pod dayroom at about 11:55 p.m. to check on Gonzales
along with Edmunds and Ortega. (Doc. 171), 23:55:35 to 23:56:09. At that time, someone
shook Gonzales. (Doc. 171), 23:55:35 to 23:56:09. Valencia subsequently left the Anasazi Cpod dayroom and at some point went to clean the front lobby. (Doc. 166-4). At about 1:52 a.m.,
Edmunds radioed Valencia to inform him that Gonzales stopped breathing. Id. Edmunds and
Ortega then began CPR while Valencia called the Interim Youth Service Administrator at 1:54

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a.m. and then called 911 at 1:55 a.m. Id. Emergency personnel arrived at 2:05 a.m. Id.
Edmunds went with Gonzales to St. Vincent Hospital. (Doc. 166-7).4
Valencia understood that the shift supervisor should call 911 if a shift supervisor believes
a resident is under the influence of drugs or unable to breathe, and that a shift supervisor should
call Nurse Archuleta if a staff member reports that a resident is having trouble breathing. (Doc.
185-7) at 3, depo. at 22; (Doc. 206) at 11-12. Valencia also knew that a heroin overdose can
result in difficulty breathing, and that he and the others needed to watch Gonzales’ breathing.
(Doc. 185-7) at 4, depo. at 90.
b. Facts Pertinent to Edmunds and Ortega
At about 11:00 p.m., Edmunds received Gonzales after Coronado escorted Gonzales to
the Anasazi C-pod. (Doc. 166-6). Edmunds “immediately” concluded that Gonzales “was not in
a normal state of mind,” had “groggy” looking eyes, and had slurred speech. Id. Edmunds
believed that these characteristics were red flags, but, nonetheless, characterized Gonzales as
alert and oriented. (Doc. 185-2) at 8, transcript at 36; (Doc. 185-6) at 5, depo. at 151. Edmunds
called Nurse Archuleta to advise her of Gonzales’ “state” and ask questions about the medical
clearance. (Doc. 166-6). Nurse Archuleta told Edmunds “to keep an [sic] very close eye on
[Gonzales] and to notify her of any changes.” Id. Nurse Archuleta specifically told Edmunds to
monitor Gonzales’ breathing. (Doc. 145-1) at 1; (Doc. 185-7) at 4, depo. at 90.

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Edmunds told the emergency room physician that he notified his “supervisor” about Gonzales
having trouble breathing, but did not notify medical personnel. (Doc. 145-2) at 2. This
statement is vague and, thus, not probative of Valencia’s state of mind or knowledge. This
statement is also hearsay and not permissible under Fed. R. Evid. 803(4) (Statement Made for
Medical Diagnosis or Treatment). See, e.g., McCollum v. McDaniel, 32 F. App'x 49, 55 (4th Cir.
2002) (statement to physician not admissible under Rule 803(4) if it does not relate to cause of
injury and instead relates to fault).
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Edmunds and Ortega conducted 15 minute checks on Gonzales, including “extra checks,”
according to Nurse Archuleta’s instruction to monitor Gonzales’ breathing. (Doc. 166-6). The
checks “were conducted through the window of the dayroom, and horseshoe,” which placed
Edmunds and Ortega 2 to 3 feet from Gonzales. Id.; (Doc. 185-4) at 4, depo. at 68.
When Gonzales went to sleep around 11:15 p.m., she asked Edmunds to turn off the light.
(Doc. 185-2) at 6, transcript at 33. Edmunds did not hear any other dialogue from Gonzales that
night. Id. Edmunds reported to the emergency room physician that beginning at approximately
11:00 p.m. Gonzales “would stop breathing & gasp for air ….”5 (Doc. 145-2) at 1. Edmunds
“also kept the door unsecured because of the unusual breathing that [Gonzales] was having.”6
(Doc. 166-6). In speaking with Santa Fe Police, Edmunds indicated that “Gonzales appeared to
be having breathing difficulties so he kept checking on her.” (Doc. 145-3). Edmunds stated at

