Galvan v. Board of County Commissioners for Curry County, New Mexico

Filing 44

ORDER by Magistrate Judge Gregory J. Fouratt GRANTING 24 Motion for Summary Judgment. (jlr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

VERONICA GALVAN,
Plaintiff,
v.

Civ. No. 16-535 GJF/KRS

BOARD OF COUNTY
COMMISSIONERS FOR CURRY
COUNTY, NEW MEXICO,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant’s “Motion for Summary Judgment No.
I: Notice Under the New Mexico Tort Claims Act” (“Motion”) [ECF No. 24], filed February 17,
2017. After careful consideration of the pertinent law, the parties’ briefing, and the testimony
and exhibits introduced at the May 11, 2017 evidentiary hearing, the Court will grant the Motion
and will dismiss for lack of jurisdiction Plaintiff’s claim of negligence under the New Mexico
Tort Claims Act. For the reasons discussed below, the Court concludes that the Defendant did
not have actual notice that litigation was likely to ensue against it as a result of the inmate-oninmate assault that Plaintiff suffered in the Curry County Detention Center. Furthermore, the
Court concludes that Plaintiff was not physically or legally incapacitated in the aftermath of the
assault so as to excuse her failure to comply with the notice requirements of the New Mexico
Tort Claims Act.
I.

BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Plaintiff’s incarceration at the Curry County Detention Center

“Women’s Annex” in Clovis, New Mexico.

Pl.’s Compl. 2, ECF No. 1.

Plaintiff was

incarcerated there from January 21, 2014, through May 30, 2014, when she was transferred to
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another facility. Id. Plaintiff alleges that on or about February 1, 2014, she was battered by
another inmate, during which she sustained a broken hand, scratches on her face, and bruising on
her head, knee, and face. Id. at 3-4. Plaintiff further alleges that the incident occurred in part
due to overcrowding, insufficient staffing of correctional officers and staff, and inadequate
building maintenance, including roof leaks and toxic black mold. Id. at 3.
On May 20, 2014, in preparation for filing her lawsuit, Plaintiff submitted written notice
via counsel of her tort claim to the Curry County Clerk. Def.’s Mot., Ex. C at 3-4, ECF No. 24.
Plaintiff’s written notice stated in part:
Notice is hereby given to you pursuant to the New Mexico Tort Claims Act (41-41 et seq.), that my client Veronica Galvan was beaten by an inmate by the name of
Kimberly Lee More [sic] in January, 2014. An incident report was made and the
Curry County Adult Detention Center was on actual notice of the incident. Ms.
Galvan suffered [sic] was pulled out of a chair and beaten (including being kneed
in the face), resulting in a scratch on her face (chin) and several bumps on her
head. She continues to suffer headaches from the incident but has been denied
proper medical care including but not limited to the performance of an M.R.I. of
her skull along with other diagnosis and treatment of her condition. Ms. Galvan
had indicated to Detention Center employees that there was a problem with Ms.
Kimberly Moore being housed in the annex because she is the wife of Mr. Guerra.
Ms. Galvan is a close friend of the Perez family. Despite this known animosity,
Ms. Galvan was continued to be housed with her in the Women’s Annex. Notice
of tort claim pursuant to § 41-4-6 NMSA is hereby given for the negligence of the
Curry County Board of Commissioners in the operation and/or maintenance of the
Women’s Annex and failure to provide Ms. Galvan with proper medical care in a
timely fashion in violation of § 41-4-9 and 10 NMSA. A claim for violation of
Ms. Galvan’s civil rights, and privileges and immunities secured by the
constitution and laws of the United States and New Mexico is also asserted
pursuant to § 41-4-12 NMSA.
Id.
Plaintiff then filed this case on June 7, 2016, asserting claims against Defendant for
violations of the Fourteenth Amendment and negligence under the New Mexico Tort Claims

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Act. 1 Pl.’s Compl. 8-13. On February 17, 2017, Defendant moved for summary judgment on
Plaintiff’s negligence claim. ECF No. 24. Plaintiff responded on February 28, 2017 (ECF No.
25), and Defendant replied on March 13, 2017 (ECF No. 26).
II.

