Case 2:16-cv-00312-JB-GJF Document 63 Filed 08/18/17 Page 1 of 130
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`CARA PAYNE,
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`Plaintiff,
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` No. CIV 16-0312 JB/GJF
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`vs.
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`LEE WILDER; MAYFRITZ BUCAG and
`DAVID CEBALLES,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`THIS MATTER comes before the Court on Defendant’s Motion for Summary Judgment
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`on the Basis of Qualified Immunity, filed February 23, 2017 (Doc. 38)(“MSJ”). The Court held
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`a hearing on June 5, 2017. The primary issues are: (i) whether the undisputed material facts
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`entitle the Defendant Lee Wilder to qualified immunity, because the Plaintiff Cara Payne (“C.
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`Payne”) has not demonstrated that Wilder violated her clearly-established constitutional rights
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`when he executed a traffic stop of C. Payne for a suspended driver’s license and further
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`discussed with her -- and her ex-husband -- his investigation into allegations against her for child
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`abuse, allegations which he considered to be cause to not entitle her to custody of her children in
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`accordance with a civil custody agreement; and (ii) whether Wilder is entitled to summary
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`judgment on C. Payne’s claims brought pursuant to the New Mexico Constitution and premised
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`in Wilder’s same conduct. Because the Court concludes that, on this record of undisputed
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`material fact, Wilder is entitled to qualified immunity on C. Payne’s claims sounding in federal
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`due process and unreasonable search and seizure theories, the Court will grant summary
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`judgment as to those federal claims. The Court further concludes that Wilder is entitled to
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`summary judgment as to C. Payne’s claims sounding in New Mexico substantive due process
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`and unreasonable search and seizure, because this record of undisputed material facts
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`demonstrates that Wilder did not commit such constitutional violations in the course of his
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`alleged conduct. The Court concludes, however, that this record of undisputed material facts
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`does not entitle Wilder to summary judgment as to C. Payne’s claims sounding in New Mexico
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`procedural due process, because C. Payne has asserted facts creating a genuine dispute whether
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`Wilder’s conduct resulted in a state-deprivation of her custody over her children without
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`meaningful process before -- or after -- the deprivation. Accordingly, the Court grants in part
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`and denies in part Wilder’s MSJ.
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`FACTUAL BACKGROUND
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`Before the Court addresses the MSJ’s proffer of undisputed facts, the Court provides a
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`brief synopsis of the background facts giving rise to C. Payne’s case. The Court provides this
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`background only for ease of readership and context. The Court draws recitation of the relevant
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`background facts from the Plaintiff’s Amended Complaint for Damages and Petition for
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`Declaratory and Injunctive Relief, filed April 19, 2016 (Doc. 1-2)(“Complaint”).
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`1.
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`Background Facts Giving Rise to the Complaint.
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`The Complaint alleges that, on July 8, 2015, Wilder, a law enforcement officer in Otero
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`County, New Mexico, stopped and seized C. Payne in Alamogordo, New Mexico, for driving
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`with a suspended license. See Complaint ¶ 7, at 1. Wilder represented that he was conducting a
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`child abuse investigation, forced C. Payne to do a field sobriety test, and attempted to force C.
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`Payne to allow him to search a home where C. Payne was staying as a house sitter for the owner
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`of the home. See Complaint ¶¶ 7-11, at 2-3. Wilder -- C. Payne alleges -- did not have
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`reasonable suspicion to support the notion that Payne was intoxicated. See Complaint ¶¶ 8-9, at
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`2. Regarding the home search, C. Payne refused to allow the search, and told Wilder that she
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`had previously been under investigation by the State of New Mexico Children, Youth, and
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`Families Department (“CYFD”), but that the investigation did not support allegations of abuse.
