Gallegos v. Bernalillo County Board of County Commissioners et al

Filing 82

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting Defendant New Mexico Department of Corrections' Motion for Summary Judgment and Memorandum Brief in Support Thereof 67 , and denying in part Plaintiff's Motion to File a Second Amended Complaint 58 . (jdf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARTIN GALLEGOS,
Plaintiff,
vs.

No. CIV 16-0127 JB/WPL

BERNALILLO COUNTY BOARD OF
COMMISSIONERS; BERNALILLO COUNTY
DETENTION CENTER; NEW MEXICO
DEPARTMENT OF CORRECTIONS, and
JOHN DOES 1 through 5,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) Defendant New Mexico Department of
Corrections’ Motion for Summary Judgment and Memorandum Brief in Support Thereof, filed
April 7, 2017 (Doc. 67)(“MSJ”); and (ii) the Plaintiff’s Motion to File a Second Amended
Complaint, filed February 17, 2017 (Doc. 58)(“Motion to Amend”). The Court held a hearing on
June 2, 2017. The primary issues are: (i) whether Defendant New Mexico Department of
Corrections is entitled to summary judgment, because the New Mexico Corrections Department
enjoys sovereign immunity from Plaintiff Martin Gallegos’ suit, including Gallegos’ state tort
claim and his 42 U.S.C. § 1983 claim that the New Mexico Corrections Department inflicted
cruel and unusual punishment on him in violation of the Eighth Amendment to the Constitution
of the United States of America by receiving him into custody such that Gallegos was without
methadone; (ii) whether the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to -30
(“NMTCA”), waives the New Mexico Corrections Department’s Eleventh Amendment
immunity from Gallegos’ state tort claims for receiving him into custody such that Gallegos was
without methadone; (iii) whether § 41-4-6(A)’s waiver provision does not apply, because the

New Mexico Corrections Department failed to implement a safety policy regarding the provision
of methadone necessary to protect those who use the building that housed Gallegos; (iv) whether
§ 41-4-6(A)’s waiver provision does not apply, because Gallegos’ state tort claim is predicated
on a single, discrete administrative act affecting only himself; (v) whether Gallegos’ proposed
amendment to add Mr. James Brewster, the New Mexico Corrections Department’s General
Counsel, is futile, because Mr. Brewster is immune from Gallegos’ claims to the extent that they
are based on Brewster’s enforcement of facially-valid court orders; and (vi) whether the Court
should deny Gallegos’ proposed amendment to add Mr. Brewster as a defendant as futile,
because Mr. Brewster was neither negligent nor deliberately indifferent to Gallegos’ withdrawal
symptoms.
The Court concludes that: (i) the New Mexico Corrections Department is entitled to
summary judgment on Gallegos’ claims, because the New Mexico Corrections Department
enjoys sovereign immunity from Gallegos’ suit; (ii) the NMTCA does not waive the New
Mexico Corrections Department’s Eleventh Amendment immunity from Gallegos’ state tort
claim; (iii) even if the NMTCA waives the New Mexico Corrections Department’s Eleventh
Amendment immunity from Gallegos’ state tort claim, § 41-4-6(A)’s waiver provision does not
apply, because Gallegos has not sufficiently demonstrated that the New Mexico Corrections
Department failed to implement a safety policy necessary to protect those who use the building
that housed him; (iv) even if the NMTCA waives the New Mexico Corrections Department’s
Eleventh Amendment immunity to Gallegos’ state tort claims, § 41-4-6(A)’s waiver provision
does not apply, because § 41-4-6(A) does not waive the New Mexico Corrections Department’s
immunity from Gallegos’ state tort claim to the extent that Gallegos’ state tort claim is
predicated on a single, discrete administrative act affecting only himself; (v) Gallegos’ proposed

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amendment to add Mr. Brewster as a defendant is futile, because Mr. Brewster is immune from
Gallegos’ claims to the extent that Gallegos’ claims are based on Mr. Brewster’s enforcement of
facially valid court orders; and (vi) Gallegos’ proposed amendment to add Mr. Brewster as a
defendant is futile, because Mr. Brewster was neither negligent nor deliberately indifferent to
Gallegos’ withdrawal symptoms. Accordingly, the Court grants the MSJ and denies in part the
Motion to Amend to the extent that Gallegos proposes to add Mr. Brewster as a defendant.
FACTUAL BACKGROUND
The Court draws the factual background from the parties’ assertions of undisputed
material fact in their summary judgment motion papers. See MSJ ¶¶ 1-12, at 2-4; Plaintiff’s
Response to Defendant New Mexico Department of Corrections Motion for Summary Judgment
¶¶ 13-26, at 1-4, filed April 24, 2017 (Doc. 68)(“Response); Reply to Plaintiff’s Response to
Defendant New Mexico Department of Corrections’ Motion for Summary Judgment and
Memorandum Brief in Support Thereof ¶¶ 13-26, at 1-4, filed May 8, 2017 (Doc. 69)(“Reply”).
1.

Gallegos’ Remand to the Metropolitan Detention Center and Subsequent
Transfer to the New Mexico Corrections Department.

On November 6, 2014, the Honorable Michael Martinez, District Court Judge Pro Tem
for the Second Judicial District Court, County of Bernalillo, State of New Mexico, remanded
Gallegos to the Metropolitan Detention Center (“MDC”) in Albuquerque, New Mexico. See
MSJ ¶ 1, at 2 (asserting this fact); Response at 1 (admitting this fact). See also Order Remanding
Defendant to Metropolitan Detention Center (MDC) ¶ 3A, at 1 (filed in state court on November
6, 2014), filed in federal court on April 7, 2017 (Doc. 67-1)(“Remand Order”).1 The Remand

1

In the Response, Gallegos asserts that he “was remanded to Metropolitan Detention
Center (‘MDC’) according to a ‘Titration Order,’” which Gallegos alleges was “scanned to
MDC.” Response ¶ 14, at 1-2 (internal quotation marks omitted). Gallegos asserts that the
remand order stated: (i) that Gallegos “shall be remanded to the Metropolitan Detention Center”;
-3-

Order states that Gallegos shall remain in the MDC’s custody “until his level of methadone[2]
treatment has reached a point where he will not incur life-endangering withdrawal symptoms
upon transfer” to the New Mexico Corrections Department. MSJ ¶ 1, at 2 (asserting this fact).
See Response at 1 (admitting this fact); Remand Order ¶ 3.C, at 1-2. Gallegos asserts that “[i]t is
clear that the Titration[3] orders such as these were used frequently, by the District Court, for
people who were on methadone.” Response ¶ 21, at 3 (citing Deposition of Douglas Wilber at
32:18-33:1; id. at 33:10-25 (taken February 9, 2017)(Lawless, Wilber), filed April 7, 2016 (Doc.
68-1)(“Wilber Depo.”). See Reply ¶ 21, at 3 (not disputing the factual allegation).4 The court

(ii) that Gallegos “shall be enrolled and participate in the Methadone Program at the
Metropolitan Detention Center (MDC) in order to decrease his levels of dependency”; and (iii)
that Gallegos “shall remain in custody of the Metropolitan Detention Center (MDC) until his
level of methadone treatment has reached a point where [Gallegos] will not incur lifeendangering withdrawal symptoms upon transfer to the Department of Corrections, where he is
to serve the remainder of his sentence.” Response ¶ 14, at 2 (emphasis in original). See Remand
Order ¶ 3, at 1. In reply to these allegations, the Department of Corrections “admits that there
was an Order Remanding Defendant to Metropolitan Detention Center . . . .” Reply ¶ 14, at 1.
See Remand Order ¶ 3, at 1. Thus, the parties do not dispute that there is a Remand Order
remanding Gallegos to MDC.
2

Methadone, sold under the brand name Dolophine, among others, is
an opioid used to treat pain and/or as maintenance therapy or to help with tapering
in people with opioid dependence. Detoxification using methadone can either be
done relatively rapidly in less than a month or gradually over as long as six
months. While a single dose has a rapid effect, maximum effect can take five
days of use. The effects last about six hours after a single dose and a day and a
half after long-term use in people with normal liver function. Methadone is
almost always taken by mouth and rarely by injection into a muscle or vein.
“Methadone,” Wikipedia, https://en.wikipedia.org/wiki/Methadone (last viewed, June 21, 2017).
3

A titration is the “continual adjustment of a dose based on patient response. Dosages are
adjusted until the desired effect is achieved.” titration dose, Medical Dictionary for the Health
Professions and Nursing (2012), http://medical-dictionary.thefreedictionary.com/titration+dose
(last viewed June 22, 2017).
4

Although the New Mexico Corrections Department does not specifically dispute the
factual allegation that the state court frequently enters titration orders, the New Mexico
-4-

filed the Remand Order on November 6, 2014. See Remand Order at 1.5 The Remand Order
states that it was to remain in effect for six weeks at maximum. See MSJ ¶ 1, at 2 (asserting this
fact); Response at 1 (admitting this fact). See also Remand Order at ¶ 4, at 2.
Corrections Department “denies that Mr. Wilber’s deposition testimony provides support for the
statement.” Reply ¶ 21, at 3. Mr. Wilber’s deposition testimony provides:
Q. Titration orders, you mentioned that you’ve been involved in some.
A. Yes.
Q. What about -- but you also mentioned that probation violation sees a
lot of these. Is that a fair statement?
A. Yeah. In our -- in the probation violation courtroom, they are entered
on what I would say is a pretty regular basis.
Q. And do they all occur the same way? In other words, the judge enters
an order sending somebody to the Department of Corrections and then enters an
order saying don’t sent them until this titration order is completed? . . . As far as
you can recall.
A. I would say that yes, in general, in my experience, that’s how it works.
That’s kind of the only reason for a titration order generally, because of that
specific situation, what we call a titration order, I don’t know if it’s really a
common term. It’s how we refer to them in our office. And so it’s almost a
probation-specific term, but yes.
Q. So they go in the same day -- here’s the sentence to DOC -- and then
hold it for a while because there is a titration order to get them to reduce
methadone dependency, is that fair?
A. I would say that’s normally how it works. I think sometimes the
titration order might get entered later if the issue isn’t discovered until maybe the
day after the sentencing. But usually it’s the intent to have them entered together.
Wilber Depo. 32:18-33:25 (Lawless, Wilber). Accordingly, the Court deems the fact that the
state court frequently enters titration orders as undisputed. See D.N.M.L.R.-Civ. 56.1(b)(“All
material facts set forth in the Response will be deemed undisputed unless specifically
controverted.”).
5

See Fed. R. Civ. P. 56(c)(3)(“The court need consider only the cited materials, but it
may consider other materials in the record.”).
-5-

On November 7, 2014, Judge Martinez committed Gallegos to the New Mexico
Corrections Department. See MSJ ¶ 2, at 2 (asserting this fact); Response at 1 (admitting this
fact).

The state court sentenced Gallegos to serve an 834-day term in the New Mexico

Corrections Department, beginning on November 6, 2014. See MSJ ¶¶ 2-3, at 2 (asserting this
fact); Response at 1 (admitting this fact); Response ¶ 16, at 2 (asserting this fact); Reply ¶ 16, at
2 (admitting this fact). See also First Order Revoking Probation at 2, filed in state court on
November 6, 2014, filed in federal court on April 7, 2017 (Doc. 67-2)(“First Order Revoking
Probation”); Judgment, Sentence, and Order Suspending Sentence, filed in state court on
November 7, 2017, filed in federal court on April 7, 2017 (Doc. 67-3)(“State Court Judgment,
Sentence, and Order Suspending Sentence”). “On page two of the [probation revocation] order,
the space entitled ‘MDC’ is crossed out and there is a handwritten note that says ‘No MDC.’”
MSJ ¶ 2, at 2 (alteration added)(asserting this fact)(quoting First Order Revoking Probation at 2);
Response at 1 (admitting this fact). “[T]he Titration Order [i.e., the Remand Order] was signed
out [sic] the same day as” the First Order Revoking Probation and the State Court Judgment,
Sentence, and Order Suspending Sentence -- November 6, 2014. Response ¶ 15, at 2 (asserting
this fact). See Reply ¶ 15, at 2 (not disputing this fact).6 The New Mexico Corrections
Department received Gallegos from the Bernalillo County Sheriff’s Department on November
12, 2014, at 9:00 a.m. See MSJ ¶ 4, at 2 (asserting this fact); Response at 1 (admitting this fact).

6

The New Mexico Corrections Department admits that the Remand Order; the First Order
Revoking Probation; and the State Court Judgment, Sentence, and Order Suspending
Sentence “appear to all have been signed by Judge Martinez on the same day, November 6,
2014.” Reply ¶ 15, at 2 (asserting this fact). The New Mexico Corrections Department
maintains, however, that the state court filed only the Remand Order on November 6, 2014. See
Reply ¶ 15, at 2 (asserting this fact). See also Remand Order at 1. The Court deems that fact
undisputed. See Remand Order at 1; First Order Revoking Probation at 1; State Court Judgment,
Sentence, and Order Suspending Sentence at 1. See also Fed. R. Civ. P. 56(c)(3)(“The court need
consider only the cited materials, but it may consider other materials in the record.”).
-6-

See also New Mexico Corrections Department Receipt of State Prisoner, filed April 7, 2017
(Doc. 67-4). Gallegos received a methadone dose on the day that he was transferred from MDC
to the New Mexico Corrections Department. See Response ¶ 22, at 3 (alleging this fact); Reply ¶
22, at 3 (alleging this fact).7
2.

Discussions Between Gallegos’ Counsel and the New Mexico Corrections
Department Concerning Gallegos’ Treatment.

Mr. Douglas Wilber, Gallegos’ counsel in the state criminal matter, “was notified that
[Gallegos] was no longer at MDC and had been transferred.” Response ¶ 17, at 2 (citing Wilber
Depo. at 9:1-25 (Wilber). See Reply ¶ 17, at 2 (not contesting this assertion). Mr. Wilber then
contacted the New Mexico Corrections Department, because, according to Mr. Wilber, “we had
[an] entered order that I thought would take care of it. So at this point, I thought I needed to
figure out why it appeared that the order had been missed or whatever the situation was.”
Response ¶ 17, at 2 (citing Wilber Depo. at 14:14-17 (Wilber)). See Reply ¶ 17, at 2 (not
disputing the factual allegation and “admit[ting] that Mr. Wilber made these statements in his
deposition”)(alteration added).8 After Mr. Wilber discovered that Gallegos had been transferred

7

The parties dispute how much methadone Gallegos received at MDC. See Response ¶
22, at 3; Reply ¶ 22, at 3. According to Gallegos,
At the point of transfer, [he] was stepped down to 180 milligrams of methadone
when he was taken to the Department of Corrections. The step down was
occurring at 5 milligrams per day to take approximately 40 to 45 days before
Gallegos would be in a position to be transferred to avoid the life endangering
symptoms.
Response ¶ 22, at 3 (citing Wilber Depo. at 28:22-25). The New Mexico Corrections
Department counters that “[t]he medical records establish that on November 12, 2014, when
[Gallegos] was transported from MDC, he was given a dose of 155 milligrams of methadone.”
Reply ¶ 22, at 3. See Medication History -- Gallegos, Martin, filed May 8, 2017 (Doc. 691)(“Gallegos Medication History”).
8

The Court deems this fact undisputed. See D.N.M.L.R.-Civ. 56.1(b)(“All material facts
-7-

to the New Mexico Corrections Department, Mr. Wilber contacted Mr. Brewster, New Mexico
Corrections Department General Counsel, on November 24, 2014. See MSJ ¶ 5, at 3 (asserting
this fact); Response at 1 (admitting this fact). See also Affidavit of Douglas Wilber (dated
November 23, 2015), filed April 7, 2017 (Doc. 67-5); Email from Douglas Wilber to James
Brewster at 1 (dated November 24, 2014, 1:51 p.m.), filed April 7, 2017 (Doc. 67-6)(“November
24, 2014, 1:51 p.m. Email from Wilber to Brewster”)(“I’m not sure if there was a mixup at
MDC, but [Gallegos] was apparently transported with NO methadone step down . . . and he is in
pretty bad shape.”).9
Mr. Brewster replied to Mr. Wilber, requesting “all relevant orders in order to properly
assess this matter and [Mr. Wilber’s’] request.” Email from James Brewster to Douglas Wilber
at 1 (dated November 24, 2014, 1:57 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014,
1:57 p.m. Email from Brewster to Wilber”). See MSJ ¶ 6, at 3 (asserting this fact); Response at
1 (admitting this fact). Mr. Wilber promptly sent Mr. Brewster the orders pertaining to Gallegos’
custody. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). See also
Email from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:07 p.m.), filed
April 7, 2017 (Doc. 67-6)(“November 24, 2014, 2:07 p.m. Email from Wilber to Brewster”).
Mr. Brewster indicated to Mr. Wilber that Mr. Brewster would direct the New Mexico
Corrections Department’s medical vendor to assess and to treat Gallegos. See MSJ ¶ 7, at 3
(asserting this fact); Response at 1 (admitting this fact). See also Email from James Brewster to
Douglas Wilber at 1 (dated November 24, 2014, 2:45 p.m.), filed April 7, 2017 (Doc. 676)(“November 24, 2014, 2:45 p.m. Email from Brewster to Wilber”). Mr. Brewster explained
set forth in the Response will be deemed undisputed unless specifically controverted.”).
9

See Fed. R. Civ. P. 56(c)(3)(“The court need consider only the cited materials, but it
may consider other materials in the record.”).
-8-

that he could not guarantee that Gallegos would receive methadone. See MSJ ¶ 7, at 3 (asserting
this fact); Response at 1 (admitting this fact). See also November 24, 2014, 2:45 p.m. Email
from Brewster to Wilber at 1. Mr. Brewster “was fully aware that medical detoxification was
authorized but that titration did not occur at the DOC facilities since methadone was not used in
any way at those facilities.” Response ¶ 23, at 4 (asserting this fact)(citing New Mexico
Department of Corrections Reg. CD-170100.U-V, filed April 24, 2017 (Doc. 68-2)(“New
Mexico Department of Corrections Reg. CD-170100.U-V”); Reply at ¶ 23, at 3 (not disputing
this fact).10 See November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1.
Mr. Brewster also indicated that, while the state court’s first order had remanded
Gallegos to MDC for six weeks before Gallegos was to be transferred to the New Mexico
Corrections Department, the state court’s second order “apparently sends him to NMCD the very
next day[.]” November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 7, at
3 (asserting this fact); Response at 1 (admitting this fact). Mr. Brewster asked Mr. Wilber
whether Mr. Wilber had brought this inconsistency “to the attention of the sentencing judge[.]”
November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 7, at 3 (asserting
this fact); Response at 1 (admitting this fact). Mr. Wilber responded to Mr. Brewster that Mr.
Wilber would “try to see what will work best.” Email from Douglas Wilber to James Brewster at
1 (dated November 24, 2014, 2:56 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014,
2:56 p.m. Email from Wilber to Brewster”). See MSJ ¶ 8, at 3 (asserting this fact); Response at
1 (admitting this fact). Mr. Wilber also asked for Mr. Brewster’s recommendation regarding the
“best wording to say that the sentence would begin on [Gallegos’] release from MDC.” Email

10

The Court deems this fact undisputed. See D.N.M.L.R.-Civ. 56.1(b)(“All material facts
set forth in the Response will be deemed undisputed unless specifically controverted.”).
-9-

from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:56 p.m.), filed April
7, 2017 (Doc. 67-6)(“November 24, 2014, 2:56 p.m. Email from Wilber to Brewster”). See MSJ
¶ 8, at 3 (asserting this fact); Response at 1 (admitting this fact).
On November 26, 2014, Mr. Brewster informed Mr. Wilber that the New Mexico
Corrections Department’s medical service provider, Corizon Health11, was “already aware” of
Gallegos’ medical status, had “a protocol in place to treat him,” and was treating him. Email
from James Brewster to Douglas Wilber at 1 (dated November 26, 2014, 2:51 p.m.), filed April
7, 2017 (Doc. 67-6)(“November 26, 2014, 2:51 p.m. Email from Brewster to Wilber”). See MSJ
¶ 9, at 4 (asserting this fact); Response at 1 (admitting this fact). Mr. Brewster also advised Mr.
Wilber that, as of November 26, 2014, sending Gallegos back to MDC did “not appear to be
needful or helpful.” November 26, 2014, 2:51 p.m. Email from Brewster to Wilber at 1. See
MSJ ¶ 9, at 4 (asserting this fact); Response at 1 (admitting this fact).
Mr. Wilber “never made any effort to contact the sentencing judge and never filed any
motions” related to Gallegos’ transfer to the New Mexico Corrections Department. MSJ ¶ 10, at
4 (asserting this fact). See Response at 1 (admitting this fact). See also Deposition of Douglas
Wilber at 15:11-14 (taken February 9, 2017)(Wilber), filed April 7, 2016 (Doc. 67-7)(“Wilber
Depo.”). Mr. “Wilber did not file any orders or motions ‘to petition Gallegos back to MDC
because,’” according to Mr. Wilber, “‘it was not clear to me that there was anything I could do
once he was transported to DOC . . . I should say that was reinforced or that understanding was
reinforced by my conversations with Mr. Brewster.”

11

Response ¶ 18, at 3 (alteration

Corizon Health is a correctional healthcare provider that provides client partners with
healthcare and reentry services with a focus to improve its patients’ health and safety and reduce
recidivism. See “About Corizon Health,” http://www.corizonhealth.com (last viewed June 21,
2017).
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original)(quoting Wilber Depo. at 14:24-15:3 (Wilber)). See Reply ¶ 18, at 2 (admitting that Mr.
Wilber made these statements in his deposition). According to Mr. Wilber,
[A]lso it appeared to, by the time I understood what was happening and by the
time I was able to start even trying to understand the situation, that it’s quite
possible that the harm was already done, and, like, I couldn’t -- I wouldn’t
realistically be able to reference anything at this point because perhaps I
discovered it somewhat late.
Wilber Depo. at 15:3-10 (Wilber)(alteration added). Mr. Wilber “‘was trying to figure out, as a
practical matter, what [he] would be able to do about the best result for [Gallegos], which was
[Mr. Wilber’s] main concern at the time . . . this was all happening very quickly.’” Response ¶
18, at 3 (third alteration added)(quoting Wilber Depo. at 20:6-12 (Wilber)). See Reply ¶ 19, at 3
(not contesting that Mr. Wilber provided that deposition testimony). Mr. Wilber believed that it
would have been difficult to receive another order from the state court. See Response ¶ 19, at 3
(alleging this fact); Reply ¶ 19, at 3 (not conceding this fact). He also questioned whether
receiving another order from the state court would “even help the client who has already, you
know, been off of methadone at this point for presumably several days.” Wilber Depo. at 21:1725 (Wilber).12
3.

After the New Mexico Corrections Department Received Gallegos into its
Custody, its Medical Service Provider, Corizon Health, Treated Gallegos for
Opiate Withdrawal.

On November 12, 2014, the same day that the New Mexico Corrections Department
received Gallegos into its custody, Corizon Health medical personnel evaluated Gallegos’
withdrawal symptoms and gave him a “Kick Kit to address his withdrawal symptoms.” Corizon
Health Nursing Encounter Tool -- Withdrawal at 1 (dated November 12, 2014), filed May 8,

12

See Fed. R. Civ. P. 56(c)(3)(“The court need consider only the cited materials, but it
may consider other materials in the record.”).
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2017 (Doc. 69-2)(“Nursing Encounter Tool -- Withdrawal”). See New Mexico Corrections
Department Physician’s Orders at 1 (dated November 12, 2014), filed May 8, 2017 (Doc. 693)(“Physician’s Orders”). Further, on November 21, 2014, Gallegos requested another Kick Kit,
indicating it “helped some” and was also prescribed Elavil13 for pain.

See New Mexico

Corrections Department Interdisciplinary Progress Notes at 1 (taken November 21, 2014), filed
May 8, 2017 (Doc. 69-4)(“November 21, 2014 Interdisciplinary Progress Notes”).

Next, on

November 26, 2014, Corizon Health medical personnel denied Gallegos narcotics, but offered
him “Ibuprofen, Tylenol, Mobic[14], Aleve, or Naproxen[15]” to address his pain, but Gallegos
refused. Mexico Corrections Department Interdisciplinary Progress Notes at 1 (taken November
26, 2014), filed May 8, 2017 (Doc. 69-4)(“November 26, 2014 Interdisciplinary Progress
Notes”). Then, on December 3, 2014, a Corizon Health provider conducted another assessment

13

Amitriptyline, sold under the brand name Elavil among others, is a medicine
used to treat a number of mental illnesses. . . . Other uses include prevent of
migraines, treatment of neuropathic pain such as fibromyalgia and postherpetic
neuralgia, and less commonly insomnia. It is in the tricyclic antidepressant
(TCA) class and its exact mechanism of action is unclear. Amitriptyline is taken
by mouth.
Amitriptyline, https://en.wikipedia.org/w/index.php?title=Amitriptyline&oldid=790223000 (last
visited July 31, 2017).
14

Mobic is the trade name for Meloxicam, which “is a nonsteroidal anti-inflammatory
drug (NSAID) with analgesic and fever reducer effects. . . . Meloxicam starts to relieve pain
about
30-60
minutes
after
administration.”
Meloxicam, https://en.wikipedia.org/w/index.php?title=Meloxicam&oldid=790729116 (last
visited July 31, 2017).
15

“Naproxen (brand names: Aleve, Naprosyn, and many others) is a nonsteroidal antiinflammatory drug (NSAID) of the propionic acid class (the same class as ibuprofen) that
relieves
pain, fever, swelling,
and
stiffness.”
Naproxen, https://en.wikipedia.org/w/index.php?title=Naproxen&oldid=792026731 (last visited
July 31, 2017).
- 12 -

of Gallegos’ withdrawal symptoms and ordered one dose of Clonidine.16 See Corizon Clinical
Institute Withdrawal Assessment -- Alcohol (dated December 3, 2014), filed May 8, 2017 (Doc.
69-6)(“Clinical Institute Withdrawal Assessment – Alcohol”); Corizon Nursing Encounter Tool - Headache, filed May 8, 2017 (Doc. 67-7)(“Nursing Encounter Tool -- Headache”)).17
PROCEDURAL BACKGROUND
Gallegos filed this lawsuit in state district court on August 27, 2015. See Complaint
(Tort), Gallegos v. Bernalillo Cnty. Bd. of Comm’rs, et al., No. CIV 2015-06829, (filed in
Second Judicial District Court, County of Bernalillo, State of New Mexico August 27, 2015),
filed in federal court February 22, 2016, (Doc. 1-1)(“Complaint”). In the Complaint, Gallegos
asserts claims against Defendants Bernalillo County Board of Commissioners, MDC,18 the New
Mexico Corrections Department, and Defendants John Does one through five for a violation of §
41-4-12 of the NMTCA. See Complaint ¶ 1, at 1. Gallegos then filed an Amended Complaint,
adding a federal claim. See Amended Complaint ¶¶ 1-19, at 1-4, Gallegos v. Bernalillo Cnty.
Bd. of Comm’rs, et al., No. CIV 2015-6829 (filed in Second Judicial District Court, County of
Bernalillo, State of New Mexico February 1, 2016, filed in federal court February 22, 2016 (Doc.
1-2)(“Amended Complaint”). In the Amended Complaint, Gallegos asserts claims against the
Bernalillo County Board of Commissioners, MDC, the New Mexico Corrections Department,
16

Clonidine “is a medication used to treat high blood pressure, attention deficit
hyperactivity disorder, anxiety disorders, tic disorders, withdrawal (from either alcohol, opioids,
or smoking), migraine, menopausal flushing, diarrhea, and certain pain conditions . . . [and] has
been
in
clinical
use
for
over
40
years.”
Clonidine, https://en.wikipedia.org/w/index.php?title=Clonidine&oldid=794142685 (last visited
Aug. 14, 2017).
17

See Fed. R. Civ. P. 56(c)(3)(“The court need consider only the cited materials, but it
may consider other materials in the record.”).
18

In his Complaint and Amended Complaint, Gallegos names the Bernalillo County
Metropolitan Detention Center as the “Bernalillo County Detention Center.” Amended
Complaint at 1. See Complaint at 1.
- 13 -

and John Does one through five -- who Gallegos alleges are “individual defendants working for
either the Department of Corrections or Metropolitan Detention Center,” Amended Complaint ¶
12, at 3 -- for: (i) violations of the NMTCA, see Amended Complaint ¶¶ 8-17, at 2-3; and (ii)
violations of Gallegos’ rights guaranteed by the Eighth and Fourteenth Amendments to the
Constitution of the United States of America, see Amended Complaint ¶ 18, at 4. Gallegos seeks
“compensatory damages in a yet undetermined amount jointly and severally against all
Defendants” and attorney fees. Amended Complaint at 4. Within thirty days of receipt of the
Amended Complaint, Bernalillo County Board of Commissioners and MDC removed the lawsuit
to federal court pursuant to 28 U.S.C. § 1446(b)(3). See Notice of Removal at 1, filed February
22, 2016 (Doc. 1).
On November 1, 2016, MDC moved to dismiss Gallegos’ Amended Complaint, arguing
(i) that MDC is not a suable entity under the NMTCA, §§ 41-4-1 to -30; and (ii) that Gallegos
may not assert claims for federal constitutional violations against MDC.