5

Defendants argue that this statement in the hospital record lacks foundation under Fed. R. Evid.
602 and is impermissible hearsay. Defendants, however, concede that Edmunds’ statement is
“only admissible against Edmunds as a party opponent” under Fed. R. Evid. 801(d)(2), which
provides that such a statement is not hearsay. Moreover, because the emergency room physician
had personal knowledge of what Edmunds said and Rule 801 applies, Rule 602’s personal
knowledge requirement does not govern this situation. See Federal Rules of Evidence 602
Advisory Committee Notes (stating that Rule 602 “does not govern the situation of a witness
who testifies to a hearsay statement as such, if he has personal knowledge of the making of the
statement. Rules 801 and 805 would be applicable.”). Nonetheless, the emergency room
physician’s report must still comply with the hearsay rule. United States v. Gutierrez de Lopez,
761 F.3d 1123, 1132-33 (10th Cir. 2014) (explaining even if “witness merely has personal
knowledge of an out-of-court statement offered to prove the fact asserted in that statement—but
not the underlying fact—then his or her testimony must comply with the hearsay rule.”).
Relevant to this case, Fed. R. Evid. 803(4) provides an exception to the hearsay rule for “[a]
statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment;
and (B) describes medical history; past or present symptoms or sensation; their inception or other
general cause.” That is the case with the emergency room physician’s recording of Edmunds’
statement describing Gonzales’ physical condition. For these reasons, Edmunds’ statement to
the emergency room physician about Gonzales’ physical condition is admissible.
6

Edmunds later characterized Gonzales’ breathing as “snoring.” (Doc. 166-5) at 2, depo. at 37.
6

another time that “we would shake her” to make sure Gonzales was responsive. (Doc. 185-2) at
6, transcript at 33.
Ortega arrived at the Anasazi C-pod at about 11:40 p.m. (Doc. 166-8). Edmunds told
Ortega about Gonzales’ previous hospitalization for a heroin overdose. Id.
As noted before, at 11:55 p.m., someone shook Gonzales, and Edmunds, Ortega, and
Valencia checked on Gonzales. (Doc. 171) at 23:55:35 to 23:56:09. At 12:30 a.m., Ortega noted
that Gonzales’ “breathing was awkward” and that she “was gasping” by taking “deep breaths
follow[ed] by extended period [sic] of no breathing repeatedly.”7 (Docs. 166-7 and 166-8).
Edmunds shook her once after this episode. (Doc. 185-2) at 3, transcript at 23.
Sometime between about 12:45 a.m. and 1:15 a.m., Ortega shined a flashlight in
Gonzales’ face which caused her to say something like, “You guys bug.” (Doc. 206-6) at 3,
depo. at 55-56. Between two to four times throughout the night, Ortega asked Gonzales if she
was okay, but she would roll over and not respond. Id. at 4, depo. at 57. At 1:43 a.m., Edmunds
did not hear Gonzales breathing so he checked on her, conducted a unit check, and “began to
shake … her and called her name.” (Doc. 166-6). At 1:46 a.m., Gonzales was making a gargling
noise while trying to breathe and became unresponsive. (Doc. 142-6) at 3. As a result, Edmunds
and Ortega began CPR until emergency personnel arrived. (Doc. 166-6).
Edmunds knew that a breathing difficulty is a serious condition and that medical
personnel should be called immediately. (Doc. 185-6) at 2, depo. at 55-56. Ortega, likewise,
knew that difficulty breathing is a serious condition and that one should immediately call
medical personnel or 911 if a resident has breathing difficulties. (Doc. 185-4) at 2, depo. at 20-

7

Ortega later stated that the “awkward” breathing began at 1:00 a.m. (Doc. 166-8). He also
subsequently characterized the breathing as “real loud snoring.” (Doc. 185-2) at 3, transcript at
23.
7

21. Ortega also knew that in monitoring Gonzales, he was monitoring her breathing. Id. at 3,
depo. at 63.
c. Expert Evidence
In addition to the above factual evidence, both Plaintiff and Defendants present expert
evidence with respect to the constitutional claims addressed in this Motion for Summary
Judgment. Because those claims focus on whether each Defendant had a culpable mind, a
subjective inquiry involving whether Defendants acted with deliberate indifference, expert
evidence in not required. See Powell v. Shah, 618 F. App'x 292, 296 (7th Cir. 2015) (holding
that where “the only issue in this case was whether the doctors had a ‘sufficiently culpable state
of mind’ … the court accurately recognized [it] as a subjective inquiry that did not require an
expert….”) (citations omitted); Campbell v. Sikes, 169 F.3d 1353, 1371 n. 22 (11th Cir.1999)
(finding that expert’s affidavit does not support finding of deliberate indifference, which is
subjective inquiry). Accordingly, the Court does not consider the expert evidence.
B. Standard of Review
Summary judgment is appropriate if the moving party shows “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). Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing
that there is a genuine issue for trial. See Schneider v. City of Grand Junction Police Dep't, 717
F.3d 760, 767 (10th Cir. 2013). A dispute over a material fact is “genuine” only if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most
favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party’s