SUMMARY OF ARGUMENTS
Defendant argues that Plaintiff’s claim under the New Mexico Tort Claims Act must be

dismissed because she did not comply with the statutory requirement concerning written notice.
Furthermore, Defendant contends that Plaintiff is unable to establish actual notice by depending
solely on the jail’s incident report since the report did not alert the County that litigation was
likely to ensue against it. Def.’s Mot. 1-6. In response, Plaintiff does not dispute that she did not
comply with the statute’s 90-day written notice requirement. Instead, she asserts that the jail’s
internal incident report provided Defendant with actual notice that Plaintiff would bring this
lawsuit. Alternatively, Plaintiff argues that the 90-day clock for providing notice was tolled
because she was incapacitated as a result of the beating she suffered. Pl.’s Resp. 6-11.
III.

ANALYSIS
Under the New Mexico Tort Claims Act, a claimant ordinarily must submit her claim to

the appropriate government official within 90 days of the alleged tort. In pertinent part, the
statute governing notice provides:
A. Every person who claims damages from the state or any local public body
under the Tort Claims Act shall cause to be presented to . . . . the county clerk of a
county for claims against the county, . . . . within ninety days after an occurrence
giving rise to a claim for which immunity has been waived under the Tort Claims
Act, a written notice stating the time, place and circumstances of the loss or
injury.

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Plaintiff filed a previous suit with similar allegations on July 7, 2014. See 2:14-cv-619-KG-WPL. On May 19,
2016, the Court dismissed her § 1983 Fourteenth Amendment due process claims without prejudice because she
failed to exhaust her remedies at the Curry County Detention Center. It declined to exercise supplemental
jurisdiction over her remaining state law claims. See Mem. Op. and Order, ECF No. 75.

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N.M. STAT. ANN. § 41-4-16 (1977) (emphasis added). The purpose of the notice requirement “is
to ensure that the agency allegedly at fault is notified that it may be subject to a lawsuit.” Lopez
v. State, 930 P.2d 146, 149 (N.M. 1996). This notice requirement permits the governmental
entity “to protect itself against false or exaggerated claims while also permitting it to identify and
settle meritorious claims.” Lopez, 930 P.2d at 149. If the notice requirement is not met, a court
lacks jurisdiction to consider the case. See § 41-4-16(B) (“No suit or action for which immunity
has been waived under the Tort Claims Act shall be maintained and no court shall have
jurisdiction to consider any suit or action against the state or any local public body unless notice
has been given as required by this section . . . .”).
A. Exception to the General Rule: Actual Notice
The statute provides both an exception and a tolling provision that are relevant to the
instant Motion.

First, the written notice requirement is excused in situations where the

governmental entity had actual notice. In relevant part, Section 41-4-16 provides:
B. No suit or action for which immunity has been waived under the Tort Claims
Act shall be maintained and no court shall have jurisdiction to consider any suit or
action against the state or any local public body unless notice has been given as
required by this section, or unless the governmental entity had actual notice of the
occurrence.
Id. (emphasis added).
Whether a state or local government body should be imputed to have received actual
notice is a threshold issue to be determined by the trial court. Lopez, 930 P.2d at 151. “Because
under Section 41-4-16(B) actual notice is a jurisdictional question and separate from the ultimate
issue of liability, whether the facts give rise to a reasonable inference that a claim may be filed is
a threshold inquiry to be resolved by the court.” Id. To determine if the governmental entity
allegedly at fault had actual notice, New Mexico courts apply the “likelihood that litigation may

