Mondragon v. Rio Rancho Public Schools Board of Education

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO MARK MONDRAGON, Plaintiff, vs. Civ. No. 21-427 KK/JMR RIO RANCHO PUBLIC SCHOOLS BOARD OF EDUCATION, et al., Defendants, and SARAH MONTOYA, Plaintiff, vs. Civ. No. 21-648 KK/JMR RIO RANCHO PUBLIC SCHOOLS BOARD OF EDUCATION, et al., Defendants, and ANGELA SALAZAR, Plaintiff, vs. Civ. No. 21-751 KK/JMR RIO RANCHO PUBLIC SCHOOLS BOARD OF EDUCATION, et al., Defendants.

MEMORANDUM OPINION AND ORDER Before the Court in these consolidated cases is Defendants Archuleta’s and Rio Rancho Public Schools Board of Education’s Joint Motion and Memorandum for Summary Judgment on the Basis of Governmental Immunity (Doc. 67)1 (“Motion”), filed September 11, 2023. Plaintiffs filed a response in opposition to the Motion on April 5, 2024, and Defendants filed a reply in support on May 22, 2024. (Docs. 81, 86.) The Court, having considered the parties’ submissions, the record, and the relevant law, FINDS that the Motion is WELL TAKEN IN PART and should be GRANTED IN PART and DENIED IN PART as follows.

BACKGROUND In each of these consolidated cases, Plaintiff is the parent of a student who attended V. Sue Cleveland High School (“Cleveland”) in Rio Rancho, New Mexico. (Doc. 1-3 at 7; Civ. No. 21- 648, Doc. 1-3 at 1-2; Civ. No. 21-751, Doc. 1-3 at 2.) Plaintiffs allege that Defendant George Archuleta touched the student Plaintiffs inappropriately while searching them for contraband.2 (Id.) At the time of the alleged unlawful searches, Defendant Rio Rancho Public Schools Board of Education (“RRPS”) employed Defendant Archuleta as a campus security aide at Cleveland. (Id.) In 2021, each Plaintiff filed a lawsuit in state court asserting claims against Defendants under 42 U.S.C. § 1983 (Count I) and the New Mexico Tort Claims Act (“NMTCA”) (Counts II, III, and IV). (Doc. 1-3 at 6-13; Civ. No. 21-648, Doc. 1-3; Civ. No. 21-751, Doc. 1-3.) Defendants removed the cases to this Court, where they were consolidated on the parties’ joint request. (Docs.

1, 48, 49; Civ. 21-648, Doc. 1; Civ. No. 21-751, Doc. 1.)

In the present Motion, Defendants move for summary judgment in their favor on Counts II, III, and IV of Plaintiffs’ complaints. (Doc. 67.) In the challenged counts, Plaintiffs assert the following claims:  In Count II, Plaintiffs bring intentional tort claims against Defendants RRPS and Archuleta under Section 41-4-12 of the NMTCA, which provides that governmental immunity under the Act does not apply to liability for injuries resulting from enumerated torts caused by law enforcement officers, (Doc. 1-3 at 10-11; Civ. No. 21-648, Doc. 1-3 at 4-5; Civ. No. 21-751, Doc. 1-3 at 5-6); N.M. Stat. Ann. § 41-4-12;  In Count III, Plaintiffs bring negligent supervision claims against Defendant RRPS under Section 41-4-12, (Doc. 1-3 at 11; Civ. No. 21-648, Doc. 1-3 at 5-6; Civ. No. 21-751, Doc. 1-3 at 6-7); and,  In Count IV, Plaintiffs bring negligence claims against Defendants RRPS and Archuleta under Section 41-4-6 of the NMTCA, which provides that governmental immunity under the Act does not apply to liability for injuries resulting from public employees’ negligent operation or maintenance of a public facility. (Doc. 1-3 at 11- 12; Civ. No. 21-648, Doc. 1-3 at 6-7; Civ. No. 21-751, Doc. 1-3 at 7-8); N.M. Stat. Ann. § 41-4-6(A).

