G.V.R. v. Espanola Public Schools et al

Filing 45

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen granting in part and denying in part 6 School Defendants' Opposed Motion to Dismiss and for Qualified Immunity; denying 16 Defendant Valdez' Motion to Dismiss for failure to state a claim and for Qualified Immunity; and denying 33 Plaintiff's Opposed Motion to Dismiss Counts III and IV. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

G.V.R., by and through his parents and next friends,
M.V.R. and S.R.,
Plaintiff,
v.

CIV 18-0324 KBM/SCY

THE ESPAÑOLA PUBLIC SCHOOLS;
PETER ENGLER, in his individual capacity;
ANDREW VALDEZ, aka JOHN ANDREW VALDEZ,
In his individual capacity,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Andrew Valdez’s Motion to
Dismiss and for Qualified Immunity, filed on May 14, 2018 (Doc. 16), Defendants Board
of Education of the Española Public School District and Peter Engler’s Motion to
Dismiss and for Qualified Immunity, filed on April 13, 2018 (Doc. 6), Plaintiff’s requests
for limited discovery, to convert the motion to dismiss to one for summary judgment, and
to amend his complaint, filed on May 11, 2018, as part of his Response (Doc. 15) to the
School Defendants’ motion to dismiss, and Plaintiff’s Opposed Motion to Dismiss
Counts III and IV, filed on June 15, 2018 (Doc. 33). Pursuant to 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 73(b), the parties have consented to me serving as the presiding judge
and entering final judgment. See Docs. 10-13.
Having considered the record, submissions of counsel, and relevant law, the
Court finds Defendant Valdez’s motion to dismiss (Doc. 16) should be denied,

Defendants Española Public School District and Peter Engler’s motion to dismiss
(Doc. 6) should be granted in part, Plaintiff’s requests for discovery, to convert his
response to a motion for summary judgment, and to amend his complaint (Doc. 15)
should be denied, and Plaintiff’s motion to dismiss (Doc. 33) should be denied.
I.

Procedural Background
This case arises from alleged physical abuse that G.V.R. (“Plaintiff”), a minor

child, suffered at the hands of Defendant Valdez, who was employed as a music
teacher at Plaintiff’s elementary school. Plaintiff alleges that Defendant Valdez violated
his substantive due process rights, and that Defendants Board of Education of the
Española Public School District (“EPSD” or “Board”) and Engler (collectively, the
“School Defendants”) failed to adequately screen, train, and supervise Defendant
Valdez, which led to Plaintiff’s injuries and deprivations of his constitutional and
statutory rights.
Plaintiff filed his original complaint in the First Judicial District Court, State of New
Mexico, County of Rio Arriba, on November 16, 2017. See Doc. 1-A. Plaintiff filed a First
Amended Complaint on January 12, 2018. See Doc. 1-B, First Amended Complaint
(“FAC”). The School Defendants properly removed the case to this Court on April 6,
2018. See Doc. 1.
Plaintiff alleges the following counts against the Defendants: (1) in Counts I-III,
Plaintiff alleges that all three Defendants violated his Fourteenth Amendment right to
substantive due process under 42 U.S.C. § 1983; (2) in Count IV, Plaintiff alleges that
EPSD violated his rights under Title IX, 20 U.S.C. §§ 1681-88; and (3) in Count V,

2

Plaintiff alleges that Defendants EPSD and Engler violated his rights under the New
Mexico Tort Claims Act (“NMTCA”), N.M. Stat. Ann. 1978 § 41-4-6. See FAC ¶¶ 132-78.
II.

Plaintiff’s Allegations in the First Amended Complaint
The November 18, 2015 Incident
In the fall of 2015, Plaintiff was a third grade student at Troy E. Quintana

“Sombrillo” Elementary School (“Sombrillo Elementary”). FAC ¶¶ 4, 45. On November
18, 2015, Plaintiff and his classmates attended Defendant Valdez’s music class. Id.
¶ 47. During class, Plaintiff put his feet on a chair to show off his new shoes. Id. ¶¶ 4849. “Defendant Valdez yelled at [Plaintiff] to put his ‘fucking feet down.’” Id. ¶ 50. Plaintiff
complied, but later put his feet back on the chair. Id. ¶ 51. Defendant Valdez yelled, “I
fucking told you to take your feet off the chair.” Id. ¶ 52. Defendant Valdez then “picked
up the chair [Plaintiff] had his feet on and slammed it down on the floor. [He] then
punched [Plaintiff] in his right shoulder three times with a closed fist.” Id. ¶¶ 53-54.
Defendant Valdez kicked a second student in the shin, pulled a third student to the
ground by the hair, and shouted at the class “that they were ‘stupid’ and to ‘shut up,’ as
well as yelled profanity at the students.” Id. ¶¶ 55-56.
Plaintiff’s regular teacher, Ms. Valencia, eventually came to retrieve her students
from the music classroom. Id. ¶ 58. “Ms. Valencia told the class that Defendant Valdez
said that they were very bad and [he] did not want any of them to return to his
classroom.” Id. ¶ 59. Plaintiff then told Ms. Valencia what Mr. Valdez did. Id. ¶ 60. Ms.
Valencia reported the incident to Defendant Engler, the principal of Sombrillo
Elementary, and asked if she should contact the students’ parents. Id. ¶¶ 4, 61, 63.

3

Defendant Engler advised Ms. Valencia that he would take care of the situation, and
she was not to contact parents. Id. ¶¶ 62-63.
Later that afternoon, Defendant Valdez reported to Defendant Engler “and told
him that he had ‘lost it’ and had ‘lost control’ of the class. He also stated that he wished
to drop that class.” Id. ¶ 64. Defendant Engler did not contact the police or Plaintiff’s
parents on November 18, 2015. Id. ¶¶ 65-66.
When Plaintiff got home from school that day, “his older sister saw that he had
blood on his clothes and that he had soiled himself. [He] also began throwing up.” Id.
¶ 67. When his parents arrived home that night, they took Plaintiff to the hospital
because he “was acting strangely and was unable to walk.” Id. ¶ 70. “The hospital
treated [him] for his shoulder pain” and diagnosed him “with vertigo from the stress he
had endured that day.” Id. ¶ 71. “The physician also [said] that the encopresis and
enuresis were . . . due to stress.” Id. ¶ 72. “Hospital staff contacted police and State
Police Patrolman Mario Herrera arrived at the hospital and took a report.” Id. ¶ 73.
“On November 19, 2015, Defendant Engler collected written statements from
each of the children from [Plaintiff’s] class, including the three children”1 allegedly
battered by Defendant Valdez. Id. ¶ 75. Also on November 19, 2015, Plaintiff’s parents
and Patrolman Herrera met with Defendant Engler of their own accord – Defendant
Engler had not contacted them. Id. ¶¶ 78-79. “Defendant Engler stated that [the school]
had not contacted the parents of the students assaulted by Defendant Valdez because
he had wanted to investigate first, there was a lot going on, and he did not have time to

1

It is unclear whether Defendant Engler obtained a statement from Plaintiff – one of the three
students Defendant Valdez battered – on November 19, 2015. See FAC ¶ 75.

