Case 2:16-cv-00127-JB-WPL Document 82 Filed 08/17/17 Page 1 of 113
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`MARTIN GALLEGOS,
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`Plaintiff,
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` No. CIV 16-0127 JB/WPL
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`vs.
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`BERNALILLO COUNTY BOARD OF
`COMMISSIONERS; BERNALILLO COUNTY
`DETENTION CENTER; NEW MEXICO
`DEPARTMENT OF CORRECTIONS, and
`JOHN DOES 1 through 5,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`THIS MATTER comes before the Court on: (i) Defendant New Mexico Department of
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`Corrections’ Motion for Summary Judgment and Memorandum Brief in Support Thereof, filed
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`April 7, 2017 (Doc. 67)(“MSJ”); and (ii) the Plaintiff’s Motion to File a Second Amended
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`Complaint, filed February 17, 2017 (Doc. 58)(“Motion to Amend”). The Court held a hearing on
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`June 2, 2017. The primary issues are: (i) whether Defendant New Mexico Department of
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`Corrections is entitled to summary judgment, because the New Mexico Corrections Department
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`enjoys sovereign immunity from Plaintiff Martin Gallegos’ suit, including Gallegos’ state tort
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`claim and his 42 U.S.C. § 1983 claim that the New Mexico Corrections Department inflicted
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`cruel and unusual punishment on him in violation of the Eighth Amendment to the Constitution
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`of the United States of America by receiving him into custody such that Gallegos was without
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`methadone; (ii) whether the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to -30
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`(“NMTCA”), waives the New Mexico Corrections Department’s Eleventh Amendment
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`immunity from Gallegos’ state tort claims for receiving him into custody such that Gallegos was
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`without methadone; (iii) whether § 41-4-6(A)’s waiver provision does not apply, because the
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`New Mexico Corrections Department failed to implement a safety policy regarding the provision
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`of methadone necessary to protect those who use the building that housed Gallegos; (iv) whether
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`§ 41-4-6(A)’s waiver provision does not apply, because Gallegos’ state tort claim is predicated
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`on a single, discrete administrative act affecting only himself; (v) whether Gallegos’ proposed
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`amendment to add Mr. James Brewster, the New Mexico Corrections Department’s General
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`Counsel, is futile, because Mr. Brewster is immune from Gallegos’ claims to the extent that they
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`are based on Brewster’s enforcement of facially-valid court orders; and (vi) whether the Court
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`should deny Gallegos’ proposed amendment to add Mr. Brewster as a defendant as futile,
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`because Mr. Brewster was neither negligent nor deliberately indifferent to Gallegos’ withdrawal
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`symptoms.
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`The Court concludes that: (i) the New Mexico Corrections Department is entitled to
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`summary judgment on Gallegos’ claims, because the New Mexico Corrections Department
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`enjoys sovereign immunity from Gallegos’ suit; (ii) the NMTCA does not waive the New
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`Mexico Corrections Department’s Eleventh Amendment immunity from Gallegos’ state tort
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`claim; (iii) even if the NMTCA waives the New Mexico Corrections Department’s Eleventh
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`Amendment immunity from Gallegos’ state tort claim, § 41-4-6(A)’s waiver provision does not
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`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
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`that housed him; (iv) even if the NMTCA waives the New Mexico Corrections Department’s
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`Eleventh Amendment immunity to Gallegos’ state tort claims, § 41-4-6(A)’s waiver provision
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`does not apply, because § 41-4-6(A) does not waive the New Mexico Corrections Department’s
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`immunity from Gallegos’ state tort claim to the extent that Gallegos’ state tort claim is
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`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
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`Gallegos’ claims to the extent that Gallegos’ claims are based on Mr. Brewster’s enforcement of
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`facially valid court orders; and (vi) Gallegos’ proposed amendment to add Mr. Brewster as a
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`defendant is futile, because Mr. Brewster was neither negligent nor deliberately indifferent to
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`Gallegos’ withdrawal symptoms. Accordingly, the Court grants the MSJ and denies in part the
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`Motion to Amend to the extent that Gallegos proposes to add Mr. Brewster as a defendant.