See Defendant

Bernalillo County Metropolitan Detention Center’s Motion to Dismiss at 1-4, filed November 1,
2016 (Doc. 34)(“November 1, 2016, Motion to Dismiss”). On January 6, 2017, both the Board
of County Commissioners and MDC moved to dismiss the Amended Complaint, arguing: (i) that
the Board of County Commissioners and MDC have “Absolute Quasi-Judicial Immunity for
their Reliance on a Facially Valid Court Order(s)”; (ii) that the Board of County Commissioners’
and MDC’s vicarious liability is unavailable for Gallegos’ constitutional claim; (iii) that the State
of New Mexico has not waived the Board of County Commissioners’ and MDC’s immunity to
Gallegos’ tort claims against those state entities; and (iv) that the Court lacks jurisdiction to
decide Gallegos’ tort claim, because Gallegos failed to give notice of the claim to the Board of
County Commissioners and MDC. See Defendants Bernalillo County Board of Commissioners’

- 14 -

and Bernalillo County Detention Center’s Opposed Motion to Dismiss Plaintiffs’ Claims at 4-15,
filed January 6, 2017 (Doc. 45)(“January 6, 2017, Motion to Dismiss”).19
1.

The Motion to Amend.

On February 17, 2017, Gallegos moved to amend his Amended Complaint and to file a
Second Amended Complaint. See Motion to Amend at 1-8. Gallegos moves to amend his
Amended Complaint to “add Clyde Kline, Jovanne King and James Brewster as substitute parties
for John Doe No. 1, John Doe No. 2 and John Doe No. 3.” Motion to Amend at 1.20 Gallegos
states that, as a result of the initial disclosures, he received a supposedly complete file pertaining
to his custody from the New Mexico Corrections Department. See Motion to Amend at 1.
Gallegos maintains that this file did not contain, however, “any correspondence or emails
involving James Brewster, the Chief Attorney for the Department of Corrections.” Motion to
Amend at 1. Gallegos later discovered such correspondence involving Mr. Brewster. See
Motion to Amend at 3. Gallegos states:

19

The November 1, 2016, Motion; the January 6, 2017, Motion; and the New Mexico
Corrections Department’s Motion to Amend are currently pending with the Court. The Court
agreed with the parties that, to most efficiently adjudicate this litigation, the Court will first
decide the issues that the Motion raises. See Transcript of Hearing at 67:9-20 (taken June 2,
2017)(“Tr.”)(Court)(The Court’s citations to the transcript of the hearing refer to the court
reporter’s original, unedited version; any final transcript may contain slightly different page
and/or line numbers)(“I probably need to get Ms. Moulton’s first [the New Mexico Corrections
Department’s motion] . . . . So I’ll probably stop and do Ms. Moulton’s motion, then come back
and do the two county’s motions back to back, and then do the motion to amend.”).
20

In this Memorandum Order and Opinion, the Court will review Gallegos’ Motion to
Amend to the extent Gallegos seeks to amend his Amended Complaint to add Brewster, the New
Mexico Corrections Department’s General Counsel, as a defendant. As the Court explained at
the June 2, 2017, hearing, the Court, in its review of this case, will first address the issues that the
New Mexico Corrections Department raises. See Transcript of Hearing at 67:9-20 (taken June 2,
2017)(“Tr.”)(Court). The Court considers Gallegos’ Motion to Amend to add Brewster as a
defendant to be intertwined with those issues that the New Mexico Corrections Department
raises in its MSJ. The Court will consider Gallegos’ Motion to Amend to add Kline and King as
defendants in a subsequent opinion.
- 15 -

Just prior to the deposition of Martin Gallegos on January 18th, the Public
Defender, Doug Wilber, gave Plaintiff a copy of emails indicating that he had
contacted Jim Brewster as chief lawyer for the Department of Corrections. He
indicated he had found these in a separate file involving Martin Gallegos’ [sic].
These were presented to [the] opposing side . . . .
Motion to Amend at 3 (alteration added). As a result of the discovered email correspondence
involving Mr. Brewster, Gallegos argues that he “should be allowed to file the second amended
complaint that is attached to add . . . Brewster as [a] party Defendant[].” Motion at Amend at 4
(alterations added). Specifically, Gallegos contends that “[t]he interests of justice” and “judicial
economy” support his Motion to Amend. Motion to Amend at 4 (alteration added).
Pursuant to rule 15.1 of the District of New Mexico Local Rules of Civil Procedure,
Gallegos attaches to his Motion to Amend his Second Amended Complaint, filed February 17,
2017 (Doc. 58)(“Second Amended Complaint”). D.N.M.LR-Civ. 15.1 (“A proposed amendment
to a pleading must accompany the motion to amend.”). In the Second Amended Complaint,
Gallegos alleges that his “court appointed attorney presented . . . [three central] facts to
Defendant James Brewster.” Second Amended Complaint ¶ 10, at 6. Gallegos alleges that his
“court appointed attorney” apprised Mr. Brewster that:
7. On or about November 6, 2014, an order remanding Plaintiff to custody was
issued by the Second Judicial District Court Judge Michael Martinez. This order
was to remain in effect for six (6) weeks while Plaintiff participated in a
Methadone program at BCMDC to decrease his level of dependency so that
Plaintiff, Martin Gallegos would not incur life endangering withdrawal
symptoms.
8. Approximately 6 days after remanded to custody, the court order was
presented by Plaintiff to agents Kline and King of the Bernalillo County
Metropolitan Detention Center.
9. The court order was ignored and Plaintiff was transported to Central New
Mexico Correctional Facility (CNMCC) where Plaintiff suffered life threatening
withdrawal symptoms for almost two (2) months.
Second Amended Complaint ¶¶ 7-10, at 6. Gallegos alleges that Brewster “ignored the court
- 16 -

order to the detriment of Plaintiff’s health.” Second Amended Complaint ¶ 13, at 7. On that
basis, Gallegos asserts a tort claim “authorized by the New Mexico Tort Claims [Act], Chapter
41-4-6 NMSA” against Brewster. Second Amendment Complaint ¶ 11, at 6 (alteration added).
Gallegos additionally alleges:
Defendant James Brewster was contacted by Public Defender for Plaintiff, Doug
Wilber through emails on November 24, 2014. (As chief attorney for the
Department of Corrections) trying to see what could be done to alleviate the
condition of Plaintiff Gallegos at the Department of Corrections and/or return him
to MDC to complete his treatment and titration off of methadone. [sic]
Second Amended Complaint ¶ 19, at 8. Based on that allegation, Gallegos asserts that “Brewster
was deliberately indifferent to the entreaties of the Plaintiff’s lawyer and as a result of such
negligence and deliberate indifference Plaintiff was damaged . . . .” Second Amended Complaint
¶ 20, at 8. In sum, Gallegos seeks to amend his Amended Complaint to add Brewster as a
defendant, and Gallegos intends to assert the same claims against Brewster as he asserts against
the New Mexico Corrections Department -- namely, a state tort claim and a deliberateindifference claim. See Second Amended Complaint ¶¶ 11, 20, at 6, 8. Nowhere in his MSJ to
Amend or in his Second Amended Complaint does Gallegos suggest that he attempts to add
Brewster in his official capacity as the New Mexico Corrections Department’s General Counsel
only. See Motion to Amend at 1-4; Second Amended Complaint ¶¶ 1-20, 5-8.
2.

The MSJ.

The New Mexico Corrections Department makes three arguments to support its MSJ.
See MSJ at 5-12. The New Mexico Corrections Department argues that it is entitled to summary
judgment, because “(1) there is no waiver for the state law tort claim; (2) the DOC and its
employees are entitled to quasi-judicial immunity as they relied on a facially valid court order
sentencing plaintiff to the custody of the DOC; and (3) plaintiff cannot establish deliberate

- 17 -

indifference.” MSJ at 1-2. The Court will rehearse these arguments seriatim.
First, the New Mexico Corrections Department directs the Court’s attention to the three
orders that the state court issued on November 6, 2014, and November 7, 2014. See MSJ at 5-6
(citing Remand Order at 1; First Order Revoking Probation at 1; State Court Judgment, Sentence,
and Order Suspending Sentence at 1). The New Mexico Corrections Department argues that
“[t]he court orders . . . were facially valid and any DOC employee who accepted the plaintiff into
the Department of Corrections on November 12, 2014, is entitled to absolute quasi-judicial
immunity for enforcing the orders that sentenced plaintiff to the custody of the Corrections
Department.” MSJ at 7 (alteration added). The New Mexico Corrections Department maintains
that Gallegos “should not now be allowed to sue the Corrections Department for enforcing the
Court’s orders,” relying on Valdez v. City & County of Denver, 878 F.2d 1285, 1286 (10th Cir.
1989). According to the New Mexico Corrections Department, “‘[t]he proper procedure for a
party who wishes to contest the legality of a court order enforcing a judgment is to appeal that
order and the underlying judgment, not to sue the official responsible for its execution.’” MSJ at
7 (alteration added)(quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1289-90). The New
Mexico Corrections Department concludes, therefore, that it is “entitled to absolute quasijudicial immunity” and, accordingly, summary judgment in its favor. MSJ at 7.
Second, the New Mexico Corrections Department argues that the Court should grant
summary judgment in its favor, because, under N.M. Stat. Ann. § 41-4-6, the NMTCA does not
waive the New Mexico Corrections Department’s immunity from Gallegos’ tort claim. See MSJ
at 7. Section 41-4-4(A) of N.M. Stat. Ann. provides that “[a] governmental entity and any public
employee while acting within the scope of duty are granted immunity from liability for any tort
except as waived by . . . Sections 41-4-5 through 21-2-12.” Section 41-4-6(A), in turn, provides:

- 18 -

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978
does not apply to liability 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). The New Mexico Corrections Department argues that, because §
41-4-6(A) does not waive its immunity from Gallegos’ tort claim, it is entitled to summary
judgment on that claim. See MSJ at 8. The New Mexico Corrections Department also indicates
that “New Mexico courts have been reluctant to find waiver under [§ 41-4-6(A)] for the
performance of administrative tasks within the corrections system, such as the supervision or
classification of inmates.” MSJ at 7 (citing Archibeque v. Moya, 1993-NMSC-079, ¶¶ 13-14,
866 P.2d 344, 349; Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179; Gallegos v.
State, 1987-NMCA-150, ¶¶ 6-10, 758 P.2d 299, 301).
Third, the New Mexico Corrections Department argues that Gallegos cannot maintain an
independent claim for relief under the Fourteenth Amendment. See MSJ at 8-9. The New
Mexico Corrections Department indicates that Gallegos asserts “claims under both the Eighth
Amendment and the Fourteenth Amendment[].” MSJ at 8 (citing Amended Complaint ¶ 18, at
4). The New Mexico Corrections Department relies on Albright v. Oliver, 510 U.S. 266 (1994),
for the proposition that, “where a particular amendment ‘provides an explicit textual source of
Constitutional protection’ against a particular sort of government behavior, ‘that Amendment,
not the more generalized notice of substantive due process, must be the guide for analyzing these
claims.’” Response at 8 (quoting Albright v. Oliver, 510 U.S. at 273 (internal quotation marks
and citation omitted)). The New Mexico Corrections Department further argues that the United
States Court of Appeals for the Tenth Circuit also “has stated that the Eighth Amendment is the
proper amendment for claims such as those alleged by the plaintiff[.]” Response at 8 (alteration

- 19 -

added)(quoting Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1494 (10th Cir. 1990). The
New Mexico Corrections Department concludes, therefore, that it is “entitled to a dismissal of
plaintiff’s claims under the Fourteenth Amendment.” Response at 9.
Fourth, the New Mexico Corrections Department argues that it is entitled to summary
judgment on Gallegos’ claim of deliberate indifference in violation of the Eighth Amendment.
See MSJ at 9-11. The Department of Corrections relies on Farmer v. Brennan, 511 U.S. 858,
834 (1994), for the proposition that “[a]n official violates the Eighth Amendment when two
elements are met: (1) the official causes an injury that, objectively is ‘sufficient serious,’ i.e. an
injury that equates to the ‘denial of the minimal civilized measure of life’s necessities’; and (ii)
the official has a ‘sufficiently culpable state of mind.’” MSJ at 9 (alteration added)(quoting
Farmer v. Brennan, 511 U.S. at 834). The New Mexico Corrections Department argues that
Gallegos cannot establish “that his alleged injury was sufficiently serious” to substantiate an
Eighth Amendment violation. MSJ at 10. The New Mexico Corrections Department further
argues that Gallegos cannot show that it “was aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed and that any individual actually drew such
an inference.” MSJ at 10. Regarding Mr. Brewster’s conduct, the Department of Corrections
argues that the email exchanges between Mr. Wilber and Mr. Brewster on November 24, 2014,
and November 26, 2014, demonstrate that “Mr. Brewster was neither deliberately indifferent to
the plaintiff nor the entreaties of the Plaintiff’s lawyer.” MSJ at 11 (internal quotation marks and
citation omitted). See November 24, 2014, 1:57 p.m. Email from Brewster to Wilber at 1. The
New Mexico Corrections Department maintains that “[t]here is nothing in this email exchange
that establishes either the objective or subjective component of deliberate indifference.” MSJ at

- 20 -

12. Accordingly, the New Mexico Corrections Department concludes that it is entitled to
summary judgment on Gallegos’ Eighth Amendment claim. See MSJ at 12.
Last, the New Mexico Corrections Department argues that John Does one through five
are also entitled to summary judgment.

See MSJ at 12.

The New Mexico Corrections

Department maintains that, when the discovery deadline passed on February 9, 2017, “no
cognizable claims lie against John Does 1-5.” MSJ at 12. The New Mexico Corrections
Department concludes that “Defendants John Does 1-5 are entitled to summary judgment as a
matter of law.” MSJ at 12 (citing Williams v. Chicago Police Officer Marcel Rodriguez, 509
F.3d 392 (7th Cir. 2007); Roper v. Grayson, 81 F.3d 124 (10th Cir. 1996)). Accordingly, the
New Mexico Corrections Department argues that the Court should enter “summary judgment in
its favor on both counts of plaintiff’s Amended Complaint.” MSJ at 12.
3.

The Response.

In response, Gallegos first asserts that the New Mexico Corrections Department does not
enjoy quasi-judicial immunity because it relied on a court order. See Response at 5. Gallegos
asserts that “the DOC and its employees have provided no testimony that they were relying on
another order entered the same day as the titration order as the reason they did nothing in this
case.” Response at 5. See id. (“There is no evidence that Defendants relied on a concurrent
court order, signed on November 6th and entered on November 7th, in order to avoid taking any
action in this matter.”). Specifically, Gallegos maintains that “there is no evidence that James
Brewster relied on one order versus another in order to take no action in this case.” Response at
5. Gallegos further notes that the state court “titration orders were a regular matter of course for
prisoners” and, accordingly, should be read in conjunction. Response at 5.
Second, Gallegos argues that the New Mexico Corrections Department “is not entitled to

- 21 -

dismissal as there is no waiver of immunity of the New Mexico Tort Claims Act,” N.M. Stat.
Ann. §§ 41-4-1 to -30. Response at 6. Gallegos asserts that the NMTCA’s immunity provision,
see N.M. Stat. Ann. § 41-4-4, does not apply, because “[t]his case does not involve classification
or supervision of inmates.” Response at 6 (alterations added). Instead, Gallegos maintains,
“[t]his case involved the Defendant DOC being advised that a set of concurrent orders had
required Plaintiff to remain at MDC until his level of methadone treatment had reached a point
where Plaintiff would not incur life endangering withdrawal symptoms on transfer to the
Department of Corrections.” Response at 6 (alterations added). Gallegos asserts that Mr. Wilber
alerted Mr. Brewster “that these Titration orders were entered concurrently, and they are
frequently entered and that they are read in conjunction with each other.” Response at 6.
Gallegos then argues that N.M. Stat. Ann. § 41-4-6(A) waives the New Mexico
Corrections Department’s immunity to his tort claim. See Response at 6. Gallegos states that
Mr. Wilber and Mr. Brewster “discussed how this kind of action could be prevented in the future
with proper procedure.” Response at 6. Gallegos then argues that “[t]he proper procedure would
cover the operation and maintenance of the building with regard to all similarly situated inmates
within the Department of Corrections.”

Response at 6.

Cf.

N.M. Stat. Ann. § 41-4-

6(A)(providing that immunity to tort claims under N.M. Stat. Ann. § 41-4-6(A) does not apply to
damages “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”).
Third, Gallegos argues that the New Mexico Corrections Department is not entitled to
dismissal of his Fourteenth Amendment claim. See Response at 6-7. Gallegos states that the
Fourteenth Amendment “provides an explicit textual source of constitutional protection against a

- 22 -

particular source of governmental behavior including ‘substantive due process.’” Response at 67. Gallegos asserts that, in Whitley v. Albers, 475 U.S. 312 (1986), “the Supreme Court
recognized that the same facts could give rise to both an Eighth Amendment cruel and unusual
punishment claim and a substantive due process claim under the Fourteenth Amendment.”
Response at 7 (citing Whitley v. Albers, 475 U.S. at 326-27). Gallegos concedes, however, that
the Supreme Court of the United States of America stated in Whitley v. Albers that “‘the Eighth
Amendment, which is specifically concerned wit[h] the unnecessary and wanton infliction of
pain in penal institutions, serves as the primary source of substantive protection to convicted
prisoners in cases such as this one, where the deliberate use of force is challenged as excessive
and unjustified.’” Response at 7 (alteration added)(quoting Whitley v. Albers, 475 U.S. at 327).
Gallegos emphasizes that “[t]his case involves a deprivation of substantive due process in that
two concurrent court orders . . . are not being read accurately and not being enforced in the
manner to which they were intended.” Response at 7. “In addition to the Eighth Amendment,”
Gallegos concludes, “the Fourteenth comes into play in this matter.” Response at 7.
Fourth, Gallegos argues that the New Mexico Corrections Department is not entitled to
summary judgment, because he can “establish the objective and subjective elements of deliberate
indifference.” Response at 7. Gallegos begins his argument by stating that “[t]he titration order
itself indicates the seriousness of the situation and the required treatment of Plaintiff is to lower
his level of methadone . . . until its reached a point where the Plaintiff would not incur life
threatening withdrawal symptoms upon transfer to the Department of Corrections.” Response at
7. Gallegos continues by emphasizing that “[t]he order itself shows that a substantial risk of
potential harm occurs if the Plaintiff is denied titration off his high methadone level.” Response
at 7. Gallegos then argues that “[w]hether deliberate indifference has occurred is generally a

- 23 -

‘fact’ question . . . .” Response at 7-8 (citing Wilson v. Seiter, 501 U.S. 294, 299 (1991); Canton
v. Harris, 489 U.S. 378 (1989)). See Response at 9 (arguing that Mr. Brewster’s failure to
institute “a protocol for Mr. Gallegos’ situation is a factual dispute as to whether this constitutes
deliberate indifference”).
Gallegos also argues that the “seriousness of the situation allows a fact finder to conclude
a prison official knew of a substantial risk from the very fact that the risk is obvious.” Response
at 8. Gallegos maintains that “[s]ubstantial risk of serious harm existed as stated in the particular
order that was brought to Mr. Brewster’s attention.” Response at 8. Gallegos argues not only
that Mr. Wilber made Mr. Brewster aware Gallegos’ risk of dangerous withdrawal, but also that
Mr. “Brewster was also obviously aware that no methadone treatment was available at the
Department of Corrections . . . .” Response at 8. Gallegos further maintains that Mr. Brewster
“could have easily ordered a change for this particular situation, by telling Corizon and medical
providers that they needed to follow the Judge’s order and titrate down the Plaintiff so that he
would not endure the pain and life threatening situation that he was already starting to undergo.”
Response at 8. Gallegos additionally emphasizes that Mr. “Brewster could have ordered titration
immediately or returned Plaintiff to MDC.” Response at 8. In support, Gallegos points to New
Mexico Department of Corrections Reg. CD-170100.U-V for the proposition that “detoxification
under medical supervision or access to a chemical dependency treatment program . . . was
allowed and could be developed and implemented on Mr. Gallegos’ behalf.” Response at 8
(citing New Mexico Department of Corrections Reg. CD-170100.U-V at 1). “Instead,” Gallegos
argues, Mr. Brewster took no action “other th[a]n seeing that a doctor was aware of the problem
to make sure, in theory, that Mr. Gallegos [did] not die.” Response at 8 (alterations added).
Gallegos concludes that summary judgment is unwarranted, because there is a factual dispute

- 24 -

whether Mr. Brewster’s lack of action to Gallegos’ situation constitutes deliberate indifference.
See Response at 9.
Last, Gallegos responds that the John Does are not entitled to summary judgment. See
Response at 9. Gallegos states that he has attempted to name Mr. Brewster as an individual
Defendant. See Response at 9 (citing Motion to Amend at a1-8). Gallegos maintains that he did
not know Mr. Brewster’s identity until “just before the deposition of Douglas Wilber.” Response
at 9. Gallegos also states that, as of the filing of the Response, Mr. “Brewster has not been
deposed, because he was unavailable during the entire New Mexico legislative session as the
General Counsel for the Department of Corrections.” Response at 9.
4.

The Reply.

In reply, the New Mexico Corrections Department counters that, in the Response,
Gallegos does not dispute that the New Mexico Corrections Department enjoys absolute quasijudicial immunity to Gallegos’ tort claim. See Reply at 4 (citing Response at 5). As the New
Mexico Corrections Department reads Gallegos’ Response, Gallegos’ “only argument with
regard to . . . [the New Mexico Corrections Department’s] assertion for absolute quasi-judicial
immunity is that [the New Mexico Corrections Department] has not established which Order
they relied on in admitting plaintiff to the Department of Corrections.” Reply at 4 (alterations
added).

The New Mexico Corrections Department adverts to the State Court Judgment,

Sentence, and Order Suspending Sentence as “the facially valid order that [it] relied on in
admitting the plaintiff when he was brought” into its custody on November 12, 2017. Reply at 4.
The New Mexico Corrections Department further indicates that Gallegos does not cite
any legal authority “as to why the DOC would not be entitled to absolute quasi-judicial
immunity.” Reply at 4. The New Mexico Corrections Department presses that Gallegos does

- 25 -

not “contest that the state district court orders were facially valid.” Reply at 4. The New Mexico
Corrections Department maintains that, because “the DOC relied on a facially valid Court order
when they received plaintiff at the DOC, the DOC is entitled to absolute quasi-judicial
immunity . . . .”

Reply at 4 (alteration added).

The New Mexico Corrections Department

accordingly concludes that the Court should grant summary judgment in its favor. See Reply at
4.
Second, the New Mexico Corrections Department replies that it “is entitled to dismissal
as there is no waiver of immunity under § 41-4-6 of the New Mexico Tort Claims Act.” Reply at
4. The New Mexico Corrections Department posits that “[t]his case does involve the admission
of an inmate into the system, which would be an administrative function associated with the
operation of the correctional system.”

Reply at 5 (alteration added).

The New Mexico

Corrections Department then argues that “[a]dmitting an inmate into the correctional system is
akin to the sorts of administrative functions associated with the operation of the corrections
system . . . which are not applicable to § 41-4-6 in a correctional setting.” Reply at 5 (alteration
added)(citing Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179). Accordingly,
the New Mexico Corrections Department concludes that Gallegos’ tort claim against it “should
be dismissed as there is no waiver of immunity.” Reply at 5.
Third, the New Mexico Corrections Department replies that it is “entitled to dismissal of
the Fourteenth Amendment claim because where constitutional protection is afforded under
specific constitutional provisions, alleged violations of the protection should be analyzed under
those provisions and not under the more generalized provisions of substantive due process.”
Reply at 5. The New Mexico Corrections Department relies on Graham v. Connor, 490 U.S. 386
(1989), for the proposition that, “when a specific constitutional amendment provides ‘an explicit

- 26 -

textual source of constitutional protection against this sort of physically intrusive governmental
conduct,’ the courts should analyze all constitutional claims under that amendment’s standards
rather than under ‘the more generalized notion of substantive due process.’” Reply at 5 (quoting
Graham v. Connor, 490 U.S. at 395).