8

favor. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).
When a defendant moves for summary judgment on the basis of a qualified immunity
defense, the Court “still view[s] the facts in the light most favorable to the non-moving party and
resolve[s] all factual disputes and reasonable inferences in its favor.” Estate of Booker v. Gomez,
745 F.3d 405, 411(10th Cir. 2014). Unlike other affirmative defenses, the plaintiff bears the
burden of overcoming the defense of qualified immunity. Id. “This is a heavy burden.”
Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203, 1208 (10th Cir. 2017).
The Court must grant qualified immunity unless the plaintiff demonstrates “(1) that the
official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015)
(quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)). “[I]n 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.” Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). As the
Tenth Circuit recently clarified:
“A clearly established right is one that is ‘sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.’” Although plaintiffs can
overcome a qualified-immunity defense without a favorable case directly on point,
“existing precedent must have placed the statutory or constitutional question ‘beyond
debate.’” “The dispositive question is ‘whether the violative nature of the particular
conduct is clearly established.’” … “[Q]ualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
Garcia v. Escalante, 678 Fed. Appx. 649, 654 (10th Cir. 2017) (quoting Aldaba v. Pickens, 844
F.3d 870, 877 (10th Cir. 2016) (citations omitted)). The United States Supreme Court has
“emphasized that the clearly-established inquiry ‘must be undertaken in light of the specific
context of the case, not as a broad general proposition.’” Id. (quoting Mullenix v. Luna, 577 U.S.

9

___, 136 S.Ct. 305, 308 (2015)). On the other hand, “[t]he law is also clearly established if the
conduct is so obviously improper that any reasonable officer would know it was illegal.” Id.
(quoting Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015)).
The Tenth Circuit Court of Appeals further instructs,
[i]f the plaintiff indeed demonstrates that the official violated a clearly established
constitutional or statutory right, then the burden shifts back to the defendant, who must
prove that “no genuine issues of material fact” exist and that the defendant “is entitled to
judgment as a matter of law.” In the end, therefore, the defendant still bears the normal
summary judgment burden of showing that no material facts remain in dispute that would
defeat the qualified immunity defense. When the record shows an unresolved dispute of
historical fact relevant to this immunity analysis, a motion for summary judgment based
on qualified immunity should be “properly denied.”
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citations omitted).
C. Discussion
1. Count One: Constitutional Claims
a. Qualified Immunity and Section 1983 Fourteenth and Eighth Amendment
Claims
Prison officials violate a pre-trial detainee or post-conviction inmate’s constitutional
rights under the Fourteenth and Eighth Amendments, respectively, by acting deliberately and
indifferently to a prisoner’s serious medical needs.8 Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009) (holding that deliberate indifference standard applies to pre-trial detainees under
Fourteenth Amendment); Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (holding that
deliberate indifference standard applies to post-conviction inmates under Eighth Amendment).
“Deliberate indifference has both an objective and subjective component.” Id. To meet the
8

Plaintiff does not specify in the Complaint if she considered Gonzales a pre-trial detainee or a
post-conviction inmate. Defendants and Plaintiff, however, only refer to the Eighth Amendment
in the Motion for Summary Judgment and accompanying briefing. Whether Plaintiff brings the
Section 1983 claim under the Fourteenth or Eighth Amendment, the same deliberate indifference
standard applies.
10

objective component, “[t]he medical need must be sufficiently serious.” Id. The Court has
already determined that Gonzales’ claimed respiratory distress and resulting death meet the
objective component of Plaintiff’s deliberate indifference claim. (Doc. 217). To satisfy the