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ensue” standard. Lopez, 930 P.2d at 150. Utilizing this standard, courts evaluate whether, “from
the totality of the circumstances known to the governmental entity charged with fault in the
occurrence, a reasonable person would have concluded that the victim may claim compensation.”
Id. Actual notice of the incident or injury alone is insufficient. Instead, the notice required is
“actual notice that there exists a ‘likelihood’ that litigation may ensue.” Frappier v. Mergler,
752 P.2d 253, 256 (N.M. Ct. App. 1988).
The New Mexico Supreme Court has held that, under some circumstances, a report such
as a police report could fulfill the actual notice requirement of Section 41-4-16(B), “but only
where the report contains information which puts the governmental entity allegedly at fault on
notice that there is a claim against it.” City of Las Cruces v. Garcia, 690 P.2d 1019, 1021 (N.M.
1984) (emphasis in original). Other cases suggest that the level of detail in a report and the
function the report is intended to serve are important factors in deciding whether a government
agency had actual notice pursuant to Section 41-4-16(B). For example, in Frappier, a plaintiff
sued the Village of Corrales and other government officials some two years after she got into a
car accident with an officer from the Village police department. Frappier, 752 P.2d at 255.
Because formal written notice had not been given in accordance with Section 41-4-16(A), the
plaintiff instead argued that the Village had actual notice because of the police report completed
at the scene of the accident. Id. at 255-56. The court of appeals reviewed the plaintiff’s claim
under the “likelihood that litigation may ensue” standard and held that the police report did not
constitute actual notice under the New Mexico Tort Claims Act. Id. at 257. The brief report did
not indicate that plaintiff was hurt, and in fact identified her as the responsible party for the
accident. Id. The court held that the mere facts contained in the report were not sufficient to put

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the Village on notice that there was a likelihood that litigation would ensue against it as a result
of the accident. Id.
Lopez provides another useful example. There, a plaintiff filed a premises liability
lawsuit against the Bernalillo County Metropolitan Court and the State of New Mexico after she
tripped and injured herself exiting a courtroom. Lopez, 930 P.2d at 148. The primary question
in the case was whether actual notice was provided under Section 41-4-16(B) by means of the
submission of an incident report to the State Risk Management agency, which is charged with
“compromising, adjusting, settling, and paying claims.” Id. As the court of appeals had done in
Frappier, the New Mexico Supreme Court evaluated plaintiff’s claim under the “likelihood that
litigation may ensue” standard, but this time concluded that the incident report contained
sufficient information to provide actual notice to the governmental entity allegedly at fault. Id.
The court considered the level of detail in the report, including the date, time, and location of the
plaintiff’s accident, a list of witnesses, a description of how the accident took place, a detailed
description of the condition of the premises, and the types of serious injuries the plaintiff
suffered as a result. Id. Furthermore, the court thought it of great importance that the incident
report was prepared “not merely for statistical purposes,” but was instead sent to the Risk
Management agency. Id. The combination of these factors persuaded the court that a factfinder
could reasonably infer that the Metropolitan Court “recognized a likelihood of suit.” Id. at 151.
The court remanded the case with instructions to the trial court to hold an evidentiary hearing on
the sole issue of whether these circumstances gave the state government defendant actual notice.
Id. at 152.
Callaway v. New Mexico Dept. of Corrections further illustrates that actual notice
requires the governmental body to have more than mere knowledge of the incident in question.

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Callaway was severely beaten while in custody at the state penitentiary. Callaway v. New
Mexico Dept. of Corrections, 875 P.2d 393, 395 (N.M. Ct. App. 1994). He did not provide
written notice pursuant to Section 41-4-16(A), and instead contended that the circumstances of
his case gave the Corrections Department actual notice under Section 41-4-16(B). Id. at 396.
The court of appeals remanded the case to the district court with instructions to reconsider
whether the following facts combined to put the Department on actual notice: (i) a letter sent two
months after the incident by plaintiff’s attorney to defendant stating that plaintiff was represented
by counsel and requesting an investigation into the incident; (ii) a request one month after the
incident by plaintiff’s wife for copies of his medical records; (iii) a response from the Governor’s
office to a letter that plaintiff’s wife had sent regarding the incident; and, (iv) the transfer of the
letter by the Governor’s office to the Secretary of the Department of Corrections with
instructions that the Department Secretary “take whatever actions he deems appropriate.” Id.
The most recent guidance the New Mexico courts have offered on the issue of actual
notice under Section 41-4-16(B) is from Herald v. Board of Regents of University of New
Mexico, 357 P.3d 438 (N.M. Ct. App. 2015). In Herald, a medical resident alleged she was
raped by a fellow resident in her program. Herald, 357 P.3d at 440. After she was terminated
from the residency program, she sued the university in part under the New Mexico Tort Claims
Act. Id. at 441. She claimed that, because she reported the rape to administrators of the
residency program, the university had actual notice under Section 41-4-16(B). Id. at 449. The
court of appeals held that plaintiff’s reporting of the rape to school administrators did not fulfill
the requirements of actual notice under the statute. Id. It reasoned, “[w]ithout such notice, the
fact that Plaintiff notified Defendant of the alleged rape does not satisfy Section 41-4-16(B).” Id.