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`See Complaint ¶¶ 10-11, at 2-3. Upon her refusal, Wilder contacted Defendant Mayfritz Bucag,
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`a CYFD investigator, who C. Payne alleges then contacted C. Payne’s ex-husband and ordered
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`him to not allow C. Payne custody of their children. See Complaint ¶¶ 12-14, at 3. C. Payne did
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`not have custody or visitation rights after this traffic stop, as a consequence of Wilder and
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`Bucag’s directive, despite having the legal right to custody and visitation. See Complaint ¶¶ 15-
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`16, at 3.
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`Wilder and Bucag then petitioned the district attorney’s office in Otero County to file
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`criminal charges against C. Payne for refusing to allow the search of a house where she was
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`staying as a house sitter for the home’s owner. See Complaint ¶ 18, at 4. In particular, the
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`criminal charges would flow pursuant to N.M. Stat. Ann. § 30-6-4, which relates to obstruction
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`of reporting or investigating child abuse or neglect. See Complaint ¶ 19, at 4. Wilder expects
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`that charges will be filed against C. Payne. See Complaint ¶ 20, at 4. Defendant David Ceballes
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`was the District Attorney for Otero County when C. Payne filed her Complaint. See Complaint ¶
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`6, at 2.
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`2.
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`The Undisputed Facts That Wilder’s MSJ and the Record Establish.
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`“Deputy Lee Wilder was a Deputy Sheriff with the Otero County Sheriff’s Officer
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`(‘OCSO’) at the time of the July 8, 2015, incident.” MSJ ¶ 1, at 3 (asserting this fact). See
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`Plaintiff’s Response to Defendant Wilder’s Motion for Summary Judgment ¶ 1, at 1, filed March
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`27, 2017 (Doc. 50)(“Response”)(not disputing this fact). “Deputy Wilder has never been
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`employed by the New Mexico [CYFD].” MSJ ¶ 2, at 3 (asserting this fact). See Response ¶ 2,
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`at 1 (not disputing this fact). “On July 8, 2015, Deputy Wilder received a referral from CYFD
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`and Intake Report as part of an investigation into an anonymous tip alleging child abuse and
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`neglect of Plaintiff Cara Payne’s two children.” MSJ ¶ 3, at 3 (asserting this fact). See Response
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`¶ 3, at 1 (not disputing this fact). “Upon receipt of the CYFD referral and Intake Report, Deputy
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`Wilder ran a background check on Plaintiff, Plaintiff’s ex-husband, Robert Payne [(‘R. Payne’)],
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`and Richard Herndon, including a check on the status of their driver’s licenses and determined
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`that Plaintiff’s driver’s license was suspended.” MSJ ¶ 4, at 3 (asserting this fact). See
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`Response ¶ 4, at 1 (not disputing this fact). “As part of the CYFD investigation, Deputy Wilder
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`visited with Robert Payne, the children’s father, to assess the validity of the facts in the
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`anonymous tip.” MSJ ¶ 5, at 3 (asserting this fact)(citing Deposition of Lee Wilder at 10:19-21
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`(taken November 16, 2015), filed February 23, 2017 (Doc. 38-1)(“Wilder Depo.”).1
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`1C. Payne purports to dispute this assertion of fact, stating: “Plaintiff denies the
`allegations in Paragraph Five. The portion of the record cited explains that Mr. Payne was
`contacted but does not supply a basis for the reason of the contact.” Response ¶ 5, at 1. The
`cited portions of the Wilder Depo. provide: “So then I contacted the second location listed which
`is the father, Robert Payne, at 708 and a half Adams.” Wilder then, in Defendant Lee Wilder’s
`Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc.
`38), filed April 17, 2017 (Doc. 49)(“Reply”), asserts that, “[i]n context, Deputy Wilder’s
`deposition clearly reveals that the entire investigation started with an anonymous tip, which
`Deputy Wilder followed up with to obtain background information, as provided in [MSJ ¶¶ 3-4,
`at 3]. On this fact, Plaintiff presents no material dispute.” Reply ¶ 1, at 2. Regarding the
`litigants’ tasks when litigating a motion for summary judgment, the D.N.M. LR-Civ require:
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`Statement of Material Facts. The moving party must file with the motion a
`written memorandum containing a short, concise statement of the reasons in
`support of the motion with a list of authorities relied upon (the “Memorandum”).
