M.S. v. Belen Consolidated School District et al

Filing 120

MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo denying 83 Motion for Summary Judgment (cab)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
M.S.
Plaintiff,
v.

No. 15-cv-912-MCA-SCY

BELEN CONSOLIDATED SCHOOL
DISTRICT, CITY OF BELEN, and
ESTATE OF MICHAEL ESQUIBEL,
in his personal capacity acting under color of law,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant City of Belen’s Motion for
Partial Summary Judgment That the Torts Alleged by Plaintiff Do Not Fall within the
Scope of Officer Esquibel’s Duties, filed September 6, 2016. [Doc. 83] The Court has
considered the parties’ submissions, the relevant law, and the record and is otherwise
fully advised. The Motion is not well taken, and shall be denied.
BACKGROUND
This lawsuit arises out of allegations that Michael Esquibel (now deceased), an
officer of the Belen Police Department who worked as a school resource officer (SRO),
sexually abused M.S., a minor student who attended Belen Middle School and Belen
High School. [Doc. 14 ¶¶ 23-34] Count II of the Complaint is the subject of the City’s
Motion. [Doc. 83 p. 1] In Count II, M.S. states a claim under the New Mexico Tort
Claims Act for personal injuries resulting from assault, battery, and deprivation of rights
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caused by the alleged sexual abuse. [Doc. 14 ¶¶ 84-91] Among matters pertaining to this
claim, M.S. alleges that: “Esquibel acted with the authority granted to him by the Belen
Police Department/City of Belen and by virtue of his position as a school resource
officer”; “Esquibel would not have been in a position to harm M.S. and inflict injury
upon her but for his position as a school resource officer and the authority conferred upon
him by the City of Belen”; and “Esquibel was acting in the scope of his duties with the
City of Belen and for the City of Belen’s benefit.” [Doc. 14 ¶¶ 88-90]
Under the New Mexico Tort Claims Act, governmental entities are not immune
from liability for the torts of assault and battery committed “by law enforcement officers
while acting within the scope of their duties.” NMSA 1978, § 41-4-12 (1978) (emphasis
added). Nor are they immune from liability for the deprivation of any rights secured by
the constitution and laws of the United States or New Mexico. Id. Further, the state and
its governmental entities are required to defend and to pay judgments against public
employees who, while “acting within the scope of duty[,]” commit assault or battery or
deprive a person of her rights. NMSA 1978, § 41-4-4(B), (D) (2015).
The City seeks summary judgment on the ground that Officer Esquibel was not
acting within the scope of his duties when he allegedly sexually abused M.S. [Doc. 83 p.
1] Therefore, the City contends, it has no duty to defend or indemnify Esquibel’s estate
against M.S’s claims. 1 [Id.]

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The parties’ reference to “vicarious liability” in the context of the Tort Claims Act is a
misnomer. [See Doc. 14 p. 11-12; Doc. 83 p. 1] The “purposes of the definition [of
scope of duties] in the Tort Claims Act are to make [the] government responsible for the
torts of its employees for which immunity is waived to a similar extent as a private
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Standard for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure allows summary judgment when the
evidence submitted by the parties establishes that no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. “[A] party seeking
summary judgment always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of [the record] . . . which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the nonmovant is
required to put in the record facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed. R. Civ. P. 56(c). An
issue is “genuine” when the evidence before the Court is such that a reasonable jury
could return a verdict in favor of the nonmovant as to that issue. Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 248-52 (1986). A fact is “material” if under the substantive
law it is essential to the proper disposition of the claim. Id. at 248.
It is not the Court’s role to weigh the evidence, assess the credibility of witnesses, or
make factual findings in ruling on a motion for summary judgment. Daniels v. United
Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). Rather, the Court assumes the
admissible evidence of the nonmovant to be true, resolves all doubts against the movant,
construes all admissible evidence in the light most favorable to the nonmovant, and draws
all reasonable inferences in favor of the nonmovant. Hunt v. Cromartie, 526 U.S. 541,