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B. Defendant Did Not Have Actual Notice Under Section 41-4-16(B)
Applying these principles of law to the facts of the present case, the Court concludes that
the incident report of the beating did not give Curry County actual notice that litigation would
likely ensue against it. A brief chronology helps to explain why.
First, the parties do not dispute that Plaintiff was beaten by another inmate at the
Women’s Annex on February 1, 2014. See Pl.’s Compl. 3; Def.’s Mot. 2; Pl.’s Resp. 2. This
beating was documented in two different reports. In a report prepared the day of the beating,
Sergeant Mary Lujan documented the incident as follows:
On the above date [February 1, 2014] and time [17:22] a 1024 was called at the
annex. When I arrived at the annex Kimberly Moore was locked down. She was
yelling calling Veronica Galvan a fucken snitch. I advised Moore to calm down.
After talking to Officer Burbank at the annex she advised me that Kimberly
Moore was the aggressor and she just started punching Veronica Galvan.
Burbank said that Galvan did not hit Moore back. I advised Burbank to write a
statement on the situation.
Def.’s Mot., Ex. B at 4.
The only evidence submitted to the Court where it appears that Detention Officer
Burbank memorialized her observations is an excerpt from the Annex Log Book:
2-1-14 Galvan was at the back tables by the tv. Moore went up to her and tried
instigating [sic] her. Moore began calling Galvan a snitch and then began
punching her. May pushed Moore away from Galvan and I was able to keep
Moore away as I attempted to get Moore to her cell. Moore tried resisting as I
pulled her to her cell. Officer Eliam was able to assist me in placing Moore into
917. Sgt Lujan moved Moore into 911 on lockdown. She was taken to PRMC to
get her hand & arm checked out per medical. Statements, move slips & write ups
have already been done. S2 moved Rodriguez, M to 901, and May, Brittany to
02A. SO Slate came in and spoke with Galvan and myself and also collected my
statement. Pictures where [sic] taken of Moore’s arm and hand. Galvan refused
photo documentation.
Pl.’s Resp., Exh. 3.

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The final component of the chronology occurred when Plaintiff sent notice of her tort
claim to the Curry County Clerk on May 20, 2014, one hundred and eight (108) days after the
beating. See Def.’s Mot. 2; Pl.’s Resp. 2.
Recognizing that the written notice she submitted on May 20, 2014, fell outside the 90day requirement in Section 41-4-16(A), Plaintiff argues that the County had actual knowledge
pursuant to Section 41-4-16(B) because the incident was recorded on camera and an internal
incident report was completed. Pl.’s Resp. 7-8. In support of this argument, Plaintiff provides
an affidavit from Gerry Billy, a former Curry County Detention Administrator, which states in
part: “Based on my own personal knowledge and experience with the Curry County Detention
Center, the incident reports such as Exhibit 1 are prepared by the Curry County Detention Center
in anticipation and under the understanding that a subsequent civil law-suit [sic] may be filed
against the County Commission.” Pl.’s Resp., Ex. 2 at 2. According to his affidavit, Mr. Billy
was the Curry County Detention Administrator for less than one year, with his service ending
more than a year before the incident before the Court. Id. at 1.
The Court has struggled to give any credit to Mr. Billy’s affidavit because his assertions
are conclusory, temporally irrelevant, bereft of any specific factual support showing that he was
aware of how incident reports were being prepared or used more than a year after his departure,
and otherwise contrary to common sense. It simply cannot be that every incident report prepared
in a busy and modern county detention facility automatically puts the detention center
administrator, county manager, or county commission on notice that the county itself might be
sued. The Court can reasonably imagine any number of reasons why personnel at a detention
center would generate an incident report – most having to do with inmate misconduct or inmate
discipline – with only a tiny percentage of those reports reasonably suggesting the potential of