`A party opposing the motion must file a written memorandum containing a short,
`concise statement of the reasons in opposition to the motion with authorities (the
`“Response”). The moving party may file a written reply memorandum with
`authorities (the “Reply”).
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`• The Memorandum must set out a concise statement of all of the
`material facts as to which the movant contends no genuine
`issue exists. The facts must be numbered and must refer with
`particularity to those portions of the record upon which the
`movant relies.
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`• The Response must contain a concise statement of the material
`facts cited by the movant as to which the non-movant contends
`a genuine issue does exist. Each fact in dispute must be
`numbered, must refer with particularity to those portions of the
`record upon which the non-movant relies, and must state the
`number of the movant’s fact that is disputed. All material facts
`set forth in the Memorandum will be deemed undisputed unless
`specifically controverted.
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`additional facts other than those which respond to the
`Memorandum which the non-movant contends are material to
`the resolution of the motion. Each additional fact must be
`lettered and must refer with particularity to those portions of
`the record upon which the non-movant relies.
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`• The Reply must contain a concise statement of those facts set
`forth in the Response which the movant disputes or to which
`the movant asserts an objection. Each fact must be lettered,
`must refer with particularity to those portions of the record
`upon which the movant relies, and must state the letter of the
`non-movant’s fact. All material facts set forth in the Response
`will be deemed undisputed unless specifically controverted.
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`D.N.M. LR-Civ. 56.1(b). At the outset, in this case, neither the Response nor the Reply “letter[]”
`their paragraphs as required; the Court, however, is -- without extra effort -- nonetheless capable
`of attributing each assertion to its response. Regarding the present dispute, whereby C. Payne
`disputes that Wilder has adequately supported his assertions that Wilder contacted R. Payne “[a]s
`part of the CYFD investigation,” MSJ ¶ 5, at 3, and “to assess the validity of the facts in the
`anonymous tip,” MSJ ¶ 5, at 3, the Court notes that C. Payne proffers no evidence which creates
`a dispute of these assertions and instead only argues that the assertions lack support in the record,
`see Response ¶ 5, at 1. The Court is not persuaded, however, that the assertions lack support in
`the record, because the course of the Wilder Depo. appears to be his chronological detailing of
`his investigation into the anonymous tip regarding C. Payne’s alleged child abuse. See Wilder
`Depo. at 8:8-15:16. Wilder discussed his actions at the “beginning in order to start the
`investigation,” Wilder Depo. at 8:17-20, that he discovered R. Payne’s contact information after
`running the license plate for C. Payne’s vehicle, and that he then contacted R. Payne and
`discussed how he had observed C. Payne’s home, and had run C. Payne’s license plate, and as a
`result had discovered R. Payne’s address, see Wilder Depo. at 9:17-11:10. Wilder explained that
`he next discussed the anonymous tip and C. Payne’s whereabouts with R. Payne. See Wilder
`Depo. at 11:10-21. The Court concludes, then, that the record supports Wilder’s assertions,
`because C. Payne has not specifically controverted the assertions with evidence in the record,
`leaving the Court without the ability to question the assertion’s veracity in light of the context.
`The Court deems the assertions -- that Wilder contacted R. Payne “[a]s part of the CYFD
`investigation,” MSJ ¶ 5, at 3, and “to assess the validity of the facts in the anonymous tip,” MSJ
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`The anonymous tip explained that the reporting party believed Plaintiff’s children
`may 1) be subject to abuse, neglect, and potential physically harm, because
`Plaintiff resided with a felon wanted by other felons and law enforcement; 2)
`Plaintiff was likely using methamphetamine based upon her appearance; and 3)
`predicted Plaintiff might be found at 10 Coyote Run in La Luz, New Mexico.