employer would be under the doctrine of respondeat superior and to indemnify the
employee for acts occurring in the scope of the employee’s duties.” Medina v. Fuller,
1999-NMCA-011, ¶ 12.
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551-52 (1999).
Law Relating to the Scope of Duty Analysis
As used in the Tort Claims Act, “‘scope of duty’ means performing any duties that
a public employee is requested, required[,] or authorized to perform by the governmental
entity, regardless of the time and place of performance[.]” NMSA 1978, § 41-4-3(G)
(2015). In a scope of duty analysis, the focus is on the employee’s duty as it relates to the
act at issue. Risk Mgmt. Div. v. McBrayer, 2000-NMCA-104, ¶¶ 19-20. The inquiry
does not turn upon whether the act itself was requested, required, or authorized by the
employer. Id. Thus, a governmental entity may be liable for an employee’s
unauthorized tortious or criminal conduct, provided that there is some connection
between the conduct and the duties that the employee was requested, required, or
authorized to perform on behalf of the public entity. Id. ¶ 20. “Whether an employee is
acting within the scope of duties is a question of fact, and summary judgment is not
appropriate unless only one reasonable conclusion can be drawn from the facts
presented.” Celaya v. Hall, 2004-NMSC-005, ¶ 28.
The range of application of “scope of duty” has been examined in three leading
New Mexico cases, McBrayer, Medina, and Celaya. They are briefly reviewed here, as
they inform the Court’s analysis.
In McBrayer, the New Mexico Supreme Court held that a university instructor
who used the distribution of homework assignments as a ruse to lure a student to his
apartment where he sexually assaulted, tortured, and tried to kill her could be found to
have been acting “within the scope of his duties.” 2000-NMCA-104, ¶¶ 3-4, 20 (holding
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that the scope of duty issue was ultimately one for the fact-finder). While the tortious
acts of the professor were obviously not requested, required, or authorized by the
university, the court focused not on those acts, but, rather, on the professor’s duty of
distributing homework. Id. ¶¶ 19-20 (stating that “the issue of scope of duty centers on
what [the university] requested, required or authorized as it related either generally or
specifically to [the professor’s] duty as an instructor to help a student obtain her
homework assignments”). Because the professor used his duty of distributing homework
as a subterfuge to accomplish the assault, the court reasoned, a fact-finder could
determine that his criminal actions fell within the scope of his duty. Id. ¶ 20.
In Medina, the New Mexico Court of Appeals held that a sheriff’s deputy (the
defendant) was within the scope of her duties while she was driving a sheriff’s
department car home from work and was in a car crash. 1999-NMCA-011 ¶ 9, 12. The
defendant had left work, stopped to see her husband at his place of employment, and then
continued toward home. Id. ¶ 2. She realized that she had forgotten something at her
husband’s workplace and returned to retrieve it. Id. On her way home from her second
visit to her husband’s workplace, she was in the car crash that led to a tort claim. Id. The
evidence demonstrated that the defendant “was authorized or permitted, if not required, to
use the [sheriff’s department car] to go to and from work in order to facilitate her
investigative duties.” Id. ¶ 11. Under these circumstances, the Medina court held that the
defendant’s “actions in driving the take-home vehicle home from work [fell] within the
literal definition of ‘scope of duties’” under the Tort Claims Act. Id. ¶ 12. The court also
observed that the question whether the defendant was on duty or off duty (her statements
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in that regard had been inconsistent) was not dispositive of the scope-of-duty question.
Id. ¶ 25.
In Celaya, a sheriff’s department volunteer chaplain drove his department-issued
vehicle to a store on a personal errand. 2004-NMSC-005 ¶¶ 3, 4. In the parking lot, he
drove over the foot of a store employee. Id. ¶ 2. Relying on Medina and McBrayer, the
Celaya court sought to determine whether “there was a connection between the public
employee’s actions at the time of the incident and the duties [that he] was ‘requested,
required or authorized’ to perform.” Celaya, 2004-NMSC-005, ¶ 26. The chaplain did
not recall where he was coming from at the time he ran over the store employee’s foot,
but he stated in an affidavit that he only drove the department vehicle when performing
chaplain duties for the department. Id. ¶ 27. Reasoning that “a minor deviation in the
form of an incidental personal errand, does not take [a public employee] outside the
scope of his official duties[,]” the Court held that a fact-finder, believing the chaplain’s
statement that he never drove the department vehicle exclusively for personal use, could
find that the chaplain stopped at the store after coming from a “chaplain assignment” and
had therefore been acting within the scope of duty at the time of the tortious conduct. Id.
¶¶ 26-27.
Analysis
The City seeks to satisfy its initial burden of demonstrating the absence of a
genuine issue of material fact, Celotex, 477 U.S. at 323, based on the following three
undisputed facts:

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1. Plaintiff claims that Officer Esquibel had sexual contact with her at his
apartment on two successive days, off-campus, after school, in the spring of
2011, when Plaintiff was 14 years old and he was a School Resource Officer.
2. Plaintiff claims that the first time she went to Esquibel’s apartment, she went
in response to an invitation Esquibel had made to lend Plaintiff baseball
equipment he had at his apartment so she could play with her father or try out
for a community baseball league.2
3. Plaintiff claims that the second time she went to Esquibel’s apartment, she did
so because he said he needed to talk to her about something, but he didn’t say
what it was.
[Doc. 83 ¶¶ 1-3; Doc. 83-1] Applying the four-factor “scope of employment” test to
these facts, the City argues, demonstrates that Esquibel’s sexual abuse of M.S. (assumed
for the purpose of this Motion to have occurred) fell outside the scope of his employment,
and by extension, was not within his “scope of duty.” [Doc. 83 p. 2-4]
The City’s reliance on Pena v. Greffet, 922 F.Supp.2d 1187 (D.N.M. 2013)
(arising out of a § 1983 claim for vicarious liability against the private operator of a state
prison and its employees), for the factors and application of the “scope of employment”
test is unavailing in the context of this case. “Scope of duties” as defined in the New
Mexico Tort Claims Act is a “unique standard to be applied to [New Mexico Tort Claims
Act] claims based upon the acts of public employees.” Celaya, 2004-NMSC-005, ¶ 22.
“The legislative choice of this phrase sets the standard apart from the common-law

2
 Although these facts are undisputed, M.S. asserts, and the record shows, that the

second fact is “incomplete.” [Doc. 9 p. 13] According to M.S.’s deposition testimony,
upon which the City relies for its facts, Esquibel told M.S. that she was “good enough [at
baseball] to join the Belen Police Department softball team” and that she should go to his
apartment to borrow some baseball equipment so that she could practice with her dad.
[Doc. 83-1 p. 5-6]