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civil liability on the part of the county. The Court has considered Mr. Billy’s affidavit and has
given it the weight it is due, but does not adopt or accept his implicit assertion that every incident
report prepared for any reason at the Curry County Detention Center as a matter of law puts the
Curry County Commission on notice that it or its components might someday be sued. 2
The question for the Court, then, is whether the incident report prepared for this incident
gave the County notice that it might itself be sued. As illustrated by Frappier, Lopez, Callaway,
and Herald, actual notice of the incident merely having taken place is not sufficient to fulfill the
statute’s notice requirement. The Court concludes that the incident report relied on by Plaintiff,
even as supplemented by Officer Burbank’s journal entry, was wholly inadequate to constitute
actual notice under the New Mexico Tort Claims Act. No credible evidence suggests that the
incident report was completed out of concern that a lawsuit against the jail might arise.
Although the Women’s Annex was clearly aware that an inmate-on-inmate assault took place,
the descriptive language in the report was brief. The report noted that Plaintiff was punched by
Ms. Moore but made no mention that serious injuries incurred. Furthermore, the report did not
indicate that any action by the guards or any other detention center personnel led to the incident
or contributed in any way to Plaintiff’s injuries. Similar to the report prepared in Frappier, the
jail’s report contained no information that reasonably would have led the administrators of the
Women’s Annex (nor any other county officials) to believe litigation against the jail may ensue
as a result.
It is plainly apparent to the Court that the report was completed to justify discipline for
the aggressor, to document the need to house the combatants separately in the future, and to
summarize the key facts and potential witnesses for possible criminal investigation and
2

Under Lopez, the responsibility for deciding whether a defendant has received actual notice under § 41-4-16(B)
and for resolving any factual questions associated with that question belongs to the Court. 930 P.2d at 151. In its
discretion, the Court determines that no evidentiary hearing was necessary to resolve the question of actual notice.

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prosecution of the aggressor. That there is no evidence that the report was forwarded to the
county clerk, county manager, nor county attorney is another strong indicator that the report was
not intended to (and did not) alert the County to the likelihood that litigation against it would
ensue.
Moreover, the compelling factors present in Lopez and Callaway that led the New
Mexico appellate courts to conclude that a trial court should hold an evidentiary hearing to
determine whether the state government had actual notice are simply not present in this case.
Unlike the report in Lopez, the incident report here was never sent to any county administrator or
any agency responsible for investigating and resolving claims.

County officials were not

provided jail incident reports as a matter of course and instead, the reports “were for internal
Detention Center purposes.” Def.’s Reply, Ex. D at 2. Nor was there any evidence submitted in
this case, as there was in Callaway, that any attorney for or family member of Plaintiff attempted
to intercede on her behalf as a consequence of the beating she suffered. The evidence instead
shows that the first notice that Defendant received that it might itself be sued came in the form of
Plaintiff’s counsel’s May 20, 2014 tort claim notice.