4

contact them.” Id. ¶ 80. “Defendant Engler confirmed that [Plaintiff’s] story was true and
relayed the confirming statements of the other students.” Id. ¶ 81.
When EPSD’s Human Resources Director interviewed him, Defendant Valdez
admitted to grabbing the chair Plaintiff had his feet on and setting it down “hard,”
“slapping” Plaintiff with the back of his hand, and yelling at students. Id. ¶¶ 83-86. EPSD
terminated Defendant Valdez’s employment on November 23, 2015. Id. ¶ 89. The New
Mexico Public Education Department (“PED”) and Defendant Valdez later “agreed to a
suspension of his teaching license for two years, which was deferred on” certain agreed
conditions. Id. ¶ 90. As part of the agreement, Defendant Valdez admitted that “he
engaged in inappropriate contact with three students and used inflammatory and
derogatory language with students . . . .” Id. ¶ 91 (quotation marks omitted).
Defendant Valdez was also criminally indicted for three counts of child abuse in
violation of N.M. Stat. Ann. 1978 § 30-6-1D(2) for his actions on November 18, 2015. Id.
¶ 92. Defendant Valdez ultimately pleaded guilty to three counts of battery and received
a sentence of six months of jail for each count, which the court suspended on the
condition of 18 months of supervised probation. Id. ¶¶ 94, 96.
Plaintiff continued to suffer physical and emotional effects from the physical
assault, including pain and numbness, bruising, feeling his shoulder “pop” in and out of
place, decreased mobility, torn tendons in his shoulder, problems sleeping, sleepwalking, continued episodes of enuresis and encopresis, a diagnosis of post-traumatic
stress disorder (“PTSD”), and a fear of school. Id. ¶¶ 97-118. Plaintiff was
homeschooled for a time because of his fear of school and later switched to another
school because he did not want to attend school in Española. Id. ¶¶ 105, 107. Plaintiff

5

also attended physical therapy due to the problems with his shoulder, as well as
counseling for his emotional trauma. Id. ¶¶ 99, 119.
Defendant Valdez’s Background
Prior to 2015, Defendant Valdez had at least three brushes with law enforcement
for criminal conduct. First, in 2008, the New Mexico State Police investigated Defendant
Valdez for criminal sexual contact. Id. ¶ 12. According to Plaintiff’s retelling of the police
report, Defendant Valdez went to a woman’s residence to pick up wood she was giving
away. Id. ¶ 13. Although the woman “told him she did not wish to have sex,” Defendant
Valdez allegedly “pull[ed] up her shirt[,] pulled down her bra[,]” and “ran his hand up her
thigh.” Id. ¶¶ 14-15. “Defendant Valdez told police their contact was consensual and he
left because she had lied about her age. No charges were ultimately filed against
Defendant Valdez for these allegations.” Id. ¶¶ 17-18.
In 2011, the New Mexico State Police investigated Defendant Valdez after his
four-year-old granddaughter told her mother (and later a Safehouse interviewer) that he
had touched her vaginal area. Id. ¶¶ 19-20. No charges were ever filed against
Defendant Valdez based upon this report. Id. ¶ 21. EPSD employed Defendant Valdez
in 2011 as a music teacher. Id. ¶ 22.
“In 2012, Defendant Valdez was arrested and charged with” three crimes:
battery; resisting, evading, or obstructing an officer; and use of telephone to harass. Id.
¶ 23. It was alleged that on September 23, 2012, Defendant Valdez entered a Mini Mart,
grabbed one cashier’s groin area, and touched a second cashier’s breast. Id. ¶¶ 24-25.
He later allegedly called one of the cashiers and made inappropriate, harassing
statements. Id. ¶ 26. Defendant Valdez then resisted orders from officers who went to

6

his residence. Id. ¶ 27. All charges related to this incident were dismissed in 2013, after
Valdez entered into an agreement for a conditional discharge with supervised probation.
Id. ¶¶ 28-29. EPSD hired Defendant Valdez sometime after this incident to teach music
at Sombrillo Elementary.2 Id. ¶ 31.
In 2014, Defendant Valdez allegedly “physically battered a female student at
Sombrillo Elementary . . . .” Id. ¶ 33. Plaintiff further alleges that about one month before
the November 2015 incident at issue in this lawsuit, “Defendant Valdez physical
battered Plaintiff . . . by pulling up his underwear.” Id. ¶ 34.
Sombrillo Elementary Staff and Policy
A second Sombrillo Elementary teacher has also been charged with abuse of his
students in the past: in 2012, teacher Jimmy Montoya was charged with criminal sexual
contact of nine minor students at Sombrillo Elementary. Id. ¶ 37. “There is evidence that
one of the students disclosed an instance of inappropriate contact to another teacher,
who did not report it.” Id. ¶ 38. Plaintiff alleges that EPSD hired Mr. Montoya “despite
numerous prior allegations of sexual abuse or sexual harassment of students by him in
Santa Rosa and Socorro, New Mexico, which resulted in the one-year suspension of his
license in 1999.” Id. ¶ 40.
Plaintiff also asserts that around the time of the incident at issue here, Sombrillo
Elementary teachers “were behaving angrily towards their students by getting in their
faces and screaming at them.” Id. ¶ 43. Finally, Plaintiff alleges, “Defendant Engler had
a policy . . . that teachers at Sombrillo Elementary School were not allowed to contact
parents directly.” Id. ¶ 42.
2

It appears that Defendant Valdez has taught for EPSD on more than one occasion, but his
employment dates are not clear. See FAC ¶¶ 22, 31.

7

III.

Legal Standard
In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court “must

accept all the well-pleaded allegations of the complaint as true and must construe them
in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d
1103, 1108 (10th Cir. 2015) (quotation omitted). “To survive a motion to dismiss,” the
complaint does not need to contain “detailed factual allegations,” but it “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). Plausibility does not equate to probability, but there must be “more than a sheer
possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
IV.

Analysis
A.

The Court will not dismiss Plaintiff’s claim against Defendant Valdez
under 42 U.S.C. § 1983.