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`MSJ ¶ 6, at 3-4 (asserting this fact). See Response ¶ 6, at 1 (not disputing this fact). “Mr. Payne
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`corroborated most of the information in the tip explaining that he suspected Plaintiff was on
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`methamphetamine, was covered in scabs, suffered severe moods swings, and that Plaintiff’s
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`husband Richard Herndon was a felon living with Plaintiff.” MSJ ¶ 6, at 3-4 (asserting this
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`fact)(citing Wilder Depo. at 12:1-25).2 “Deputy Wilder traveled to the house Plaintiff was then
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` ¶
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` 5, at 3 -- undisputed.
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`2C. Payne purports to dispute this assertion of fact, stating: “Plaintiff denies the
`allegations in Paragraph Seven. The portion of the record cited shows that Mr. Payne had
`suspicions but no facts to corroborate any suspicions listed in the anonymous report.” Response
`¶ 7, at 1. Wilder, in Defendant Lee Wilder’s Reply in Support of Motion for Summary Judgment
`on the Basis of Qualified Immunity (Doc. 38) ¶ 2, at 2, filed April 17, 2017 (Doc. 49)(“Reply”),
`provides: “Deputy Wilder stated only that Mr. Payne presented facts that corroborated the
`anonymous tip” and therefore maintains his assertion. Reply ¶ 2, at 2. The cited portions of the
`Wilder Depo. indicate that, based on Wilder’s impression of his conversation with R. Payne, “he
`basically confirmed his suspicions of most of the things” that C. Payne was doing. Wilder Depo.
`at 12:1-12. According to Wilder, R. Payne “told me that he suspected that she was on drugs.
`And he told me that he knew that Richard . . . is the person that’s wanted on the felony charges,
`[and] was staying with her.” Wilder Depo. at 12:16-19. Wilder also indicated that R. Payne
`“confirmed that she -- the scabs and the severe mood swings, and that she was extremely thin.”
`Wilder Depo. at 12:22-24. Black’s Law Dictionary defines “corroborate” to mean “[t]o
`strengthen or confirm; to make more certain.” Corroborate, Black’s Law Dictionary at 397 (9th
`ed. 2009). Wilder is asserting only that “Mr. Payne corroborated most of the information in the
`tip explaining that he suspected Plaintiff was on methamphetamine, was covered in scabs,
`suffered severe moods swings, and that Plaintiff’s husband Richard Herndon was a felon living
`with Plaintiff.” MSJ ¶ 6, at 3-4. C. Payne does not create a genuine dispute by arguing --
`without providing alternative evidence -- that “the record cites shows that Mr. Payne had
`suspicions but no facts to corroborate any suspicions listed in the anonymous report.” Response
`¶ 7, at 1. Instead, it appears C. Payne is asking the Court to weigh the evidence, and conclude
`that there is a genuine dispute of fact on this issue, because the alignment of R. Payne’s
`suspicions regarding C. Payne’s conduct with the allegations made by the anonymous tip is not
`sufficient corroboration. In that regard, C. Payne has not specifically controverted Wilder’s
`assertion that “Mr. Payne corroborated most of the information in the tip explaining that he
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`residing at located at #10 Coyote Run in La Luz, New Mexico to continue the investigation but
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`no one answered the door.” MSJ ¶ 8, at 4 (asserting this fact). See Response ¶ 8, at 1 (not
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`disputing this fact). “Later on July [8], 2015, Deputy Wilder stopped Plaintiff’s vehicle knowing
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`Plaintiff was driving with a suspended driver’s license, to follow up with her on the
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`investigation, and because he suspected Mr. Herndon could be hiding behind the tinted windows
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`in the vehicle.” MSJ ¶ 9, at 4 (asserting this fact). See Response ¶ 9, at 2 (not disputing this
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`fact).