The New Mexico Corrections Department then

emphasizes that, in United States v. Lanier, 520 U.S. 259 (1997), the Supreme Court clarified
that its holding in Graham v. Connor “‘simply requires that if a constitutional claim is covered
by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under the rubric of
substantive due process.’” Reply at 6 (quoting United States v. Lanier, 520 U.S. at 272 n.7).
Accordingly, the New Mexico Corrections Department concludes that the Court should review
Gallegos’ constitutional claim under the Eighth Amendment and concomitantly dismiss his
independent Fourteenth Amendment claim. See Reply at 6.
Fourth, the New Mexico Corrections Department replies that the Court should grant
summary judgment in its favor on Gallegos’ Eighth Amendment claim. See Reply at 6-8. The
New Mexico Corrections Department argues that it is entitled to summary judgment, “because a
governmental entity ‘may be held liable under § 1983 only for its own unconstitutional or illegal
policies and not for the tortuous acts of its employees.’” Reply at 6 (quoting Lopez v. LeMaster,
172 F.3d 756, 762-63 (10th Cir. 1999)). The New Mexico Corrections Department notes that
Gallegos has not established “an unconstitutional or illegal policy of the DOC.”

Reply at 6.

The New Mexico Corrections Department argues, therefore, that it cannot be held liable under §
1983 for Mr. Brewster’s actions. See Reply at 6.
Fifth, the New Mexico Corrections Department argues that, “if the Court were to allow
an amendment to add Mr. Brewster as a defendant,” Gallegos cannot establish a deliberate

- 27 -

indifference claim against him. Reply at 6. The New Mexico Corrections Department argues
that Gallegos does not demonstrate a “sufficiently serious” injury to support an Eighth
Amendment claim. Reply at 6. The New Mexico Corrections Department states that Gallegos
“has produced no evidence to establish that his condition was sufficiently serious, other than to
reference the phrase ‘life-endangering withdrawal symptoms’ in an Order signed by a Judge, not
a physician.” Reply at 6 (quoting Remand Order ¶ 3.C, at 2 (“Defendant shall remain in custody
of the Metropolitan Detention Center (MDC) until his level of methadone treatment has reached
a point where Defendant will not incur life-endangering withdrawal symptoms upon
transfer . . . .”)).

The New Mexico Corrections Department maintains that the Remand Order

alone does not establish that Gallegos’ injury sufficiently establishes an Eighth Amendment
claim. See Reply at 6.
The New Mexico Corrections Department then argues that, even if Gallegos’ condition
were sufficiently serious to implicate the Eighth Amendment, “a review of plaintiff’s medical
records establish, however, that plaintiff was seen by medical [personnel] and his withdrawal
symptoms were addressed.” Reply at 7 (alteration added). The New Mexico Corrections
Department relies on two Corizon Health documents to argue that, on November 12, 2014, the
day that the New Mexico Corrections Department took Gallegos into custody, medical personnel
evaluated Gallegos’ withdrawal symptoms and gave him a “Kick Kit to address his withdrawal
symptoms.” Reply at 7 (citing Nursing Encounter Tool -- Withdrawal at 1; Physician’s Orders at
1). The New Mexico Corrections Department also states that, on November 21, 2014, Gallegos
“requested another Kick Kit, indicating it ‘helped some’ and was also prescribed Elavil for pain.”
Reply at 7 (quoting November 21, 2014 Interdisciplinary Progress Notes at 1). The New Mexico
Corrections Department further indicates that, on November 26, 2014, medical personnel denied

- 28 -

Gallegos narcotics, but offered him “Ibuprofen, Tylenol, Mobic, Aleve, or Naproxen” to address
his pain, but Gallegos refused.

Reply at 7 (quoting November 26, 2014 Interdisciplinary

Progress Notes at 1). The New Mexico Corrections Department additionally states that “[o]n
December 3, 2014, a provider conducted another withdrawal assessment and one dose of
Clonidine was ordered.” Reply at 7 (citing Clinical Institute Withdrawal Assessment -- Alcohol
at 1; Nursing Encounter Tool -- Headache at 1). The New Mexico Corrections Department
asserts not only that Gallegos “was clearly provided with the appropriate medical care,” but also
that, because Gallegos did not experience lingering medical problems, “his alleged de minimis
injury does not meet the objective test of an ‘unquestioned and serious deprivation[] of basic
human needs’ to support a constitutional violation.” Reply at 7 (quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)). The New Mexico Corrections Department argues that, although
Gallegos preferred to have methadone or narcotics, “his medical condition was appropriately
addressed.” Reply at 7 (citing Free v. Unknown Officers of the Bureau of Prisons, 103 F. App’x
334, 337 (10th Cir. 2004)). The New Mexico Corrections Department accordingly concludes
that Gallegos “has failed to establish the objective element of his Eighth Amendment claim.”
Reply at 7.
Next, the New Mexico Corrections Department replies that Gallegos has failed to
establish the deliberate-indifference claim’s subjective component. See Reply at 7-10. The New
Mexico Corrections Department states that this element “requires ‘evidence of the prison
official’s culpable state of mind.’” Reply at 8 (quoting Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005)). To demonstrate the subjective element of a deliberate-indifference claim, the
New Mexico Corrections Department asserts, Gallegos “must show ‘that the Defendants knew
he faced a substantial risk of harm and disregarded that risk . . . [and that] the official . . . [was]

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aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also [have] draw[n] the inference.” Reply at 8 (first alteration original,
second through fourth alterations added)(quoting Martinez v. Beggs, 563 F.3d 1082, 1089
(10th Cir. 2009)).
The New Mexico Corrections Department argues that Gallegos cannot satisfy this
subjective element, because “there is no evidence of a culpable state of mind by Mr. Brewster.”
Reply at 8. The New Mexico Corrections Department presses that “[n]othing Mr. Brewster
wrote in his email provides evidence of a culpable state of mind.” Reply at 8 (alteration added).
The New Mexico Corrections Department adverts to the November 24, 2014, 2:45 p.m. Email
from Brewster to Wilber, in which Mr. Brewster represents to Mr. Wilber that Mr. Brewster
“could have the medical vendor make[] sure to assess and treat [Gallegos].”

Reply at 8

(alterations added)(citing November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1).
The New Mexico Corrections Department also adverts to the November 24, 2014, 2:51 p.m.
Email from Brewster to Wilber, in which Mr. Brewster represents to Mr. Wilber that “the
‘Department’s inmate medical services provider (Corizon) is already aware of your client’s
medical status and has a protocol in place to treat him. It is already treating him.’” Reply at 8
(quoting November 24, 2014, 2:51 p.m. Email from Brewster to Wilber at 1). The New Mexico
Corrections Department argues that these electronic communications demonstrate that, “[w]ithin
a ten minute period, Mr. Brewster had contacted the medical vendor, advised them of the
concern and insured that they had the proper protocol in place to treat the plaintiff[;] Mr.
Brewster did not disregard plaintiff’s medical status, but actively sought to address it.” Reply at
8. The New Mexico Corrections Department emphasizes that “these are not the comments of
someone who deliberately disregarded any risk of harm.” Reply at 8.

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The New Mexico Corrections Department next replies that Gallegos’ assertion “that
‘Wilber goes on to say that he became aware that any action that he would take on behalf of
Plaintiff in this matter would be disputed by Brewster’” misrepresents Mr. Brewster’s electronic
communications to Mr. Wilber and Mr. Wilber’s deposition testimony. Reply at 8. The New
Mexico Corrections Department clarifies that “Mr. Brewster initially asked Mr. Wilber if he
wanted to bring the issue to the judge’s attention or leave [Gallegos] with NMCD.” Reply at 8-9
(alteration added)(citing November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1).
The New Mexico Corrections Department admits that “Mr. Brewster stated that it would be
‘legally and logistically difficult to “unring” this bell and send him back to MDC at this point,’”
but asserts that Mr. Brewster “states absolutely nothing to suggest that he would interfere with
his efforts to do so.” Reply at 9 (quoting Email from James Brewster to Douglas Wilber at 1
(dated November 24, 2014, 3:32 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014,
3:32 p.m. Email from Brewster to Wilber”)). The New Mexico Corrections Department also
argues that, even if Mr. Wilber believed that Mr. Brewster would dispute any action that Mr.
Wilber took on Gallegos’ behalf, Mr. Wilber’s state of mind is not determinative of Mr.
Brewster’s state of mind. See Reply at 9. The New Mexico Corrections Department concludes,
therefore, that Gallegos fails to establish the deliberate-indifference claim’s subjective element,
because Gallegos “has failed to establish that Mr. Brewster would in any way interfere with
plaintiff’s counsel’s efforts to get him back to MDC.” Reply at 9.
The New Mexico Corrections Department then turns to Gallegos’ “statement that
Brewster could ‘have easily ordered a change for this particular situation, by telling Corizon and
medical providers that they needed to follow the Judge’s order and titrate down the Plaintiff.’”
Reply at 9 (quoting Response at 8). The New Mexico Corrections Department notes that

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Gallegos provides no evidentiary support for this assertion. See Reply at 9. The New Mexico
Corrections Department further argues that Gallegos ignores “the fact that methadone is not
available in the prison system, that the attorney for the Corrections Department cannot order
Corizon . . . to provide specific treatment and that withdrawal symptoms can be treated in a
number of ways other than with methadone.” Reply at 9.
The New Mexico Corrections Department next addresses Gallegos’ allegation that Mr.
Brewster could have returned Gallegos to MDC. See Reply at 9. See also Response at 8
(“Brewster could have ordered titration immediately or returned Plaintiff to MDC.”). The New
Mexico Corrections Department emphasizes that Gallegos’ factual assertion is unsubstantiated,
stating that Gallegos “has provided no evidence that Mr. Brewster could effectuate the move of
any inmate.” Reply at 9. The New Mexico Corrections Department additionally presses that
Gallegos “provided no support for this and offered no explanation as to how he thinks Mr.
Brewster, an attorney for the DOC could return an inmate to MDC when they possessed a
facially valid order sending him to the custody of the Corrections Department.” Reply at 9.
The New Mexico Corrections Department then directs its attention to Gallegos’
allegation that “Mr. Brewster could have ordered detoxification under medical supervision or
access to a chemical dependency treatment program.” Reply at 10. See Response at 8 (“Under
the Corrections Department regulations . . . detoxification under medical supervision or access to
a chemical dependency treatment program and moving it into an individual treatment plan was
allowed and could be . . . implemented on Mr. Gallegos’ behalf.”)(alterations added). The New
Mexico Corrections Department replies that “[d]ecisions regarding detoxification and chemical
dependency treatment programs are made by health care providers, not attorneys.” Reply at 10
(alteration added). The New Mexico Corrections Department states that Gallegos received

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healthcare treatment “from the moment he arrived at the Corrections Department.” Reply at 10.
The New Mexico Corrections Department notes that Mr. Brewster also “took action” concerning
Gallegos’ medical treatment.

Reply at 10.

The New Mexico Corrections Department

emphasizes that Mr. Brewster “contacted the medical vendor, made sure they had a protocol to
treat him, and confirmed that they were already treating him.” Reply at 10. The New Mexico
Corrections Department maintains that “[t]here is absolutely nothing more that Mr. Brewster
could have done to address plaintiff’s medical condition.” Reply at 10 (alteration added).
Accordingly, the New Mexico Corrections Department concludes that Gallegos’ deliberateindifference claim is unsound. See Reply at 10.
Last, the New Mexico Corrections Department argues that John Does one through five
are entitled to summary judgment, because Gallegos did not identify them before discovery’s
close. See Reply at 10. The New Mexico Corrections Department notes that Gallegos names
five John Does in the Amended Complaint. See Reply at 10. See also Amended Complaint ¶ 4,
at 1 (“Upon information and belief John Doe’s [sic] 1 through 5 worked for the Bernalillo
County Metropolitan Detention Center . . . and/or the New Mexico Department of
Corrections . . . as discovery will detail.”). The New Mexico Corrections Department indicates
that Gallegos did not identify these Defendants before discovery’s end.

See Reply at 10.

Accordingly, the New Mexico Corrections Department argues that “[s]ummary judgment should
be granted to unnamed defendants at this stage in the proceedings.” Reply at 10 (alteration
added). The New Mexico Corrections Department concludes that it “is entitled to summary
judgment in its favor on all counts of plaintiff’s Amended Complaint.” Reply at 10.
5.

The Hearing.

On June 2, 2017, the Court held a hearing on the MSJ. See Tr. at 1:1 (Court). The Court

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began by stating its initial views of the case, including its views regarding: (i) the Bernalillo
County Board of Commissioners’ and the MDC’s motions to dismiss, see November 1, 2016,
Motion to Dismiss; January 6, 2017 Motion to Dismiss; (ii) the Motion to Amend; and (iii) the
New Mexico Corrections Department’s MSJ:
[L]et me give you my thoughts about these motions. It seems to me that the
guard, whichever guard it was whether it’s Kline or King when he did not explore
an order and if I understand the facts as presented by Mr. Gallegos is that he had a
copy of the order and showed it to the guard and the guard then in his version said
I don’t care what you have, that to me is probably enough, given how serious
withdrawal from methadone or heroin is, to constitute deliberate indifference.
And it’s enough evidence of subjective intent and objective intent for that guard.
I’m not sure that -- maybe it’s for anybody else. And it may have -- we may have
to narrow it down to which one it is, and it seems to me that the plaintiff has
sufficiently explained why he could not have timely identified those guards. I
went through all the attachments and sort of understand the development here. So
it seems to me that we ought to bring that guard in, and that’s probably about it. It
doesn’t seem to me that there is a waiver of the New Mexico sovereign immunity
of the Tort Claims Act for the department or for the county. And for any
subdivision of it. So probably those should be out, and it would just be for this
one guard. As far as Mr. Brewster . . . it seems to me that it would be hard for me
to look at the emails and correspondence going back and say that he was
deliberately indifferent. He may not have made the right decision although I’m
not sure what the right decision was at that point. So I’m inclined to dismiss the
department out, and . . . just leave the single guard in, and proceed to trial on that.
So the summary judgment, the motions to dismiss, that’s how I am sort of sorting
it out and thinking . . . .
Tr. at 2:8-3:24 (Court). The Court also gave its inclination regarding the MSJ:
I’m inclined to grant the motion for summary judgment that has been filed, and
indicate that I don’t think that Brewster ought to be added, because I’m not seeing
deliberate indifference with the email exchange. Like I said, I think the most that
could be said about Brewster is he didn’t handle the situation right. But that
seems to me more negligence that it does deliberate indifference.
Tr. at 44:21-45:4 (Court). The Court then invited the parties’ argument. See Tr. at 3:25-4:1
(Court)(“I’ll certainly listen to anything anyone wants to say on necessary motions.”); id. at 45:68 (Court)(“Ms. Moulton, anything else you want to say on your motion for summary judgment as
to the Department of Corrections?”).
- 34 -

The New Mexico Corrections Department began with its “first position . . . that the DOC
is entitled to quasi-judicial immunity.”

Tr. at 46:23-24 (Moulton).

The New Mexico

Corrections Department argued that it is immune to Gallegos’ claims, because it followed
“facially valid court orders.” Tr. at 46:4 (Moulton). The New Mexico Corrections Department
stated that “officials charged with the duty of executing a facially valid court order enjoy
absolute immunity from liability, just as judges do with relation to their judicial capacity.” Tr. at
46:5-8 (Moulton).

In support of this argument, the New Mexico Corrections Department

recounted the orders it received:
[I]t’s important to note that the first order revoking probation, noting a
commitment to the Department of Corrections, which sentenced him to a term of
834 days, was filed on November 7. . . . [T]hat order does not reference the
MDC. It’s not specifically noted in there. And the judgment, sentence and order
pending sentence which also committed him to the custody of the Department of
Corrections, those two files, those two orders were in Mr. Gallegos’ prison file at
the Department of Corrections.
Tr. at 45:16-46:3 (Moulton)(alterations added). The New Mexico Corrections Department then
stated that “any DOC employee who accepted plaintiff into the DOC system on November 12,
did so pursuant to one of those two court orders that were in his file.” Tr. at 46:9-12 (Moulton).
“Thus,” the New Mexico Corrections Department argued, “they’re entitled to absolute quasijudicial immunity because they were enforcing an order to commit him to the custody of
Department of Corrections.”

Tr. at 46:12-15 (Moulton).

The New Mexico Corrections

Department reiterated: “[T]he proper procedure to challenge the legality of . . . [official action]
enforcing a judgment, such as the judgment sentencing him to 835 days to the custody of the
DOC, is to appeal that order and underlying judgment, not to sue the individual or the official
responsible for executing the judgment.” Tr. at 46:17-23 (Moulton)(alterations added).
The Court then questioned whether the New Mexico Corrections Department, as opposed

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to any individual agent, is entitled to quasi-judicial immunity. See Tr. at 47:1-6 (Court). The
New Mexico Corrections Department replied that “Mr. Brewster, if he is in fact added into the
case would be entitled to that.” Tr. at 47:7-9 (Moulton). The Court pressed the New Mexico
Corrections Department whether it enjoys quasi-judicial immunity to Gallegos’ claims. See Tr.
at 47:10-11 (Court)(“What about your current motion, though, for summary judgment as to the
department?”).

The New Mexico Corrections Department conceded that it was uncertain

whether the state agency itself is entitled to quasi-judicial immunity, but seemed to suggest that
its quasi-judicial immunity argument was to protect Mr. Brewster from any liability. See Tr. at
47:12-13 (Moulton)(“Yeah, I don’t necessarily know -- the reason I added that in there . . . .”).
The Court then redirected the argument, inquiring whether the New Mexico Corrections
Department was “really out on Eleventh Amendment immunity.” Tr. at 47:18-19 (Court). The
New Mexico Corrections Department then suggested that it was immune to Gallegos’ claims
under the Eleventh Amendment. See Tr. at 47:20 (Moulton)(“Exactly. That’s right.”).
The New Mexico Corrections Department then moved to its argument that, under the
NMTCA’s § 41-4-4, it is immune to Gallegos’ state tort claim, because § 41-4-6 does not waive
its immunity. See Tr. at 48:13 (Moulton)(“So let’s talk about the 41-4-6 [argument].”)(alteration
added). The New Mexico Corrections Department adverted to Archibeque v. Moya, 1993NMSC-079, ¶¶ 13-14, 866 P.2d at 349, and Lessen v. City of Albuquerque, 2008-NMCA-085,
187 P.3d 179, to support its conclusion that “the Department is entitled to dismissal of [Gallegos’
state tort claim].” Tr. at 49:17-18 (Moulton). The New Mexico Corrections Department argued
that, in light of Archibeque v. Moya, 1993-NMSC-079, ¶¶ 13-14, 866 P.2d at 349, and Lessen v.
City of Albuquerque, 2008-NMCA-085, 187 P.3d 179, “[a]dmitting an inmate into the
correctional facility is akin to the sorts of administrative functions associated with the operation

- 36 -

of a correction system [in] which the Court of Appeals [of New Mexico] and the Supreme Court
[of New Mexico] have found [§ 41-4-6’s waiver provision] not applicable.” Tr. at 49:1-6
(Moulton).
The New Mexico Corrections Department next turned to its argument that, in light of
Gallegos’ Eighth Amendment deliberate-indifference claim, Gallegos’ independent Fourteenth
Amendment substantive-due-process claim is unsound. See Tr. at 49:19-21 (Moulton). The
New Mexico Corrections Department argued that, in light of Berry v. City of Muskogee, Okla.,
900 F.2d at 1494, “the Eighth Amendment provides the primary source of relie[f] . . . [and the
Court should] dismiss[] the Fourteenth Amendment claim.” Tr. at 50:3-8 (Moulton)(alterations
added)(citing

Berry v. City of Muskogee, Okla., 900 F.2d at 1494).

The New Mexico

Corrections Department added that, in United States v. Lanier, 520 U.S. at 272 n.7, “the Supreme
Court clarified that if a constitutional claim is covered by [a] more specific constitutional
provision such as [the] Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision not under the rubric of substantive due process.” Tr. at
50:16-22 (alterations added)(Moulton)(citing United States v. Lanier, 520 U.S. at 272 n.7). The
New Mexico Corrections Department then stated that, with regard to Gallegos’ Eighth
Amendment claim, a “governmental entity such as the DOC, only can be held liable under §
1983, [and only then for] its own constitutional or legal policies and not for the tortious acts of
its employees.” Tr. at 50:24-51:3 (alterations added)(Moulton). As a result of these arguments,
the New Mexico Corrections Department concluded that it is entitled to summary judgment on
Gallegos’ constitutional claims. See Tr. at 51:4-5 (Moulton)(“So in that regard we a[re] claiming
that we are entitled to summary judgment on that basis.”)(alteration added).
The New Mexico Department of Corrections next rehearsed its argument that Mr.

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Brewster’s conduct does not demonstrate deliberate indifference in violation of the Eighth
Amendment’s guarantees. See Tr. at 51:5-54-13. The New Mexico Department of Corrections
argued:
[E]ven if Mr. Brewster is brought into this, and I make the argument there
about Mr. Brewster’s actions. . . there has been no testimony that [Gallegos’]
medical condition was sufficiently serious. Going to that first objective standard
there, we have a [c]ourt order that says life threatening but we don’t have any
medical testimony about that . . . . [Gallegos] was provided medical care when he
arrived at the Department of Corrections, while he did not receive methadone and
he admits this in [his] deposition he received a kick kit he received medication
that was supposed to help his withdrawals be easier, . . . so while he did not
receive methadone, he did receive care.
Now, at some point, [Gallegos] asked for narcotics while he’s in there.
The Department of Corrections does not give out narcotics or prescribe narcotics.
Differences of medical decisions don’t rise to the claim of deliberate indifference.
It’s just a matter of a difference of opinion and then the subject of inquiry, of
course involves Mr. Brewster’s state of mind. And nothing in his email provides
evidence of a culpable state of mind. He responded to the inquiries from Mr.
Wilbur. He told Mr. Wilbur he would have a medical provider make sure to
evaluate [Gallegos] and treat him, [and] less than 10 minutes after his
conversation or one of his conversations with Mr. Wilbur, [Mr. Brewster] wrote
back to him and said the department’s inmate medical services provider, who at
that time was Corizon, was already aware of his medical status, and had a
protocol in place to treat [Gallegos]. In fact, [Mr. Brewster] confirmed that they
were already treating him. These are not comments of someone who is being
deliberately indifferent. He actively sought to address his medical status.
Now, plaintiff argues that Mr. Wilbur was worried that Mr. Brewster
would dispute any efforts to return him to MDC. Mr. Wilbur never said that in
his deposition. Mr. Brewster never said anything that would suggest that he
would interfere with his efforts to get him back there. He, basically, was asking
[“]have you brought it to the attention of the sentencing judge?[”] You know,
[Mr. Brewster] was looking to find out what [could he] do, what [does the New
Mexico Corrections Department] need to do here. [Gallegos] also argues that Mr.
Brewster could have easily ordered a change for this situation by telling Corizon
and the medical providers that they needed to [act.] . . . Plaintiff offers no
support for this statement. And further, [Gallegos] ignores the fact that
methadone is not available in the prison system, and that an attorney, an attorney
for the Department of Corrections cannot order Corizon or any medical provider
to provide specific treatment as that would be a medical decision. And
withdrawal symptoms also can be treated in multiple what is other than with just
methadone.
- 38 -

[Gallegos] argues that Mr. Brewster could have returned him to MDC, but
offers no explanation or support as to how an attorney for the DOC could send an
inmate back to MDC when he possesses that valid court order sending him to the
Department of Corrections. And then the detoxification program [also relate to]
decisions regarding issues [that] are made by medical providers not by attorneys.
If the plaintiff required more or different care than what he received, a health care
provider would make that decision. And he was seeing health care providers
throughout his time there. We don’t want lawyers or judges making medical
decisions.
The reality is Mr. Brewster did take action with regard to plaintiff’s
medical treatment. He contacted the medical vendor and made sure that they had
a medical protocol to treat him. He confirmed that they were treating him.
Nothing further could have been done.
Tr. at 51:5-54:9 (alterations added). The New Mexico Corrections Department further stated
that, under Valdez v. City & County of Denver, 878 F.2d at 1286, “the proper procedure for a
party who wishes to contest the legality of a court order enforcing a judgment is to appeal that
order and the underlying judgment, not sue the official responsible.”

Tr. at 54:14-18

(Moulton)(citing Valdez v. City & County of Denver, 878 F.2d at 1286).
The New Mexico Corrections Department then argued that “Mr. Brewster himself . . .
does not possess a culpable state of mind.” Tr. at 56:14-16 (Moulton)(alteration added). In
support of that contention, the New Mexico Corrections Department adverted to Mr. Brewster’s
electronic communications with Mr. Wilber. See Tr. at 56:16-17 (Moulton)(“And any of his
emails certainly don’t support that.”). Accordingly, the New Mexico Corrections Department
concluded that Mr. Brewster’s conduct cannot ground a deliberate-indifference claim. See Tr. at
56:14-17 (Moulton).
The Court then invited Gallegos’ response to the New Mexico Corrections Department’s
argument.

See Tr. at 71:1 (Court).

Gallegos stated that “the order itself says . . . the

defendant . . . has been sentenced to a period of incarceration . . . .”

- 39 -

Tr. at 57:4-7

(Lawless)(alterations added). The Court then expressed its view:
[T]he best you can read these two orders is it’s not the Department of
Corrections that is violating a court order. It’s the county that’s violating a court
order. . . . [A]t least from the Department’s standpoint, it’s the county that’s the
problem. Their order is you got up to six weeks in MDC, and MDC let him go
too early. The department, on the other hand, has got a valid court order that
says, well, he’s over here.
Tr. at 57:10-21 (Court)(alterations added). Gallegos replied that the New Mexico Corrections
Department nevertheless knew that its receipt of Gallegos was in violation of a court order,
because, according to Gallegos, the New Mexico Corrections Department knew that the state
court would not have given “six weeks if you only needed six days or five days.” Tr. at 58:3-4
(Lawless). The Court then asked “[w]hat if Brewster . . . what if he’d picked up the phone and
said, MDC, you need to take this guy back; they said we don’t want him back . . . six days was
enough. We don’t want the guy back.” Tr. at 58:5-9 (Court)(alterations added). Gallegos then
replied that, in light of the November 26, 2014, 2:51 p.m. Email from Brewster to Wilber,
Brewster “at least ha[d] . . . in his mind that he could [return Gallegos to MDC]. . . . So I don’t
know.” Tr. at 58:17-19 (Lawless)(alterations added).
Gallegos then concluded his argument on the New Mexico Corrections Department’s
summary judgment motion. Gallegos stated that he “thought under the case law that determining
the subjective element of deliberate indifference was a fact question, fact based anyway, and
what his state of mind was . . . under the subjective test is generally a fact based question.” Tr. at
7-12 (Lawless). Gallegos further stated that “nothing would have prevented his immediate return
to MDC . . . .” Tr. at 62:17-18 (Lawless). Gallegos further contended that Mr. Brewster “didn’t
ever ask a medical provider for an opinion on what to do, and basically that’s my take on why
this should not be granted.” Tr. at 62:22-25 (Lawless).
The Court then gave its inclined ruling: “I am inclined to grant the motion and find
- 40 -

that . . . there is no waiver of immunity on the Tort Claims Act; find that there is not sufficient
evidence of deliberate indifference; and grant the motion.” Tr. at 63:7-11 (Court). The Court
further noted its inclination with respect to Mr. Brewster: “I’m inclined to let Ms. Moulton’s
clients out of the case. So not let Brewster in and grant the motion of the Department.” Tr. at
59:3-6 (Court).
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment if the movant shows that 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). “The movant bears the
initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving
party’s case.’”

Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M.

2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting
evidence into the record that affirmatively disproves an element of the nonmoving
party’s case, or by directing the court’s attention to the fact that the non-moving
party lacks evidence on an element of its claim, “since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for
which it bears the burden of proof at trial, the nonmovant “must go beyond the
pleadings and designate specific facts to make a showing sufficient to establish
the existence of an element essential to his case in order to survive summary
judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).
Plustwik v. Voss of Nor. ASA, No. 2:11-cv-757, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence -- using any of the materials specified
in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex,

- 41 -

477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).21 Once the movant meets this
burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a
genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)(“Liberty Lobby”).
The party opposing a motion for summary judgment must “set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it carries
the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238,
1241 (10th Cir. 1990).

See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)

(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it carries
the burden of proof.”)(internal quotation marks omitted). Rule 56(c)(1) provides: “A party
asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). It
is not enough for the party opposing a properly supported motion for summary judgment to “rest
on mere allegations or denials of his pleadings.”

Liberty Lobby, 477 U.S. at 256.

See

Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States,
622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is
made, the opposing party may not rest on the allegations contained in his complaint, but must
21

Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme
Court, dissented in Celotex, this sentence is widely understood to be an accurate statement of the
law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727,
at 470 (3d ed. 1998)(“Wright & Miller”)(“Although the Court issued a five-to-four decision, the
majority and dissent both agreed as to how the summary-judgment burden of proof operates;
they disagreed as to how the standard was applied to the facts of the case.”).
- 42 -

respond with specific facts showing the existence of a genuine factual issue to be tried.” (citation
omitted)(internal quotation marks omitted)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. CIV 07-2123
JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Argo v. Blue Cross &
Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed. R. Civ. P. 56(e)). “In
responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on
speculation, or on suspicion and may not escape summary judgment in the mere hope that
something will turn up at trial.’” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1
(quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary
judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248).
Rather, there must be sufficient evidence on which the fact finder could reasonably find for the
nonmoving party.

See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin

Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)(“Schuylkill”); Vitkus v. Beatrice Co., 11
F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.

If the evidence is merely

colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record
as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

- 43 -

When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving
party’s favor, and construe all evidence in the light most favorable to the nonmoving party. See
Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”).
Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment was
appropriate where video evidence “quite clearly contradicted” the plaintiff’s version of the facts.
550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote
omitted). “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing
parties tell two different stories, one of which is blatantly contradicted by the

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record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible
fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the
litigation, a plaintiff’s version of the facts must find support in the record: more
specifically, “[a]s with any motion for summary judgment, when opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of
the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)
(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v.
Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cnty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads
v. Miller, [352 F. App’x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished),22] explained that the
blatant contradictions of the record must be supported by more than other witnesses’

22

Rhoads v. Miller is an unpublished opinion, but the Court can rely on an unpublished
opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R.
32.1(A)(“Unpublished opinions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
finds that Rhoads v. Miller, Lobozzo v. Colo. Dep’t of Corr., 429 F. App’x 707 (10th Cir. 2011),
United States v. Ceballos, 355 F. App’x 226 (10th Cir. 2009), and United States v. Aragones, 483
F. App’x 415 (10th Cir. 2012), have persuasive value with respect to material issues, and will
assist the Court in its preparation of this Memorandum Opinion and Order.
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testimony[.]”

Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M.

2010)(Browning, J.)(citation omitted), aff’d, 499 F. App’x 771 (10th Cir. 2012).
LAW REGARDING 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . , subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

Section 1983 creates only the right of action; it does not create any

substantive rights; substantive rights must come from the Constitution or from federal statute.
See Nelson v. Geringer, 295 F.3d 1082, 1097 (10th Cir. 2002)(“[S]ection 1983 did not create any
substantive rights, but merely enforces existing constitutional and federal statutory rights . . .
.”)(internal quotation marks, alteration, and citation omitted). Section 1983 authorizes an injured
person to assert a claim for relief against a person who, acting under color of state law, violated
the claimant’s federally protected rights. To state a claim upon which relief can be granted under
§ 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who
deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988). The Court has noted:
[A] plaintiff must establish (1) a violation of rights protected by the federal
Constitution or created by federal statute or regulation, (2) proximately caused (3)
by the conduct of a “person” (4) who acted under color of any statute, ordinance,
regulation, custom[,] or usage, of any State or Territory or the District of
Columbia.
Schaefer v. Las Cruces Public School Dist., 716 F. Supp. 2d 1052, 1063 (D.N.M.
2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)).
The Supreme Court has made clear that, in alleging a § 1983 action against a government agent
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in the agent’s individual capacity, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009)(“Iqbal”).
The Supreme Court has made clear that there is no respondeat superior liability under
§ 1983. See Iqbal, 556 U.S. at 675 (“Because vicarious liability is inapplicable to Bivens23 and §
1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520
U.S. 397, 403 (1997). An entity cannot be held liable solely on the basis of the existence of an
employer-employee relationship with an alleged tortfeasor. See Monell v. Dep’t of Social Servs.
of City of New York, 436 U.S. 658, 689 (1978). Supervisors can be held liable only for their
own unconstitutional or illegal policies, and not for their employees’ tortious acts. See Barney v.
Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998). The Tenth Circuit has recognized that nonsupervisory defendants may be liable if they knew or reasonably should have known that their
conduct would lead to the deprivation of a plaintiff’s constitutional rights by others, and an
unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697
F.3d 1252, 1255 (10th Cir. 2012)(quoting 42 U.S.C. § 1983; Trask v. Franco, 446 F.3d 1036,
1046 (10th Cir. 2006))(internal quotation marks omitted).
Before the Supreme Court decided Iqbal, the Tenth Circuit held that supervisors are not
liable under § 1983 “unless there is an affirmative link between the constitutional deprivation
and the supervisor’s exercise of control or direction, his personal participation, or his failure to
supervise.”

Kiesling v. Troughton, 107 F.3d 880, 1997 WL 111256, at *2 (10th Cir.

1997)(unpublished table decision)(citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir.

23

See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)(“Bivens”).
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1988)). The Tenth Circuit reasoned that, because supervisors can be held liable only for their
own constitutional acts or illegal policies, and not for their employees’ torts, supervisory liability
requires a showing that such policies were a “deliberate or conscious choice.” Barney v.
Pulsipher, 143 F.3d at 1307-08 (citations and internal quotation marks omitted). Cf. Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 404 (1997)(“[I]t is not enough for a § 1983 plaintiff merely to
identify conduct properly attributable to the municipality. The plaintiff must also demonstrate
that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury
alleged.”)(emphasis in original).
The Tenth Circuit has recognized that Iqbal limited, but did not eliminate, supervisory
liability for government officials based on an employee’s or subordinate’s constitutional
violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (D.N.M. 2011)(Browning,
J.)(citing Dodds v. Richardson, 614 F.3d at 1199). The language that may have altered the
landscape for supervisory liability in Iqbal is as follows: “Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson held:
Whatever else can be said about Iqbal, and certainly much can be said, we
conclude the following basis of § 1983 liability survived it and ultimately resolves
this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor
who creates, promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which “subjects, or causes to be
subjected” that plaintiff “to the deprivation of any rights . . . secured by the
Constitution . . . .”
Dodds v. Richardson, 614 F.3d at 1199. The Tenth Circuit noted, however, that “Iqbal may very
well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in
ways we do not need to address to resolve this case.” 614 F.3d at 1200. It concluded that Iqbal
- 48 -

did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal
involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. More specifically, the Tenth
Circuit recognized that there must be “an ‘affirmative’ link . . . between the unconstitutional acts
by their subordinates and their ‘adoption of any plan or policy . . . -- express or otherwise -showing their authorization or approval of such misconduct.” 614 F.3d at 1200-01. The specific
example that the Tenth Circuit used to illustrate this principle was Rizzo v. Goode, 423 U.S. 362
(1976), where the plaintiff sought to hold a mayor, a police commissioner, and other city
officials liable under § 1983 for constitutional violations that unnamed individual police officers
committed. See Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at
371).

The Tenth Circuit noted that the Supreme Court in that case found a sufficient link

between the police misconduct and the city officials’ conduct, because there was a deliberate
plan by some of the named defendants to “crush the nascent labor organizations.” Dodds v.
Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371).
LAW REGARDING THE NMTCA
The New Mexico Legislature enacted the NMTCA, because it recognized “the inherent
unfair and inequitable results which occur in the strict application of the doctrine of sovereign
immunity.”

N.M. Stat. Ann. § 41-4-2A.

The New Mexico Legislature, however, also

recognized
that while a private party may readily be held liable for his torts within the chosen
ambit of his activity, the area within which the government has the power to act
for the public good is almost without limit, and therefore government should not
have the duty to do everything that might be done.
N.M. Stat. Ann. § 41-4-2A. As a result, it was “declared to be the public policy of New Mexico
that governmental entities and public employees shall only be liable within the limitations of the
Tort Claims Act and in accordance with the principles established in that act.” N.M. Stat. Ann. §
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41-4-2A.

The NMTCA is also “based upon the traditional tort concepts of duty and the

reasonably prudent person’s standard of care in the performance of that duty.” N.M. Stat. Ann. §
41-4-2C.
1.

Section 41-4-4(A).

The NMTCA’s § 41-4-4(A), which grants immunity and authorizes exceptions thereto,
states:
A governmental entity and any public employee while acting within the scope of
duty are granted immunity from liability for any tort except as waived by the New
Mexico Religious Freedom Restoration Act [N.M. Stat. Ann. §§ 28-22-1 to 28-225] and by Sections 41-4-5 through 41-4-12 NMSA 1978. Waiver of this
immunity shall be limited to and governed by the provisions of Sections 41-4-13
through 41-4-25 NMSA 1978, but the waiver of immunity provided in those
sections does not waive immunity granted pursuant to the Governmental
Immunity Act.
N.M. Stat. Ann. § 41-4-2A. Accordingly, a plaintiff may not sue a New Mexico governmental
entity or its employees or agents, unless the plaintiff’s cause of action fits within one of the
exceptions that the NMTCA grants for governmental entities and public employees. See N.M.
Stat. Ann. §§ 41-4-5 through 41-4-12. See also Begay v. State, 1985-NMCA-117, ¶ 10, 723
P.2d 252, 255 (“Consent to be sued may not be implied, but must come within one of the
exceptions to immunity under the Tort Claims Act.”), rev’d on other grounds by Smialek v.
Begay, 1986-NMSC-049, ¶ 10, 721 P.2d 1306 (1986).

A plaintiff also may not sue a

governmental entity or its employees for a damage claim arising out of violations of rights under
the New Mexico Constitution unless the NMTCA contains a waiver of immunity. See Barreras
v. N.M. Corr. Dep’t, 2003-NMCA-027, ¶ 24, 62 P.3d 770, 776 (“In the absence of affirmative
legislation, the courts of this state have consistently declined to permit individuals to bring
private lawsuits to enforce rights guaranteed by the New Mexico Constitution, based on the
absence of an express waiver of immunity under the Tort Claims Act.”); Chavez v. City of
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Albuquerque, 1998-NMCA-004, ¶ 11, 952 P.2d 474, 477 (noting that a plaintiff cannot seek
damages for violations of rights under the New Mexico Constitution against a city, its
employees, or its agents unless the NMTCA waives immunity); Rubio v. Carlsbad Mun. Sch.
Dist., 1987-NMCA-127 ¶¶ 11-12, 744 P.2d 919, 922 (holding that no waiver of immunity exists
for damages arising out of alleged educational malpractice claim against a school board); Begay
v. State, 1985-NMCA-117, ¶ 14, 723 P.2d at 257 (finding that no waiver exists in the NMTCA
for suit under Article II, § 11 of the New Mexico Constitution). Thus, if no specific NMTCA
waiver can be found, a plaintiff’s complaint against the governmental entity or its employees
must be dismissed. See Begay v. State, 1985-NMCA-117, ¶ 14, 723 P.2d at 255. Further, the
NMTCA is the
exclusive remedy against a governmental entity or public employee for any tort
for which immunity has been waived under the Tort Claims Act and no other
claim, civil action or proceeding for damages, by reason of the same occurrence,
may be brought against a governmental entity or against the public employee or
his estate whose act or omission gave rise to the suit or claim.
N.M. Stat. Ann. § 41-4-17(A).
2.

Section 41-4-6.

N.M. Stat. Ann. § 41-4-6 exempts from immunity “liability 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. This exception
balances the principle that “government should not have the duty to do everything that might be
done” with the desire “to compensate those injured by the negligence of public employees and to
impose duties of reasonable care.” Cobos v. Doña Ana County Hous. Auth., 1998-NMSC-049, ¶
6, 970 P.2d 1143, 1145 (citations and internal quotations omitted). To resolve the tension

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between these two goals, § 41-4-6 “grant[s] governmental entities and employees a general
immunity from tort liability, [and] waives that immunity in certain defined circumstances.”
Cobos v. Doña Ana County Hous. Auth., 1998-NMSC-049, ¶ 6, 970 P.2d at 1145 (alterations
added).

The Supreme Court of New Mexico has explained that, “[w]hile 41-4-6 may

appropriately be termed a ‘premises liability’ statute, the liability envisioned by that section is
not limited to claims caused by injuries occurring on or off certain ‘premises,’ as the words
‘machinery’ and ‘equipment’ reveal.” Cobos v. Doña Ana County Hous. Auth., 1998-NMSC049, ¶ 9, 970 P.2d at 1146 (alteration added).

Section 41-4-6 “contemplate[s] waiver of

immunity where due to the alleged negligence of public employees an injury arises from an
unsafe, dangerous, or defective condition on property owned and operated by the
government . . . .” Bober v. New Mexico State Fair, 1991-NMSC-031, ¶ 27, 808 P.2d 614, 623
(alterations original)(internal quotation marks and citation omitted). New Mexico courts have
concluded that § 41-4-6’s waiver of immunity does not extend to negligent supervision, see
Pemberton v. Cordova, 1987-NMCA-020, ¶ 5, 734 P.2d 254, 256, negligent design, see Rivera v.
King, 1988-NMCA-093, ¶¶ 30-35, 765 P.2d 1187, 1194, negligent inspection, see Martinez v.
Kaune, 1987-NMCA-131, ¶ 9, 745 P.2d 714, 716-17, or negligent classification of a prison
inmate, see Archibeque v. Moya, 1993-NMSC-079, ¶¶ 11-14, 866 P.2d at 348.
In the prison context, the Supreme Court of New Mexico has held that “[t]he ‘operation’
and ‘maintenance’ of the penitentiary premises, as these terms are used in 41-4-6, does not
include the security, custody, and classification of inmates . . . . Section 41-4-6 does not waive
immunity when public employees negligently perform such administrative functions.”
Archibeque v. Moya, 1993-NMSC-079, ¶ 8, 866 P.2d at 347 (alterations added)(citations
omitted). In Archibeque v. Moya, Chris Archibeque, an inmate at the Central New Mexico

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Correction Facility, was transferred to the New Mexico State Penitentiary in Santa Fe, New
Mexico. See 1993-NMSC-079, ¶ 2, 866 P.2d at 346. Before being released into general
population, a prison intake officer, Moya-Martinez, met with Archibeque to discuss whether he
had any known enemies within the prison’s general population. See 1993-NMSC-079, ¶ 2, 866
P.2d at 346. Archibeque informed Moya-Martinez that another inmate, Gallegos, was one of his
enemies, and Moya-Martinez, without checking an available list of current inmates, informed
Archibeque that Gallegos was no longer at the prison. See 1993-NMSC-079, ¶ 2, 866 P.2d at
346. He was released into general population, and Gallegos assaulted him that night. See 1993NMSC-079, ¶ 2, 866 P.2d at 346. Archibeque sued Moya-Martinez, other corrections officers,
and the New Mexico Corrections Department in federal court for violations under 42 U.S.C. §
1983 and under the NMTCA. See 1993-NMSC-079, ¶ 3, 866 P.2d at 346. The district court
interpreted § 41-4-6 narrowly, and held that the statute did not waive immunity for negligent
security and custody of inmates at the penitentiary. See 1993-NMSC-079, ¶ 4, 866 P.2d at 346.
Thereafter, Archibeque’s § 1983 claims were resolved in favor of Moya-Martinez and the other
corrections employees. See 1993-NMSC-079, ¶ 4, 866 P.2d at 346. The federal district court
denied Archibeque’s motion for reconsideration. See 1993-NMSC-079, ¶ 4, 866 P.2d at 346.
Archibeque appealed, and the Tenth Circuit certified a question to the Supreme Court of New
Mexico:
Does [NMSA 1978, Section 41-4-6] of the New Mexico Tort Claims Act, [NMSA
1978, Sections 41-4-1 to -29], provide immunity from tort liability to an employee
of the state penitentiary whose alleged negligence in releasing a prisoner into the
general prison population, which included known enemies of the prisoner,
resulted in the prisoner being beaten and injured by one of his enemies?
1993-NMSC-079, ¶ 1, 866 P.2d at 345-46 (alterations original). Archibeque argued that Moya–
Martinez was participating in the operation of the penitentiary when she classified Archibeque as

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an inmate who could safely be released into the general prison population, and he argued that
Moya-Martinez’ alleged negligence in misclassifying him and releasing him into the general
population constituted negligent operation of the penitentiary, thereby waiving immunity under §
41-4-6. See 1993-NMSC-079, ¶ 5, 866 P.2d at 346-47. The Supreme Court of New Mexico
concluded that § 41-4-6 did not waive Moya-Martinez’ immunity, stating that “[t]he ‘operation’
and ‘maintenance’ of the penitentiary premises, as these terms are used in Section 41-4-6, does
not include the security, custody, and classification of inmates.” 1993-NMSC-079, ¶ 6, 866 P.2d
at 347 (alteration added). The Supreme Court of New Mexico reasoned that Moya-Martinez was
not operating and maintaining the prison’s physical premises when she negligently classified
Archibeque. See 1993-NMSC-079, ¶ 8, 866 P.2d at 347. Rather, the Supreme Court of New
Mexico explained that
[Moya-Martinez] was performing an administrative function associated with the
operation of the corrections system. Section 41-4-6 does not waive immunity
when public employees negligently perform such administrative functions. To
read Section 41-4-6 as waiving immunity for negligent performance of
administrative functions would be contrary to the plain language and intended
purpose of the statute.
1993-NMSC-079, ¶ 8, 866 P.2d at 347 (alteration added)(citation omitted). The Supreme Court
of New Mexico further explained:
While Moya-Martinez’s misclassification of Archibeque put him at risk, the
negligence did not create an unsafe condition on the prison premises as to the
general prison population. Reading Section 41-4-6 to waive immunity every time
a public employee’s negligence creates a risk of harm for a single individual
would subvert the purpose of the Tort Claims Act, which recognizes that
government, acting for the public good, “should not have the duty to do
everything that might be done,” and limits government liability accordingly.
1993-NMSC-079, ¶ 8, 866 P.2d at 348 (quoting N.M. Stat. § 41-4-2(A))(citation omitted).
According to the Supreme Court of New Mexico, to permit a waiver of immunity under § 41-4-6
whenever injury results from a negligently performed administrative task “would undermine the
- 54 -

purpose of the Tort Claims Act by subjecting the State to liability for virtually any mistake made
during the administration of corrections facilities that results in injury to an inmate.” 1993NMSC-079, ¶ 14, 866 P.2d at 349. The Supreme Court of New Mexico noted that, “[w]hile a
segment of the population at risk might justify waiver of immunity under Section 41-4-6, a
situation in which a single inmate is put at risk is not comparable.” 1993-NMSC-079, ¶ 14, n.3,
866 P.2d at 349 n.3. The Honorable Richard Ransom, then-Chief Justice of the Supreme Court
of New Mexico, in his concurring opinion, noted:
I concur because there was no showing that the general prison population
reflected anything but the reasonable and expected risks of prison life. The
classification of Archibeque did not change the condition of the premises. I see
Archibeque’s injuries as having been proximately caused by a discrete
administrative decision. As an alternative to releasing Archibeque into the
general population, he could have been placed in administrative segregation, a
form of protective custody. The risk arose not from a condition of the premises
(as with the wild dogs in Castillo [v. County of Santa Fe, 1988-NMSC-037, 755
P.2d 48] or, arguably, the inadequate health care facilities in Silva [v. State, 1987NMSC-107, 745 P.2d 380]); it arose from the classification itself.
Archibeque v. Moya, 1993-NMSC-079, ¶ 17, 866 P.2d at 350 (Ransom, C.J., concurring).
In Callaway v. New Mexico Department of Corrections, 1994-NMCA-049, ¶ 19, 875
P.2d 393, 398, the Court of Appeals of New Mexico concluded that the plaintiff had “stated a
claim sufficient to waive immunity under Section 41-4-6,” because the New Mexico Corrections
Department “knew or should have known that roaming gang members with a known propensity
for violence had access to potential weapons in the recreation area, that such gang members
created a dangerous condition on the premises of the penitentiary, and that the danger to other
inmates was foreseeable.” 1994-NMCA-049, ¶ 19, 875 P.2d at 399. The Court of Appeals of
New Mexico additionally noted, in “support for [its] holding[,]” that the “inmate assailant was
unusually dangerous and the prison authorities had knowledge of the danger posed by the
inmate.” 1994-NMCA-049, ¶ 19, 875 P.2d at 399 (alterations added). See Lymon v. Aramark
- 55 -

Corp., 728 F. Supp. 2d 1222, 1251-56 (D.N.M. 2010)(Browning, J.), aff’d, 499 F. App’x 771
(10th Cir. 2012).
NEW MEXICO LAW REGARDING NEGLIGENCE
Generally, a negligence claim requires the existence of a duty from a defendant to a
plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the
breach must be a cause-in-fact and proximate cause of the plaintiff’s damages. See Herrera v.
Quality Pontiac, 2003-NMSC-018, ¶ 6, 73 P.3d 181, 185-86 (“Herrera”). “In New Mexico,
negligence encompasses the concepts of foreseeability of harm to the person injured and of a
duty of care toward that person.” Ramirez v. Armstrong, 1983-NMSC-104, ¶ 8, 673 P.2d 822,
825, overruled on other grounds by Folz v. State, 1990-NMSC-075, ¶ 3, 797 P.2d 246, 249.
Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm’rs,
1984-NMSC-079, ¶ 4, 687 P.2d 728, 729. “A finding of negligence, however, is dependent upon
the existence of a duty on the part of the defendant.” Schear v. Bd. of County Comm’rs, 1984NMSC-079, ¶ 4, 687 P.2d at 729. “Whether a duty exists is a question of law for the courts to
decide.” Schear v. Bd. of County Comm’rs, 1984-NMSC-079, ¶ 4, 687 P.2d at 729 (citation
omitted). Once courts recognize that a duty exists, that duty triggers “a legal obligation to
conform to a certain standard of conduct to reduce the risk of harm to an individual or class of
persons.” Baxter v. Noce, 1988-NMSC-024, ¶ 11, 752 P.2d 240, 243.
New Mexico courts have stated that foreseeability of a plaintiff alone does not end the
inquiry into whether the defendant owed a duty to the plaintiff. See Herrera, 2003-NMSC-018, ¶
8, 73 P.3d at 186. The New Mexico courts have recognized that, “[u]ltimately, a duty exists only
if the obligation of the defendant [is] one to which the law will give recognition and effect.”
Herrera, 2003-NMSC-018, ¶ 9, 73 P.3d at 187 (internal quotation marks omitted). To determine

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whether the obligation of the defendant is one to which the law will give recognition and effect,
courts consider legal precedent, statutes, and other principles of law. See Herrera, 2003-NMSC018, ¶ 9, 73 P.3d at 187.
“[T]he responsibility for determining whether the defendant has breached a duty owed to
the plaintiff entails a determination of what a reasonably prudent person would foresee, what an
unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in
light of all the surrounding circumstances.” Herrera, 2003-NMSC-018, ¶ 33, 73 P.3d at 187
(internal quotation marks and citation omitted). “The finder of fact must determine whether
Defendant breached the duty of ordinary care by considering what a reasonably prudent
individual would foresee, what an unreasonable risk of injury would be, and what would
constitute an exercise of ordinary care in light of all surrounding circumstances of the present
case.” Herrera, 2003-NMSC-018, ¶ 33, 73 P.3d at 187.
“A proximate cause of an injury is that which in a natural and continuous sequence
[unbroken by an independent intervening cause] produces the injury, and without which the
injury would not have occurred.” Herrera, 2003-NMSC-018, ¶ 33, 73 P.3d at 187 (alterations in
original)(internal quotation marks and citation omitted). “It need not be the only cause, nor the
last nor nearest cause.” Herrera, 2003-NMSC-018, ¶ 33, 73 P.3d at 187 (internal quotation
marks and citation omitted). “It is sufficient if it occurs with some other cause acting at the same
time, which in combination with it, causes the injury.” Herrera, 2003-NMSC-018, ¶ 33, 73 P.3d
at 187 (internal quotation marks and citation omitted).
LAW REGARDING QUASI-JUDICIAL IMMUNITY
The Supreme Court has held that, if claims against hearing officers presiding over an
adjudication arise out of their adjudicatory acts, they are entitled to absolute quasi-judicial

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immunity. In Butz v. Economou, 438 U.S. 478 (1978), the Supreme Court held that agency
hearing examiners were entitled to absolute quasi-judicial immunity because their role was
“functionally comparable” to that of judge. Butz v. Economou, 438 U.S. at 512-14. The Tenth
Circuit recognizes that “officials in administrative hearings can claim the absolute immunity that
flows to judicial officers if they are acting in a quasi-judicial fashion.” Guttman v. Khalsa, 446
F.3d 1027, 1033 (10th Cir. 2006)(citing Butz v. Economou, 438 U.S. at 514). For an official at
an administrative hearing to enjoy absolute immunity, “(a) the officials’ functions must be
similar to those involved in the judicial process, (b) the officials’ actions must be likely to result
in damages lawsuits by disappointed parties, and (c) there must exist sufficient safeguards in the
regulatory framework to control unconstitutional conduct.” Guttman v. Khalsa, 446 F.3d at 1033
(quoting Horwitz v. State Bd. of Med. Examr’s, 822 F.2d 1508, 1513 (10th Cir. 1987))(internal
quotation marks omitted). For example, in Hennelly v. Flor de Maria Oliva, 237 F. App’x 318
(10th Cir. 2007), the Tenth Circuit affirmed the district court’s dismissal of § 1983 claims
against both the New Mexico State Court Judge presiding over a child-custody case and the
Hearing Officer who issued recommended rulings in that case after holding a hearing. See
Hennelly v. Flor de Maria Oliva, 237 F. App’x at 320. The Court held that the judge and hearing
officer both “were entitled to absolute judicial immunity, as [the plaintiff’s] allegations
concerned actions [the] Judge [ ] and Officer [ ] took in their judicial capacities within the
jurisdiction of the state court.” Hennelly v. Flor de Maria Oliva, 237 F. App’x at 320.
In addition to hearing officers, the Tenth Circuit has also explained that government
officials enjoy quasi-judicial immunity when executing facially valid court orders. See Whitesel
v. Sengenberger, 222 F.3d 861, 867-70 (10th Cir. 2000)(recognizing that, “[a]lthough absolute
immunity generally extends to non-judicial officers performing discretionary judicial acts, some

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circuits, including our own, have held that those performing ministerial acts at the direction of a
judge are also entitled to absolute immunity,” and holding that a pretrial service officer, who,
acting as a bond commissioner, issued a Temporary Restraining Order, was entitled to qualified
immunity).