subjective component, Plaintiff must show that Defendants (1) subjectively knew that Gonzales
faced a substantial risk of respiratory distress and death, and (2) disregarded those risks “by
failing to take reasonable measures to abate” them. Hunt, 199 F.3d at 1224 (quoting Farmer v.
Brennan, 511 U.S. 825, 847 (1994)).
(1) Subjective Knowledge of Substantial Risks of Respiratory Distress and
Death
Under the knowledge requirement of the subjective component, the defendant “must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and ... also draw the inference.” Farmer, 511 U.S. at 837. A factfinder can find
subjective knowledge of a substantial risk of a claimed harm through circumstantial evidence,
including the symptoms presented to the official. Martinez, 563 F.3d at 1089 (holding that
symptoms are relevant to subjective component and factfinder may conclude subjective
knowledge of substantial risk by circumstantial evidence).
Viewing the facts in the light most favorable to Plaintiff, the facts with respect to
Valencia show that (1) Valencia knew that Gonzales was just released from St. Vincent Hospital
for a heroin overdose and was medically cleared for incarceration, (2) despite the medical
clearance and Gonzales’ apparent coherent demeanor, Valencia described Gonzales as tired,
“fogy,” and nauseous, (3) Valencia knew that a heroin overdose can result in difficulty breathing,
and (4) Valencia knew that Nurse Archuleta instructed staff to monitor Gonzales’ breathing.
From this circumstantial evidence, Valencia could draw the inference that Gonzales was still
under the influence of heroin and that a substantial risk of respiratory distress, a life threatening
11

condition requiring medical assistance, existed. The circumstantial evidence further shows that
Valencia, indeed, drew that inference when he had staff place Gonzales in a boat in the dayroom
of the Anasazi C-pod to facilitate staff’s monitoring of Gonzales’ breathing at least every 15
minutes, and when he apparently checked on Gonzales at 11:55 p.m. Hence, Plaintiff has shown
that Valencia subjectively knew that Gonzales faced a substantial risk of respiratory distress, a
condition which could obviously be life threatening.
Next, viewing the facts in the light most favorable to Plaintiff, the facts with respect to
Edmunds show that (1) Edmunds knew Gonzales was just released from St. Vincent Hospital for
a heroin overdose and was medically cleared, (2) despite the medical clearance and Gonzales’
alert and oriented demeanor, Edmunds “immediately” concluded that Gonzales “was not in a
normal state of mind,” had “groggy” looking eyes, and had slurred speech, (3) Edmunds believed
that these characteristics were red flags, (4) Edmunds called Nurse Archuleta about the medical
clearance and Gonzales’ “state,” (5) Nurse Archuleta instructed Edmunds to monitor Gonzales’
breathing, and (6) Edmunds was tasked with checking on Gonzales every 15 minutes. From this
circumstantial evidence, Edmunds could draw the inference that Gonzales had a substantial risk
of respiratory distress, a serious condition requiring medical aid. The circumstantial evidence
also shows that Edmunds actually drew that inference when he placed Gonzales in a boat in the
dayroom of the Anasazi C-pod so that he could more easily monitor Gonzales’ breathing at least
every 15 minutes. Plaintiff has, therefore, shown that Edmunds subjectively knew that Gonzales
faced a substantial risk of respiratory distress, a condition which can obviously lead to death.
Finally, viewing the evidence in the light most favorable to Plaintiff, Ortega knew that
Gonzales had been previously hospitalized for a heroin overdose and that his duties that night
included monitoring Gonzales’ breathing at least every 15 minutes. From this circumstantial