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concept of ‘scope of employment.’” Id. One aspect of this distinction is that “scope of
employment” is limited to “officially authorized or requested acts,” whereas the “scope
of duty” encompasses unauthorized acts, including tortious and criminal conduct,
provided that there is a connection between such acts and the employee’s authorized
duties. Id. ¶¶ 24-25. Here, the Court will focus its analysis on whether Esquibel’s
actions satisfied the unique “scope of duties” standard under New Mexico state law.
Furthermore, the City’s narrow factual presentation, ostensibly designed to fit its
“scope of employment” analysis, does not provide the Court with a basis for granting
summary judgment in this case. This is particularly so in light of M.S.’s
“counterstatement of undisputed material facts” which, viewed in the context of the New
Mexico Tort Claims Act, renders this case unsuitable for summary judgment. [Doc. 96 p.
2-13] Those facts, which are undisputed by the City, include the following.
Esquibel worked for the City of Belen as police officer assigned to serve as Belen
Middle School’s and Belen High School’s SRO at the same time that M.S. attended both
schools. [Doc. 83-1 p. 3; Doc. 96 ¶ F; Doc. 14 ¶¶ 18-19; Doc. 17 ¶¶ 18-19] Esquibel’s
SRO duties required him to be present on campus during the school day, and to attend
athletic events after school hours. [Doc. 96 ¶ G; Doc. 96-3 p. 3] Further, Esquibel was
praised by his superiors for his outreach and involvement with students beyond typical
“policing” activities. Specifically, in a performance evaluation, Esquibel was rated as
“outstanding” for being “proactive” with the students and building a good rapport with
them. [Doc. 96 ¶ H; Doc. 96-5 p. 2] He received another “outstanding” rating on the
evaluation for getting “some of the kids of the community together to play ball” including
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“on his own time and on weekends” thereby promoting a “healthy image fo[r] the
[police] department.” [Doc. 96 ¶ H; Doc. 96-5 p. 5]
M.S. first met Esquibel when she was in the seventh grade and Esquibel was the
SRO for Belen Middle School. [Doc. 96 ¶ I; Doc. 96-6 ¶ 2] Esquibel discovered that
M.S. enjoyed baseball. [Doc. 96 ¶ K; 96-7 p.7] Thereafter, when M.S. was still in middle
school, Esquibel would play softball with her on campus during school hours, and off
campus. [Doc. 96 ¶ K; Doc. 96-6 ¶ 5] Esquibel always wore his police uniform when he
played softball with M.S, and he kept M.S.’s softball glove, balls, and a bat in the trunk
of his police car. [Doc. 96 ¶ K; Doc. 96-6 ¶¶ 5-6]
On one occasion, Esquibel asked M.S. to walk to a certain off-campus location
from which he picked her up in his police car and drove her to a field where they played
softball with other police officers, all of whom were wearing their police uniforms.
[Doc. 96 ¶ M; Doc. 96-7 p. 13; Doc. 96-9 p. 1-2] Among the uniformed officers present
at the field that day were Esquibel’s direct supervisor, Lieutenant Robert Miller. [Doc.
96 ¶ M; Doc. 96-4 p. 2; 96-8 ¶ 10] The officers told M.S’s older sister, who had gone to
the field to check on M.S. after learning that she had gotten into Esquibel’s police car,
that they were wearing their uniforms because they were on duty. [Doc. 96 ¶ M; Doc.
96-8 ¶ 12] Esquibel was only permitted to drive his police vehicle while he was on duty
or driving to or from work. [Doc. 96 ¶¶ EE; 96-10 p. 3]
One day, when M.S. was in the eighth grade, Esquibel was playing catch with her
on campus during the school lunch hour, and he told her that she was good enough to join
the Belen Police Department softball team. [Doc. 96 ¶ N; Doc. 96-7 p. 6-7, 16] Esquibel
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told her that he had softball equipment that she could borrow so that she could practice
the game with her father, and get selected to join the Belen Police Department softball
team. [Doc. 96 ¶ N; Doc. 96-7 p. 3, 7, 12-13] He said that the equipment was at his
apartment, and he invited M.S. to walk to his apartment on her way to band practice to
pick it up. [Doc. 96-7 p. 6-7] M.S. accepted the invitation, and walked to Esquibel’s
apartment as he had instructed. [Doc. 96 ¶ N; Doc. 96-7 p. 6-7] When she arrived,
Esquibel told her that the softball equipment was in the back room, but when she went
inside she realized that Esquibel had directed her to his bedroom, and that there was no
softball equipment. [Doc. 96 ¶ P; Doc. 96-7 p. 6-8] Esquibel followed her into the room
and closed the door behind him. [Doc. 96 ¶ P; Doc. 96-7 p. 7] He grabbed her by the
hips, walked her to the bed, and threw her and himself onto the bed. [Doc. 96 ¶ P; Doc.
96-7 p. 9] M.S. was “freaked out” and “shocked” because she had only gone to
Esquibel’s house for softball equipment, and Esquibel, who was dressed in his full police
uniform, was still wearing his utility belt. [Doc. 96 ¶ P; Doc. 96-7 p. 9] Esquibel put his
hand down M.S.’s pants, put his penis in her mouth, and ejaculated on her face. [Doc. 96
¶ P; Doc. 96-7 ¶ p. 10-11] Esquibel wiped M.S.’s face with a napkin, and told her not to
tell anyone what had occurred. [Doc. 96 ¶ Q; Doc. 96-7 p. 11] After the incident,
Esquibel told M.S. that he had to go because he was still working and was only on a
break or a lunch break. 3 [Doc. 96-7 p. 12] M.S. left Esquibel’s apartment and went to
marching band practice. [Doc. 96-7 p. 12]