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`FACTUAL BACKGROUND
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`The Court draws the factual background from the parties’ assertions of undisputed
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`material fact in their summary judgment motion papers. See MSJ ¶¶ 1-12, at 2-4; Plaintiff’s
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`Response to Defendant New Mexico Department of Corrections Motion for Summary Judgment
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`¶¶ 13-26, at 1-4, filed April 24, 2017 (Doc. 68)(“Response); Reply to Plaintiff’s Response to
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`Defendant New Mexico Department of Corrections’ Motion for Summary Judgment and
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`Memorandum Brief in Support Thereof ¶¶ 13-26, at 1-4, filed May 8, 2017 (Doc. 69)(“Reply”).
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`1.
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`Gallegos’ Remand to the Metropolitan Detention Center and Subsequent
`Transfer to the New Mexico Corrections Department.
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`On November 6, 2014, the Honorable Michael Martinez, District Court Judge Pro Tem
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`for the Second Judicial District Court, County of Bernalillo, State of New Mexico, remanded
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`Gallegos to the Metropolitan Detention Center (“MDC”) in Albuquerque, New Mexico. See
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`MSJ ¶ 1, at 2 (asserting this fact); Response at 1 (admitting this fact). See also Order Remanding
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`Defendant to Metropolitan Detention Center (MDC) ¶ 3A, at 1 (filed in state court on November
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`6, 2014), filed in federal court on April 7, 2017 (Doc. 67-1)(“Remand Order”).1 The Remand
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`1In 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”;
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`Order states that Gallegos shall remain in the MDC’s custody “until his level of methadone[2]
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`treatment has reached a point where he will not incur life-endangering withdrawal symptoms
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`upon transfer” to the New Mexico Corrections Department. MSJ ¶ 1, at 2 (asserting this fact).
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`See Response at 1 (admitting this fact); Remand Order ¶ 3.C, at 1-2. Gallegos asserts that “[i]t is
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`clear that the Titration[3] orders such as these were used frequently, by the District Court, for
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`people who were on methadone.” Response ¶ 21, at 3 (citing Deposition of Douglas Wilber at
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`32:18-33:1; id. at 33:10-25 (taken February 9, 2017)(Lawless, Wilber), filed April 7, 2016 (Doc.
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`68-1)(“Wilber Depo.”). See Reply ¶ 21, at 3 (not disputing the factual allegation).4 The court
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`(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 life-
`endangering 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.
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`2Methadone,
`is
`the brand name Dolophine, among others,
`sold under
`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.
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`“Methadone,” Wikipedia, https://en.wikipedia.org/wiki/Methadone (last viewed, June 21, 2017).
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`3A 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).
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`4Although the New Mexico Corrections Department does not specifically dispute the
`factual allegation that the state court frequently enters titration orders, the New Mexico
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`filed the Remand Order on November 6, 2014. See Remand Order at 1.5 The Remand Order
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`states that it was to remain in effect for six weeks at maximum. See MSJ ¶ 1, at 2 (asserting this
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`fact); Response at 1 (admitting this fact). See also Remand Order at ¶ 4, at 2.
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`Corrections Department “denies that Mr. Wilber’s deposition testimony provides support for the
`statement.” Reply ¶ 21, at 3. Mr. Wilber’s deposition testimony provides:
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`Q. Titration orders, you mentioned that you’ve been involved in some.
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`A. Yes.
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`Q. What about -- but you also mentioned that probation violation sees a
`lot of these. Is that a fair statement?
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`A. Yeah. In our -- in the probation violation courtroom, they are entered
`on what I would say is a pretty regular basis.
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`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.
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`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.
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`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?
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`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.
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`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.”).