12

evidence, Ortega could draw the inference that a substantial risk of respiratory distress, a serious
condition that necessitates medical attention, existed. The circumstantial evidence further shows
that Ortega actually drew that inference by, in fact, monitoring Gonzales’ breathing at least every
15 minutes. Accordingly, Plaintiff has shown that Ortega subjectively knew that Gonzales faced
a substantial risk of respiratory distress, a condition which can obviously threaten one’s life.
(2) Conscious Disregard of Substantial Risks of Respiratory Distress and
Death
Once the plaintiff shows that the defendant subjectively knew of a substantial risk of the
claimed harm, the plaintiff must demonstrate that the defendant subjectively or consciously
disregarded the claimed harm. Martinez, 563 F.3d at 1089-90 (observing that “defendants must
subjectively disregard the risk of Ginn’s claimed harm—death and heart attack—and not merely
the risks of intoxication.”); Self, 439 F.3d at 1231 (“person must ‘consciously disregard’ a
substantial risk of serious harm.”) (quoting Farmer, 511 U.S. at 839). However, “if an official is
aware of the potential for harm but takes reasonable efforts to avoid or alleviate that harm, he
bears no liability.” Silverstein v. Fed. Bureau of Prisons, 559 Fed. Appx. 739, 754 (10th Cir.
2014)). On the other hand, “[a]n official responds to a known risk in an objectively unreasonable
manner if he knew of ways to reduce the harm but knowingly [or] recklessly declined to act.”
Howard v. Waide, 534 F.3d 1227, 1239 (10th Cir. 2008). “Even a brief delay [in providing
medical aid] may be unconstitutional.” Mata v. Saiz, 427 F.3d 745, 755 (10th Cir. 2005).
Moreover, “reliance on a medical professional's opinion does not foreclose a finding of
deliberate indifference to a prisoner's serious medical needs in all circumstances.” Vega v.
Davis, 673 F. App'x 885, 890–91 (10th Cir. 2016). Ultimately, simple negligence does not
amount to a constitutional violation. Self, 439 F.3d at 1235 (holding it would be speculation to
find culpable state of mind from negligence).
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With regard to Valencia, the question is whether Valencia made reasonable efforts to
avoid or alleviate Gonzales’ respiratory distress when Gonzales was not exhibiting problems
breathing at the time he spoke with Valencia and when she went to sleep. Although it appears
that requiring Edmunds and Ortega to monitor Gonzales’ breathing was a reasonable and
appropriate action, when one views the evidence in the light most favorable to Plaintiff,
Valencia’s actions are more than merely negligent and are, instead, unreasonable and reckless
under the circumstances.
Once Valencia learned that Nurse Archuleta requested staff to monitor Gonzales’
breathing, Valencia had several choices in response to the substantial risk of respiratory distress.
First, Valencia knew he could ask Nurse Archuleta to examine Gonzales. Second, Valencia
knew he could call for an ambulance to take Gonzales to the hospital for monitoring by health
professionals who could quickly abate any respiratory distress. Finally, Valencia knew he could
keep Gonzales in a boat in a dayroom where non-medical staff could monitor Gonzales’
breathing. Valencia deliberately chose the latter course of action.
Under that latter course of action, Valencia would expect Edmunds and Ortega to
perform CPR if Gonzales became unresponsive. Valencia also would have obviously known
that, if Gonzales stopped breathing, an ambulance would be called, which would cause a delay in
providing Gonzales with adequate medical aid. Furthermore, Valencia was aware of the policy
of calling for medical assistance for residents who are under the influence of drugs or having
trouble breathing, a policy that necessarily recognizes that special medical or hospital care,
which non-medical YDP staff cannot provide, is required to care for those residents who may
suffer from life threatening conditions like respiratory distress. Deliberately choosing the third
option, which does not involve medical personnel, Valencia deliberately chose not to take

14

actions which would reasonably avoid or alleviate Gonzales’ substantial risk of respiratory
distress, and, ultimately, death. Plaintiff has demonstrated that Valencia’s knowing and reckless
decision not to put Gonzales in the hands of medical personnel consciously disregarded the
substantial risk of respiratory distress and death.
As to Edmunds, the facts seen in the light most favorable to Plaintiff show that after
Gonzales went to sleep around 11:15 p.m., Edmunds noticed “unusual breathing,” “breathing
difficulties,” and gasping with cessation of breathing. Despite Edmunds’ admission that
difficulty breathing is a serious condition requiring that he call medical personnel, the evidence
when viewed in the light most favorable to Plaintiff shows that Edmunds, in fact, chose not to
call medical personnel and, instead, deliberately chose, for at least the next 2.5 hours, to continue
checking on Gonzales at least every 15 minutes and shaking her, until she finally ceased
breathing. Those actions do not constitute reasonable efforts to avoid or alleviate a substantial
risk of respiratory distress. Faced with a resident who was obviously in respiratory distress,
Plaintiff has shown that Edmunds’ knowing and reckless decision not to call medical personnel
consciously disregarded Gonzales’ substantial risk of respiratory distress, an admittedly serious
condition, which can lead to death.
With respect to Ortega, the evidence, when viewed in the light most favorable to
Plaintiff, shows that as early as 12:30 a.m., Ortega noticed Gonzales’ “awkward breathing” in
that she would take deep breaths and then not breathe. Despite knowing medical personnel
should be called when a resident has difficulty breathing, Ortega deliberately decided not to call
medical personnel and, in the alternative, chose to continue observing Gonzales’ breathing for
the next hour and 15 minutes, asking her two to four times if she was okay without getting a
verbal response, and shining a flashlight in Gonzales’ face sometime prior to 1:15 a.m., which