3

The City contends that M.S.’s deposition testimony that Esquibel told her that he was on “a
break” or a “lunch break” at this time is inadmissible hearsay. [Doc. 107 p. 7] The Court
10 

The next day, Esquibel asked M.S. to go to his apartment again because he needed
to talk to her. [Doc. 96-7 p. 18-19] M.S. explained that she went back because Esquibel
“was a police officer at the time. I would have [seen] him at the school anyway. It
would have been awkward for me to have seen him.” [Doc. 96 ¶ S; Doc. 96-7 p. 18]
M.S., who believed that, as a police officer, Esquibel had authority “over everybody,”
had seen him arrest kids at school, stated that she “felt like he would have done
something” if she had declined this second invitation. [Doc. 96 ¶¶ S, AA; Doc. 96-7 p.
18, 22] M.S. agreed to go to Esquibel’s apartment, but told Esquibel that she could go
“[o]nly for a couple of minutes, I need to get to band.” [Doc. 96 ¶ T; Doc. 96-7 p. 19]
When M.S. arrived at his apartment, Esquibel was wearing his police uniform, including
his utility belt. Esquibel apologized for “what he did the previous day[,]” and then went
into his bedroom and asked M.S. to “[c]ome here real quick.” [Doc. 96-7 p. 19] When
M.S. entered the bedroom, Esquibel grabbed her hand, pushed her down, and told her to
close her eyes. [Doc. 96 ¶ T; Doc. 96-7 p. 19] Esquibel removed his pants and
underwear and put his penis in M.S.’s mouth. [Doc. 96-7 p. 19] M.S. pulled away or
pushed Esquibel off of her, and left the apartment. [Doc. 96-7 p. 19]
After this second incident, M.S. sent a text message to a friend and classmate at
Belen Middle School saying “I need to talk to you about Mike” (referring to Esquibel).