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`5See 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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`On November 7, 2014, Judge Martinez committed Gallegos to the New Mexico
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`Corrections Department. See MSJ ¶ 2, at 2 (asserting this fact); Response at 1 (admitting this
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`fact). The state court sentenced Gallegos to serve an 834-day term in the New Mexico
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`Corrections Department, beginning on November 6, 2014. See MSJ ¶¶ 2-3, at 2 (asserting this
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`fact); Response at 1 (admitting this fact); Response ¶ 16, at 2 (asserting this fact); Reply ¶ 16, at
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`2 (admitting this fact). See also First Order Revoking Probation at 2, filed in state court on
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`November 6, 2014, filed in federal court on April 7, 2017 (Doc. 67-2)(“First Order Revoking
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`Probation”); Judgment, Sentence, and Order Suspending Sentence, filed in state court on
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`November 7, 2017, filed in federal court on April 7, 2017 (Doc. 67-3)(“State Court Judgment,
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`Sentence, and Order Suspending Sentence”). “On page two of the [probation revocation] order,
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`the space entitled ‘MDC’ is crossed out and there is a handwritten note that says ‘No MDC.’”
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`MSJ ¶ 2, at 2 (alteration added)(asserting this fact)(quoting First Order Revoking Probation at 2);
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`Response at 1 (admitting this fact). “[T]he Titration Order [i.e., the Remand Order] was signed
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`out [sic] the same day as” the First Order Revoking Probation and the State Court Judgment,
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`Sentence, and Order Suspending Sentence -- November 6, 2014. Response ¶ 15, at 2 (asserting
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`this fact). See Reply ¶ 15, at 2 (not disputing this fact).6 The New Mexico Corrections
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`Department received Gallegos from the Bernalillo County Sheriff’s Department on November
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`12, 2014, at 9:00 a.m. See MSJ ¶ 4, at 2 (asserting this fact); Response at 1 (admitting this fact).
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`6The 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.”).
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`See also New Mexico Corrections Department Receipt of State Prisoner, filed April 7, 2017
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`(Doc. 67-4). Gallegos received a methadone dose on the day that he was transferred from MDC
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`to the New Mexico Corrections Department. See Response ¶ 22, at 3 (alleging this fact); Reply ¶
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`22, at 3 (alleging this fact).7
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`2.
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`Discussions Between Gallegos’ Counsel and the New Mexico Corrections
`Department Concerning Gallegos’ Treatment.
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`Mr. Douglas Wilber, Gallegos’ counsel in the state criminal matter, “was notified that
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`[Gallegos] was no longer at MDC and had been transferred.” Response ¶ 17, at 2 (citing Wilber
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`Depo. at 9:1-25 (Wilber). See Reply ¶ 17, at 2 (not contesting this assertion). Mr. Wilber then
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`contacted the New Mexico Corrections Department, because, according to Mr. Wilber, “we had
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`[an] entered order that I thought would take care of it. So at this point, I thought I needed to
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`figure out why it appeared that the order had been missed or whatever the situation was.”
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`Response ¶ 17, at 2 (citing Wilber Depo. at 14:14-17 (Wilber)). See Reply ¶ 17, at 2 (not
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`disputing the factual allegation and “admit[ting] that Mr. Wilber made these statements in his
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`deposition”)(alteration added).8 After Mr. Wilber discovered that Gallegos had been transferred
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`7The parties dispute how much methadone Gallegos received at MDC. See Response ¶
`22, at 3; Reply ¶ 22, at 3. According to Gallegos,
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`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.
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`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. 69-
`1)(“Gallegos Medication History”).