See also Zamora v. City of Belen, 383 F. Supp. 2d 1315, 1325 (D.N.M.

2005)(Browning, J.)(“[L]aw enforcement officers are also entitled to absolute ‘quasi-judicial’
immunity for their actions in executing facially valid warrants, writs, and other court orders, such
as bench warrants.”). “A key requirement that [the Tenth Circuit] ha[s] found necessary to the
application of quasi-judicial immunity where government officials are executing court orders is
the requirement that the order be ‘facially valid.’” Moss v. Kopp, 559 F.3d 1155, 1164 (10th
Cir. 2009)(alterations added)(quoting Turney v. O’Toole, 898 F.2d 1470, 1472 (1990)(holding
that officials charged with the duty of executing a facially valid court order enjoy absolute
immunity)). In Moss v. Kopp, the Tenth Circuit elaborates:
[W]e have acknowledged that even assuming that an order is infirm as a matter of
state law, it may be facially valid, as “facially valid” does not mean “lawful,” and
erroneous orders can be valid. We explained: State officials must not be required
to act as pseudo-appellate courts scrutinizing the orders of judges, but subjecting
them to liability for executing an order because the order did not measure up to
statutory standards would have just that effect. Further, [t]o allow plaintiffs to
bring suit any time a state agent executes a judicial order which does not fulfill
every legal requirement would make the agent a lightning rod for harassing
litigation aimed at judicial orders. Simple fairness requires that state officers not
be called upon to answer for the legality of decisions which they are powerless to
control.
We have also noted that a narrow conception of facial validity would
deprive the court of most of the benefit it derives from the existence of quasijudicial immunity for officers carrying out its orders because the unhesitating
execution of court orders is essential to the court’s authority and ability to
function, and state officers subject to litigation might neglect to execute these
orders. Even worse, a fear of bringing down litigation on the [officer executing
the order] might color a court’s judgment in some cases. In short, [t]he public
interest demands strict adherence to judicial decrees.

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Moss v. Kopp, 559 F.3d at 1165 (first alteration added, second through fourth alterations
original)(internal quotation marks and citations omitted).

“To force officials performing

ministerial acts intimately related to the judicial process to answer in court every time a litigant
believes the judge acted improperly is unacceptable. Officials must not be called upon to answer
for the legality of decisions which they are powerless to control.” Valdez v. City & Cty. of
Denver, 878 F.2d 1285, 1288-89 (10th Cir. 1989). The Tenth Circuit explains that “[t]ension
between trial judges and those officials responsible for enforcing their orders inevitably would
result were there not absolute immunity for both.”

Valdez v. City & Cty. of Denver, 878 F.2d

at 1289 (alteration added)(citing T & W Inv. Co., Inc. v. Kurtz, 588 F.2d 901, 802 (10th Cir.
1978)).
Officials employed to implement facially valid court orders could choose: They
may disregard the judge’s orders and face discharge, or worse yet criminal
contempt, or they may fulfill their duty and risk being hauled into court. Judge
Learned Hand recognized years ago that the fear of suit will “dampen the ardor of
all but the most resolute, or the most irresponsible, in the unflinching discharge of
their duties.”
Valdez v. City & Cty. of Denver, 878 F.2d at 1289 (quoting Gregoire v. Biddle, 177 F.2d 579,
581 (2d Cir. 1949)).

The Tenth Circuit accordingly concluded that “[a]bsolute immunity [for

officials who execute facially valid court orders] will ensure the public’s trust and confidence in
courts’ ability to completely, effectively and finally adjudicate the controversies before them.”
Valdez v. City & Cty. of Denver, 878 F.2d at 1289. See Zamora v. City of Belen, 383 F. Supp.
2d at 1325.
LAW REGARDING ELEVENTH AMENDMENT IMMUNITY
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
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Const. amend. XI. The Supreme Court has construed Eleventh Amendment immunity to prohibit
federal courts from entertaining suits against states brought by their own citizens or citizens of
another state without their consent. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S.
299, 304 (1990). State agencies are likewise provided immunity as “an arm of the state.” Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280-81 (1977). See Williams v. Bd. of Regents
of Univ. of N.M., 990 F. Supp. 2d 1121, 1142-43 (D.N.M. 2014)(Browning, J.).
1.

The Consent and Abrogation Exceptions to Eleventh Amendment Immunity.

Exceptions to a state’s Eleventh Amendment immunity are few. A state may, however,
voluntarily waive its immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). Congress
may also abrogate Eleventh Amendment immunity pursuant to section 5 of the Fourteenth
Amendment, where the statute explicitly manifests Congress’ intent to do so. See Fitzpatrick v.
Bitzer, 427 U.S. 445, 456 (1976). Congress did not, however, abrogate Eleventh Amendment
immunity when enacting 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 340 (1979).
Section 1983 creates a cause of action against any person who, acting under color of state law,
abridges rights created by the Constitution and federal law.

See 42 U.S.C. § 1983.

Consequently, Eleventh Amendment immunity extends to state-governments under that statute,
and claims pursuant thereto in the federal courts are barred as a matter of law. See Williams v.
Bd. of Regents of Univ. of N.M., 990 F. Supp. 2d at 1143.
2.

Removal as a Waiver of Sovereign Immunity.

When a state removes a case to federal court, it invokes federal jurisdiction and waives
Eleventh Amendment immunity. See Lapides v. Board of Regents of Univ. Sys. of Ga., 535
U.S. 613, 624 (2002). In Lapides v. Board of Regents, the Supreme Court held that “removal is
a form of voluntary invocation of a federal court’s jurisdiction sufficient to waive the State’s

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otherwise valid objection to litigation of a matter . . . in a federal forum.” 535 U.S. at 624. The
Supreme Court noted: “[I]t is easy enough to presume that an attorney authorized to represent the
State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by
the consent to removal.” 535 U.S. at 624 (internal quotation marks omitted).
While Lapides v. Board of Regents was arguably limited to the context of state law
claims for which the state had explicitly waived immunity to suit in state court, the Tenth Circuit
has held that consent to remove a case to federal court also constitutes waiver in the context of
federal claims. See Estes v. Wyoming Dep’t of Transp., 302 F.3d 1200, 1206 (2002). In other
words, when a state removes federal-law claims from state court to federal court, the state
unequivocally invokes the jurisdiction of the federal court. See Estes v. Wyoming Dep’t of
Transp., 302 F.3d at 1206.
In Abreu v. N.M. Children, Youth & Families Dep’t, 646 F. Supp. 2d 1259 (D.N.M.
2009)(Browning, J.), the Court addressed the issue “whether removal constitutes a waiver of
immunity if private attorneys, representing state agencies or officials, rather than the state’s
Attorney General, carry out removal.” 646 F. Supp. 2d at 1264. The Court determined that, “at
least where counsel for the state agency are authorized to carry out the representation, their act of
removing a case to federal court will be sufficiently authoritative to constitute a waiver of
Eleventh Amendment immunity.” 646 F. Supp. 2d at 1264. The Court explained that, in
Lapides v. Board of Regents, the Supreme Court “framed and decided the issue without
reference to whether the state agency’s counsel must be the Attorney General.” Abreu v. N.M.
Children, Youth & Families Dep’t, 646 F. Supp. 2d at 1265. Reviewing the cases on which the
Supreme Court relied in Lapides v. Board of Regents, the Court noted that the focus was not on
the identity of the officer or on whether the officer had the authority to waive immunity, but

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“was on the right to represent the state in the matter in question.” Abreu v. N.M. Children,
Youth & Families Dep’t, 646 F. Supp. 2d at 1267. “In sum, if the Defendants’ counsel has the
authority, under state law, to represent the Defendants -- who are state agencies -- then counsel
may waive the Eleventh Amendment immunity defense by consenting to remove this case to
federal court.” 646 F. Supp. 2d at 1268. Turning to whether the defendants’ counsel had such
authority, the Court noted that Risk Management Division, a division of the General Services
Department, had the statutory authority to hire legal counsel, and that Risk Management’s
advisory board includes the Attorney General or his designee; thus, “the Risk Management
Division does not operate totally divorced from the Attorney General’s authority and
supervision.” 646 F. Supp. 2d at 1268. The Court determined that the New Mexico Children,
Youth, & Families Department’s (“CYFD”) private counsel were authorized to represent CYFD
and could waive Eleventh Amendment immunity on CYFD’s behalf. See 646 F. Supp. 2d at
1268. Additionally, CYFD’s counsel obtained a commission from the Attorney General, which
indicated that the Attorney General consented “not only to private counsels’ representation in
this case, but to their litigating the case in federal court.” 646 F. Supp. 2d at 1269. Counsel in
that case also “agreed to obtain the Attorney General’s express waiver of the State’s Eleventh
Amendment immunity.” 646 F. Supp. 2d at 1270. The Court determined that New Mexico had
validly waived its Eleventh Amendment immunity, exercised jurisdiction, and denied the motion
to remand in that case. See 646 F. Supp. 2d at 1270.
In Armijo v. State, Department of Transportation, the Court again held that a state
department waives Eleventh Amendment immunity by consenting to remove the case to federal
court. See Armijo v. State, Department of Transportation, 2009 WL 1329192, at *4 (D.N.M.
April 6, 2009)(Browning, J.).

Noting that “[n]either party has contended that the attorney

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representing the Department lacks authority to represent the Department in this case,” the Court
said it “presumes the representation is valid and finds that counsel had the authority to remove
this case to federal court.” 2009 WL 1329192, at *5. See Williams v. Bd. of Regents of Univ. of
N.M., 990 F. Supp. 2d at 1143-44.
3.

Ex Parte Young.

Although not properly characterized as an exception to a state’s Eleventh Amendment
immunity, the doctrine announced in Ex parte Young, 209 U.S. 123, 128 (1908), allows for suits
against state officials under certain circumstances. See Elephant Butte Irrigation Dist. of N.M. v.
Dep’t of the Interior, 160 F.3d 602, 607-08 (10th Cir. 1998)(“The Ex parte Young doctrine is not
actually an exception to Eleventh Amendment state immunity because it applies only when the
lawsuit involves an action against state officials, not against the state.”). In Ex parte Young, the
Supreme Court held that the Eleventh Amendment bar generally does not apply to state officials
defending suit in federal court which seeks only prospective relief from violations of federal law.
Ex parte Young, 209 U.S. at 28. The Ex parte Young doctrine allows suit to proceed against
defendant state officials if the following requirements are met: (i) the plaintiffs are suing state
officials rather the state itself; (ii) the plaintiffs have alleged a non-frivolous violation of federal
law; (iii) the plaintiffs seek prospective equitable relief rather than retroactive monetary relief
from the state treasury; and (iv) the suit does not implicate special sovereignty interests. See
Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the Interior, 160 F.3d at 609 (10th Cir. 1998);
Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d 1028, 1086 (D.N.M. 2016).
LAW REGARDING MOTIONS TO AMEND
“While Rule 15 governs amendments to pleadings generally, rule 16 of the Federal Rules
of Civil Procedure governs amendments to scheduling orders.” Bylin v. Billings, 568 F.3d 1224,

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1231 (10th Cir. 2009)(citing Fed. R. Civ. P. 16(b)). When a court has not entered a scheduling
order in a particular case, rule 15 governs amendments to a plaintiff’s complaint. See Fed. R.
Civ. P. 15. When a scheduling order governs the case’s pace, however, amending the complaint
after the deadline for such amendments implicitly requires an amendment to the scheduling
order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v. Billings, 568 F.3d
at 1231.
Rule 15(a) of the Federal Rules of Civil Procedure provides:
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21
days after service of a motion under rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.
Fed. R. Civ. P. 15(a)(bold in original). Further, the local rules provide that, with respect to
motions to amend a pleading, “[a] proposed amendment to a pleading must accompany the
motion to amend.” D.N.M.LR-Civ. 15.1.
Under rule 15(a), the court should freely grant leave to amend a pleading where justice so
requires.

See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M.

2010)(Browning, J.); Youell v. Russell, 2007 WL 709041, at *1-2 (D.N.M. 2007)(Browning, J.);
Burleson v. ENMR-Plateau Tele. Coop., 2005 WL 3664299, at *1-2 (D.N.M. 2005)(Browning,
J.). The Supreme Court has stated that, in the absence of an apparent reason such as “undue
delay, bad faith or dilatory motive . . . [,] repeated failure to cure deficiencies by amendments

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previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.,” leave to amend should be freely given. Fomen v.
Davis, 371 U.S. 178, 182 (1962). See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001).
See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80.
A court should deny leave to amend under rule 15(a) where the proposed “amendment
would be futile.” Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Serv., 175 F.3d 848, 859
(10th Cir. 1999). See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80. An
amendment is “futile” if the pleading “as amended, would be subject to dismissal.” In re
Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80 (citing TV Commc’ns Network, Inc. v.
Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)). A court may also deny
leave to amend “upon a showing of undue delay, undue prejudice to the opposing party, bad faith
or dilatory motive, [or] failure to cure deficiencies by amendments previously allowed.” In re
Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579 (quoting Frank v. U.S. West, Inc., 3 F.3d
1357, 1365-66 (10th Cir. 1993)). See Youell v. Russell, 2007 WL 709041, at *2-3 (D.N.M.
2007)(Browning, J.); Lymon v. Aramark Corp., 2009 WL 1299842 (D.N.M. 2009)(Browning,
J.). The Tenth Circuit has also noted:
It is well settled in this circuit that untimeliness alone is a sufficient reason to
deny leave to amend, see Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452,
1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893
F.2d 1182, 1185 (10th Cir. 1990); First City Bank v. Air Capitol Aircraft Sales,
820 F.2d 1127, 1133 (10th Cir. 1987), especially when the party filing the motion
has no adequate explanation for the delay, Woolsey, 934 F.2d at 1462.
Furthermore, “[w]here the party seeking amendment knows or should have
known of the facts upon which the proposed amendment is based but fails to
include them in the original complaint, the motion to amend is subject to denial.”
Las Vegas Ice, 893 F.2d at 1185.

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Frank v. U.S. W., Inc., 3 F.3d at 1365-66.24 The longer the delay, “the more likely the motion to
amend will be denied, as protracted delay, with its attendant burdens on the opponent and the
court, is itself a sufficient reason for the court to withhold permission to amend.” Minter v.
Prime Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004)). Undue delay occurs where the plaintiff’s amendments “make the complaint ‘a
moving target.’” Minter v. Prime Equip. Co., 451 F.3d at 1206 (quoting Viernow v. Euripides
Dev. Corp., 157 F.3d 785, 799-800 (10th Cir. 1998)). “[P]rejudice to the opposing party need
not also be shown.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185.
“Where the party seeking amendment knows or should have known of the facts upon which the
proposed amendment is based but fails to include them in the original complaint, the motion to
amend is subject to denial.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at
1185 (quoting State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984)).
Along the same vein, the court will deny amendment if the party learned of the facts upon which
its proposed amendment is based and nevertheless unreasonably delayed in moving to amend its
complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)(noting
motion to amend filed “was not based on new evidence unavailable at the time of the original
filing”).
Refusing leave to amend is generally justified only upon a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies

24

The Court notes that there is older authority in the Tenth Circuit that seems to be to the
contrary. See R.E.B., Inc. v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir. 1975)(“Lateness
does not of itself justify the denial of the amendment.”). Minter v. Prime Equipment Co. seems
to clarify that the distinction is between “delay” and “undue delay.” Minter v. Prime Equipment
Co., 451 F.3d at 1205-06. Delay is undue “when the party filing the motion has no adequate
explanation for the delay.” Minter v. Prime Equipment Co., 451 F.3d at 1206.
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by amendments previously allowed, or futility of amendment. See Castleglen, Inc. v. Resolution
Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)(citing Foman v. Davis, 371 U.S. at 182).
Again, the matter is left to the Court’s discretion. See Duncan v. Manager, Dep’t of Safety, City
& Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)(quoting Frank v. U.S. West, Inc., 3
F.3d at 1365-66, and stating that resolving the issue whether to allow a plaintiff to file a
supplement to his complaint is “well within the discretion of the district court”). “The . . . Tenth
Circuit has emphasized that ‘[t]he purpose of [rule 15(a)] is to provide litigants the maximum
opportunity for each claim to be decided on its merits rather than on procedural niceties.’” B.T.
ex rel. G.T. v. Santa Fe Pub. Schs., 2007 WL 1306814, at *2 (D.N.M. 2007)(Browning,
J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)). “Specifically,
the . . . Tenth Circuit has determined that district courts should grant leave to amend when doing
so would yield a meritorious claim.”

Burleson v. ENMR-Plateau Tel. Co-op., 2005 WL

3664299 at *2 (D.N.M. 2005)(Browning, J.)(citing Curley v. Perry, 246 F.3d 1278, 1284 (10th
Cir. 2001)). See Benavidez v. Sandia Nat’l Labs., 2017 WL 2266854, at *16-17 (D.N.M. Jan.
17, 2017)(Browning, J.).
LAW REGARDING EIGHTH AMENDMENT DELIBERATE INDIFFERENCE
CLAIMS
When a prisoner is incarcerated, the Eighth Amendment protects him from “a prison
official's ‘deliberate indifference’ to a substantial risk of serious harm,” as well as from the
intentional use of excessive force. Farmer v. Brennan, 511 U.S. 825, 828 (1994)(quoting Helling
v. McKinney, 509 U.S. 25, 28 (1993)).

“[N]either prison officials nor municipalities can

absolutely guarantee the safety of their prisoners,” but “[t]hey are . . . responsible for taking
reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d 756, 759
(10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the
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official causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to
the “denial of the minimal civilized measure of life’s necessities”; and (ii) the official has a
“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation
marks omitted). The second condition represents the functional application of the deliberateindifference standard. See Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006)(“To
establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm], the
plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious
harm[,] the objective component, and that the prison official was deliberately indifferent to his
safety, the subjective component.”)(quoting Verdecia v. Adams, 327 F.3d 1171, 1175 (10th
Cir. 2003)).
Analyzing whether the plaintiff has satisfied the first element, the objective element,
“requires more than a scientific and statistical inquiry into the seriousness of the potential harm
and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney,
509 U.S. 25, 36 (1993). Courts should also consider “whether society considers the risk that the
prisoner complains of to be so grave that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36. “In other words, the
prisoner must show that the risk of which he complains is not one that today's society chooses to
tolerate.” Helling v. McKinney, 509 U.S. at 36. The Eighth Amendment does not protect
against “de minimis uses of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.”

Hudson v. McMillian, 503 U.S. 1, 9-10

(1992)(internal quotation marks omitted)(“That is not to say that every malevolent touch by a
prison guard gives rise to a federal cause of action.”). The Tenth Circuit has noted that, “in
Hudson, the Supreme Court evidenced its ‘commit[ment] to an Eighth Amendment which

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protects against cruel and unusual force, not merely cruel and unusual force that results in
sufficient injury.’” United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). Were it
otherwise, the Tenth Circuit reasoned, “a prisoner could constitutionally be attacked for the sole
purpose of causing pain as long as the blows were inflicted in a manner that resulted in visible
(or palpable or diagnosable) injuries that were de minimis.” United States v. LaVallee, 439 F.3d
at 688. See Hudson v. McMillian, 503 U.S. at 13 (Blackmun, J., concurring)(“The Court today
appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of
force is actionable under the Eighth Amendment only when coupled with ‘significant injury,’
e.g., injury that requires medical attention or leaves permanent marks.”). Thus, to establish
excessive force in violation of the Eight Amendment, the plaintiff need not establish that he or
she “suffered a certain level or type of injury.” United States v. LaVallee, 439 F.3d at 688.
The second element regarding the government official’s state of mind is a subjective
inquiry. See Wilson v. Seiter, 501 U.S. at 298. Courts apply this subjective inquiry to determine
whether the allegations are that a “short-term” or “one-time” violation occurred, or that
“continuing” or “systemic” violations occurred. Wilson v. Seiter, 501 U.S. at 299. The Supreme
Court has stated: “With deliberate indifference lying somewhere between the poles of negligence
at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated
deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S. at 836. The Supreme
Court provided the following test for determining when this subjective element is met:
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. at 837. For Eighth Amendment purposes, the Tenth Circuit has

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equated deliberate indifference with recklessness. See Belcher v. United States, 216 F. App’x at
823-24 (quoting Smith v. Cummings, 445 F.3d at 1258).
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court addressed whether a
plaintiff could assert both Eighth Amendment violations and substantive due-process violations
in the same suit against government officials alleging that they engaged in physically abusive
conduct. See 490 U.S. at 394-95. More specifically, it held that, when a specific constitutional
amendment provides “an explicit textual source of constitutional protection against this sort of
physically intrusive governmental conduct,” courts should analyze all constitutional claims under
that amendment’s standards rather than under “the more generalized notion of ‘substantive due
process.’” 490 U.S. at 395. The Supreme Court gave as an example for this principle “the
Eighth Amendment’s ban on cruel and unusual punishments,” because it is one of the “two
primary sources of constitutional protection against physically abusive governmental conduct.”
490 U.S. at 395. The Supreme Court later clarified that its holding in Graham v. Connor “simply
requires that if a constitutional claim is covered by a specific constitutional provision, such as the
Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520
U.S. 259, 272 n.7 (1997). To illustrate this point, the Supreme Court has recognized that, if a
search or seizure did not occur, the Fourth Amendment does not cover the situation, and the
plaintiff may proceed on a substantive due-process theory. See Cty. of Sacramento v. Lewis,
523 U.S. 833, 843-844 (1998)(“The Fourth Amendment covers only ‘searches and seizures,’
neither of which took place here. . . . Graham’s more-specific-provision rule is therefore no bar
to respondents’ suit.”)(quoting U.S. Const. amend. IV).

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In Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), the Tenth Circuit addressed a
case where the plaintiff asserted claims that they were “denied necessary medical care [in prison]
in violation of their rights under the Eighth and Fourteenth Amendments.” 83 F.3d at 1202. In
determining whether to apply Eighth Amendment standards or substantive due-process standards
when reviewing the plaintiffs’ claims in Riddle v. Mondragon, the Tenth Circuit noted that,
“where constitutional protection is afforded under specific constitutional provisions, alleged
violations of the protection should be analyzed under those provisions and not under the more
generalized provisions of substantive due process.” 83 F.3d at 1202 (citing Berry v. City of
Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990)). Thus, the Tenth Circuit reviewed the
plaintiffs’ claims for denial of medical care in prison under the Eighth Amendment and did not
consider the plaintiffs’ substantive due-process theory. See Riddle v. Monragon, 83 F.3d at 1202
(“Accordingly, we will review plaintiffs’ claims under the Eighth Amendment as made
applicable to the states through the Fourteenth Amendment.”). See also Salazar v. San Juan Cty.
Det. Ctr., No. CIV 15-0417 JB/LF, 2016 WL 335447, at *30-32 (D.N.M. Jan. 15,
2016)(Browning, J.).
ANALYSIS
The Court concludes that: (i) the New Mexico Corrections Department is entitled to
summary judgment on Gallegos’ claims, because the New Mexico Corrections Department
enjoys sovereign immunity from those claims; (ii) the NMTCA does not waive the New Mexico
Corrections Department’s Eleventh Amendment immunity from Gallegos’ state tort claim; (iii)
even if the NMTCA waives the New Mexico Corrections Department’s Eleventh Amendment
immunity from Gallegos’ state tort claim, § 41-4-6(A)’s waiver provision does not apply,
because Gallegos has not sufficiently demonstrated that the New Mexico Corrections

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Department failed to implement a safety policy necessary to protect those who use the building
that housed him; and (iv) even if the NMTCA waives the New Mexico Corrections Department’s
Eleventh Amendment immunity from Gallegos’ state tort claims, § 41-4-6(A)’s waiver provision
does not apply, because § 41-4-6(A) does not waive the New Mexico Corrections Department’s
immunity from Gallegos’ state tort claim to the extent that Gallegos’ claim is predicated on a
single, discrete administrative act affecting only himself. Turning to the Motion to Amend, the
Court concludes that: (v) Gallegos’ proposed amendment to add Mr. Brewster as a defendant is
futile, because Mr. Brewster is immune from Gallegos’ claims to the extent that Gallegos’ claims
are based on Brewster’s enforcement of facially-valid court orders; and (vi) Gallegos’ proposed
amendment to add Mr. Brewster as a defendant is also futile, because Mr. Brewster was neither
negligent nor deliberately indifferent to Gallegos’ withdrawal symptoms.

The Court will

proceed with its analysis in that order.
I.