disagrees. Esquibel’s statements are admissible nonhearsay under Fed. R. Evid. 801(d)(2)(D),
which provides that a statement that “is offered against an opposing party and was made by the
party’s . . . employee on a matter within the scope of that relationship and while it existed” is not
hearsay. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, §
801.33[2][c] (Joseph M. McLaughlin, et al., eds., 2nd ed. 2013)(“[T]o qualify as nonhearsay
under Rule 801(d)(2)(D), the statement need only be related to the declarant’s duties.”).
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[Doc. 96 ¶ U; Doc. 96-7 p. 5] The next day, before she talked to her friend, her phone
was confiscated by a school employee. [Doc. 96 ¶ U; Doc. 96-7 p. 5] As the SRO,
Esquibel was able to obtain the confiscated phone, and when he read M.S.’s text message
to her friend, he used his authority as the SRO to remove M.S. from English class,
whereupon he confronted her, saying “You were going to tell on me”; and “Do you want
to get in F’ing trouble?” [Doc. 96 ¶¶ U-V; Doc. 96-7 p. 21] Esquibel forced M.S. to stay
with him for the rest of the day, preventing her from attending a pep rally and the
remainder of her classes. [Doc. 96 ¶ V; Doc. 96-7 p. 21]
M.S. never spoke to her friend about Esquibel. [Doc. 96 ¶ W; Doc. 96-7 p. 5] She
kept the abuse a secret until she was a senior at Belen High School. [Doc. 96 ¶ X; Doc.
96-7 p.16] After M.S. disclosed the abuse and the New Mexico State Police began a
criminal investigation into the matter, Esquibel committed suicide. [Doc. 96 ¶¶ X, OO;
Doc. 96-7 p. 16; Doc. 96-10 p. 4-5] Until his death, Esquibel continued in his role as the
SRO and, although M.S. tried to avoid him, she saw him at school (he removed her from
class a couple of times in high school) and she received a number of sexualized text
messages from him. [Doc. 96 ¶¶ X-Y; Doc. 96-7 p. 14-15, 23-25]
The foregoing facts, when viewed in the light most favorable to M.S., could lead a
reasonable jury to find that Esquibel was acting within the scope of duties when he
sexually abused M.S. at his apartment. See Celaya, 2004-NMSC-005, ¶ 28 (“Whether
an employee is acting within the scope of duties is a question of fact[.]”). From the fact
that the Belen Police Department sanctioned Esquibel’s practice of playing ball with
students, even on his own time and on weekends, and from the fact that Esquibel drove
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M.S. in his police car to a field to play ball with fellow on-duty officers, including his
supervisor, a reasonable jury could conclude that as a SRO, he was authorized to play
ball with students on or off campus, and to transport students in his police car to facilitate
that activity. See § 41-4-3(G) (defining “scope of duty” as the performance of “any
duties that a public employee is requested, required[,] or authorized to perform by the
governmental entity, regardless of the time and place of performance”). Additionally,
that Esquibel played ball with M.S. several times during the school day, that he kept her
equipment in the trunk of his police car, which he was only authorized to use when he
was on duty, and that he suggested that M.S. could join the Belen Police Department
softball team are facts from which a jury could reasonably infer some connection
between Esquibel’s authorized duties and his invitation to M.S. to borrow baseball
equipment from his apartment. That Esquibel’s invitation was a ruse to lure M.S. to his
apartment so that he could pursue his own criminal and tortious interests is comparable to
the “homework” ruse used by the professor in McBrayer.
Furthermore, as exemplified by Medina, Celaya, and McBrayer, the “scope of
duties” analysis turns on the question whether there is any connection “generally or
specifically” between the public employee’s wrongful conduct and his requested,
required, or authorized duties. See McBrayer, 2000-NMCA-104 (“[T]he scope of duty
[issue] centers on what [the employer] requested, required or authorized as it related
either generally or specifically to [the defendant’s] duty as an instructor[.]”). In addition
to the specific connection between Esquibel’s duties and the first incident of sexual abuse
described above, a jury could reasonably find a general connection between Esquibel’s
13 

position as SRO and his entire relationship with M.S., including the second incident of
abuse and his role in persuading M.S. to stay quiet about the abuse. For example,
Esquibel’s only contact with M.S. arose from his duties as SRO—a position that he used
to establish a personal relationship with her during school hours. The arrangements that
Esquibel made for M.S. to go to his apartment occurred on campus, during the school day
while he was on duty and pursuant to Esquibel’s knowledge of M.S.’s band practice
schedule. That Esquibel leveraged his authority over M.S., who feared what Esquibel
might do if she did not accept his second invitation, to bring her to his apartment a second
time and then to prevent her from disclosing the sexual abuse, are also all facts which, if
believed by a jury, could lead to a finding that Esquibel acted within the scope of his duty
when he sexually abused M.S.
In sum, M.S. has presented facts showing that there is a genuine issue for trial on
the matter of whether Esquibel acted within the scope of his duty. See Anderson, 477
U.S. at 250 (stating the nonmovant’s burden in the context of a summary judgment
motion).
CONCLUSION
For the reasons stated herein, Defendant City of Belen’s Motion for Partial
Summary Judgment That the Torts Alleged by Plaintiff Do Not Fall within the Scope of
Officer Esquibel’s Duties (Doc. 83), filed September 6, 2016 is DENIED.

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IT IS SO ORDERED this 14th day of August, 2017 in Albuquerque, New
Mexico.
_____________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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