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`8The Court deems this fact undisputed. See D.N.M.L.R.-Civ. 56.1(b)(“All material facts
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`to the New Mexico Corrections Department, Mr. Wilber contacted Mr. Brewster, New Mexico
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`Corrections Department General Counsel, on November 24, 2014. See MSJ ¶ 5, at 3 (asserting
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`this fact); Response at 1 (admitting this fact). See also Affidavit of Douglas Wilber (dated
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`November 23, 2015), filed April 7, 2017 (Doc. 67-5); Email from Douglas Wilber to James
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`Brewster at 1 (dated November 24, 2014, 1:51 p.m.), filed April 7, 2017 (Doc. 67-6)(“November
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`24, 2014, 1:51 p.m. Email from Wilber to Brewster”)(“I’m not sure if there was a mixup at
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`MDC, but [Gallegos] was apparently transported with NO methadone step down . . . and he is in
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`pretty bad shape.”).9
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`Mr. Brewster replied to Mr. Wilber, requesting “all relevant orders in order to properly
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`assess this matter and [Mr. Wilber’s’] request.” Email from James Brewster to Douglas Wilber
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`at 1 (dated November 24, 2014, 1:57 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014,
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`1:57 p.m. Email from Brewster to Wilber”). See MSJ ¶ 6, at 3 (asserting this fact); Response at
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`1 (admitting this fact). Mr. Wilber promptly sent Mr. Brewster the orders pertaining to Gallegos’
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`custody. See MSJ ¶ 7, at 3 (asserting this fact); Response at 1 (admitting this fact). See also
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`Email from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:07 p.m.), filed
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`April 7, 2017 (Doc. 67-6)(“November 24, 2014, 2:07 p.m. Email from Wilber to Brewster”).
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`Mr. Brewster indicated to Mr. Wilber that Mr. Brewster would direct the New Mexico
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`Corrections Department’s medical vendor to assess and to treat Gallegos. See MSJ ¶ 7, at 3
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`(asserting this fact); Response at 1 (admitting this fact). See also Email from James Brewster to
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`Douglas Wilber at 1 (dated November 24, 2014, 2:45 p.m.), filed April 7, 2017 (Doc. 67-
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`6)(“November 24, 2014, 2:45 p.m. Email from Brewster to Wilber”). Mr. Brewster explained
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`set forth in the Response will be deemed undisputed unless specifically controverted.”).
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`9See 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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`that he could not guarantee that Gallegos would receive methadone. See MSJ ¶ 7, at 3 (asserting
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`this fact); Response at 1 (admitting this fact). See also November 24, 2014, 2:45 p.m. Email
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`from Brewster to Wilber at 1. Mr. Brewster “was fully aware that medical detoxification was
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`authorized but that titration did not occur at the DOC facilities since methadone was not used in
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`any way at those facilities.” Response ¶ 23, at 4 (asserting this fact)(citing New Mexico
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`Department of Corrections Reg. CD-170100.U-V, filed April 24, 2017 (Doc. 68-2)(“New
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`Mexico Department of Corrections Reg. CD-170100.U-V”); Reply at ¶ 23, at 3 (not disputing
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`this fact).10 See November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1.
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`Mr. Brewster also indicated that, while the state court’s first order had remanded
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`Gallegos to MDC for six weeks before Gallegos was to be transferred to the New Mexico
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`Corrections Department, the state court’s second order “apparently sends him to NMCD the very
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`next day[.]” November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 7, at
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`3 (asserting this fact); Response at 1 (admitting this fact). Mr. Brewster asked Mr. Wilber
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`whether Mr. Wilber had brought this inconsistency “to the attention of the sentencing judge[.]”
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`November 24, 2014, 2:45 p.m. Email from Brewster to Wilber at 1. See MSJ ¶ 7, at 3 (asserting
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`this fact); Response at 1 (admitting this fact). Mr. Wilber responded to Mr. Brewster that Mr.
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`Wilber would “try to see what will work best.” Email from Douglas Wilber to James Brewster at
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`1 (dated November 24, 2014, 2:56 p.m.), filed April 7, 2017 (Doc. 67-6)(“November 24, 2014,
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`2:56 p.m. Email from Wilber to Brewster”). See MSJ ¶ 8, at 3 (asserting this fact); Response at
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`1 (admitting this fact). Mr. Wilber also asked for Mr. Brewster’s recommendation regarding the
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`“best wording to say that the sentence would begin on [Gallegos’] release from MDC.” Email
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`10The 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.”).