In Count I, Plaintiff brings a claim against Defendant Valdez pursuant to
Section 1983 for violations of his substantive due process right to bodily integrity. See
FAC ¶¶ 121-31. Plaintiff asserts that Defendant Valdez’s actions on November 18,
2015, were egregious, outrageous, and shocking to the conscience. Id. ¶¶ 126, 128.
Section 1983 of Title 42 “provides that a person acting under color of state law who
‘subjects, or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

8

shall be liable to the party injured.’” Scott v. Mid-Del Sch. Bd. of Educ., 724 F. App’x
650, 653 (10th Cir. 2018) (quoting 42 U.S.C. § 1983).
“An individual defendant sued under § 1983 ‘may raise a defense of qualified
immunity, which shields public officials from damages actions unless their conduct was
unreasonable in light of clearly established law.’” Id. (citing T.D. v. Patton, 868 F.3d
1209, 1220 (10th Cir. 2017) (ellipsis, internal quotation marks, and citation omitted),
cert. denied (U.S. Mar. 5, 2018) (No. 17-1021)). To overcome a qualified immunity
defense, “the plaintiff carries a two-part burden to show: (1) that the defendant’s actions
violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly
established at the time of the defendant’s unlawful conduct.” T.D., 868 F.3d at 1220
(quotation omitted). “To meet this heavy burden the ‘plaintiff may show clearly
established law by pointing to either a Supreme Court or Tenth Circuit decision, or the
weight of authority from other courts, existing at the time of the alleged violation.’” Scott,
724 F. App’x at 653 (quoting T.D., 868 F.3d at 1220 (internal citation omitted)).
“Although there need not be a case directly on point, [a state actor] cannot be said to
have violated a clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in his shoes would have understood that he was
violating it.” Id. (quoting T.D., 868 F.3d at 1220 (internal quotation marks and citations
omitted)).
1.

The Court will use the Fourteenth Amendment “shocks-theconscience” standard to analyze Plaintiff’s claim.

“The due process clause of the Fourteenth Amendment prohibits ‘executive
abuse of power . . . which shocks the conscience.’” Muskrat v. Deer Creek Pub. Sch.,

9

715 F.3d 775, 786-87 (10th Cir. 2013) (quoting Cty. of Sacramento v. Lewis, 523 U.S.
833, 846 (1998)). The Tenth Circuit has held
that a form of the shocks-the-conscience test applies to school-inflicted
corporal punishment:
[T]he substantive due process inquiry in school corporal punishment
cases must be whether the force applied caused injury so severe, was so
disproportionate to the need presented, and was so inspired by malice or
sadism rather than a merely careless or unwise excess of zeal that it
amounted to a brutal and inhumane abuse of official power literally
shocking to the conscience.
Id. (quoting Garcia v. Miera, 817 F.2d 650, 655 (10th Cir. 1987) (internal quotation
omitted)). Since Garcia, the Tenth Circuit has applied “this standard to all school
discipline cases, not just those based on corporal punishment.” Id. (citing Harris v.
Robinson, 273 F.3d 927 (10th Cir. 2001) (“applying Garcia to a teacher who made a
student unclog a toilet with his hands”); Abeyta v. Chama Valley Indep. Sch. Dist. No.
19, 77 F.3d 1253 (10th Cir. 1996) (“extending Garcia to verbal harassment inducing
psychological harm, if sufficiently severe”)).
Plaintiff argues that this standard is inappropriate for his case, as Defendant
Valdez’s conduct in punching Plaintiff was not “pedagogically oriented.” Doc. 22 at 4-8.
Plaintiff advances the theory that Defendant Valdez’s initial actions (yelling, cursing,
slamming the chair on the floor) were “disciplinary in nature,” while his later conduct
(punching Plaintiff’s shoulder) was no longer disciplinary. Id. at 6. Plaintiff cites Gottlieb
ex rel. Calabria v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), where
the Third Circuit found that the first question to ask in analyzing the shocks-theconscience standard in corporal punishment cases “is whether there was a pedagogical
justification for [the school official’s] use of force.” Gottlieb, 272 F.3d at 173. Yet, the

10

Gottlieb Court did not ask this question in order to determine whether to use the shocksthe-conscience standard at all, but rather to parse the standard out into its separate
elements. See id. (noting that “[t]o avoid conflating the various elements of the shocks
the conscience test into a vague impressionistic standard, [a court must] analyze its four
elements in turn”).
The Tenth Circuit’s decision in Muskrat is informative on this point. In Muskrat, a
developmentally disabled child was subjected to excessive timeouts and three
instances of physical abuse over the course of a five-year period. Muskrat, 715 F.3d at
780-81. The physical abuse included a teacher who “popped” the child on his cheek,
another teacher’s aide who slapped the child’s arm, leaving a red mark, and an
occasion where two teachers restrained the child by holding his shoulders so that he
could not rise from his desk. Id. at 781. The child’s parents filed suit, alleging violations
of his substantive due process rights and of his rights under the Individuals with
Disabilities Education Act (IDEA). Id. at 779-80. In analyzing the plaintiff’s claim under
the IDEA, the court opined that the three instances of physical abuse “appear to have
resulted from simple frustration with [the child] rather than any legitimate disciplinary
goal.” Id. 785 (emphasis added). In analyzing the plaintiff’s substantive due process
claim, the court went on to find that the three instances of abuse – none of which had a
“legitimate disciplinary goal” – simply did “not rise to the level of a constitutional tort”
because they did not shock the conscience. Id. at 787. The Muskrat court specifically
noted that without any lasting harm or evidence of malice, it could not conclude that the
physical contacts constituted a “brutal and inhumane abuse of official power.” Id.

11

A 2002 case from this District also leads the Court to conclude that the shocksthe-conscience standard is appropriate here. Gonzales v. Passino, 222 F. Supp. 2d
1277 (D.N.M. 2002), also “involve[d] a situation in which a teacher spontaneously used
physical force against a student, with little or no provocation.” Id. at 1280. There, the
plaintiff, a middle school student, called another student a “faggot.” Id. at 1278, 1279. A
teacher heard the exchange and thought the plaintiff was addressing him (the teacher).
Id. at 1279. The teacher asked the plaintiff what he had said, then “‘hit’ (the level of
severity [was] hotly disputed)” the plaintiff on the arm with a plastic bat. Id. at 1278,
1279. The plaintiff there also argued against using the shocks-the-conscience standard
and asked the court instead to use the Fourth Amendment reasonableness standard. Id.
at 1279-80.
Plaintiffs attempt to avoid application of the more stringent substantivedue-process test by arguing that the altercation between [the student and
the teacher] was not an instance of punishment. Instead, they claim [the
teacher] seized [the student] for constitutional purposes, when he hit [the
student] on the arm with the plastic bat. Plaintiffs point out that [the
teacher] was confronting [the student] for something he allegedly did
wrong and was attempting to take him to the Principal’s office. That is akin
to an investigatory stop by police with a subsequent arrest.
Id. at 1280 (quotation marks and citation omitted). In Gonzales, the Honorable Bruce
Black noted that “[t]he clear weight of authority is contrary to Plaintiffs’ contention that
the Fourth Amendment should apply in such a situation[,]” id. at 1281 (gathering cases),
and was “not persuaded by [the] attempt to characterize [the] case as one not involving
corporal punishment.” Id. The Gonzales plaintiff had argued that the teacher’s use of
force should not be classified as corporal punishment in the traditional sense, because it
was “spontaneous and immediate, rather than postponed.” Id. The court disagreed and

12

found that “[b]y hitting [the student] with the bat, [the teacher] was punishing him just as
much as if he had taken him to the principal’s office and then hit him.” Id.
The Court finds this reasoning directly on point. Here, Plaintiff attempts to invent
some arbitrary line in the single, continuous incident, labeling part of Defendant
Valdez’s conduct “disciplinary,” and part of it “non-disciplinary.” This is a distinction
without a difference, and just as in Gonzales, “would lead to confusing and inconsistent
results . . . . There is no principled reason to treat the two situations differently.” See id.
Thus, the Court will use the above-quoted shocks-the-conscience standard.
2.