Because Plaintiff offers no credible

evidence to the contrary, the Court cannot make a reasonable inference that the Defendant had
actual notice of Plaintiff’s claim against it.
C. Statutory Tolling Based on “Incapacitation”
Alternatively, Plaintiff argues that the 90-day time for giving notice of her tort claim was
tolled because she was “incapacitated” from February 1, 2014, through May 19, 2014, the date
on which she hired counsel. Pl.’s Resp. 10. In support of this theory, Plaintiff relies on three
paragraphs from her own affidavit, in which she states:
After the severe beating I received on February 1, 2014, I was in a severe mental
daze from among other things severe continuous debilitating headaches, physical
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pain, and incapacitating terror of being re-assaulted by Kimberly Moore until at
least May 19, 2014.
I was physically and mentally incapacitated from taking any action to hire an
attorney or get a Tort Claim Notice filed regarding the February 1, 2014 beating.
The beating severely affected me, disoriented me and made me incapacitated from
taking action to protect my legal interests.
I was not able to hire an attorney or file a Tort Claim notice until at least May 19,
2014 because of my physical and mental incapacity caused by the February 1,
2014 severe beating.
Pl.’s Resp., Ex. 1 at 5-6. Defendant argues that Plaintiff’s affidavit is a “sham” and it should be
disregarded by the Court, since the affidavit is clearly at odds with her earlier deposition
testimony. Def.’s Reply 8.
Under Section 41-4-16(B), an additional period of up to 90 days is allowed for persons
who are incapacitated from giving notice due to injury. § 41-4-16(B) (“The time for giving
notice does not include the time, not exceeding ninety days, during which the injured person is
incapacitated from giving the notice by reason of injury.”) (emphasis added). The statute does
not define “incapacitated.” Furthermore, so far as this Court is aware, New Mexico courts have
yet to provide guidance on the meaning of “incapacitation” as used in § 41-4-16(B) or the
standard by which it should be measured.
To determine the most natural meaning of the term “incapacitated,” the Court consulted
commonly-used dictionaries.

Black’s Law Dictionary defines “incapacitated person” as

“[s]omeone who is impaired by an intoxicant, by mental illness or deficiency, or by physical
illness or disability to the extent that personal decision-making is impossible.” Incapacitated
Person, BLACK'S LAW DICTIONARY (10th ed. 2014). It further defines “legally incapacitated
person” as “[a] person, other than a minor, who is temporarily or permanently impaired by
mental illness, mental deficiency, physical illness or disability, or alcohol or drug use to the

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extent that the person lacks sufficient understanding to make or communicate responsible
personal decisions or to enter into contracts.” Legally Incapacitated Person, BLACK'S LAW
DICTIONARY (10th ed. 2014). More generically, Merriam-Webster defines “incapacitate” as “to
make legally incapable or ineligible” and “to deprive of capacity or natural power.”
Incapacitate, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/incapacitated
(last visited May 26, 2017). Giving this term its natural meaning within the context of the
statutory language that surrounds it, the Court concludes that “incapacitated” as used in § 41-416(B) means “without capacity to act,” “incapable of acting,” or “powerless to act.”
Having defined incapacitation as the term is used in § 41-4-16(B), the Court must now
decide through what legal means the existence of incapacitation is measured. The New Mexico
Supreme Court’s decision in Lopez is of immediate help in this inquiry. In Lopez, the court
emphasized that the related issue of actual notice under Section 41-4-16(B) is “a jurisdictional
question and separate from the ultimate issue of liability.” Lopez, 930 P.2d at 151. For that
reason, the question of whether a governmental body had actual notice is “certainly one worthy
of an evidentiary hearing for the court to determine.” Id. Although Lopez dealt with the separate
question of actual notice, this Court is convinced that a similar evidentiary hearing is likewise the
appropriate vehicle for resolving any fact questions associated with the closely-related statutory
tolling provision for a claimant’s alleged incapacitation. 3
To resolve any lingering fact questions associated with whether Plaintiff was
“incapacitated” as set forth in Section 41-4-16(B), the Court held an evidentiary hearing on May
11, 2017. The evidence presented at the hearing was limited to the issue of whether Plaintiff was
incapacitated by injury pursuant to Section 41-4-16(B). See Order Setting Hearing, ECF No. 32.
3

At the outset of the evidentiary hearing, the Court announced its legal conclusions concerning the issue of
incapacitation being one to be decided by the Court and the Plaintiff bearing the burden to prove her incapacitation
by a preponderance of the evidence. Neither party objected to either conclusion or the hearing held that day.