15

evoked one verbal response. Those measures are not reasonable measures to avoid or alleviate
Gonzales’ substantial risk of respiratory distress. Ortega knowingly and recklessly chose not to
call medical personnel despite observing Gonzales’ “awkward” and gasping breathing. Hence,
Plaintiff has demonstrated that Ortega consciously disregarded Gonzales’ substantial risk of
respiratory distress, an undeniably serious and life-threatening condition.
For the foregoing reasons, Plaintiff meets the first prong of the qualified immunity
analysis by showing that Defendants were deliberately indifferent to Gonzales’ serious medical
needs, a violation of the United States Constitution. The second qualified immunity prong
inquires whether Gonzales’ constitutional right was clearly established at the time of the
incident. Although it is generally recognized that “there is little doubt that deliberate
indifference to an inmate’s serious medical need is a clearly established constitutional right,”
more recent case law emphasizes “that the clearly-established inquiry ‘must be undertaken in
light of the specific context of the case, not as a broad general proposition.”’ Garcia, 678 Fed.
Appx. at 654 (quoting Mullenix, 136 S.Ct. at 308); Mata, 427 F.3d at 749. Plaintiff has not cited
any federal case law which directly addresses the specific conduct at issue in this case.
Nonetheless, the Court determines that Defendants’ conduct was “so obviously improper that
any reasonable [prison official] would know it was illegal.” Garcia, 678 Fed. Appx. at 654
(quoting Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015)).
Consequently, the clearly established prong of the qualified immunity analysis is met. In sum,
Plaintiff has carried her burden of demonstrating that Defendants are not entitled to qualified
immunity.
The burden then shifts to Defendants to demonstrate that no genuine questions of
material fact exist as to the constitutional claims. Clearly, however, a genuine question of

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material fact exists as to whether Gonzales’ breathing could be characterized as snoring or as
sufficiently abnormal that a lay person would realize that Gonzales needed medical attention.
Summary judgment is, therefore, inappropriate on the Section 1983 deliberate indifference
claims.9
b. New Mexico Constitutional Claims
The parties do not specifically address the New Mexico Constitutional claims against
Defendants. Even so, the Court finds it appropriate to sua sponte address whether to grant
summary judgment as to the New Mexico Constitutional claims, because the issue of whether
Plaintiff can bring New Mexico Constitutional claims that mirror her Section 1983 claims is a
purely legal matter.10
The Court recognizes that, in New Mexico, when courts analyze “a state constitutional
provision with a federal analogue,” courts apply an “interstitial approach.” Morris v.
Brandenburg, 2016-NMSC-027, ¶ 19, 376 P.3d 836. Under this approach, courts “first examine
whether an asserted [state constitutional] right is protected under an equivalent provision of the
United States Constitution.” Id. “If the right is protected, then, under the New Mexico
Constitution, the claim is not reached.” Id.

9

The Court notes that the question of whether the deliberate indifference claim is properly
brought under the Fourteenth or Eighth Amendment remains unresolved.
10

“After giving notice and a reasonable time to respond, the court may … consider summary
judgment on its own after identifying for the parties material facts that may not be genuinely in
dispute.” Fed. R. Civ. P. 56(f). Indeed, courts have held that it is appropriate under Rule 56(f) to
sua sponte grant summary judgment as to a strictly a legal matter. See, e.g., Gibson v. Mayor &
Council of City of Wilmington, 355 F.3d 215, 224 (3d Cir. 2004) (holding that “exception to the
notice requirement in the case of sua sponte summary judgment” includes “a decision based on a
purely legal issue….”); Artistic Entm't, Inc. v. City of Warner Robins, 331 F.3d 1196, 1201–02
(11th Cir. 2003) (acknowledging that no formal notice is necessary when “legal issue has been
fully developed, and the evidentiary record is complete….).
17