Plaintiff has established a constitutional violation.

Defendant Valdez argues that there are simply insufficient factual allegations to
show that Plaintiff’s injury was “so severe, was so disproportionate to the need
presented, and was so inspired by malice or sadism rather than a merely careless or
unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power
literally shocking to the conscience.” See Garcia, 817 F.2d at 655 (quotation omitted);
see also Doc. 16 at 13. Defendant Valdez points to the inconsistent allegations in
Plaintiff’s First Amended Complaint – that GVR came home with blood on his clothes,
and that he “was diagnosed with a dislocated shoulder ‘[a] few days after the incident’”
rather than at the emergency room when his parents took him to the hospital later on
the evening of the incident. See Doc. 16 at 12-13 (quoting FAC ¶ 111). The Court
agrees that the factual allegations may also support the theory that Plaintiff was
involved in an altercation sometime after the incident with Defendant Valdez. However,
the Court is obliged to “accept all the well-pleaded allegations of the complaint as true
and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp.

13

Sec. Litig., 776 F.3d at 1108 (quotation omitted). Thus, the Court finds that it is plausible
Defendant Valdez punched Plaintiff with such force that he dislocated Plaintiff’s
shoulder.
The severity of these injuries is central to the shocks-the-conscience standard. If,
after discovery, it appears that Defendant Valdez was not responsible for the dislocated
shoulder, torn tendons, lingering pain and numbness, decreased mobility, and the
sizeable emotional trauma alleged in the First Amended Complaint, then Plaintiff will
have a much higher hurdle to clear in order to demonstrate that Defendant Valdez’s
conduct shocks the conscience. At this stage of the lawsuit, however, the Court finds
that Plaintiff’s injuries – construed in a light most favorable to Plaintiff – are substantial.
“[T]he existence of a substantial injury, or at least the potential for causing such injury, is
necessary in substantive-due-process cases, before a violation of the Fourteenth
Amendment will be found.” Gonzales, 222 F. Supp. 2d at 1280.
Accepting Plaintiff’s version of the events in his First Amended Complaint as true,
as this Court must on a motion to dismiss, Defendant Valdez’s alleged use of force
would be disproportionate to the need of maintaining order in a class of third grade
children, where the only disruption involved a child who put his feet up on a chair.
Additionally, “it is possible to infer that [Defendant Valdez] did not” punch Plaintiff three
times “in a good faith effort to restore discipline, but simply because he was angry” and,
in his own words, “lost it . . . .” See id. at 1282; see also FAC ¶ 64. A jury could interpret
Defendant Valdez’s conduct in “losing it” as malice towards the students. Simply put,
the Court finds that Plaintiff has succeeded in meeting his burden to allege a viable
constitutional violation.

14

3.

The right at issue was clearly established at the time of the
incident.

At the second step of the qualified immunity inquiry, the Court must determine
“whether the right was so clearly established that a reasonable person would have
known that her conduct violated that right.” Harris, 273 F.3d at 931 (citation omitted).
The Tenth Circuit has stated that “[o]rdinarily, 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.” Id. (quoting Medina v. City & Cty. of Denver, 960 F.2d 1493,
1498 (10th Cir.1992)).
The Supreme Court recently
[r]eiterate[d] the longstanding principle that “clearly established law”
should not be defined “at a high level of generality.” Ashcroft v. al–Kidd,
563 U.S. 731, 742 (2011). As this Court explained decades ago, the
clearly established law must be “particularized” to the facts of the case.
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Otherwise, “[p]laintiffs
would be able to convert the rule of qualified immunity . . . into a rule of
virtually unqualified liability simply by alleging violation of extremely
abstract rights.” Id., at 639.
White v. Pauly, 137 S. Ct. 548, 552 (2017). Thus, ““the dispositive question is ‘whether
the violative nature of particular conduct is clearly established,’” and “[the] inquiry ‘must
be undertaken in light of the specific context of the case, not as a broad general
proposition. . . .’” Pauly v. White, 874 F.3d 1197, 1222 (10th Cir. 2017), cert. denied,
138 S. Ct. 2650 (2018) (quoting Mullenix v. Luna, 136 S. Ct. at 308 (2015) (internal
quotations omitted).
Defendant Valdez argues that Plaintiff fails to cite any relevant authority that
“would have informed Valdez that his actions, even if as extreme as alleged by Plaintiff,

15

violated the Substantive Due Process Clause of the Fourteenth Amendment.” Doc. 38
at 8. The Court disagrees. Plaintiff cites to a variety of cases that, together, provide
reasonable notice to Defendant Valdez that he could be liable for violating a student’s
constitutional right to substantive due process if he maliciously used physical force to
seriously injure a student.
First, and foremost, Plaintiff cites to the Tenth Circuit’s decision in Garcia v.
Miera, 817 F.2d 650 (10th Cir. 1987). In Garcia, a nine-year-old third grader was held
upside down by a teacher and received two beatings by the principal with a split
wooden paddle. The beatings drew blood and resulted in bruises, a welt and a two-inch
scar on her leg, as well as back pain for several weeks. One of the beatings was
sufficiently severe that an examining nurse indicated she would have reported the
discipline as child abuse.3 The Garcia court “[c]onclud[ed] that grossly excessive
corporal punishment may indeed constitute a violation of substantive due process rights
under the governing law” and further determined that “the law was established with
sufficient clarity at the time of the beating incidents at issue here.” Id. at 656. As
explained by the Tenth Circuit in a later case,
[i[n Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court held that
“where school authorities, acting under color of state law, deliberately
decide[ ] to punish a child for misconduct by restraining the child and
inflicting appreciable physical pain,” Fourteenth Amendment liberty
interests are implicated. In Garcia v. Miera, 817 F.2d 650, 654 (10th
Cir.1987), cert. denied, 485 U.S. 959 (1988), we held that Ingraham
3

Defendant Valdez contends that his criminal guilty pleas to battery based on these events
have “no bearing on Plaintiff’s claims herein.” Doc. 38 at 5. Yet the filing of the original three
counts of criminal child abuse reflects society’s assessment of the seriousness of his conduct
and the risk of significant injury to a young student. His plea of guilty to the lesser battery
charges pursuant to a plea agreement seems inconsistent with a claim that his “actions were
obviously related to a pedagogical concern of maintaining a proper educational environment
and order in the classroom.” See Doc. 38 at 4.