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Having considered Plaintiff’s testimony at the hearing, the rest of the documentary evidence
submitted by the parties in connection with their briefing, and the total of ten exhibits the parties
introduced during the hearing, the Court now makes the following factual findings: 4
1. Plaintiff was booked into the Curry County Detention Center “Women’s Annex” in
Clovis, New Mexico on January 21, 2014, and was incarcerated at the facility from January 21,
2014, through May 30, 2014, whereupon she was then transferred to a Department of
Corrections facility in Grants, New Mexico. Plaintiff’s incarceration was pursuant to a sixmonth sentence imposed by a district judge in the Ninth Judicial District.
2. Plaintiff had been incarcerated in the Women’s Annex three or four times before,
including one stay that lasted approximately six months. Consequently, she was aware of jail
policies and procedures, how inmates make requests of jail staff, how inmates get jobs inside the
jail, and other aspects of jail life.
3. On February 1, 2014, Plaintiff endured a beating by a fellow inmate named Kimberly
Moore. See, e.g., Pl.’s Ex. 1 (security footage of incident). The security footage of the incident
depicts Plaintiff sitting at a table in the dayroom when Moore approached her and, without any
apparent provocation, suddenly began to repeatedly punch and kick Plaintiff in her upper torso
and head. Although the beating lasted only approximately 23 seconds, Moore appears to have
punched Plaintiff at least 17 times, pulled Plaintiff to the ground, and then kicked her at least five
times. Plaintiff remained in a defensive posture throughout the beating and did not fight back.
4. Plaintiff was evaluated immediately after the beating by a medical staffer at the jail
whose first name is Guy. He shined a light in her eyes and asked her how she was feeling. She

4

Because no finalized transcript has been prepared, this opinion does not cite to one. Furthermore, the findings set
forth herein are only those necessary to resolve the instant Motion. Finally, any conflict between Plaintiff’s
testimony and her affidavit have been resolved consistent with the findings set forth herein.

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was not transported to a hospital or a separate medical facility. She needed neither stitches nor
staples, nor was she ever diagnosed with a concussion.
5. As a result of the beating, Plaintiff suffered bruises and lumps on her head that took
anywhere from two to four weeks to resolve, the loss of hair that was ripped from her scalp, and
relatively constant headaches. She would sometimes experience dizziness and a feeling of being
disoriented or light-headed, as well as persistent pain in her neck and right shoulder.
6. Plaintiff only made one request for medical treatment associated with the injuries she
suffered during the beating. Pursuant to that request, she was taken to the main building where
she saw a medical provider other than Guy and was given ibuprofen for her recurrent headaches.
For the remainder of her incarceration at the Women’s Annex, a medical officer periodically
administered ibuprofen to her.
7. In addition to that one-time request, Plaintiff sent written requests to jail staff for
medical conditions unrelated to the beating. See Def.’s Exhs. A (April 3, 2014 request to be seen
for carpal tunnel condition); B (March 2, 2014 request to be seen for eczema on elbow, as well as
a head cold; also requested visit with mental health counselor); C (February 7, 2014 request to be
seen for eczema).
8. Plaintiff consulted the mental health counselor at the jail at least once a week during
the entirety of the four-month stay that is the subject of this lawsuit.
9. In addition to submitting written requests for medical care, Plaintiff also sent requests
for other issues unrelated to medical care. For example, Plaintiff sent a request asking jail staff
when the next transport bus to the Grants women’s prison was scheduled. Def.’s Exh. D (dated
February 1, 2014). She sent another request asking jail staff to arrange to release her property to
her daughter because she knew she would not be permitted to take it with her to the prison in