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`During the traffic stop, Deputy Wilder came to believe Plaintiff was under the
`influence of methamphetamines relying on the information in the anonymous tip,
`his knowledge that she had been associated with methamphetamine users in the
`past, and because she appeared covered in scabs, shaking, and extremely thin
`consistent with methamphetamine usage.
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`MSJ ¶ 10, at 4 (asserting this fact)(citing Wilder Depo. at 39:3-8; July 8, 2015, Traffic Stop
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`Video, filed in Clerk’s Office on May 25, 2017 (“Traffic Stop Video”), see Notice of Filing
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`Audio/Visual Material as Exhibit C to Defendant Lee Wilder’s Motion for Summary Judgment
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`on the Basis of Qualified Immunity and Memorandum in Support Thereof [Doc. 38], filed May
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`25, 2017 (Doc. 57)).3 “Also during the traffic stop, Deputy Wilder informed Plaintiff that she
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`suspected Plaintiff was on methamphetamine, was covered in scabs, suffered severe moods
`swings, and that Plaintiff’s husband Richard Herndon was a felon living with Plaintiff,” MSJ ¶ 6,
`at 3-4, so the Court deems the assertion undisputed.
`3C. Payne purports to dispute this assertion of fact, stating:
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`Defendant stated that Plaintiff was shaky, had scabs all over her body, and [was]
`extremely thin. First, Defendant must show that he reasonably believed that
`Plaintiff was under the influence of methamphetamines. Second, Defendant
`stated that Plaintiff had scabs all over body when she was obviously clothed and
`he could not see her entire body. Third, Defendant had not known Plaintiff before
`the encounter and could not gauge her thinness. Finally, in order for Defendant’s
`belief to be “reasonable” it would have to be based on some type of training or
`experience but was not.
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`Response ¶ 10, at 2 (emphasis in original). Wilder testified:
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`I was still very suspicious. She was shaking, extremely thin. She did have scabs
`all over her body, that is obviously indication[] of methamphetamine usage. The
`fact she had been around methamphetamine in the past in reference to these
`search warrants. Obviously I did not believe it was enough to arrest her otherwise
`I would have.
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`Wilder Depo. at 39:3-9. In the video of the traffic stop, C. Payne is wearing a shirt and shorts,
`leaving much of her body exposed. See Traffic Stop Video at 7:57-:58. Accordingly, Wilder
`surmises that C. Payne is first disputing that “Wilder provided a proper basis for his conclusion
`that she was under the influence of methamphetamine during the traffic stop.” Defendant Lee
`Wilder’s Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity
`(Doc. 38) ¶ 3, at 2, filed April 17, 2017 (Doc. 49)(“Reply”). In that regard, Wilder maintains his
`ultimate legal argument that the stop was, indeed, reasonable, but the Court notes that the
`reasonableness of the stop is not a factual issue which Wilder has asserted in the MSJ. Wilder
`has asserted, as undisputed fact, his subjective impressions of C. Payne during the traffic stop,
`and a few of his observations. See MSJ ¶ 10, at 4. To the extent that C. Payne disputes whether
`Wilder’s inferences were “reasonabl[e]” in the Response, or supported by training and
`experience, the Court concludes that such a dispute does not specifically controvert Wilder’s
`instant assertion of fact. Response ¶ 10, at 2.
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`Turning, then, to C. Payne’s attempt to identify a genuine issue of fact in response to
`MSJ ¶ 10, at 4, Wilder states that, where the “Plaintiff also argues that Deputy Wilder could not
`have known whether she was covered in scabs at the time of the traffic stop because she was
`clothed,” the case was that the “Plaintiff wore shorts and a t-shirt leaving enough of her person
`exposed to allow Deputy Wilder to determine she had scabs covering a significant portion of her
`body.” Reply ¶ 3, at 2. See Traffic Stop Video at 7:57-:58. In that sense, it appears to the Court
`that C. Payne is disputing that “she appeared covered in scabs,” by arguing that Wilder has not
`supported his assertion with evidence in the record, because clothing covered C. Payne’s body.