16

“clearly signaled that, at some degree of excessiveness or cruelty, the
meting out [of] such punishment violates the substantive due process
rights of the pupil.”
Maldonado v. Josey, 975 F.2d 727, 730 (10th Cir. 1992) (citations omitted).
Second, Plaintiff refers to Gonzales, a case from this District with facts very
similar to those here. The Gonzales Court described the case “as one involving a
teacher’s gratuitous, unprovoked (or at least insufficiently provoked) application of force
to a student.” Gonzales, 222 F. Supp. 2d at 1279. Judge Bruce Black found that the
teacher need not have used the force involved, but was merely “angry about being
called a ‘faggot . . . .’” Id. at 1282. He nevertheless found no constitutional violation
because “the existence of serious injury or the potential for causing such injury is a
major factor in substantive due process cases.” Id. at 1282. “One hit with a plastic bat
on the arm, even a hard smack, simply [did] not have the potential to cause serious
harm to an eight-grade student, and did not cause such harm in this case.” Id.
In the instant case, by contrast, Defendant Valdez’s three punches allegedly
caused serious physical and emotional harm to the younger Plaintiff. As the Tenth
Circuit noted in Harris, also cited by Plaintiff, Defendant Valdez’s alleged actions can be
characterized as “excessive, demeaning, and inhumane” causing Plaintiff “appreciable
pain.” Harris, 273 F.3d at 931. Thus, the extent of force allegedly used against GVR –
that being sufficient to dislocate a shoulder and tear tendons – meets the Gonzales
definition for a constitutional violation. Both the Garcia and Gonzales cases served to
inform a teacher that use of such disproportionate force as that alleged here would
violate a child’s right to substantive due process.

17

The Court finds that the weight of authority from other courts also supports this
conclusion. For example, Plaintiff cites Neal ex rel. Neal v. Fulton County Board of
Education, 229 F.3d 1069, 1071 (11th Cir. 2000), wherein a coach hit a student in the
face with a weight lock as punishment for the student hitting another student with the
weight lock during a fight. As a result, the student lost the use of one eye. Id. at 1076. In
P.B. v. Koch, 96 F.3d 1298, 1299 (9th Cir. 1996), a principal physically assaulted three
students: the principal slapped one student “in the face and grabbed his neck[,]”
grabbed a second “by the neck and punched him in the chest[,]” and grabbed a third “by
the neck and threw him head first into the lockers.” The Ninth Circuit found that because
the principal “took these actions not in good faith but for the purpose of causing harm[,]
. . . the deliberate and intentional harm allegedly inflicted – causing pain, bruising, and
emotional injury – is significant.”4 Id. at 1304 (citations omitted).
In Webb v. McCullough, 828 F.2d 1151, 1153-54 (6th Cir. 1987), a principal
investigated a group of students who were rumored to be drinking and misbehaving in a
hotel room during a school band trip. The plaintiff had locked herself into a bathroom,
and the principal insisted on entering. Id. at 1154. When he could not unlock the door,
the principal repeatedly slammed the door with his shoulder. Id. The door finally
opened, knocking the plaintiff into the wall. Id. The principal “thrust the door open again,
and it struck [the plaintiff] again, throwing her to the floor. [The principal] then grabbed
[the student] from the floor, threw her against the wall, and slapped her.” Id. The Sixth
4

The Ninth Circuit described the “factors to consider in determining whether substantive due
process has been violated” as “the need for the governmental action in question, the
relationship between the need and the action, the extent of harm inflicted, and whether the
action was taken in good faith or for the purpose of causing harm.” P.B., 96 F.3d at 1303-04.
The Ninth Circuit did not specifically analyze whether the principal’s actions shocked the
conscience.

18

Circuit found that rather than being disciplinary, the blows arose from anger or malice
and shocked the conscience. Id. at 1158.
These cases are sufficient to have put a reasonable person in Defendant
Valdez’s position on notice that even in an arguably disciplinary context, the application
of intentional, excessive physical force against a student with resulting severe and
continuing injuries, could rise to the level of a constitutional violation. The Court will
deny Defendant Valdez’s motion.
B.

The Court will dismiss Plaintiff’s § 1983 claim against EPSD.

In Count II, Plaintiff brings a claim against EPSD pursuant to 42 U.S.C. § 1983
for violations of his substantive due process right to bodily integrity. See FAC ¶¶ 132-37.
Plaintiff vaguely asserts that EPSD’s “actions and deliberate omissions . . . were the
result of a custom or policy which permitted or condoned . . . Defendant Valdez’[s]
physical, mental, and emotional abuse of Plaintiff . . . .” Id. ¶ 136. More specifically,
Plaintiff alleges that EPSD “failed to adequately screen Defendant Valdez prior to his
licensing and employment, . . . failed to take necessary actions with respect to his
licensure and employment during his tenure as a teacher, . . . [and] failed to adequately
train and supervise Defendant Valdez during his tenure as a teacher . . . .” FAC ¶ 134.
Thus, it appears that Plaintiff is proceeding against EPSD on two theories: first,
that EPSD was deliberately indifferent to a widespread pattern of unconstitutional
misconduct by teachers against students; and second, that EPSD failed to adequately
screen, train, supervise, and “take necessary actions with respect to [Defendant
Valdez’s] licensure and employment,” resulting in Plaintiff’s injuries. Again, to determine

19

if there is a viable claim, the Court looks to the factual allegations of the First Amended
Complaint and assumes them to be true in the light most favorable to the non-movant.
1.

Plaintiff has not alleged facts sufficient to show that EPSD was
deliberately indifferent to a widespread pattern of unconstitutional
misconduct.

“In order to hold [EPSD] liable in this 1983 suit, the plaintiff must establish the
existence of a policy adopted by the board or the existence and maintenance of a board
custom or failure to” adequately screen potential teachers, train and supervise teachers,
or otherwise take necessary actions with respect to teachers’ licensure and
employment. Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cty., Kan., 996 F.2d
1035, 1041 (10th Cir. 1993).
To establish a case based on custom, a plaintiff must prove:
(1) The existence of a continuing, persistent and widespread practice of
unconstitutional misconduct by the school district’s employees;
(2) Deliberate indifference to or tacit approval of such misconduct by the
school district’s policymaking officials (board) after notice to the officials of
that particular misconduct; and
(3) That the plaintiff was injured by virtue of the unconstitutional acts
pursuant to the board’s custom and that the custom was the moving force
behind the unconstitutional acts.
Id. Plaintiff makes various allegations in his First Amended Complaint regarding EPSD,
but he fails to sufficiently demonstrate that his § 1983 claim against EPSD is plausible.
Plaintiff has alleged the following instances of misconduct by EPSD employees:
(1) Mr. Montoya, an EPSD teacher, sexually assaulted nine students for which he
pleaded no contest to eight counts of battery in 2014 (id. ¶¶ 37, 39); (2) unidentified
teachers “behav[ed] angrily towards their students by getting in their faces and