In this case, there is a federal analogue to the cruel and unusual punishment provision of
Section II, Article 13 of the New Mexico Constitution, i.e., the Eighth and Fourteenth
Amendments of the United States Constitution. In fact, the analysis of Gonzales’ rights under
the New Mexico Constitution does not differ from the analysis under the Eighth and Fourteenth
Amendments. See Glover v. Gartman, 899 F. Supp. 2d 1115, 1154 (D.N.M. 2012) (noting that
New Mexico courts would probably follow federal analysis of inmate and detainee medical
indifference claims); State v. Dwyer, No. 33,234, ¶ 10, 2013 WL 1187656, at *3 (N.M.) (“Article
II, Section 13 of the New Mexico Constitution is nearly identical to the Eighth Amendment to
the United States Constitution….”). Accordingly, Plaintiff’s claims against Defendants under
Section II, Article 13 of the New Mexico Constitution are redundant of her claims under the
Eighth and Fourteenth Amendments to the United States Constitution. See Kellum v. Bernalillo
Cty., 2015 WL 12861360, at *4 (D.N.M.) (“Plaintiff's claims under Section II, Article 13 of the
New Mexico Constitutional are redundant of her claims under the Eighth Amendment to the
United States Constitution.”). Therefore, for that reason, the New Mexico Constitutional claims
against Defendants are subject to summary judgment as a matter of law.
2. Count Three: NMTCA Negligence and Wrongful Death Claims
Defendants contend that Plaintiff cannot recover against them under Section 41-4-12,
which provides waiver of immunity for law enforcement officers who violate the United States
or New Mexico constitutions, on the mere allegation that Defendants were negligent by
providing Gonzales with inadequate medical care. It is well-established in New Mexico “that
under Section 41-4-12, ‘immunity is not waived for negligence standing alone.’” Lessen v. City
of Albuquerque, 2008-NMCA-085, ¶ 35, 144 N.M. 314 (citation omitted). Rather, to proceed
under Section 41-4-12, a plaintiff must allege that negligence caused a specified tort or violation

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of rights enumerated in Section 41-4-12. Id. (“[T]he negligence complained of must cause a
specified tort or violation of rights.”) (quoting Caillouette v. Hercules, Inc., 1992-NMCA-008, ¶
18, 113 N.M. 492).
Plaintiff, however, argues that New Mexico Supreme Court cases Methola v. Eddy Cty.
and Bober v. New Mexico State Fair, and a Tenth Circuit case, Quezada v. County of Bernalillo,
have held that negligence alone suffices to bring a Section 41-4-12 claim. In Methola¸ the New
Mexico Supreme Court concluded that “the Legislature intended ‘caused by’ in Section 41-4-12
to include those acts enumerated in that section which were caused by the negligence of law
enforcement officers while acting within the scope of their duties.” 1980-NMSC-145, ¶ 24, 95
N.M. 329. In other words, to waive immunity, a law enforcement officer’s negligence must have
caused an act enumerated in Section 41-4-12, which includes constitutional violations. Similar
to Methola, the New Mexico Supreme Court in Bober observed that it “has held that a law
enforcement officer or agency may be held liable under Section 41–4–12 for negligently causing
infliction of one of the predicate torts.” 1991-NMSC-031, ¶ 32, 111 N.M. 644. The Tenth
Circuit in Quezada merely held that a deputy’s negligent actions were “wrongful” and thus
satisfied an element of a battery claim under Section 41-4-12. Quezada v. Cty. of Bernalillo, 944
F.2d 710, 720 n. 5 (10th Cir. 1991) abrogated on other grounds by Saucier, 533 U.S. 194
(2001)). Otherwise, the Tenth Circuit cites Ortiz v. New Mexico State Police in which the New
Mexico Court of Appeals acknowledged that “Methola and its progeny hold that immunity is
waived when a law enforcement officer causes the commission of certain listed torts….” Id. at
719 (citing Ortiz v. New Mexico State Police, 1991-NMCA-031, ¶ 4, 112 N.M. 249, cause
dismissed and remanded, 113 N.M. 352 (1992) (“It suffices that the law enforcement officer,
while acting within the scope of duty, negligently or intentionally causes the commission of a