`Response ¶ 10, at 2. The record evidence, however, supports Wilder’s assertion that C. Payne
`was wearing clothing which exposed “her person . . . to allow Deputy Wilder to determine she
`had scabs covering” the exposed parts of her body. Digging deeper, the Court notes that Wilder
`is actually only asserting that the observable, exposed, portions of C. Payne’s body were
`“covered in scabs”; Wilder asserts that she “appeared covered in scabs.” MSJ ¶ 10, at 4
`(emphasis added). Wilder is only making an assertion regarding his subjective observations of
`fact, and, in this regard C. Payne has not specifically controverted his assertion with evidence in
`the record. Having failed to identify a genuine issue of fact regarding Wilder’s assertion -- by,
`for example, identifying evidence in the record suggesting C. Payne had no visible scabs -- the
`Court deems undisputed Wilder’s assertion that C. Payne “appeared covered in scabs.” MSJ ¶
`10, at 4. The Court recognizes, too, however, that it remains disputed whether C. Payne’s entire
`body was covered in scabs. Next, regarding C. Payne’s dispute that “Wilder could not fairly
`attribute her thinness with methamphetamine use because he did not know her before the traffic
`stop,” Reply ¶ 3, at 2, Wilder concedes he did not know her before the traffic stop, but that he
`“relied on sources who were familiar with Plaintiff’s appearance,” Reply ¶ 3, at 2, to support his
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`could not see her children if she did not cooperate with the CYFD investigation.” MSJ ¶ 11, at 4
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`(asserting this fact). See Response ¶ 11, at 2. “Despite his conversation with Plaintiff, Deputy
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`Wilder never removed the children from Plaintiff’s [physical custody].”4 MSJ ¶ 12, at 5
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`(asserting this fact)(alterations added using language from the Response)(citing Wilder Depo. at
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`27:23-25; id. at 28:1-24; id. at 29:1-6). See Response ¶ 12, at 2 (not disputing the fact as
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`altered). “Based on Plaintiff’s appearance and Deputy Wilder’s knowledge of her prior
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`association with methamphetamine users, Deputy Wilder administered a field sobriety test and
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`she passed, [performing well].”5 MSJ ¶ 13, at 5 (asserting this fact)(alterations added using
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`inference and assertion. Again, C. Payne has not identified record evidence which specifically
`controverts Wilder’s assertion that “she appeared . . . extremely thin consistent with
`methamphetamine usage.” MSJ ¶ 10, at 4. Instead, the Court considers C. Payne to be arguing
`that the assertion -- which is, essentially, Wilder asserting his observations at the time of the
`traffic stop -- was not the basis of a reasonable inference and is therefore genuinely disputed.
`The Court disagrees, and concludes that C. Payne has not meaningfully, and with evidence on
`the record, disputed the assertion of fact that -- to Wilder -- C. Payne “appeared covered in scabs,
`shaking, and extremely thin consistent with methamphetamine usage.” Whether Wilder’s
`inferences were reasonable is a matter of law that the Court will measure, against the undisputed
`facts -- which includes Wilder’s assertions regarding his observations and inferences about C.
`Payne at the time of the stop -- in the Court’s Analysis section. See O’Brien v. Mitchell, 883 F.
`Supp. 2d 1055, 1058 n.1 (D.N.M. 2012)(Browning, J.)(stating that the proper course is to
`determine relevance in the analysis section rather than in the factual background section).