THE NEW MEXICO CORRECTIONS DEPARTMENT HAS SOVEREIGN
IMMUNITY FROM GALLEGOS’ CLAIMS.
The New Mexico Corrections Department enjoys sovereign immunity from Gallegos’

claims. Both the federal Constitution’s structure and the Eleventh Amendment guarantee state
sovereign immunity from private suits. See U.S. Const. amend. XI; Alden v. Maine, 527 U.S.
706, 713 (1999).25 The Eleventh Amendment provides that “[t]he judicial power of the United

25

In Alden v. Maine, the Supreme Court explained:

[T]he sovereign immunity of the States neither derives from, nor is limited by, the
terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its
history, and the authoritative interpretations by this Court make clear, the States’
immunity from suit is a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution, and which they retain today
(either literally or by virtue of their admission into the Union upon an equal
footing with the other States) except as altered by the plan of the Convention or
certain constitutional Amendments.
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States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State . . . .” U.S. Const. amend. XI. A
state is also immune from suit brought by one of its own citizens. See Hans v. Louisiana, 134
U.S. 1, 13 (1890). “It is well established,” therefore, “that under the Eleventh Amendment,
sovereign immunity prohibits federal courts from entertaining suits against states brought by
their own citizens or citizens of another state without their consent.” Hunt v. Colo. Dep’t of
Corr., 271 F. App’x 778, 780 (10th Cir. 2008).
Although the Supreme Court has refrained from deciding whether “Eleventh Amendment
immunity is a matter of subject-matter jurisdiction,” Wis. Dep’t of Corr. v. Schacht, 524 U.S.
381, 391 (1998), state sovereign immunity is jurisdictional in important respects.26 First, the

Alden v. Maine, 527 U.S. at 713.
26

For its part, the Tenth Circuit has noted that Eleventh Amendment immunity “is not
easy to characterize,” because “[i]t shares features with affirmative defenses, while also
containing traits more akin to subject-matter jurisdiction.” U.S. ex rel. Burlbaw v. Orenduff, 548
F.3d at 941 (10th Cir. 2008)(citing Fent v. Okla Water Res. Bd., 235 F.3d 553, 558 (10th Cir.
2000)). As such, the Tenth Circuit has opined that Eleventh Amendment immunity “is best
understood according to its own unique identity, rather than through its similarities with other
legal doctrines.” U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d at 941. “In other words,” the Tenth
Circuit has stated, “‘the Eleventh Amendment occupies its own unique territory.’” U.S. ex rel.
Burlbaw v. Orenduff, 548 F.3d at 941 (quoting Floyd v. Thompson, 227 F.3d 1029, 1035 (7th
Cir. 2000)).
Although the Supreme Court has refrained from deciding whether “Eleventh Amendment
immunity is a matter of subject-matter jurisdiction,” Wis. Dep’t of Corr. v. Schacht, 524 U.S. at
391, the Supreme Court has indicated that, even if it were jurisdictional, the Eleventh
Amendment inquiry does not necessarily take pride of place among other inquiries concerning
the federal judicial power to adjudicate claims. See Vt. Agency of Nat. Res. v. United States ex
rel. Stevens, 529 U.S. 765, 779-80 (2000); Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998).
A federal court’s subject-matter jurisdiction must be addressed before the merits of a claim that
the court is called to adjudicate. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998)(quoting Ex parte McCardle, 7 Wall. 506, 514 (1868))(“Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of announcing the fact and dismissing the
cause.”). The Supreme Court has not expressly decided whether the Eleventh Amendment must
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be decided “before the merits.” Wright & Miller § 3524.1, at 264. In two cases, the Supreme
Court has held that federal courts should address other questions regarding the federal judicial
power before addressing an Eleventh Amendment immunity inquiry. See Vt. Agency of Nat.
Res. v. United States ex rel. Stevens, 529 U.S. at 779-80; Calderon v. Ashmus, 523 U.S. at 745
n.2. Hence, even if Eleventh Amendment immunity bears upon the federal courts’ jurisdiction,
among questions involving the federal courts’ judicial power, it does not take pride of place. See
Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. at 779-80; Calderon v.
Ashmus, 523 U.S. at 745 n.2.
First, in Calderon v. Ashmus, the Supreme Court granted certiorari on an Eleventh
Amendment issue, but decided that it “must first address whether this action for a declaratory
judgment is the sort of ‘Article III’ ‘case or controversy’ to which federal courts are limited.”
Calderon v. Ashmus, 523 U.S. at 745. The Supreme Court explained this sequence of inquiry by
noting that, “[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation
on the federal court’s judicial power, and therefore can be raised at any stage of the proceedings,
we have recognized that it is not coextensive with the limitations on judicial power in Article
III.” Calderon v. Ashmus, 523 U.S. at 748 n.2 (citing Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 267 (1997); Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n.19 (1982)). In
Calderon v. Ashmus, the Eleventh Amendment immunity question took a back seat to a
justiciability question, but not to the merits. See Calderon v. Ashmus, 523 U.S. at 749 (“We
conclude that this action for a declaratory judgment and injunctive relief is not a justiciable case
within the meaning of Article III.”). Calderon v. Ashmus, therefore, suggests that Eleventh
Amendment immunity is not, strictly speaking, a limitation on the federal courts’ judicial power.
See Calderon v. Ashmus, 523 U.S. at 748 n.2 (“While the Eleventh Amendment is jurisdictional
in the sense that it is a limitation on the federal court’s judicial power, and therefore can be
raised at any stage of the proceedings, we have recognized that it is not coextensive with the
limitations on judicial power in Article III.”).
Second, in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529
U.S. 765 (2000), the Supreme Court stated that it has
routinely addressed before the question whether the Eleventh Amendment forbids
a particular statutory cause of action to be asserted against States, the question
whether the statute itself permits the cause of action it creates to be asserted
against States (which it can do only by clearly expressing such an intent).
Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. at 779 (emphases original)(citing
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73-78 (2000); Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 55-57 (1996); Hafer v. Melo, 502 U.S. 21, 25-31 (1991); Mt. Healthy City Sch. Dist.
Bd. of Ed. v. Doyle, 429 U.S. 274, 277-81 (1977)). The Supreme Court further noted that,
“[w]hen these two questions are at issue, not only is the statutory question ‘logically antecedent
to the existence of” the Eleventh Amendment question, but also there is no realistic possibility
that addressing the statutory question will expand the Court’s power beyond the limits that the
jurisdictional restriction has imposed.’” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529
U.S. at 779 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 612 (1997)). The
Supreme Court explained:
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The question whether the statute provides for suits against the States (as opposed,
for example, to the broader question whether the statute creates any private cause
of action whatever, or the question whether the facts alleged make out a “false
claim” under the statute) does not, as a practical matter, permit the court to
pronounce upon any issue, or upon the rights of any person, beyond the issues and
persons that would be reached under the Eleventh Amendment inquiry anyway.
The ultimate issue in the statutory inquiry is whether States can be sued under this
statute; and the ultimate issue in the Eleventh Amendment inquiry is whether
unconsenting States can be sued under this statute. This combination of logical
priority and virtual coincidence of scope makes it possible, and indeed
appropriate, to decide the statutory issue first. We therefore begin (and will end)
with the statutory question.
Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. at 779-80. The Supreme Court’s
inclination to address the justiciability questions and statutory questions regarding whether a
statute that creates a cause of action also applies to the States suggests that Eleventh Amendment
immunity, when raised, is not necessarily the first question regarding a court’s jurisdiction. See
Calderon v. Ashmus, 523 U.S. at 748 n.2 (“While the Eleventh Amendment is jurisdictional in
the sense that it is a limitation on the federal court’s judicial power, and therefore can be raised at
any stage of the proceedings, we have recognized that it is not coextensive with the limitations
on judicial power in Article III.”); Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. at
779-80 (“This combination of logical priority and virtual coincidence of scope makes it possible,
and indeed appropriate, to decide the statutory issue first. We therefore begin (and will end) with
the statutory question.”). See also Wright & Miller § 3524.1, at 264-65.
Justices Stevens has suggested, however, that the Eleventh Amendment is a
straightforward restriction on the federal courts’ subject-matter jurisdiction. Fed. Mar. Comm’n
v. S.C. State Ports Auth., 535 U.S. 743, 770-71 (2002)(Stevens, J., dissenting). In Federal
Maritime Commission v. South Carolina State Ports Authority, writing in dissent, Justice
Stevens explained his own view that the Eleventh Amendment clearly restricts the federal court’s
diversity jurisdiction. See Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. at 770-71. In
Justice Stevens’ estimation, the Eleventh Amendment’s legislative history illuminates its bearing
on the federal courts’ subject-matter jurisdiction. See Fed. Mar. Comm’n v. S.C. State Ports
Auth., 535 U.S. at 771. Justice Stevens observes:
It is familiar learning that the Amendment was a response to this Court’s decision
in Chisholm v. Georgia. Less recognized, however, is that Chisholm necessarily
decided two jurisdictional issues: that the Court had personal jurisdiction over the
state defendant, and that it had subject-matter jurisdiction over the case. The first
proposed
draft
of
a
constitutional
amendment
responding
to
Chisholm -- introduced in the House of Representatives in February 1793, on the
day after Chisholm was decided -- would have overruled the first holding, but not
the second. That proposal was not adopted. Rather, a proposal introduced the
following day in the Senate, which was “cast in terms that we associate with
subject matter jurisdiction,” provided the basis for the present text of the Eleventh
Amendment.
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Eleventh Amendment protects states not only from liability but also from being subject to
judicial process at a private litigant’s instance. See Fed. Mar. Comm’n v. S.C. State Ports Auth.,
535 U.S. 743, 766 (2002)(“Sovereign immunity does not merely constitute a defense to monetary
liability or even to all types of liability. Rather, it provides an immunity from suit.”). Second,
like other jurisdictional defenses, a state’s sovereign immunity defense may be asserted at any
stage of proceedings, including for the first time on appeal. See Edelman v. Jordan, 415 U.S. at
678 (“[T]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional
bar so that it need not be raised in the trial court . . . .”). Third, the Court may raise sua sponte
the sovereign-immunity issue, see V-1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d
1415, 1420 (10th Cir. 1997)(raising the Eleventh Amendment issue sua sponte), but -- unlike
other defenses to subject matter jurisdiction -- a court is not required to do so, see Nelson v.
Geringer, 295 F.3d at 1098 (“[J]udicial consideration of Eleventh Amendment issues sua sponte
is discretionary, not mandatory.”)(alteration added)(citing Wis. Dep’t of Corr. v. Schacht, 524
U.S. at 389 (“Nor need a court raise [an Eleventh Amendment] defect on its own. Unless the
State raises the matter, a court can ignore it.”). But cf. Archibeque v. Wylie, 16 F.3d 415 (10th
Cir. 1994)(stating that, “[a]s an initial matter, we must determine whether we have jurisdiction,
though neither the parties nor the district court raised this issue,” where the case involved an
official-capacity claim against a New Mexico Department of Corrections employee)(citing

This legislative history suggests that the Eleventh Amendment is best
understood as having overruled Chisholm’s subject-matter jurisdiction holding,
thereby restricting the federal courts’ diversity jurisdiction. . . . Moreover, as
Chief Justice Marshall recognized, a subject-matter reading of the Amendment
makes sense, considering the States’ interest in avoiding their creditors.
Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. at 772 (Stevens, J., dissenting)(citations
and footnotes omitted). The Court is inclined to agree with Justice Stevens’ view that the
Eleventh Amendment limits the federal courts’ subject-matter jurisdiction.
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McGeorge v. Cont’l Airlines, Inc., 871 F.2d 952, 953 (10th Cir. 1989)).27 “The net effect of
these characteristics is that a state defendant retains broad discretion over whether a court must
hear an Eleventh Amendment argument that may end the litigation.” U.S. ex rel. Burlbaw v.
Orenduff, 548 F.3d 931, 942 (10th Cir. 2008). As the Supreme Court has succinctly stated the
proposition, “[u]nless the State raises the matter, a court can ignore it.” Wis. Dep’t of Corr. v.
Schacht, 524 U.S. at 389.
In this case, the Court does not raise the issue of sovereign immunity sua sponte, because
the New Mexico Corrections Department asserts the defense itself. See Defendant New Mexico
Department of Corrections’ Answer to Amended Complaint ¶ 1, at 4, filed May 5, 2016 (Doc.
9)(“Answer”); Tr. at 47:20 (Moulton). In its Answer, as its first affirmative defense, the New
Mexico Corrections Department argues that “absolute immunity” bars Gallegos’ claims. Answer
¶ 1, at 4. At the hearing, the New Mexico Department of Corrections clarified that the Eleventh
Amendment provides that immunity. See Tr. at 47:20 (Moulton). The defense is sound.
The New Mexico Corrections Department partakes in New Mexico’s state sovereign
immunity. State sovereign immunity “extends to state agencies functioning as an arm of the
state.” Hunt v. Colo. Dep’t of Corr., 271 F. App’x at 780 (citation omitted). See Bishop v. John
Doe 1, 902 F.2d 809, 810 (10th Cir. 1990)(“The eleventh amendment generally bars lawsuits in
27

Because a party may raise a state sovereign immunity defense for the first time on
appeal, the Court reasons that both prudence and judicial economy generally counsel considering
state sovereign immunity sua sponte in those instances where a defendant does not assert the
issue in trial court; otherwise, the Court risks what might amount to unnecessary resources in
considering the merits of a plaintiff’s claims. The Court notes, for example, that, in Archibeque
v. Wylie, 16 F.3d 415, 1994 WL 41272 (10th Cir. 1994)(Table), because state sovereign
immunity barred an official capacity claim against a New Mexico Corrections Department
employee, the Tenth Circuit held that the district court lacked jurisdiction over that claim and,
accordingly, “vacate[d] the district court’s orders as they pertain to Mr. Archibeque’s 1983 claim
and state law claim against Ms. Moya-Martinez in her official capacity and remand[ed] to the
district court for dismissal for lack of jurisdiction.” Archibeque v. Wylie, 16 F.3d 415, 1994 WL
41272, at *1.
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federal court seeking damages against states as well as against state agencies, departments, and
employees acting in their official capacity.”).28 The Tenth Circuit has settled that the New
Mexico Corrections Department is an arm of the state for the purposes of state sovereign
immunity. See Bishop v. John Doe 1, 902 F.2d at 810. In Bishop v. John Doe 1, the Tenth
Circuit affirmed the dismissal of the plaintiff-appellant’s claims against the New Mexico
Corrections Department, because sovereign immunity protected the state agency and New
Mexico had not waived immunity to the plaintiff-appellant’s claims. See Bishop v. John Doe 1,
902 F.2d at 810. See also, e.g., Archibeque v. Wylie, 16 F.3d 415, 1994 WL 41272, at *1 (10th
Cir. 1994)(Table)(holding that state sovereign immunity barred official-capacity claim against
New Mexico Corrections Department employee). By the same reasoning, in Hunt v. Colorado
Department of Corrections, the Tenth Circuit held that the “Colorado Department of
Correction . . . is an agency of the State of Colorado,” 271 F. App’x at 780-81, and,
consequently, concluded that the plaintiff’s claim against that state agency “is barred as a matter
of law,” 271 F. App’x at 781. Accordingly, the New Mexico Corrections Department is immune
from Gallegos’ claims, unless an exception to sovereign immunity applies. No exception,
however, applies.
First, because Gallegos does not seek injunctive relief against a state officer, see
Amended Complaint ¶¶ 1-19, at 1-4, the Ex Parte Young doctrine does not apply, see Ex Parte
Young, 209 U.S. at 128. See also Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the Interior,
160 F.3d at 607-08 (“The Ex parte Young doctrine . . . applies only when the lawsuit involves an
action against state officials, not against the state.”)(omission added). Second, no exception
applies for Gallegos’ § 1983 claims. It is settled that “Congress did not abrogate Eleventh
28

Counties and municipal corporations, by contrast, do not enjoy state sovereign
immunity. See Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977).
- 79 -

Amendment immunity through Section 1983 . . . .” Hunt v. Colorado Dep’t of Corr., 271 F.
App’x at 781 (citing Quern v. Jordan, 440 U.S. at 345). Further, New Mexico has not, by way of
statute, waived its sovereign immunity from § 1983 claims. See, e.g., Archibeque v. Wylie, 16
F.3d 415, 1994 WL 41272, at *1 (holding that “New Mexico has not waived its immunity” to §
1983 claims asserting an Eighth Amendment violation). Cf. Ramirez v. N.M. Children, Youth
and Families Dep’t, 2016-NMSC-016, ¶ 29, 372 P.3d 497 (holding that, by statute, New Mexico
waived state sovereign immunity to claims asserted under the Uniformed Services Employment
and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-35). Third, on the record before the
Court, the New Mexico Corrections Department did not expressly consent to suit or otherwise
advert to an authorization by the New Mexico Attorney General consenting to suit in federal
court.

Cf. Abreu v. N.M. Children, Youth & Families Dep’t, 646 F. Supp. 2d at 1269

(concluding that private counsel waived state agency’s sovereign immunity where private
counsel received the New Mexico Attorney General’s authorization).29 On the contrary, the state
agency asserts a sovereign immunity defense. See Answer ¶ 1, at 4; Tr. at 47:20 (Moulton).
Furthermore, the New Mexico Corrections Department did not implicitly consent to suit
in federal court by either participating in removal or other litigation conduct. Cf. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. at 619-20. The Court cannot soundly conclude that the
Notice of Removal that the Bernalillo County Board of Commissioners and MDC filed pursuant

29

In Lapides v. Board of Regents of the University System of Georgia, the Supreme Court
made clear that “[a] State remains free to waive its Eleventh Amendment immunity from suit in a
federal court.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. at 618 (alteration
added). In Abreu v. New Mexico Children, Youth & Families Department, the Court concluded
that private counsel representing a state agency may waive New Mexico’s sovereign immunity
when private counsel obtains authorization from the Attorney General, indicating that the
Attorney General consents “not only to private counsels’ representation in th[e] case, but to their
litigating the case in federal court.” Abreu v. N.M. Children, Youth & Families Dep’t, 646 F.
Supp. 2d at 1269 (alteration added).
- 80 -

to 28 U.S.C. § 1446(b)(3) waives the New Mexico Corrections Department’s sovereign
immunity. See Notice of Removal ¶¶ 1-11, at 1-2. Although “[a] State remains free to waive its
Eleventh Amendment immunity from suit in a federal court,” Lapides v. Bd. of Regents of Univ.
Sys. of Ga., 535 U.S. at 618 (alteration added), “a State’s Eleventh Amendment immunity may
be waived if a state actor with the power to bring suit in federal court invokes federal jurisdiction
in a clear and voluntary manner,” Union Elec. Co. v. Mo. Dep’t of Conservation, 366 F.3d 655,
659-60 (8th Cir. 2004)(emphasis in original). Accordingly, although a state or state agency
waives immunity from suit by removing to federal court, see Lapides v. Bd. of Regents of Univ.
Sys. of Ga., 535 U.S. at 619-20, states do not waive immunity from suit where the state does not
voluntarily participate in the removal to federal court, see Kozaczek v. N.Y. Higher Educ. Servs.
Corp., 503 F. App’x 60, 62 (2d Cir. 2012)(“Kozaczek’s arguments that HESC waived Eleventh
Amendment immunity are equally ineffectual. Although a state or state agency waives immunity
from suit by removing to federal court, HESC had not been properly served at the time
Defendant GC Services removed this case and therefore did not consent to removal.”); Frazier v.
Pioneer Americas LLC, 455 F.3d 542, 547 (5th Cir. 2006)(“[A] state may find itself in a case
removed to federal court without having joined in the removal. Such a state, having taken no
affirmative act, has not waived immunity and can still assert it.”)(alteration added); Matson v.
Tippecanoe Cty., Ind., No. 4:14 CV 79, 2016 WL 912692, at *1 (N.D. Ind. Mar. 9,
2016)(Moody, J.)(holding “that IDOC, having not voluntarily participated in the removal of this
case, did not waive its sovereign immunity rights when the case was removed to this forum by
other parties”); Shelley v. Colo. State Univ., No. A-14-CA-516 LY, 2015 WL 1004292, at *6
(W.D. Tex. Mar. 6, 2015)(Austin, M.J.)(concluding that a state agency did not waive sovereign
immunity, because “[w]hile the Court has found that CSU has waived its sovereign immunity by

- 81 -

removing this case to federal court, the Board -- which is a separate entity from CSU -- was not a
defendant in the case at the time of removal and thus was not a party to the removal of the case
to federal court”); Mink v. Arizona, No. CV09-2582, 2010 WL 2594355, at *4 (D. Ariz. June 23,
2010)(Campbell, J.)(holding that state defendants “never acted in the removal” of the case to
federal court where co-defendant had actually removed case and thus state defendants did not
waive their sovereign immunity). Additionally, the mere fact of removal to federal court by any
party to a case is insufficient to negate a state or state agency’s sovereign immunity, because, by
the Eleventh Amendment’s plain language, the Eleventh Amendment bars jurisdiction to suits
“commenced or prosecuted against one of the United States . . . .” U.S. Const. amend. XI
(emphasis added). See Kozaczek v. N.Y. Higher Educ. Servs. Corp., 503 F. App’x at 62; Frazier
v. Pioneer Americas LLC, 455 F.3d at 547.
Here, the New Mexico Corrections Department did not voluntary participate in this
case’s removal. The Bernalillo County Board of Commissioners and MDC -- not the New
Mexico Corrections Department -- removed this case to federal court, and they did so before
either Gallegos served the New Mexico Corrections Department or counsel for the New Mexico
Corrections Department entered an appearance. See Notice of Removal ¶ 10, at 2 (“To the best
of County Defendant[s’] knowledge, none of the other Defendants have been served in this
action, nor filed an entry of appearance.”)(alteration added).

Nor has the New Mexico

Corrections Department filed any notice consenting to or joining the removal; also, neither the
Bernalillo County Board of Commissioners nor MDC has requested that the New Mexico
Corrections Department consent to or join the Notice of Removal. Consequently, the New
Mexico Corrections Department does not waive its immunity from suit, because the New Mexico
Corrections Department did not voluntarily participate in the removal of this case to federal

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court. See Kozaczek v. N.Y. Higher Educ. Servs. Corp., 503 F. App’x at 62; Frazier v. Pioneer
Americas LLC, 455 F.3d at 547. Accordingly, the Notice of Removal does not waive the New
Mexico Corrections Department’s sovereign immunity from Gallegos’ claims.
The New Mexico Corrections Department, as an arm of the state, partakes in New
Mexico’s state sovereign immunity. See Archibeque v. Wylie, 16 F.3d 415, 1994 WL 41272, at
*1; Bishop v. John Doe 1, 902 F.2d at 810. No traditional exception to state sovereign immunity
applies. Accordingly, the New Mexico Corrections Department’s sovereign immunity supplies a
jurisdictional bar to Gallegos’ claims.
II.

THE NMTCA DOES NOT WAIVE THE NEW MEXICO CORRECTIONS
DEPARTMENT’S
ELEVENTH
AMENDMENT
IMMUNITY
FROM
GALLEGOS’ TORT CLAIMS.
Gallegos asserts a state tort claim under the NMTCA against the New Mexico

Corrections Department. See Amended Complaint ¶¶ 8-17, at 2-3. NMTCA § 41-4-4(A)
“preserves” New Mexico’s sovereign immunity from torts suits against state governmental
entities and public employees acting in the scope of their duties, except as explicitly waived.
Fernandez v. Mora-San Miguel Elec. Co-op., Inc., 462 F.3d 1244, 1250 (10th Cir. 2006). See
N.M. Stat. Ann. § 41-4-4(A)(“A governmental entity and any public employee while acting
within the scope of duty are granted immunity from liability for any tort except as waived by the
New Mexico Religious Freedom Restoration Act and by Sections 41-4-5 through 41-4-12
NMSA 1978.”). For Gallegos’ state tort claim against the New Mexico Corrections Department
to be viable, the NTMCA’s immunity-waiver provisions, N.M. Stat. Ann. §§ 41-4-5 to 41-4-12,
must waive not only the sovereign immunity that the NMTCA preserves by statute in § 41-44(A), but also New Mexico’s constitutional sovereign immunity as both the Eleventh
Amendment and, according to Alden v. Maine, 527 U.S. at 713, the structure of the Constitution

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reflect. The latter species of immunity is a bar to suit in federal court. See U.S. Const. amend.
XI. The Court concludes that the NMTCA’s immunity-waiver provisions, N.M. Stat. Ann. §§
41-4-5 to -12, do not waive New Mexico’s Eleventh Amendment immunity. Consequently, the
New Mexico Corrections Department is also immune from Gallegos’ state tort claim that he
asserts under the NMTCA. The Court pauses to explain its view that the NMTCA does not
waive New Mexico’s Eleventh Amendment immunity.
The Tenth Circuit has expressed equivocal views whether the NMTCA’s immunitywaiver provisions, N.M. Stat. Ann. §§ 41-4-5 to 41-4-12, waive New Mexico’s Eleventh
Amendment immunity from suit and, accordingly, whether federal courts have jurisdiction over
state tort claims asserted against a state entity under a specific NMTCA waiver provision.
Compare Ross v. Bd. of Regents of the Univ. of N.M., 599 F.3d 1114, 1117 (10th Cir. 2010),
and Garcia v. Bd. of Educ. of Socorro Consol. Sch. Dist., 777 F.2d 1403, 1406-07 (10th Cir.
1985), with Mescalero Apache Tribe v. State of N.M., 131 F.3d 1379, 1384 (10th Cir. 1997), and
Bishop v. John Doe 1, 902 F.2d 809, 810 (10th Cir. 1990). First, in Ross v. the Board of Regents
of the University of New Mexico, the Tenth Circuit stated:
[W]e must consider whether the plaintiffs are barred from bringing claims under
the New Mexico Tort Claims Act by the doctrine of sovereign immunity and the
Eleventh Amendment. The Eleventh Amendment bars suits for damages against a
state or state agency absent congressional abrogation or waiver and consent by the
state. Under New Mexico law, the state’s “[c]onsent to be sued may not be
implied, but must come within one of the exceptions to immunity under the Tort
Claims Act.”
Ross v. Bd. of Regents of the Univ. of N.M., 599 F.3d at 1117 (alteration added)(citations
omitted). The Tenth Circuit proceeded to ascertain whether a state defendant in the case, the
University of New Mexico’s Office of the Medical Investigator, was “a ‘like facility’ under an
exception to the Tort Claims Act [i.e., the NMTCA] that waives immunity for suits arising from

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the negligence of public employees working in ‘any hospital, infirmary, mental institution, clinic,
dispensary, medical care home or like facilities.’” Ross v. Bd. of Regents of the Univ. of N.M.,
599 F.3d at 1117 (quoting N.M. Stat. Ann. § 41-4-9(A)). The Tenth Circuit concluded that, in
light of Begay v. State, 1985-NMCA-117, ¶ 11, 723 P.2d 252, 256, rev’d on other grounds sub
nom. Smialek v. Begay, 1986-NMSC-049, 721 P.2d 1306, the University of New Mexico’s
Office of the Medical Investigator is not a “like facility” under the § 41-4-9(A) waiver. Ross v.
Bd. of Regents of the Univ. of N.M., 599 F.3d at 1117. Accordingly, the Tenth Circuit held that
the “plaintiffs are barred from bringing claims under the New Mexico Tort Claims Act by the
doctrine of sovereign immunity and the Eleventh Amendment.” Ross v. Bd. of Regents of the
Univ. of N.M., 599 F.3d at 1117.
Second, in Garcia v. Board of Education of Socorro Consolidated School District, the
Tenth Circuit explained:
However, the parties fail to address the issue of whether the school board’s
attorney has the authority to waive sovereign immunity. Sovereign immunity in
New Mexico is now a statutory creation. In Hicks v. State [1975-NMSC-056, 544
P.2d 1153], the New Mexico Supreme Court abolished common law sovereign
immunity. In response, the legislature enacted the Tort Claims Act, reinstating
governmental immunity except in eight classes of activity. None of the eight
exceptions apply to this case. Under section 41-4-4, waiver of immunity is limited
to and governed by N.M. Stat. Ann. §§ 41-4-13 to -25 (1978). These sections do
not authorize the school board’s attorney to waive sovereign immunity. Thus we
find that the school board is not estopped from raising eleventh amendment
immunity at this time.
Garcia v. Bd. of Educ. of Socorro Consol. Sch. Dist., 777 F.2d at 1406-07 (citations omitted). In
both Ross v. the Board of Regents of the University of New Mexico, 599 F.3d at 1117, and
Garcia v. Board of Education of Socorro Consolidated School District, 777 F.2d at 1406-07, the
Tenth Circuit reasons as though the NMTCA immunity-waiver provisions, when applicable,
waive not only the immunity that § 41-4-4(A) creates, but also New Mexico’s Eleventh

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Amendment immunity.
By contrast, in Mescalero Apache Tribe v. State of New Mexico, 131 F.3d at 1384, and
Bishop v. John Doe 1, 902 F.2d at 810, the Tenth Circuit adhered to the opposing view that,
while the NMTCA waiver provisions, N.M. Stat. Ann. §§ 41-4-5 to -12, waive the immunity that
§ 41-4-4(A) creates, those same provision do not waive the Eleventh Amendment immunity from
suit in federal court that New Mexico enjoys. In Mescalero Apache Tribe v. State of New
Mexico, the Tenth Circuit stated that “[t]he fact that New Mexico judicially abolished general
common-law sovereign immunity, and then, by statute, reinstated it in selected areas does not
affect whether New Mexico enjoys Eleventh Amendment immunity from actions in federal
court.” Mescalero Apache Tribe v. State of N.M., 131 F.3d at 1384 (citing Palotai v. Univ. of
Md. College Park, 959 F. Supp. 714, 719 (D. Md. 1997)(Chasanow, J.)(“[A] general waiver of
sovereign immunity is not a waiver of a State’s immunity from federal-court jurisdiction.”)).
Further, in Bishop v. John Doe 1, the Tenth Circuit explained:
The eleventh amendment generally bars lawsuits in federal court seeking damages
against states as well as against state agencies, departments, and employees acting
in their official capacity. A state, however, may waive its eleventh amendment
immunity and consent to suit against itself, related entities and employees. Under
its Tort Claims Act, the State of New Mexico has consented to suits against its
entities and employees acting within the scope of their duty for enumerated
unintentional torts including negligence in the maintenance of machinery and
equipment. But that consent is limited to actions commenced in the state district
courts. Section 41-4-18A of the Act provides: “Exclusive original jurisdiction for
any claim under the Tort Claims Act shall be in the district courts of New
Mexico.”
Bishop v. John Doe 1, 902 F.2d at 810 (quoting N.M. Stat. Ann. § 41-4-18A).
United States District Courts in the District of New Mexico, by contrast, have
consistently reasoned that the NMTCA immunity-waiver provisions do not waive New Mexico’s
Eleventh Amendment immunity.