20

screaming at them” (id. ¶ 43); (3) “Defendant Valdez physically battered a female
student at Sombrillo Elementary School in 2014” (id. ¶ 33); (4) Defendant Valdez pulled
up Plaintiff’s underwear about a month prior to the November 18, 2015 incident (id.
¶ 34); and (5) Defendant Valdez physically battered three students on November 18,
2015 (id. ¶¶ 47-56).5 See also Doc. 15 at 6. The School Defendants do not specifically
argue that these instances of misconduct do not meet the first prong, thus, the Court will
assume for purposes of this motion that Plaintiff has sufficiently alleged “a continuing,
persistent and widespread practice of unconstitutional misconduct by [EPSD’s]
employees.” See Gates, 996 F.2d at 1041.
Even assuming that Plaintiff’s complaint alleges a widespread pattern of
misconduct, Plaintiff fails to make factual allegations sufficient to show that EPSD knew
of the misconduct and was deliberately indifferent to or tacitly approved of it. Plaintiff
makes very few allegations regarding what actual notice EPSD had about the teachers’
alleged misconduct towards students. Plaintiff includes no allegations regarding what
notice EPSD had about Mr. Montoya’s misconduct – Plaintiff simply states that he
pleaded no contest to eight counts of battery. FAC ¶¶ 37-40. Plaintiff alleges that “one
of the students disclosed an instance of inappropriate contact” by Mr. Montoya to
another teacher, but the teacher “did not report it” and no allegation that EPSD
otherwise knew. Id. ¶ 38. Likewise, Plaintiff makes no allegations that EPSD was aware
of the unidentified teachers who screamed at students, Defendant Valdez physically

5

Plaintiff makes other allegations regarding Defendant Valdez, but they did not occur in his
capacity as a teacher with EPSD. See FAC ¶¶ 12-30.

21

battering a female student in 2014, or Defendant Valdez pulling up Plaintiff’s underwear
in 2015.
The only incident of which EPSD clearly had notice is the incident at issue here.6
Rather than being deliberately indifferent to or tacitly approving of Defendant Valdez’s
misconduct, EPSD terminated his employment five days later – on November 23, 2015.
Id. ¶ 89. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114,
1125 (10th Cir. 2008) (noting that where the school district “was aware of several
discrete problems and was working to remedy them[,]” that was “an issue of the
district’s negligence, not its deliberate indifference[;]” thus, “[t]he attempted remedial
measures suggest the district was not deliberately indifferent to or tacitly approving of
the misconduct”). Because Plaintiff’s allegations fail to show that EPSD was deliberately
indifferent to or tacitly approved of a widespread pattern of unconstitutional misconduct,
he is unable to maintain his § 1983 claim against EPSD based on custom.
2.

Plaintiff has not alleged facts sufficient to show that any failure on
the part of EPSD to adequately screen, train, or otherwise supervise
Defendant Valdez is actionable under § 1983.

Plaintiff also brings a claim for municipal liability on the basis that EPSD “failed to
adequately screen Defendant Valdez prior to his licensing and employment, . . . failed to
take necessary actions with respect to his licensure and employment during his tenure
as a teacher, . . . [and] failed to adequately train and supervise Defendant Valdez during

6

Plaintiff does not specifically assert that Defendant Engler qualifies as a “policymaking official”
under the second prong. See FAC; Doc. 15. Even if he did argue that Defendant Engler was a
policymaking official, there are insufficient factual allegations to show that Defendant Engler had
actual notice of any instance of misconduct (other than the November 18, 2015 incident) and
was either deliberately indifferent to or tacitly approved of the misconduct.

22

his tenure as a teacher . . . .” FAC ¶ 134. The Court turns first to Plaintiff’s contention
that EPSD failed to adequately screen Defendant Valdez.
Municipal liability under § 1983 may arise for a failure to adequately screen a
potential employee where a plaintiff “demonstrate[s] that a municipal decision reflects
deliberate indifference to the risk that a violation of a particular constitutional or statutory
right will follow the decision.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520
U.S. 397, 411 (1997). “The deliberate indifference standard may be satisfied when the
municipality has actual or constructive notice that its action or failure to act is
substantially certain to result in a constitutional violation, and it consciously or
deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299,
1307 (10th Cir. 1998) (citing Brown, 520 U.S. at 407). “In most instances, notice can be
established by proving the existence of a pattern of tortious conduct.” Id. (citing Brown,
520 U.S. at 409-10). “In a narrow range of circumstances, however, deliberate
indifference may be found absent a pattern of unconstitutional behavior if a violation of
federal rights is a ‘highly predictable’ or ‘plainly obvious’ consequence of a municipality’s
action or inaction . . . .” Id. at 1307-08 (citing Brown, 520 U.S. at 409; City of Canton,
Ohio v. Harris, 489 U.S. 378, 390 & n.10 (1989)).
Plaintiff contends that EPSD was deliberately indifferent to Defendant Valdez’s
history of criminal complaints, most of which revolve around criminal sexual contact.
Plaintiff attempts to show a “pattern” by EPSD, as it also hired Mr. Montoya “despite
numerous prior allegations of sexual abuse or sexual harassment of students by him in
[other school districts], which resulted in the one-year suspension of his license in
1999.” FAC ¶ 40. The problem with Plaintiff’s argument is that Defendant Valdez’s

23

background is relevant to sexual misconduct, yet the constitutional violation alleged
here had nothing to do with sexual misconduct – it was a non-sexual physical battery.
Thus, the two instances Plaintiff points to are not sufficient to show a “pattern,” and
Plaintiff must allege facts to demonstrate that “that this [teacher] was highly likely to
inflict the particular injury suffered by the plaintiff.” Brown, 520 U.S. at 412 (emphasis in
original). “The connection between the background of the particular applicant and the
specific constitutional violation alleged must be strong.” Id. Plaintiff must show that
Defendant Valdez’s background made his unconstitutional misconduct – punching and
screaming at Plaintiff – “a plainly obvious consequence of the hiring decision.” Id.
Plaintiff has simply not alleged facts sufficient to make this connection; thus, he cannot
maintain a § 1983 claim under this theory.
Plaintiff also contends that EPSD failed to adequately train, supervise, or “take
necessary actions with respect to [Defendant Valdez’s] licensure and employment”
while he taught at Sombrillo Elementary. See FAC ¶ 134. Plaintiff makes no attempt to
define what “necessary actions” EPSD failed to take regarding Defendant Valdez’s
licensure or employment. Consequently, Plaintiff may not maintain a § 1983 claim under
that theory.
Plaintiff’s theory that EPSD did not adequately train or supervise Defendant
Valdez fails for similar reasons. “[M]unicipal liability may be based on injuries caused by
a failure to adequately train or supervise employees, so long as that failure results from
‘deliberate indifference’ to the injuries that may be caused.” Brammer-Hoelter v. Twin
Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010) (quoting City of Canton, 489
U.S. at 388-91). Plaintiff only vaguely asserts that EPSD failed to train or supervise