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Grants. Def.’s Exh. F (dated February 28, 2014). Plaintiff sent a request asking for a copy of her
disposition paperwork from her criminal case. See Def.’s Exh. E (dated February 10, 2014).
And she sent multiple requests seeking the assistance of jail staff to have her Judgment and
Sentence amended to reflect that she was sentenced to county jail, instead of the state’s
Corrections Department. See Def.’s Exhs. G (dated April 15, 2014) and H (dated April 22,
2014). During her testimony, Plaintiff stated that she was seeking the amendment so that she
would be credited for “good time” during her stay in the county jail just as she would have been
had she been in the Corrections Department’s custody.
10. On at least one occasion after the beating, Plaintiff telephoned the state public
defender’s office in an effort to enlist her attorney’s support in getting her Judgment and
Sentence amended. A phone in the dayroom of the Women’s Annex was set aside for attorneyclient calls and was available throughout the day to inmates to use for their convenience.
11. Although Plaintiff did not have money on her books with which to call her children,
she would have done so if she had the money. She also periodically received visitors at the jail.
12. Consistent with what she had done in prior stays at the jail, Plaintiff applied for work
status during this incarceration. In addition to the possibility of earning good time credit toward
her sentence, Plaintiff also worked to keep herself busy and to keep “her mind off things.” She
performed multiple duties during the entirety of the period of incarceration that is at issue in this
case. For example, she was the primary laundry worker for the Women’s Annex during the
entire period between January 21 – May 30, 2014. This responsibility required several hours
five days per week, alternating between laundering inmate clothes, linens, and blankets. She also
assisted on a frequent as-needed basis with the distribution of meals to the female inmates. And
she was one of three pod porters responsible for cleaning the common areas and restrooms. She

16

held each of these jobs before the beating and continued to perform them without interruption
after the beating. These jobs required Plaintiff to work at least eight hours every day.
13.

After the beating, Plaintiff was fearful of another encounter with Moore, who

continued to make threats. When Plaintiff was not working at her various jobs, she would sit
near where the on-duty detention officer was posted out of concern of being re-attacked by
Moore.
14. During her multiple stays at the jail, Plaintiff had developed relationships with
various personnel there, including guards, mental health counselors, and administrators. She
often directed her inmate request forms to specific individuals because she generally knew each
of their responsibilities.
15. Plaintiff was diagnosed with bi-polar disorder in 2011 or 2012, well before she
served this period of incarceration. She did not take any medicine for it, however, because she
failed to return to the diagnosing doctor to obtain a prescription.
16. In May 2014, Plaintiff was referred to her present attorney, Eric Dixon, Esq., by
another inmate who happened to be consulting with Mr. Dixon in the jail on an unrelated case.
17. On or about May 30, 2014, Plaintiff was transferred to the Corrections Department’s
women’s prison in Grants. As a part of her transition at the prison, she was medically screened
and cleared for assignment to a housing unit.
On the basis of the foregoing factual findings, the Court concludes that Plaintiff was not
“incapacitated” as that phrase is used in § 41-4-16(B). Indeed, although the Court believes that
Plaintiff was injured during the fairly brutal beating she endured, the Court is impressed by the
capacity that Plaintiff manifested in the days and weeks after the beating. Plaintiff continued to
work at all three jail jobs without interruption. She only once requested medical treatment for

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beating-related injuries, although she requested unrelated medical treatment at least three other
times. She saw a mental health counselor at least once a week throughout her four-month stay.
Importantly, Plaintiff demonstrated the capacity to vindicate her legal interests by submitting
requests (and at least once calling her public defender) that either would have accelerated her
transfer to the Corrections Department (where she would have been entitled to earn good time
credit) or would have resulted in an Amended Judgment and Sentence to change her commitment
to the county jail instead of the Corrections Department (with a retroactive good time
recalculation). And Plaintiff showed the capacity to protect her safety by making the intentional
choice to sit close to guards she knew well in the common areas of the jail in an effort to avoid
inmate Moore.

In sum, the evidence has convinced this Court that Plaintiff is a savvy,

knowledgeable, and experienced inmate whose capacity and capabilities were not meaningfully
disrupted by the beating she underwent or the injuries stemming from it.
For these reasons, the Court concludes that Plaintiff has not met her burden of
demonstrating by a preponderance of the evidence that she was “incapacitated from giving the
[Tort Claims] notice by reason of injury,” as § 41-4-16(B) requires.
IV.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendant’s “Motion for Summary
Judgment No. I: Notice Under the New Mexico Tort Claims Act” [ECF No. 24], is GRANTED.
IT IS FURTHER ORDERED that Count 2 of the Complaint is DISMISSED WITH
PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION.

_______________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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