See Ysais v. N.M. Judicial Standard Comm’n, 616

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F. Supp. 2d 1176, 1186 (D.N.M. 2009)(Browning, J.); Flores v. Long, 926 F. Supp. 166, 167-68
(D.N.M. 1995)(Hansen, J.); Wojciechowski v. Harriman, 607 F. Supp. 631, 634 (D.N.M.
1985)(Baldock, J.). In Flores v. Long, Judge Hansen stated:
Under the Tort Claims Act, New Mexico has waived its immunity from suit in its
own state courts for actions of law enforcement officers. However, New Mexico
has not waived its Eleventh Amendment immunity from suit in federal court.
Consequently, this Court lacks jurisdiction to hear Plaintiff’s claims against the
New Mexico Department of Public Safety and the defendant officers of the New
Mexico Department of Public Safety in their official capacities. These claims
must be remanded to the state court from which they were removed.
Flores v. Long, 926 F. Supp. 166, 167-68 (citations omitted). Similarly, in Wojciechowski v.
Harriman, Judge Baldock stated:
A state may waive its eleventh amendment immunity and consent to be sued in
federal court. A waiver of a state’s eleventh amendment immunity will be found
only where stated by the most express language or by the overwhelming
implications of such language where there is no room for any other reasonable
construction. Providing for a limited waiver of its sovereign immunity, the State
of New Mexico has expressly reserved its immunity from suit in federal court
under the eleventh amendment. Thus, any tort claims suit against the State would
lie in the district courts of New Mexico in accordance with section 41-4-18.
Essentially, the State has consented to be sued in its own courts without waiving
its immunity in the federal courts.
Wojciechowski v. Harriman, 607 F. Supp. at 634.
The Court concludes that the view that Judge Baldock expressed in Wojciechowski v.
Harriman, 607 F. Supp. at 634, and which the Tenth Circuit echoed in Mescalero Apache Tribe
v. State of New Mexico, 131 F.3d at 1384, is sound. See Ysais v. New Mexico Judicial Standard
Comm’n, 616 F. Supp. 2d 1176, 1186 (D.N.M. 2009)(Browning, J.)(citing Mescalero Apache
Tribe v. State of New Mexico, 131 F.3d at 1384)(“New Mexico has not waived its EleventhAmendment immunity by enacting the New Mexico Tort Claims Act . . . .”)). The Court further
concludes that the view that Judge Baldock expressed in Wojciechowski v. Harriman, 607 F.
Supp. at 634, is consistent with the principles that the Supreme Court has established to

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determine waivers of Eleventh Amendment immunity. See, e.g., Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 241 (1985). In Atascadero State Hospital v. Scanlon, the Supreme Court
explained:
The test for determining whether a State has waived its immunity from federalcourt jurisdiction is a stringent one. Although a State’s general waiver of
sovereign immunity may subject it to suit in state court, it is not enough to waive
the immunity guaranteed by the Eleventh Amendment. . . . “[A] State’s
constitutional interest in immunity encompasses not merely whether it may be
sued, but where it may be sued.” Thus, in order for a state statute or
constitutional provision to constitute a waiver of Eleventh Amendment immunity,
it must specify the State’s intention to subject itself to suit in federal court.
Atascadero State Hosp. v. Scanlon, 473 U.S. at 241 (alteration added)(emphases in
original)(citations omitted). Under this “stringent” standard, Atascadero State Hosp. v. Scanlon,
473 U.S. at 241, the NMTCA, N.M. Stat. Ann. §§ 41-4-1 to -30, does not manifest New
Mexico’s “intention to subject itself to suit in federal court,” Atascadero State Hosp. v. Scanlon,
473 U.S. at 241(emphasis in original).
The Court apprehends why there has been some equivocation in the case law regarding
whether the NMTCA’s waiver provisions waive New Mexico’s Eleventh Amendment immunity
from suit in federal court. Unlike analogous state tort claim statutes, the NMTCA does not
include an explicit statement that its waiver provisions do not waive New Mexico’s Eleventh
Amendment immunity from suit in federal court. Compare, e.g., N.M. Stat. Ann. §§ 41-4-1 to 30, with Okla. Stat. Ann. tit. 51, § 152.1(B)(“The state, only to the extent and in the manner
provided in this act, waives its immunity and that of its political subdivisions. In so waiving
immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to
the United States Constitution.”), and Kan. Stat. Ann. § 75-6116(g)(“Nothing in this section or in
the Kansas tort claims act shall be construed as a waiver by the state of Kansas of immunity from

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suit under the 11th amendment to the constitution of the United States.”).30 The NMTCA
mentions the State’s Eleventh Amendment immunity exclusively in § 41-4-4(F), and the
statutory text’s treatment of the Eleventh Amendment relates to prior subsections of § 41-4-4
only. Sections 41-4-4(A) through 41-4-4(F) provide:
A. A governmental entity and any public employee while acting within the scope
of duty are granted immunity from liability for any tort except as waived by the
New Mexico Religious Freedom Restoration Act1 and by Sections 41-4-5 through
41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and governed
by the provisions of Sections 41-4-13 through 41-4-25 NMSA 1978, but the
waiver of immunity provided in those sections does not waive immunity granted
pursuant to the Governmental Immunity Act.
B. Unless an insurance carrier provides a defense, a governmental entity shall
provide a defense, including costs and attorney fees, for any public employee
when liability is sought for:
(1) any tort alleged to have been committed by the public
employee while acting within the scope of his duty; or
(2) any violation of property rights or any rights, privileges or
immunities secured by the constitution and laws of the United
States or the constitution and laws of New Mexico when alleged to
have been committed by the public employee while acting within
the scope of his duty.
C. A governmental entity shall pay any award for punitive or exemplary damages
awarded against a public employee under the substantive law of a jurisdiction
other than New Mexico, including other states, territories and possessions and the
United States of America, if the public employee was acting within the scope of
his duty.
D. A governmental entity shall pay any settlement or any final judgment entered
against a public employee for:
(1) any tort that was committed by the public employee while
acting within the scope of his duty; or
30

The Tenth Circuit has relied on the cited Oklahoma and Kansas tort claims statutory
provisions to hold that those respective tort claims statutes do not waive the sovereign immunity
from suit in federal court that Oklahoma and Kansas respectively enjoy. See, e.g., Harris v.
Okla. Office of Juvenile Affairs ex rel. Cent. Okla. Juvenile Ctr., 519 F. App’x 978, 980 (10th
Cir. 2013); Jones v. Courtney, 466 F. App’x 696, 700-01 (10th Cir. 2012).
- 89 -

(2) a violation of property rights or any rights, privileges or
immunities secured by the constitution and laws of the United
States or the constitution and laws of New Mexico that occurred
while the public employee was acting within the scope of his duty.
E. A governmental entity shall have the right to recover from a public employee
the amount expended by the public entity to provide a defense and pay a
settlement agreed to by the public employee or to pay a final judgment if it is
shown that, while acting within the scope of his duty, the public employee acted
fraudulently or with actual intentional malice causing the bodily injury, wrongful
death or property damage resulting in the settlement or final judgment.
F. Nothing in Subsections B, C and D of this section shall be construed as a
waiver of the immunity from liability granted by Subsection A of this section or
as a waiver of the state’s immunity from suit in federal court under the eleventh
amendment to the United States constitution.
Section 41-4-4(F) does not provide that nothing in the NMTCA shall be construed as a waiver of
the immunity from suit in federal court that the Eleventh Amendment provides. In Mescalero
Apache Tribe v. State of New Mexico, the Tenth Circuit stated in footnote 3 of its opinion that
“the Act specifically states that it shall not ‘be construed . . . as a waiver of the state’s immunity
from suit in federal court under the eleventh amendment to the United States constitution.’”
Mescalero Apache Tribe v. State of N.M., 131 F.3d at 1386 n.3 (quoting N.M. Stat. Ann. § 41-44(F)). Mescalero Apache Tribe v. State of New Mexico’s reliance on § 41-4-4(F) is misplaced,
however. Following the statutory text, § 41-4-4(F) states, in full, that, “[n]othing in Subsections
B, C and D of this section [i.e., § 41-4-4] shall be construed as a waiver of the immunity from
liability granted by Subsection A of this section or as a waiver of the state’s immunity from suit
in in federal court under the eleventh amendment to the United States constitution.” N.M. Stat.
Ann. § 41-4-4(F)(emphasis added). Sections 41-4-4(B) through 41-4-4(D) are not the NMTCA’s
immunity-waiver provisions. Compare N.M. Stat. Ann. § 41-4-4(B)-(D), with N.M. Stat. Ann.
§§ 41-4-5 to -12. Rather, the NMTCA provides its waiver provisions in §§ 41-4-5 through 41-4-

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12.

Neither § 41-4-4(F), nor any other NMTCA section, expressly states that the NMTCA’s

waiver provisions waive only the immunity that § 41-4-4(A) creates, and not the immunity that
the Eleventh Amendment creates. Cf., e.g., Okla. Stat. Ann. tit. 51, § 152.1(B)(“The state, only
to the extent and in the manner provided in this act, waives its immunity and that of its political
subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under
the Eleventh Amendment to the United States Constitution.”); Kan. Stat. Ann. § 756116(g)(“Nothing in this section or in the Kansas tort claims act shall be construed as a waiver
by the state of Kansas of immunity from suit under the 11th amendment to the constitution of the
United States.”). Moreover, under the expressio unius canon of statutory construction, § 41-44(F)’s explicit statement that §§ 41-4-4(B) through 41-4-4(F) cannot be construed to waive
Eleventh Amendment immunity, raises the negative implication that other NMTCA provisions,
including the NMTCA’s waiver provisions, which § 41-4-4(F) does not mention, might be
construed to waive Eleventh Amendment immunity. See N.L.R.B. v. SW Gen., Inc., 137 S. Ct.
929, 940 (2017)(stating that “the interpretative canon, expressio unius est exclusio alterius,
[means] expressing one item of [an] associated group or series excludes another left
unmentioned”)(first alteration added)(internal quotation marks and citations omitted). The Court
ultimately does not find this application of expressio unius to be the correct reading of the
statute. See N.L.R.B. v. SW Gen., Inc., 137 S. Ct. at 940 (alteration original)(stating that the
expressio unius canon applies only when “circumstances support[ ] a sensible inference that the
term left out must have been meant to be excluded”)(citation omitted). The Court notes the
expressio unius argument, however, to illustrate that § 41-4-4(F) does not itself resolve whether
the NTMCA’s immunity-waiver provisions waive New Mexico’s Eleventh Amendment
immunity from suit in federal court, contrary to the Tenth Circuit’s analysis in Mescalero

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Apache Tribe v. State of N.M., 131 F.3d at 1386 n.3. Section 41-4-4(F) does not concern the
NMTCA’s waiver provisions, much less the statute in its entirety. See N.M. Stat. Ann. § 41-44(F). Therefore, the Court understands the equivocation in the case law regarding whether the
NMTCA’s waiver provisions waive New Mexico’s Eleventh Amendment immunity from suit in
federal court.
Nevertheless, the Court concludes that the NMTCA’s waiver provisions do not waive
New Mexico’s Eleventh Amendment immunity. Under Atascadero State Hospital v. Scanlon,
473 U.S. at 241, the NMTCA’s most significant aspect is not what § 41-4-4(F) says with respect
to New Mexico’s Eleventh Amendment immunity, but what the NMTCA, as a whole, does not
say. No NMTCA provision expressly states that it waives New Mexico’s Eleventh Amendment
immunity from suit in federal court for a delimited species of tort claims. See N.M. Stat. Ann.
§§ 41-4-1 through 41-4-30. By Atascadero State Hospital v. Scanlon’s lights, only an express
statement of “the State’s intention to subject itself to suit in federal court” is sufficient. 473 U.S.
at 241 (emphasis original). The NMTCA does not provide that express statement; rather, it
provides that “[e]xclusive original jurisdiction for any claim under the Tort Claims Act shall be
in the district courts of New Mexico.” N.M. Stat. Ann. § 41-4-18(A). See Bishop v. John Doe 1,
902 F.2d at 810 (relying on N.M. Stat. Ann. § 41-4-18(A) to support its holding that the Eleventh
Amendment barred plaintiffs’ NMTCA claim against the New Mexico Corrections Department).
The NMTCA’s waiver provisions -- §§ 41-4-5 through 41-4-12 -- do not waive New Mexico’s
Eleventh Amendment immunity from suit in federal court, because nothing in the NMTCA
expressly says that the State intends such a waiver. See Atascadero State Hospital v. Scanlon,
473 U.S. at 241.

Accordingly, the New Mexico Corrections Department enjoys Eleventh

Amendment immunity from Gallegos’ suit, including suit on his state tort claim.

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III.

EVEN IF THE NMTCA WAIVES THE NEW MEXICO DEPARTMENT OF
CORRECTIONS’ ELEVENTH AMENDMENT IMMUNITY FROM GALLEGOS’
STATE TORT CLAIM, § 41-4-6(A)’S WAIVER PROVISION DOES NOT APPLY.
Even if the NMTCA waiver provisions waive New Mexico’s Eleventh Amendment

immunity from suit on state tort claims in federal court, the New Mexico Corrections
Department would still be immune from Gallegos’ state tort claim, because the specific waiver
provision on which Gallegos relies, § 41-4-6(A), does not apply. “The NMTCA preserves
sovereign immunity against tort claims for state governmental entities and public employees
acting in the scope of their duties, except as specifically waived.” Fernandez v. Mora-San
Miguel Elec. Co-op., Inc., 462 F.3d at 1250. See N.M. Stat. Ann. § 41-4-4(A)(“A governmental
entity and any public employee while acting within the scope of duty are granted immunity from
liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act
and by Sections 41-4-5 through 41-4-12 NMSA 1978.”); Oryem v. Richardson, 499 F. App’x
778, 781 (10th Cir. 2012)(“NMTCA preserves sovereign immunity for tort claims unless
specifically waived.”). The NMCTA places a burden on Gallegos to demonstrate that his state
tort claim against the New Mexico Corrections Department falls within one of the immunitywaiver provisions that N.M. Stat. Ann. §§ 41-4-4 to -12 create. See Oryem v. Richardson, 499
F. App’x at 781. Gallegos does not, however, successfully carry that burden.
Gallegos attempts to pass his negligence claim through the aperture that § 41-4-6(A)
creates in the New Mexico Corrections Department’s immunity. Section 41-4-6(A) provides:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978
does not apply to liability 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.

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N.M. Stat. Ann. § 41-4-6(A). The Supreme Court of New Mexico interprets § 41-4-6(A) “to
waive immunity ‘where due to the alleged negligence of public employees an injury arises from
an unsafe, dangerous, or defective condition on property owned and operated by the
government.’” Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 10, 310 P.3d 611,
616-17 (quoting Castillo v. Cnty. of Santa Fe, 1988-NMSC-037, ¶ 3, 755 P.2d 48).

The

Supreme Court of New Mexico has further explained that “‘[t]he waiver applies to more than the
operation or maintenance of the physical aspects of the building, and includes safety policies
necessary to protect the people who use the building.’” Encinias v. Whitener Law Firm, P.A.,
2013-NMSC-045, ¶ 10, 310 P.3d at 617 (alteration added)(quoting Upton v. Clovis Mun. Sch.
Dist., 2006-NMSC-040, ¶ 9, 141 P.3d 1259). Section 41-4-6(A), therefore, waives immunity
from torts arising from “a dangerous condition affecting the general public,” Upton v. Clovis
Mun. Sch. Dist., 2006-NMSC-040, ¶ 17, 141 P.3d at 1263, including the failure to implement
“safety policies necessary to protect the people who use the building,” Upton v. Clovis Mun.
Sch. Dist., 2006-NMSC-040, ¶ 9, 141 P.3d at 1261. The Court concludes that the policies that
the New Mexico Corrections Department has with respect to the treatment of similarly situated
methadone-dependent and opioid-dependent inmates that it receives into its custody are safety
policies “necessary to protect” those inmates who use the buildings that the New Mexico
Corrections Department operates from dangerous opiate-withdrawal symptoms. Upton v. Clovis
Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 141 P.3d at 1261. The salient question in this case,
however, is whether the record shows that the New Mexico Corrections Department failed to
implement such policies. See Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 10, 310
P.3d at 617; Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 141 P.3d at 1259.

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A.

GALLEGOS HAS NOT SUFFICIENTLY DEMONSTRATED THAT THE
NEW MEXICO CORRECTIONS DEPARTMENT FAILED TO
IMPLEMENT A SAFETY POLICY NECESSARY TO PROTECT THOSE
WHO USE THE BUILDING THAT HOUSED HIM.

The Court first addresses whether, in the light most favorable to Gallegos, record
evidence demonstrates that the New Mexico Corrections Department failed to implement a
“safety polic[y] necessary to protect the people who use the building . . . .” Upton v. Clovis
Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 141 P.3d at 1261 (alteration added). To benefit from
§ 41-4-6(A)’s waiver, Gallegos must show a “general failure to implement promised safety
polices,” Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 18, 141 P.3d at 1263, or some
other “dangerous condition affecting the general public,” Upton v. Clovis Mun. Sch. Dist., 2006NMSC-040, ¶ 17, 141 P.3d at 1263. Gallegos alleges that the “proper procedure” regarding the
treatment of similarly situated methadone-dependent inmates who are transferred from MDC to
New Mexico Corrections Department would have prevented his injuries. Response at 6. Even in
the light most favorable to Gallegos, however, the record does not reflect that the New Mexico
Corrections Department failed to implement a safety policy regarding the receipt and care of
methadone-dependent inmates.
Gallegos cannot soundly argue that, in light of the record evidence, the New Mexico
Corrections Department failed to implement a policy designed to treat his methadone
withdrawal. On November 7, 2107, Judge Martinez committed Gallegos to the New Mexico
Corrections Department for an 834-day sentence beginning on November 6, 2014. See First
Order Revoking Probation at 1; State Court Judgment, Sentence, and Order Suspending Sentence
at 1. Pursuant to these orders, the New Mexico Corrections Department received Gallegos on
November 12, 2014, at 9:00 a.m. See Receipt of State Prisoner at 1. On November 24, 2014,
Gallegos’ counsel, Mr. Wilber, contacted the New Mexico Corrections Department, stating that
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Gallegos “was apparently transported [to the New Mexico Corrections Department] with NO
methadone step down . . . and he is in pretty bad shape.” November 24, 2014, 1:51 p.m. Email
from Wilber to Brewster at 1. By then, the New Mexico Corrections Department’s medical
service provider, Corizon Health, was aware of Gallegos’ medical status, had “a protocol in
place to treat him,” and was treating him. November 26, 2014, 2:51 p.m. Email from Brewster
to Wilber at 1. Indeed, the record indicates that on November 12, 2014, the same day that the
New Mexico Corrections Department received Gallegos into its custody, Corizon Health medical
personnel evaluated Gallegos’ withdrawal symptoms and gave him a “Kick Kit to address his
withdrawal symptoms.” Nursing Encounter Tool -- Withdrawal at 1; Physician’s Orders at 1.
Further, on November 21, 2014, Gallegos requested another Kick Kit, indicating it “helped
some” and was also prescribed Elavil for pain. November 21, 2014 Interdisciplinary Progress
Notes. Next, on November 26, 2014, medical personnel denied Gallegos narcotics, but offered
him “Ibuprofen, Tylenol, Mobic, Aleve, or Naproxen” to address his pain, but Gallegos refused
these drugs. November 26, 2014 Interdisciplinary Progress Notes at 1. Then, on December 3,
2014, a Corizon Health provider conducted another assessment of Gallegos’ withdrawal
symptoms and ordered one dose of Clonidine. Clinical Institute Withdrawal Assessment -Alcohol at 1; Nursing Encounter Tool -- Headache at 1. This record evidence does not show the
New Mexico Corrections Department’s failure to implement a general safety policy regarding
the treatment of inmates suffering from opiate withdrawal.

To the contrary, the record

demonstrates that, after the New Mexico Corrections Department received Gallegos, the New
Mexico Corrections Department sufficiently evaluated Gallegos for withdrawal symptoms and
treated those same symptoms. See Nursing Encounter Tool -- Withdrawal at 1; Physician’s
Orders at 1. The New Mexico Corrections Department had a safety policy in place to treat

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inmates suffering from opiate withdrawal and applied that policy to Gallegos. See Nursing
Encounter Tool -- Withdrawal at 1; Physician’s Orders at 1. The record does not show that the
New Mexico Corrections Department failed to implement a “safety polic[y] necessary to protect
the people who use the building” by not providing methadone to inmates, like Gallegos, who are
experiencing opiate withdrawal. Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 141
P.3d at 1261 (alteration added).

The record does show that the New Mexico Corrections

Department did not provide Gallegos with methadone, as he had received at MDC pursuant to
the Remand Order. See Remand Order at 1-2; Gallegos Medication History at 1 (showing that
Gallegos received 155 mg of Methadone on the morning of November 12, 2014, before being
transferred to the New Mexico Corrections Department).
Gallegos cannot demonstrate, even as a nonmovant in the summary judgment posture,
that the New Mexico Corrections Department failed to implement a safety policy regarding
opiate withdrawal. What he really argues is that the only reasonable safety policy -- the “proper
procedure” as he describes it -- available to the New Mexico Corrections Department is to treat
opiate withdrawal symptoms with methadone. Response at 6. Section 41-4-6(A) does not,
however, waive tort liability solely because the New Mexico Corrections Department’s policy
for treating opiate withdrawal does not include a methadone dosage. See Nursing Encounter
Tool -- Withdrawal at 1; Physician’s Orders at 1.31 Even in the light most favorable to Gallegos,

31

The New Mexico Corrections Department’s policy is not aberrational:

In the United States, few jail or prison inmates receive medication assisted
treatment for opioid use disorder during incarceration. In 2008, fewer than 2000
prisoners, less than 0.1% of the total prison population, received buprenorphine or
methadone. Though 28 state prison systems report offering methadone, over half
limit treatment to select populations, such as pregnant women or individuals with
chronic pain. Major reasons for not offering medication during incarceration
include strict federal laws governing administration of [medicated assisted
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the record does not suggest -- much less sufficiently demonstrate on a summary judgment
posture -- that the New Mexico Corrections Department’s general policy for treating opiate
withdrawal is abjectly unsafe because, in his case, it does not include a methadone dosage.
Although Gallegos did not receive methadone, the New Mexico Corrections Department,
through its medical provider, evaluated and treated Gallegos’ withdrawal symptoms, and
Gallegos requested the same treatment, noting that it “helped some.” Nursing Encounter Tool -Withdrawal at 1; Physician’s Orders at 1; November 21, 2014 Interdisciplinary Progress Notes.
B.

SECTION 41-4-6(A) DOES NOT WAIVE THE NEW MEXICO
CORRECTIONS DEPARTMENT’S IMMUNITY FROM GALLEGOS’
STATE TORT CLAIM TO THE EXTENT THAT GALLEGOS’ CLAIM IS
PREDICATED ON A SINGLE, DISCRETE ADMINISTRATIVE ACT
AFFECTING ONLY HIMSELF.

Section 41-4-6(A) does not waive the New Mexico Corrections Departments’ immunity
from Gallegos’ state tort claim for another, independent reason. To the extent that Gallegos’ tort
claim is predicated not upon general allegations regarding the New Mexico Corrections
Department’s policies to treat similarly situated methadone-dependent inmates, but rather upon
the specific allegation that the New Mexico Corrections Department wrongfully admitted him
into custody in light of the Remand Order, then § 41-4-6(A) does not waive the New Mexico
Corrections Department’s immunity from Gallegos’ state tort claim. Section 41-4-6(A) does not
waive the New Mexico Corrections Departments’ immunity from state tort claims that are

treatment], preference for drug free detoxification, as well as ideological
opposition to [medication assisted treatment].
Jeronimo A. Maradiaga, Shadi Nahvi, Chinazo O. Cunningham, Jennifer Sanchez, &
Aaron D. Fox, “‘I Kicked the Hard Way. I Got Incarcerated.’ Withdrawal from
Methadone During Incarceration and Subsequent Aversion to Medicated Assisted
Treatments,”
J.
SUBST.
ABUSE
TREAT.
62:49-54
(2016),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4888768/ (last viewed June 21,
2017)(alterations added).
- 98 -

grounded on single, discrete actions that the New Mexico Corrections Department takes
affecting a single inmate. See Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 17, 141 P.3d
at 1263.
The Supreme Court of New Mexico has explained that § 41-4-6(A) does not “waive
immunity for a single, discrete administrative decision affecting only a single person . . . .”
Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 17, 141 P.3d at 1263 (citing Espinoza v.
Town of Taos, 1995-NMSC-070, ¶ 12, 905 P.2d 718, 721-22). The Supreme Court of New
Mexico applied this interpretation of § 41-4-6(A) to tort claims that inmates have asserted
against state correctional facilities. See, e.g., Archibeque v. Moya, 1993-NMSC-079, 866 P.2d
344. In Archibeque v. Moya, the Supreme Court of New Mexico held that § 41-4-6(A) does not
provide a waiver for tort claims that allege the negligent performance of an administrative task or
procedure that detrimentally affects a single inmate. See 1993-NMSC-079, ¶ 14, 866 P.2d at
349. There, the Tenth Circuit had certified to the Supreme Court of New Mexico the question
whether § 41-4-6 “provide[s] immunity from tort liability to an employee of the state
penitentiary whose alleged negligence in releasing a prisoner into the general prison population,
which included known enemies of the prisoner, resulted in the prisoner being beaten and injured
by one of his enemies?” 1993-NMSC-079, ¶ 1, 866 P.2d at 345-46. The plaintiff, Archibeque,
argued that the defendant, Moya-Martinez, an intake officer at the New Mexico State
Penitentiary, was “participating in the operation of the penitentiary when she classified
Archibeque as an inmate that could safely be released into the general prison population.” 1993NMSC-079, ¶ 5, 866 P.2d at 346.