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`4Wilder’s MSJ asserts: “Despite his conversation with Plaintiff, Deputy Wilder never
`removed the children from Plaintiff’s control.” MSJ ¶ 12, at 5 (emphasis added). C. Payne’s
`Response purports to dispute this fact by “admit[ting] that Defendant never removed the children
`from her physical custody,” but providing: “The portions cited by Defendant, however, show that
`Plaintiff was not allowed to control any aspect of her children’s lives until she had performed the
`acts that Defendant wanted her to perform.” Response ¶ 12, at 2 (emphasis added). Because
`Wilder does not object to the proposed alteration to the proffered fact, the Court deems
`undisputed the asserted fact as C. Payne’s Response alters them. See Defendant Lee Wilder’s
`Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc.
`38), filed April 17, 2017 (Doc. 49).
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`5C. Payne’s Response states: “Plaintiff admits the allegations . . . [and] would add that the
`cited material shows that Plaintiff performed ‘well’ on her tests.” Response ¶ 13, at 5. Because
`Wilder does not object to the proposed alteration to the proffered fact, the Court deems
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`language from the Response)(citing Wilder Depo. at 37:21-23; id. at 38:14-17; id. at 39:3-16).
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`See Response ¶ 12, at 2 (not disputing the fact as altered).6 “Plaintiff and Mr. Payne shared joint
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`undisputed the asserted fact as C. Payne’s Response alters it. See Defendant Lee Wilder’s Reply
`in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc. 38),
`filed April 17, 2017 (Doc. 49).
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`6Wilder next asserts: “After the July 8, 2015 incident, Plaintiff never attempted to
`challenge Deputy Wilder’s assertions that she could not see her children unless she cooperated
`with the investigation through CYFD, OCSO, or a court.” MSJ ¶ 14, at 5 (citing Deposition of
`Cara Payne at 52:16-25 (taken November 16, 2015), filed February 23, 2017 (Doc. 38-2)(“C.
`Payne Depo.”)(responding to whether at any “point did you go and talk to an attorney and say
`open up my custody because this is wrong that [R. Payne] is keeping custody of my kids,” by
`testifying that “I didn’t need a custody agreement. There was one in place. He wasn’t following
`it. Is that a criminal matter? . . . I’d been to the police department.”); id. at 53:1-25 (testifying
`that she agreed one could “move the court to enforce the custody agreement,” and that she did
`not file a motion to enforce custody, but also testifying that if R. Payne “wasn’t following the
`current one, why is he gonna” change his conduct, and that although “a judge could put some
`people in line,” “I didn’t know -- I guess I didn’t know what I was supposed to do. I did what I
`thought,” and “I called a lawyer. . . . Gail Brownfield”); id. at 54:1-8 (testifying that she did not
`go back to CYFD “to see if they even had an open case,” because “[a]fter what they told me, that
`the deputy was the one who said -- I figured I was waiting for the deputy.”)). C. Payne disputes
`Wilder’s assertion by stating:
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`The lower court record filed in this removal action shows that this very case was
`filed by Plaintiff against Defendant and her ex-husband Robert Payne on July 23,
`2015. The initial complaint filed in state court pled a Habeas Corpus claim
`against Defendant in an attempt to reclaim her children. That claim was denied
`by the state court.