24

Defendant Valdez. It is unclear what training EPSD failed to provide, and the Court
declines to speculate on this point. It is also unclear how EPSD failed to supervise
Defendant Valdez. While Plaintiff asserts that Defendant Valdez physically battered a
female student in 2014 and pulled up Plaintiff’s underwear in 2015, Plaintiff makes no
allegations that Defendant Valdez was allowed to commit these acts due to any failure
on EPSD’s fault to supervise him. And because Plaintiff has not made any allegations to
show that EPSD had notice of these incidents, Plaintiff cannot show that EPSD’s failure
to train or supervise “reflect[ed] a ‘deliberate’’ or ‘conscious’ choice” on EPSD’s part to
disregard the risk of harm Defendant Valdez may have posed. Barney, 143 F.3d at
1307 (quoting City of Canton, 489 U.S. at 389). Plaintiff has simply not made any
specific allegations to support his § 1983 claim that EPSD failed to adequately train or
supervise.
Because Plaintiff has failed to allege facts to state a plausible claim for relief
under § 1983 against EPSD, the Court will grant Defendant’s motion to dismiss on
Count II.
C.

The Court will deny Plaintiff’s motion to dismiss pursuant to Rule 41
and grant Defendants’ motion to dismiss Counts III and IV.

In Count III, Plaintiff asserts a claim against Defendant Engler in his individual
capacity for violating his Fourteenth Amendment right to substantive due process under
42 U.S.C. § 1983. FAC ¶¶ 138-48. In Count IV, Plaintiff asserts a claim against EPSD
under Title IX, 20 U.S.C. §§ 1681-88. Id. ¶¶ 149-62. In his Response to the School
Defendants’ motion to dismiss, Plaintiff apparently acknowledges that he fails to assert
facts sufficient to maintain his claims for relief in Counts III and IV, as he volunteers to

25

dismiss both without prejudice. See Doc. 15 at 2. Indeed, Plaintiff then filed an Opposed
Motion to Dismiss Counts III and IV without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i). Doc. 33.
Even overlooking the admitted procedural deficiencies of Plaintiff’s motion, the
motion to dismiss these two claims lacks merit.
Rule 41(a) refers to dismissing “an action,” and not to dismissing individual
claims or causes of action. . . . An “action,” however, for rule 41(a)'s
purposes, refers, not to all the claims against all defendants in the case,
but to all the claims asserted against a single defendant. . . . “Rule 41(a)
may not be employed to dismiss fewer than all of the claims against any
particular defendant.”
Pedroza v. Lomas Auto Mall, Inc., 304 F.R.D. 307, 322 (D.N.M. 2014) (quoting 8 James
Wm. Moore et al., Moore's Federal Practice § 41.21[1] (3d ed. 2012); see also Gobbo
Farms & Orchards v. Poole Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996) (finding no
authority “to support [a] contention that Rule 41(a) applies to dismissal of less than all
claims in an action.”). Because Plaintiff did not seek to dismiss all of his claims against
Defendant Engler or all his claims against Defendant EPSD, voluntary dismissal
pursuant to Rule 41(a) is not permitted.
Nevertheless, the Court agrees that for the reasons set forth in the School
Defendants’ Motion to Dismiss, the factual allegations of the First Amended Complaint
fail to state a viable Section 1983 claim against Defendant Engler. Thus, he is entitled to
qualified immunity from suit. Similarly, Count IV of the First Amended Complaint fails to
make sufficient factual allegations to support a finding of a Title IX sex discrimination
claim against Defendant EPSD. Therefore, the Court will dismiss both Counts III and IV
with prejudice.

26

D.

The Court will not dismiss Count V – Plaintiff’s claims against the
School Defendants under the NMTCA.

In Count V, Plaintiff asserts a claim against Defendants EPSD and Engler for
violating his rights under the NMTCA. See FAC ¶¶ 163-78. Specifically, Plaintiff alleges
that the School Defendants had a duty under N.M. Stat. Ann. § 41-4-6 “to exercise
reasonable care in the maintenance and operation of Sombrillo Elementary” and failed
to maintain the facility in a safe condition. Id. ¶¶ 166-67, 173. Section 41-4-6 waives
immunity “for damages resulting from bodily injury, wrongful death or property damage
caused by the negligence of public employees while acting within the scope of their
duties in the operation or maintenance of any building, public park, machinery,
equipment or furnishings.” N.M. Stat. Ann. § 41-4-6(A).
Plaintiff expressly alleges that the School Defendants violated § 41-4-6 by
“repeatedly ignor[ing] the warning signs and the readily observable inappropriate
behavior of Defendant Valdez toward students, including [Plaintiff], as well as [by]
ignor[ing] Defendant Valdez’[s] criminal history.” Id. ¶ 173. Plaintiff further asserts that
EPSD “breached its duties of care by failing to properly screen, hire, train, monitor,
supervise and discipline employees of Sombrillo Elementary School, such as Defendant
Valdez, as well as by failing to enact or enforce appropriate policies, procedures and
protocols concerning safety in student-teacher interactions, and by” failing to take
appropriate “supervisory actions to correct the potential problems and prevent the harm
and injuries incurred by Plaintiff . . . .” Id. ¶ 176.
“The NMTCA is based on traditional tort concepts of duty and a reasonably
prudent person’s standard of care while performing that duty.” C.H. v. Los Lunas Sch.

27

Bd. of Educ., 852 F. Supp. 2d 1344, 1351 (D.N.M. 2012) (citing N.M. Stat. Ann. 1978,
§ 41-4-2(B)). To recover under § 41-4-6, a plaintiff must show that the defendant’s
“negligent operation or maintenance [has] create[d] a dangerous condition that
threatens the general public or a class of building users . . . .” Id. (citation omitted). A
finding of negligent supervision alone will not suffice because it is well-established law
that the NMCTA contains no waiver of liability for negligent supervision. See Pemberton
v. Cordova, 734 P.2d 254, 256 (N.M. Ct. App. 1987); see also Doe v. Albuquerque Pub.
Schs., 2018 WL 2422013, at *7 (wherein Chief Judge William P. Johnson observes,
“Claims of negligent supervision do not trigger a waiver of liability under the New Mexico
Tort Claims Act.”).
The School Defendants contend that Plaintiff fails to assert sufficiently specific
factual allegations to show “what actions or inactions Defendants EPSD or Engler
committed to personally injure Plaintiff.” Doc. 6 at 19. Moreover, the School Defendants
contend that Plaintiff must allege specific facts showing they had actual notice of
inappropriate conduct with students by Defendant Valdez. Id.
Plaintiff disputes that “actual notice” is required. In his Response, Plaintiff
correctly cites to Castillo v. Santa Fe County, 107 N.M. 204, 207 (1988) for the following
proposition: the School Defendants are liable if they were “plainly aware or should have
been aware of the continuing problem” the district has with student abuse, specifically at
the hands of educators with demonstrated histories of abusive behavior. See Doc. 15 at
15 (emphasis added); see also C.H., 852 F. Supp. 2d at 1361 (to state a claim under
§ 41-4-6, a plaintiff “need not assert that the Defendants knew that a dangerous