Archibeque contended that “Moya-Martinez’s alleged

negligence in misclassifying . . . and releasing him into the general population constituted
negligent operation of the penitentiary and was effective to waive immunity under Section 41-4-

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6.” 1993-NMSC-079, ¶ 5, 866 P.2d at 346-47. The Supreme Court of New Mexico rejected
Archibeque’s argument, because “[t]he ‘operation’ and ‘maintenance’ of the penitentiary
premises, as these terms are used in Section 41-4-6, does not include the security, custody, and
classification of inmates.” 1993-NMSC-079, ¶ 8, 866 P.2d at 347. The Supreme Court of New
Mexico explained that “[t]he purpose of Section 41-4-6 is to ensure the general public’s safety
by requiring public employees to exercise reasonable care in maintaining and operating the
physical premises owned and operated by the government.” 1993-NMSC-079, ¶ 8, 866 P.2d at
347. The Supreme Court of New Mexico applied that rationale, concluding:
Moya-Martinez was not operating and maintaining the prison’s physical premises
when she negligently classified Archibeque as an inmate that could be released
into the general prison population. Rather, she was performing an administrative
function associated with the operation of the corrections system. Section 41-4-6
does not waive immunity when public employees negligently perform such
administrative functions.
1993-NMSC-079, ¶ 8, 866 P.2d at 347. Accordingly, the Supreme Court of New Mexico held
that § 41-4-6(A) does not waive “immunity whenever injury results from a negligently
performed administrative task affecting a single inmate . . . .” 1993-NMSC-079, ¶ 14, 866 P.2d
at 349.
Similarly, in Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d 179, the Court
of Appeals of New Mexico held that § 41-4-6(A) did not waive immunity from a tort claim that
the plaintiff asserted against MDC. In Lessen v. City of Albuquerque, the plaintiff asserted that
her son, an inmate at MDC, was experiencing the effects of heroin withdrawal, was initially
released from MDC to be transported to downtown Albuquerque, re-entered MDC, was released
again to MDC’s parking lot, and then “apparently wandered off into the nearby desert and died
of hypothermia.” 2008-NMCA-085, ¶ 1, 187 P.3d at 179. The plaintiff argued that “the City
negligently operated and maintained MDC by failing to ensure that released inmates had proper
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transportation and by failing to attend properly to inmates’ medical needs.” 2008-NMCA-085, ¶
18, 187 P.3d at 183. The Court of Appeals of New Mexico rejected this argument, because
“Plaintiff’s allegations directed against the City are specific to the City’s treatment of Decedent.”
2008-NMCA-085, ¶ 27, 187 P.3d at 184. The Court of Appeals of New Mexico highlighted the
plaintiff’s contentions “that MDC employees should have known that Decedent was coming out
of detoxification and may have been disoriented and that they should have taken extra steps to
protect him from his own inability to care for himself.” Lessen v. City of Albuquerque, 2008NMCA-085, ¶ 27, 187 P.3d at 184. The Court of Appeals of New Mexico elaborated that “there
is nothing in the record suggesting that this was a danger to which all released inmates were
exposed.” 2008-NMCA-085, ¶ 25, 187 P.3d at 184. The Court of Appeals of New Mexico
stated:
At most, MDC employees’ permitting Decedent to exit to the parking lot without
a transportation waiver, a circumstance not established to pose a danger to the
general population of released inmates, was “a single, discrete administrative
decision affecting only a single person, as opposed to a dangerous condition
affecting the general public.”
2008-NMCA-085, ¶ 27, 187 P.3d at 184-85 (quoting Upton v. Clovis Mun. Sch. Dist., 2006NMSC-040, ¶ 17, 141 P.3d at 1263). “Section 41-4-6,” the Court of Appeals of New Mexico
held, “does not waive immunity for such decisions.” Lessen v. City of Albuquerque, 2008NMCA-085, ¶ 27, 187 P.3d at 184-85 (citing Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040,
¶ 17, 141 P.3d at 1263).
In the absence of demonstrating a general failure to implement a safety policy, Gallegos’
tort claim against the New Mexico Corrections Department hinges on his transfer from MDC,
where he was receiving gradually lower dosages of methadone, see Gallegos Medication History
at 1, to the New Mexico Corrections Department, where he received no methadone.

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The

Remand Order ordered Gallegos’ continued detention at MDC, and the First Order Revoking
Probation ordered his transfer and commitment to the New Mexico Corrections Department. See
Remand Order at 1; First Order Revoking Probation at 1. Yet, Gallegos’ § 41-4-6(A) waiver
argument has no force to the extent it relies on New Mexico Corrections Department’s receipt of
Gallegos pursuant to the First Order Revoking Probation. See Upton v. Clovis Mun. Sch. Dist.,
2006-NMSC-040, ¶ 17, 141 P.3d at 1263 (citation omitted). Section 41-4-6(A) does not “waive
immunity for a single, discrete administrative decision affecting only a single person . . . .”
Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 17, 141 P.3d at 1263 (citation omitted).
See Archibeque v. Moya, 1993-NMSC-079, ¶ 14, 866 P.2d at 349 (holding that § 41-4-6(A) does
not waive “immunity whenever injury results from a negligently performed administrative task
[regarding intake and] affecting a single inmate”). Accordingly, § 41-4-6(A) does not waive the
New Mexico Corrections Department’s immunity from Gallegos’ state tort claim to the extent
that Gallegos’ claim is predicated on the single, discrete administrative act of the New Mexico
Corrections Department receiving him into custody.
IV.

THE COURT DENIES GALLEGOS’ MOTION TO AMEND TO ADD MR.
BREWSTER AS A DEFENDANT, BECAUSE GALLEGOS’ PROPOSED
AMENDMENT WOULD BE SUBJECT TO DISMISSAL AND CONSEQUENTLY
FUTILE.
Gallegos seeks to amend his Amended Complaint to add Mr. Brewster as a defendant,

and Gallegos intends to assert the same claims against Mr. Brewster as he asserts against the
New Mexico Corrections Department -- namely, a state tort claim and an Eighth Amendment
deliberate-indifference claim. See Motion to Amend; Second Amended Complaint ¶¶ 11, 20, at
6, 8. A court should deny leave to amend under rule 15(a) where the proposed “amendment
would be futile.” Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Serv., 175 F.3d at 859. An
amendment is “futile” if the pleading “as amended, would be subject to dismissal.”
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TV

Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d at 1028. Under this
standard, Gallegos proposed amendment to add Mr. Brewster as a defendant is futile. The record
sufficiently shows that Mr. Brewster relied on a facially valid court order when reviewing the
conditions of Gallegos’ confinement and medical treatment and, therefore, enjoys quasi-judicial
immunity from Gallegos’ claims. See Turney v. O’Toole, 898 F.2d at 1472. Moreover, the
record sufficiently demonstrates that Mr. Brewster was neither negligent nor deliberately
indifferent with respect to Gallegos’ withdrawal symptoms. Because Gallegos’ claims against
Mr. Brewster would be subject to dismissal, Gallegos’ proposed amendment to add Mr. Brewster
as a defendant is futile. See TV Commc’ns Network, Inc. v. Turner Network Television, Inc.,
964 F.2d at 1028. Accordingly, the Court denies in part Gallegos’ Motion to Amend to the
extent that Gallegos seeks bring Mr. Brewster into the case.
A.

GALLEGOS’ PROPOSED AMENDMENT TO ADD MR. BREWSTER AS
A DEFENDANT WOULD BE SUBJECT TO DISMISSAL AND IS
ACCORDINGLY FUTILE, BECAUSE MR. BREWSTER IS IMMUNE
FROM GALLEGOS’ CLAIMS TO THE EXTENT THAT GALLEGOS’
CLAIMS ARE BASED ON BREWSTER’S ENFORCEMENT OF
FACIALLY VALID COURT ORDERS.

The Court denies Gallegos leave to amend his Amended Complaint to add Mr. Brewster
as a defendant, because Gallegos’ proposed amendment would be subject to dismissal and is
consequently futile. See Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Serv., 175 F.3d at 859
(concluding that a court should deny leave to amend under rule 15(a) where the proposed
“amendment would be futile”). Gallegos’ proposed amendment is futile, because Mr. Brewster
enjoys quasi-judicial civil immunity from Gallegos’ claims to the extent that Gallegos’ claims
are predicated on the assertion that Mr. Brewster or the New Mexico Corrections Department
wrongfully received Gallegos into custody on November 12, 2014, or wrongfully kept Gallegos
in state custody after that date. “Just as judges acting in their judicial capacity are absolutely
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immune from liability under section 1983, official[s] charged with the duty of executing a
facially valid court order enjoy[] absolute immunity from liability for damages in a suit
challenging conduct prescribed by that order.” Turney v. O’Toole, 898 F.2d at 1472 (alterations
original)(citing, inter alia, Valdez v. City & County of Denver, 878 F.2d at 1286; Wiggins v.
N.M. State Supreme Court Clerk, 664 F.2d 812, 815 (10th Cir. 1981); T & W Inv. Co. v. Kurtz,
588 F.2d at 802). The Tenth Circuit has explained that “the power to execute judicial decrees is
no less an important and integral part of the judicial process than the roles of those officials
previously afforded absolute immunity . . . .” Valdez v. City & Cty. of Denver, 878 F.2d at
1287-88.

“Enforcing a court order or judgment is intrinsically associated with a judicial

proceeding.” Valdez v. City & Cty. of Denver, 878 F.2d at 1288 (citing Henry v. Farmer City
State Bank, 808 F.2d 1228, 1239 (7th Cir. 1986)).
Mr. Brewster enjoys quasi-judicial immunity from claims predicated on the
straightforward enforcement of facially valid court orders. The record includes two facially valid
court orders committing Gallegos to the New Mexico Corrections Department -- namely, the
First Order Revoking Probation and the State Court Judgment, Sentence, and Order Suspending
Sentence. See First Order Revoking Probation at 1 (ordering Gallegos’ transfer and commitment
to the New Mexico Corrections Department); State Court Judgment, Sentence, and Order
Suspending Sentence at 1 (same). By contrast, the state court’s November 6, 2014, Remand
Order provides that Gallegos “shall remain in custody of the Metropolitan Detention Center
(MDC) until his level of methadone treatment has reached a point where Defendant will not
incur life-endangering withdrawal symptoms upon transfer to the Department of Corrections,
where he is to serve the remainder of his sentence.” Remand Order at 1-2. Despite the Remand
Order, the state court’s November 7, 2017, First Order Revoking Probation committed Gallegos

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to the New Mexico Corrections Department, noting that Gallegos “is sentenced to serve a term of
834 days beginning 11/6/14 in . . . Department of Corrections.” First Order Revoking Probation
at 2. The First Order Revoking Probation also reflects a handwritten “X” through the MDC
portion of the incarceration order and includes a handwritten note: “No MDC.” First Order
Revoking Probation at 2.

Hence, even though the state court issued a Remand Order on

November 6, 2014, ordering that Gallegos should remain confined at MDC until his “methadone
treatment has reached a point where Defendant will not incur life-endangering withdrawal
symptoms upon transfer to the Department of Corrections,” on November 7, 2014, the state court
issued two facially valid orders committing him, without condition, to the New Mexico
Corrections Department. First Order Revoking Probation at 1-2 (ordering Gallegos’ transfer and
commitment to the New Mexico Corrections Department); State Court Judgment, Sentence, and
Order Suspending Sentence at 1 (same).
The New Mexico Corrections Department contends that it relied on the State Court
Judgment, Sentence, and Order Suspending Sentence when admitting Gallegos into its custody
on November 12, 2017. See Reply at 4. Gallegos argues that the New Mexico Corrections
Department’s contention lacks support, because the record does not contain evidence that the
New Mexico Corrections Department relied on either of the two facially valid court orders
committing Gallegos to its custody. See Response at 5. The Court concludes, however, that the
record, even when read in Gallegos’ favor, sufficiently reflects that the New Mexico Corrections
Department admitted Gallegos pursuant to these orders. See Receipt of State Prisoner at 1; First
Order Revoking Probation at 1-2; Judgment, Sentence, and Order Suspending Sentence at 1.
The New Mexico Corrections Department received Gallegos into its custody on November 12,
2014, a few days after the state court issued the two orders committing Gallegos into the New

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Mexico Corrections Department’s custody. See Receipt of State Prisoner at 1; First Order
Revoking Probation at 1-2; Judgment, Sentence, and Order Suspending Sentence at 1.
Moreover, on November 24, 2014, after Mr. Wilber apprised Mr. Brewster of Gallegos’ transfer
to the New Mexico Corrections Department and sent Mr. Brewster orders relevant to Gallegos’
custody, Mr. Wilber did not contend that the New Mexico Corrections Department held Gallegos
in custody pursuant to an invalid order. See November 24, 2014, 1:57 p.m. Email from Brewster
to Wilber at 1; November 24, 2014, 2:07 p.m. Email from Wilber to Brewster at 1.
Gallegos additionally argues that “there is no evidence that James Brewster relied on one
order versus another in order to take no action in this case.” Response at 5. The Court cannot
soundly conclude, however, that Mr. Brewster’s involvement in the case supports Gallegos’
claims. On November 24, 2014, Gallegos’ counsel, Mr. Wilber, contacted Mr. Brewster, the
New Mexico Corrections Department general counsel, to alert the New Mexico Corrections
Department that Gallegos had been transferred from MDC, where Gallegos had received
methadone. See November 24, 2014, 1:51 p.m. Email from Wilber to Brewster at 1. Mr. Wilber
also sent Mr. Brewster the court orders that pertained to Gallegos’ custody. See November 24,
2014, 1:57 p.m. Email from Brewster to Wilber at 1; November 24, 2014, 2:07 p.m. Email from
Wilber to Brewster at 1. Mr. Brewster received this information, responded that he would direct
the New Mexico Corrections Department’s medical provider, Corizon Health, to assess Gallegos,
see November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1, and, later, reported that
Corizon Health was already aware that Gallegos needed withdrawal-symptom treatment and had,
in fact, provided such treatment, see November 26, 2014, 2:51 p.m. Email from Brewster to
Wilber at 1. The record does not show that either Mr. Brewster or the New Mexico Corrections
Department failed to rely on facially valid court orders when the agency received Gallegos into

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its custody or when Mr. Brewster, upon Mr. Wilber’s notification, investigated Gallegos’
custody, condition, and plan of treatment. To the contrary, both Mr. Brewster and the New
Mexico Corrections Department relied on facially valid court orders. See First Order Revoking
Probation at 1; State Court Judgment, Sentence, and Order Suspending Sentence at 1; November
24, 2014, 1:57 p.m. Email from Brewster to Wilber at 1; November 24, 2014, 2:07 p.m. Email
from Wilber to Brewster at 1; November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at
1; November 26, 2014, 2:51 p.m. Email from Brewster to Wilber a 1.
The record sufficiently indicates that the New Mexico Corrections Department received
Gallegos into custody pursuant to the First Order Revoking Probation and the Judgment,
Sentence, and Order Suspending Sentence, both of which duly committed Gallegos to the New
Mexico Corrections Department.

See First Order Revoking Probation at 1-2; Judgment,

Sentence, and Order Suspending Sentence at 1. The record also sufficiently indicates that Mr.
Brewster relied on facially valid court orders when investigating Gallegos’ status and medical
treatment. See November 24, 2014, 1:57 p.m. Email from Brewster to Wilber at 1; November
24, 2014, 2:07 p.m. Email from Wilber to Brewster at 1; November 24, 2014, 2:45 p.m. Email
from Brewster to Wilber at 1; November 26, 2014, 2:51 p.m. Email from Brewster to Wilber a 1.
The First Order Revoking Probation and the Judgment, Sentence, and Order Suspending
Sentence, each committing Gallegos to the New Mexico Corrections Department’s custody, are
valid on their face. See First Order Revoking Probation at 1-2; Judgment, Sentence, and Order
Suspending Sentence at 1. Consequently, Mr. Brewster enjoys quasi-judicial civil immunity
from Gallegos’ claims to the extent that Gallegos’ claims are predicated on the assertion that the
New Mexico Corrections Department wrongfully received Gallegos into custody on November
12, 2014, or that either Mr. Brewster or the New Mexico Corrections Department wrongfully

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kept Gallegos in its custody after Mr. Wilber notified Mr. Brewster of Gallegos’ transfer from
MDC. See Turney v. O’Toole, 898 F.2d at 1472. Given those court orders, it is unclear what, if
anything, Mr. Brewster or the New Mexico Corrections Department could lawfully do other than
what they did. It does not appear, based on the court orders, that they could return Gallegos to
the MDC. Mr. Brewster or the New Mexico Corrections Department did what the First Order
Revoking Probation and the Judgment, Sentence, and Order Suspending Sentence ordered.
Last, Gallegos argues that the state court “titration orders were a regular matter of course
for prisoners” and, accordingly, should be read in conjunction with the two facially valid court
orders committing him to the New Mexico Corrections Department’s custody. Response at 5.
This argument does not impugn either Mr. Brewster’s quasi-judicial immunity, because it does
not question either Mr. Brewster’s or the New Mexico Corrections Department’s reliance on the
facially valid court orders. At bottom, Gallegos’ argument that the “titration order,” i.e., the
Remand Order, should have been given more attention illustrates that his claim hinges on facts
relating to his transfer from MDC, and not upon the New Mexico Corrections Department’s
receiving him into custody pursuant to facially valid court orders or upon Mr. Brewster’s
investigation into Gallegos’ status and medical treatment.
In sum, Mr. Brewster and the New Mexico Corrections Department had facially valid
court orders that said that Gallegos was in the right place. The New Mexico Corrections
Department did not violate the facially valid court orders that applied to it. Given the facially
valid orders, neither Mr. Brewster nor the New Mexico Corrections Department returned
Gallegos to MDC. Mr. Brewster did the only thing that he could do -- keep Gallegos at the state
prison. Mr. Brewster enjoys quasi-judicial civil immunity from Gallegos’ claims to the extent
that Gallegos’ claims are predicated on the assertion that the New Mexico Corrections

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Department wrongfully received Gallegos into custody on November 12, 2014, or kept Gallegos
in its custody after that date. See Turney v. O’Toole, 898 F.2d at 1472. The Court therefore
denies Gallegos leave to amend his Amended Complaint to add Mr. Brewster as a defendant,
because such amendment would be futile. See Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s
Serv., 175 F.3d at 859; TV Commc’ns Network, Inc. v. Turner Network Television, Inc., 964
F.2d at 1028.
B.

GALLEGOS’ PROPOSED AMENDMENT TO ADD MR. BREWSTER AS
A DEFENDANT WOULD BE SUBJECT TO DISMISSAL AND IS
ACCORDINGLY FUTILE, BECAUSE MR. BREWSTER WAS NEITHER
NEGLIGENT NOR DELIBERATELY INDIFFERENT TO GALLEGOS’
WITHDRAWAL SYMPTOMS.

Gallegos’ proposed amendment to add Mr. Brewster as a defendant is futile. The law and
record facts do not support Gallegos’ negligence or deliberate-indifference claims against Mr.
Brewster. Because Mr. Brewster was neither negligent nor deliberately indifferent to Gallegos’
withdrawal symptoms, Gallegos’ claims would be subject to dismissal.
An official violates the Eighth Amendment when two elements are met: (i) the official
causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the
“denial of the minimal civilized measure of life’s necessities”; and (ii) the official has a
“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation
marks omitted). See Smith v. Cummings, 445 F.3d at 1258 (“To establish a cognizable Eighth
Amendment claim for failure to protect [an inmate from harm], the plaintiff must show that he is
incarcerated under conditions posing a substantial risk of serious harm[,] the objective
component, and that the prison official was deliberately indifferent to his safety, the subjective
component.”)(quoting Verdecia v. Adams, 327 F.3d at 1175). The second element regarding the
government official’s state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. at

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298. The Supreme Court has stated: “With deliberate indifference lying somewhere between the
poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals
have routinely equated deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S.
at 836. The Supreme Court provided the following test for determining when this subjective
element is met:
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. at 837. For Eighth Amendment purposes, the Tenth Circuit has
equated deliberate indifference with recklessness. See Belcher v. United States, 216 F. App’x at
823-24 (quoting Smith v. Cummings, 445 F.3d at 1258).
In comparison to his deliberate-indifference claim, Gallegos’ tort claim would require a
lesser showing. Whereas “the Courts of Appeals have routinely equated deliberate indifference
with recklessness,” Farmer v. Brennan, 511 U.S. at 836, the NMTCA is “based upon the
traditional tort concepts of duty and the reasonably prudent person’s standard of care in the
performance of that duty,” N.M. Stat. Ann. § 41-4-2C. Thus, to make out his tort claim against
Mr. Brewster, Gallegos would need to show that Mr. Brewster failed to act with reasonable care
given Gallegos’ risk of suffering dangerous opiate-withdrawal symptoms. See Archibeque v.
Moya, 1993-NMSC-079, ¶ 8, 886 P.2d at 347 (“The purpose of Section 41-4-6 is to ensure the
general public’s safety by requiring public employees to exercise reasonable care . . . .”).
Gallegos has not shown either Mr. Brewster’s deliberate indifference or negligence.
The record does not support that Mr. Brewster was negligent, much less reckless, with
respect to risk of harm that Gallegos incurred after being transferred to the New Mexico

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Corrections Department. See November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at
1.

On November 24, 2014, Gallegos’ counsel, Mr. Wilber, contacted Mr. Brewster, the New

Mexico Corrections Department general counsel, to alert the New Mexico Corrections
Department that Gallegos had been transferred from MDC, where Gallegos had received
methadone. See November 24, 2014, 1:51 p.m. Email from Wilber to Brewster at 1. Mr. Wilber
also sent Mr. Brewster the court orders that pertained to Gallegos’ custody. See November 24,
2014, 1:57 p.m. Email from Brewster to Wilber at 1; November 24, 2014, 2:07 p.m. Email from
Wilber to Brewster at 1. Mr. Brewster received this information, responded that he would direct
the New Mexico Corrections Department’s medical provider, Corizon Health, to assess Gallegos,
see November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1, and, later, reported that
Corizon Health was already aware that Gallegos needed withdrawal-symptom treatment and had,
in fact, provided such treatment, see November 26, 2014, 2:51 p.m. Email from Brewster to
Wilber a 1. This record evidence demonstrates that Mr. Brewster was not negligent, much less
deliberately indifferent, to the risk that Gallegos might suffer dangerous opiate-withdrawal
symptom.

Mr. Brewster responded to the information concerning Gallegos’ methadone

dependence by contacting Corizon Health and ensuring that Corizon Health was treating
Gallegos. See November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1; November 26,
2014, 2:51 p.m. Email from Brewster to Wilber a 1.
Moreover, in his Motion to Amend, Gallegos neither directs the Court to record evidence
or makes allegations specific to Mr. Brewster that controverts the record evidence showing that
Mr. Brewster did not negligently or recklessly respond to Gallegos’ condition. See Motion to
Amend at 1-4; Second Amendment Complaint ¶¶ 1-17, at 5-7. There is no record fact that
suggests Mr. Brewster failed to discharge a duty of care he owed Gallegos. See Liberty Lobby,

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477 U.S. at 256 (concluding that it is insufficient for the party opposing a properly supported
motion for summary judgment to “rest on mere allegations or denials of his pleadings”). When
Gallegos arrived at the New Mexico Corrections Department on November 12, 2014, Corizon
Health medical personnel evaluated Gallegos’ withdrawal symptoms and gave him a “Kick Kit
to address his withdrawal symptoms.” Nursing Encounter Tool -- Withdrawal at 1. Mr. Wilber
did not inform Mr. Brewster of Gallegos’ transfer to the New Mexico Corrections Department
until November 24, 2014. See November 24, 2014, 1:51 p.m. Email from Wilber to Brewster at
1.

At that point, Mr. Brewster’s actions were constrained by the two state court orders

committing Gallegos to the New Mexico Corrections Department’s custody, and, again, Mr.
Brewster discharged his duty of care to Gallegos by responding to the information concerning
Gallegos’ methadone dependence, by contacting Corizon Health, and by ensuring that Corizon
Health was treating Gallegos. Gallegos points to no record fact which, even as a nonmovant in
the summary judgment posture, supports his allegation of Mr. Brewster’s negligence. See
Motion to Amend at 1-4. Perhaps on November 24, 2014, Mr. Brewster could have called MDC
to inquire about returning Gallegos to MDC where Gallegos received methadone, but two court
orders committing Gallegos to the New Mexico Corrections Department constrained Brewster
from effectively returning Gallegos. Moreover, when Brewster learned on November 24, 2014,
that Corizon Health had already been treating Gallegos for withdrawal symptoms since
November 12, 2014, the duty of reasonable care did not require Brewster to seek Gallegos’
return to MDC in contravention of the court orders that constrained Brewster’s conduct. There is
no record fact to which Gallegos points, or which the Court has independently identified, that
supports Brewster’s negligence in this matter.

Because the facts and law do not support

Gallegos’ negligence and deliberate-indifference claims against Mr. Brewster, those claims

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would be subject to dismissal.

Accordingly, Gallegos’ proposed amendment to add Mr.

Brewster as a defendant is futile.

See TV Commc’ns Network, Inc. v. Turner Network

Television, Inc., 964 F.2d at 1028.
IT IS ORDERED that: (i) Defendant New Mexico Department of Corrections’ Motion
for Summary Judgment and Memorandum Brief in Support Thereof, filed April 7, 2017 (Doc.
67), is granted; and (ii) Plaintiff’s Motion to File a Second Amended Complaint, filed February
17, 2017 (Doc. 58), is denied in part, to the extent that Gallegos proposes to add Mr. Brewster as
a defendant.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Stephen F. Lawless
Stephen F. Lawless, P.A.
Albuquerque, New Mexico
Attorneys for the Plaintiff
Carlos M. Quiñones
Quiñones Law Firm
Albuquerque, New Mexico
Attorneys for Defendants Bernalillo County Board of
Commissioners and Bernalillo County Metropolitan Detention Center
Debra J. Moulton
Deborah D. Wells
Kennedy, Moulton & Wells PC
Albuquerque, New Mexico
Attorneys for Defendants New Mexico Corrections Department

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