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`Response ¶ 14, at 2 (citing, generally, the Honorable Judge Jerry H. Ritter’s, New Mexico
`District Judge for the State of New Mexico, Order Denying Ex Parte Writ of Habeas Corpus
`(dated July 30, 2015), filed April 19, 2016 (Doc. 1-2)(“Ritter Order”)(considering C. Payne’s
`allegations, in C. Payne’s “proposed Writ of Habeas Corpus together with Plaintiff s unverified
`Petition for Writ of Habeas Corpus and Complaint for Damages under the New Mexico Tort
`Claims Act,” that the “Defendants [Wilder, Sheriff Benny House, and R. Payne] have wrongfully
`deprived her of the physical custody and companionship of her biological children, and asks for
`this Court to order the Defendants to have the children ‘imprisoned and detained’ until the Court
`otherwise acts”)). In reply, Wilder concedes that the “Plaintiff filed a habeas petition against
`him,” but argues, “[h]owever, the habeas petition was an improper device to regain custody or
`control of her children and when the court dismissed the petition she never attempted to regain
`custody or access to [the] children.” Defendant Lee Wilder’s Reply in Support of Motion for
`Summary Judgment on the Basis of Qualified Immunity (Doc. 38) ¶ 4, at 3, filed April 17, 2017
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`Case 2:16-cv-00312-JB-GJF Document 63 Filed 08/18/17 Page 11 of 130
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`custody over the children per a custody order.” MSJ ¶ 15, at 5 (asserting this fact). See
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`Response ¶ 15, at 2 (not disputing this fact).7
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`
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`(Doc. 49). In the Court’s review of the record, it is apparent that C. Payne has cited evidence
`refuting Wilder’s assertion that, “[a]fter the July 8, 2015 incident, Plaintiff never attempted to
`challenge Deputy Wilder’s assertions that she could not see her children unless she cooperated
`with the investigation through CYFD, OCSO, or a court,” MSJ ¶ 14, at 5. See Response ¶ 14, at
`2. C. Payne has proffered evidence that she sought relief and custody through New Mexico’s
`courts, see Response ¶ 14, at 2, and the Court will not punish -- by deeming Wilder’s assertion of
`fact undisputed -- C. Payne, who, admittedly did not know what avenue she should pursue, see
`C. Payne Depo. at 53:1-25, for approaching her problem in the manner she chose. Regardless,
`that she did seek relief in state court is sufficient to specifically controvert and dispute Wilder’s
`assertion that, “[a]fter the July 8, 2015 incident, Plaintiff never attempted to challenge Deputy
`Wilder’s assertions that she could not see her children unless she cooperated with the
`investigation through CYFD, OCSO, or a court.” MSJ ¶ 14, at 5.
`
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`7“Throughout the course of the investigation, Deputy Wilder believed he acted pursuant
`to statutory authority to prevent interference and delay with the investigation.” MSJ ¶ 16, at 5
`(asserting this fact)(citing Wilder Depo. at 44:4-24). C. Payne disputes this fact, stating: “The
`material cited by Defendant does not stand for the proposition that he believed that he was acting
`under statutory authority to prevent interference or delay with the investigation.” Response ¶ 16,
`at 2-3. Wilder testified that the “District Attorney’s Office” had “trained that if you go to
`somebody’s house and they require a warrant to either get the kids or to go into the house that’s a
`violation of 30-6-4,” and that,
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`if we are conducting a child abuse investigation . . . if the person interferes or
`delays our ability to inspect the premises then they’ve potentially committed a
`crime. That doesn’t mean we can grab them, arrest them and walk in. We then
`have to make further determination on how we proceed. Obviously if the kids are
`in danger inside the house or there’s reasonable suspicion to believe then you
`have to take immediate steps to make sure the kids are safe.
`
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`Wilder Depo. at 44:4-24. In reply, Wilder argues that his assertion is that “he specifically relied
`upon N.M. Stat. Ann. § 30-6-4(C) [sic] (2005) and its requirement that he investigate and
`protect against child abuse and neglect.” Defendant Lee Wilder’s Reply in Support of Motion
`for Summary Judgment on the Basis of Qualified Immunity (Doc. 38) ¶ 5, at 3, filed April 17,
`2017 (Doc. 49)(emphasis in original). The Court notes that Wilder has testified that he knew
`about N.M. Stat. Ann. § 30-6-4 -- which criminalizes as a misdemeanor the “obstruction of
`reporting or investigation of child abuse or neglect,” N.M. Stat. Ann. § 30-6-4 -- and that he had
`considered how enforcement of N.M. Stat. Ann. § 30-6-4 would proceed should a violator be in
`the same home as the children allegedly being abused or neglected, see Wilder Depo. at 44:7;
`44:14-24. Again, Wilder’s assertion is that, “[t]hroughout the course of