19

listed tort….”)). These cases do not support Plaintiff’s contention that negligence alone is
sufficient to waive immunity under Section 41-4-12.
Plaintiff further argues that it is enough under Section 41-4-12 that Defendants owed
Gonzales a duty of reasonable care and that Defendants breached that duty. The New Mexico
Supreme Court in Methola, indeed, noted a common law duty for a custodian, like a jailer, “to
exercise reasonable and ordinary care for the protection of the life and health of the person in
custody.” 1980-NMSC-145, at ¶ 23 (quoting City of Belen v. Harrell, 1979-NMSC-081, ¶ 15, 93
N.M. 601 (1979)). The New Mexico Supreme Court then stated that the NMTCA is in
derogation of such common law rights to sue for negligence and so the NMTCA must be
construed strictly. Id. Considering that the NMTCA is in derogation of the common law and
considering the legislative intent behind the 1977 amendments to the NMTCA,11 the New
Mexico Supreme Court in Methola concluded, as quoted above, “that the Legislature intended
‘caused by’ in Section 41-4-12 to include those acts enumerated in that section which were
caused by the negligence of law enforcement officers while acting within the scope of their
duties.” 1980-NMSC-145, at ¶ 24. Accordingly, as stated previously, negligence alone, i.e.,
Plaintiff’s alleged breach of a duty of care and the allegation in Count Three that Defendants
“were negligent when they failed to provide adequate care,” does not suffice to waive immunity
under Section 41-4-12.
Finally, Plaintiff argues that because she pled a waiver of immunity under Section 41-46, negligent operation of a building, with respect to Defendants Santa Fe County and Mark
Gallegos, that waiver of immunity also applies to Defendants. See (Doc. 1) at 15, ¶ 83. Plaintiff

11

“The 1977 amendments, under Section 41-4-12 removed immunity of law enforcement
officers for ‘personal injury ... caused by (them)’ ….” Methola, 1980-NMSC-145, at ¶ 13.

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contends that since Defendants were Santa Fe County employees they were necessarily on notice
that Plaintiff asserts negligent operation of building claims against them. Plaintiff cites a New
Mexico Supreme Court case, Zamora v. St. Vincent Hosp., in support of this contention. 2014NMSC-035, 335 P.3d 1243.
These arguments in support of a Section 41-4-6 waiver of immunity are flawed for two
reasons. First, Fed. R. Civ. P. 81(c) specifically states that the Federal Rules of Civil Procedure
“apply to a civil action after it is removed from a state court.” Hence, Fed. R. Civ. P. 8 notice
pleading standards, not New Mexico notice pleading standards, apply to the Complaint. See,
e.g., Simmerman v. Ace Bayou Corp., 304 F.R.D. 516, 519 (E.D. Ky. 2015) (“Rule 8 pleading
standards apply to all district court proceedings, including those that originated in state courts.”).
Second, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief,” in order to “‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To meet this notice
requirement, a complaint must “list or clearly articulate any causes of action.” Polovino v. Int'l
Bhd. of Elec. Workers, AFL-CIO, 2015 WL 4716543, at *4 (N.D. Okla.), appeal dismissed (Dec.
23, 2015) (citing Mann v. Boatright, 477 F.3d 1140, 1147-48 (10th Cir. 2007)). The Court is not
“obligated to construct a cause of action from allegations in a complaint filed by a party who was
unwilling or unable to plead the cause of action himself.” Glenn v. First Nat'l Bank in Grand
Junction, 868 F.2d 368, 372 (10th Cir.1989). “The responsibility for ensuring that one’s claims
are properly presented lies with the litigant, not the court.” Norton v. The City Of Marietta, OK,
432 F.3d 1145, 1151 (10th Cir. 2005).

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In this case, Plaintiff’s allegation of negligent operation of a building is explicitly
directed to Santa Fe County and Gallegos, not to Defendants. Consequently, Defendants did not
have notice Plaintiff was also bringing the negligent operation of a building claim against them.
It is further outside the Court’s purview to expand this cause of action to include Defendants. If
Plaintiff wishes to bring this cause of action against Defendants, the proper course is to file a
motion to amend. Id. at 1151-52 (“If plaintiff was concerned that some of his constitutional
claims were omitted from the Amended Complaint, the proper course would have been to file a
motion to amend ….”). In sum, Defendants are entitled to summary judgment as to Count Three.
IT IS ORDERED that
1. the Motion for Summary Judgment of Defendants Gabriel Valencia, Matthew
Edmunds and John Ortega (Doc. 166) is granted in part;
2. summary judgment will be granted in favor of Gabriel Valencia, Matthew Edmunds,
and John Ortega on the Count One New Mexico Constitutional claims and on Count Three; and
3. those claims will be dismissed with prejudice.

_______________________________
UNITED STATES DISTRICT JUDGE

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