28

condition existed[,] . . . [i]t is sufficient that [plaintiff] alleged that Defendants should have
foreseen that the [condition] would pose a danger to” a class of building users).
As the Court noted above, however, Plaintiff fails to include specific factual
allegations to demonstrate that either of the School Defendants knew or should have
known that Defendant Valdez was prone to physically abusing his students. There are
no allegations to show that either Defendant had notice of Defendant Valdez’s previous
conduct towards students (physically battering a female student in 2014 or pulling up
Plaintiff’s underwear in 2015), and no allegations to show that they knew or should have
known he was going to batter Plaintiff that day.
The First Amended Complaint does allege, however, that Defendants knew or
should have known about Defendant Valdez’s criminal history including assaultive
conduct towards non-students. FAC ¶ 141. In the context of Plaintiff’s Section 1983
claim above, the Court found that there must be a “strong” connection “between the
background of the particular applicant and the specific constitutional violation
alleged . . . .” See Brown, 520 U.S. at 412. But under the NMTCA, the standard is lower
– the dangerous condition must only make the danger foreseeable. See Callaway v.
N.M. Dep’t of Corr., 875 P.2d 393, 399 (N.M. Ct. App. 1994) (noting that state actors
may be liable for a dangerous condition where the state actors “knew or should have
known of the danger and that the danger was foreseeable”) (citation omitted).
Defendants argue that Defendant Valdez’s past criminal history cannot provide
“notice” of dangerousness because the misconduct alleged here is not sexual in nature.
See Doc. 6 at 20 n.9. The Court disagrees and finds that this is a question of fact. If
either Defendant knew or should have known about Defendant Valdez’s criminal history,

29

which includes allegations of both unlawful contact with a minor and physical (albeit
sexually related) battery of adults, it is possible that a jury could find that the Defendants
had a duty to protect Sombrillo Elementary students from a potentially unsafe condition
and that the danger to students was foreseeable. See Callaway, 875 P.2d at 399
(finding that immunity was waived under § 41-4-6 where a prison negligently allowed
“known and dangerous gang members loose to victimize the general prison
population”).
To be clear, Defendant Engler cannot be found vicariously liable under § 41-4-6
for Defendant Valdez’s actions. See Silva v. New Mexico, 745 P.2d 380, 386 (N.M.
1987) (while an individual defendant “may be liable for negligent performance of a duty,
he is not subject to liability because of the negligent act or omission of some other
employee, merely because of his executive position”) (citation omitted). Insofar as
Defendant Engler’s responsibilities included monitoring staff or creating and enforcing
safety policies that would have kept Plaintiff safe, he may be liable if he failed to perform
those responsibilities. See id.; see also C.H., 852 F. Supp. 2d at 1358 (finding that the
NMTCA applied to individual defendants where the plaintiff alleged that the defendants
acted within “the scope of their duties as school employees[,] . . . had a duty to exercise
reasonable care” under § 41-4-6, the duty was owed to plaintiff, and the defendants
breached the duty); Upton v. Clovis Mun. Sch. Dist., 141 P.3d 1259, 1262 (N.M. 2006)
(finding that a school district’s “failure to follow procedures established for at-risk
students appears to fall comfortably within the Section 41-4-6 waiver for ‘operation or
maintenance’ of a public building”). Thus, at this stage of the litigation, the Court finds

30

Plaintiff’s allegations sufficient for survival of the NMTCA claim in the context of this
motion to dismiss.
E.

The Court will deny Plaintiff’s requests for limited discovery, to
convert the motion to dismiss into one for summary judgment, and
to amend his complaint.

Plaintiff includes three requests in his Response to Defendants’ motion to
dismiss. First, Plaintiff asks “for an order to convert[ ] the Motion to Dismiss into a
motion for summary judgment and to allow Plaintiff to conduct . . . limited discovery
. . . .” Doc. 15 at 15-16. Plaintiff premises this motion on Rules 12(d) and 56(d), neither
of which provide an appropriate vehicle for plaintiff’s request. The Court did not consider
any matters outside of the pleading in deciding the School Defendants’ motion, which
was properly styled as a motion to dismiss. The Court finds no reason to convert it to a
summary judgment motion or permit limited discovery.
Second, Plaintiff seeks permission to amend his complaint. Plaintiff, however,
does not comply with this Court’s local rules, which provide that “[a] proposed
amendment to a pleading must accompany the motion to amend.” D.N.M. LR-Civ. 15.1.
The Court therefore will deny Plaintiff’s request. If Plaintiff wishes to file an amended
complaint, he must file a motion that conforms to Federal Rule of Civil Procedure 15
and our Local Rules.
IV.

Conclusion
Plaintiff’s Motion and Requests: The Court denies Plaintiff’s Opposed Motion to

Dismiss Counts III and IV pursuant to Rule 41(a) of the Federal Rules of Civil
Procedure. The Court also denies Plaintiff’s requests for discovery, to convert the
motion to dismiss into one for summary judgment, and to amend his complaint.

31

Count I:

Plaintiff’s factual allegations are sufficient to overcome Defendant

Valdez’s qualified immunity defense under § 1983, and the Court denies Defendant
Valdez’s motion to dismiss.
Count II:

Because Plaintiff fails to make factual allegations sufficient to

maintain his § 1983 claim against EPSD, Count II will be dismissed with prejudice.
Counts III: Because Plaintiff’s allegations fail to state a § 1983 claim against
Defendant Engler such that he is entitled to qualified immunity, Count III will be
dismissed with prejudice.
Count IV:

Because Plaintiff’s allegations fail to state a viable Title IX claim

against Defendant EPSD, Count III will be dismissed with prejudice.
Count V:

Because Plaintiff’s allegations are sufficient to withstand the School

Defendants’ motion to dismiss his NMTCA claim pursuant to § 41-4-6, the Court denies
the Defendants’ motion to dismiss as to Count V.
Wherefore,
IT IS HEREBY ORDERED as follows: Plaintiff’s Opposed Motion to Dismiss
Counts III and IV (Doc. 33) is denied; Defendant Andrew Valdez’s Motion to Dismiss
and for Qualified Immunity (Doc. 16) is denied; and Defendants Board of Education of
the Española Public School District and Peter Engler’s Motion to Dismiss and for
Qualified Immunity (Doc. 6) is granted in part and denied in part as described above.

________________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

32