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`from Douglas Wilber to James Brewster at 1 (dated November 24, 2014, 2:56 p.m.), filed April
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`7, 2017 (Doc. 67-6)(“November 24, 2014, 2:56 p.m. Email from Wilber to Brewster”). See MSJ
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`¶ 8, at 3 (asserting this fact); Response at 1 (admitting this fact).
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`On November 26, 2014, Mr. Brewster informed Mr. Wilber that the New Mexico
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`Corrections Department’s medical service provider, Corizon Health11, was “already aware” of
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`Gallegos’ medical status, had “a protocol in place to treat him,” and was treating him. Email
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`from James Brewster to Douglas Wilber at 1 (dated November 26, 2014, 2:51 p.m.), filed April
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`7, 2017 (Doc. 67-6)(“November 26, 2014, 2:51 p.m. Email from Brewster to Wilber”). See MSJ
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`¶ 9, at 4 (asserting this fact); Response at 1 (admitting this fact). Mr. Brewster also advised Mr.
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`Wilber that, as of November 26, 2014, sending Gallegos back to MDC did “not appear to be
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`needful or helpful.” November 26, 2014, 2:51 p.m. Email from Brewster to Wilber at 1. See
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`MSJ ¶ 9, at 4 (asserting this fact); Response at 1 (admitting this fact).
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`Mr. Wilber “never made any effort to contact the sentencing judge and never filed any
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`motions” related to Gallegos’ transfer to the New Mexico Corrections Department. MSJ ¶ 10, at
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`4 (asserting this fact). See Response at 1 (admitting this fact). See also Deposition of Douglas
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`Wilber at 15:11-14 (taken February 9, 2017)(Wilber), filed April 7, 2016 (Doc. 67-7)(“Wilber
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`Depo.”). Mr. “Wilber did not file any orders or motions ‘to petition Gallegos back to MDC
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`because,’” according to Mr. Wilber, “‘it was not clear to me that there was anything I could do
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`once he was transported to DOC . . . I should say that was reinforced or that understanding was
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`reinforced by my conversations with Mr. Brewster.” Response ¶ 18, at 3 (alteration
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`11Corizon 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.
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`Wilber made these statements in his deposition). According to Mr. Wilber,
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`[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.
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`Wilber Depo. at 15:3-10 (Wilber)(alteration added). Mr. Wilber “‘was trying to figure out, as a
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`practical matter, what [he] would be able to do about the best result for [Gallegos], which was
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`[Mr. Wilber’s] main concern at the time . . . this was all happening very quickly.’” Response ¶
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`18, at 3 (third alteration added)(quoting Wilber Depo. at 20:6-12 (Wilber)). See Reply ¶ 19, at 3
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`(not contesting that Mr. Wilber provided that deposition testimony). Mr. Wilber believed that it
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`would have been difficult to receive another order from the state court. See Response ¶ 19, at 3
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`(alleging this fact); Reply ¶ 19, at 3 (not conceding this fact). He also questioned whether
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`receiving another order from the state court would “even help the client who has already, you
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`know, been off of methadone at this point for presumably several days.” Wilber Depo. at 21:17-
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`25 (Wilber).12
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`3.
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`After the New Mexico Corrections Department Received Gallegos into its
`Custody, its Medical Service Provider, Corizon Health, Treated Gallegos for
`Opiate Withdrawal.
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`On November 12, 2014, the same day that the New Mexico Corrections Department
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`received Gallegos into its custody, Corizon Health medical personnel evaluated Gallegos’
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`withdrawal symptoms and gave him a “Kick Kit to address his withdrawal symptoms.” Corizon
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`Health Nursing Encounter Tool -- Withdrawal at 1 (dated November 12, 2014), filed May 8,
`
`
`12See 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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`
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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. 69-
`
`3)(“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
`
`
`13Amitriptyline, 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).
`
`
`14Mobic 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 anti-
`inflammatory 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).
`
`
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`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,
`
`16Clonidine “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.”).
`
`
`18In 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.
`
`
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`Case 2:16-cv-00127-JB-WPL Document 82 Filed 08/17/17 Page 14 of 113
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`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 Bernalill