Defendants argue that they are entitled to summary judgment on the claims asserted in Counts II, III, and IV because the cited exceptions to the NMTCA’s general grant of governmental immunity do not apply to the conduct forming the basis of those claims. (Doc. 67.) Specifically, Defendants contend that they are entitled to summary judgment:  On Count II, because Defendant Archuleta is not a law enforcement officer and thus Section 41-4-12 does not apply to him or to Defendant RRPS as his employer;  On Count III, because Defendant RRPS is not a law enforcement officer and Plaintiffs have not identified any supervisory law enforcement officer for whose negligence it could be vicariously liable under Section 41-4-12; and,  On Count IV, because Plaintiffs cannot support an essential element of their claims under Section 41-4-6, i.e., that Defendant RRPS knew or should have known of a dangerous condition at Cleveland. (Id.) For the reasons explained below, the Court finds that: (1) Defendants RRPS and Archuleta are entitled to summary judgment on Count II; (2) Defendant RRPS is entitled to summary judgment on Count III; and, (3) Defendant Archuleta is entitled to summary judgment on Count IV, but Defendant RRPS is not.3 SUMMARY JUDGMENT STANDARDS “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999) (quotation marks omitted); Fed. R. Civ. P. 56(a), (c). “A dispute is genuine when the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party, and a fact is material when

A summary judgment movant bears the initial burden of showing the absence of a genuine issue of material fact and its entitlement to a judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). When the nonmovant would bear the burden of proof at trial, the movant may meet its initial summary judgment burden by submitting “affirmative evidence that negates an essential element of the nonmoving party’s claim” or by demonstrating “that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994 (10th Cir. 2019).

If the movant meets its initial summary judgment burden, “the burden then shifts to the nonmovant,” id., who must “go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant … by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671 (quotation marks omitted). “[T]he moving party bears the ultimate burden of establishing its right to summary judgment as a matter of law even when it does not have the ultimate burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 982 (10th Cir. 2002).

ANALYSIS I. Defendant Archuleta is entitled to summary judgment on Count II.

A. Legal Standards In general, the NMTCA grants governmental entities and public employees acting within the scope of their duties immunity from state tort liability. N.M. Stat. Ann. § 41-4-4(A); Milliron v. Cnty. of San Juan, 2016-NMCA-096, ¶ 9, 384 P.3d 1089, 1093. However, the NMTCA also sets forth “eight categories of exceptions to that general immunity.” Methola v. Eddy Cnty., 1980- NMSC-145, ¶ 10, 622 P.2d 234, 236; see N.M. Stat. Ann. §§ 41-4-5 through 41-4-12. If there is a genuine issue of material fact regarding whether one of these exceptions applies, summary judgment based on the NMTCA’s general grant of immunity is inappropriate as to that exception.

See, e.g., Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 18, 310 P.3d 611, 619 (reversing summary judgment where nonmovant “established the existence of a genuine issue of material fact” regarding whether Section 41-4-6 of NMTCA applied); Baptiste v. City of Las Cruces, 1993-NMCA-017, ¶ 10, 848 P.2d 1105, 1108 (reversing summary judgment where evidence failed to establish as matter of law that Section 41-4-12 of NMTCA did not apply).

Section 41-4-12 of the NMTCA provides that the Act’s general grant of immunity does not apply to liability for injuries resulting from certain torts caused by law enforcement officers. N.M. Stat. Ann. § 41-4-12. Specifically, Section 41-4-12 provides that [t]he immunity granted pursuant to [Section 41-4-4(A) of the NMTCA] does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights, the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence, failure to comply with duties established pursuant to statute or law or any other deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. N.M. Stat. Ann. § 41-4-12.

On its face, Section 41-4-12 applies only if the public employee who caused the plaintiff’s injuries is a “law enforcement officer.” Id.; Methola, 1980-NMSC-145, ¶ 16, 622 P.2d at 237.

Section 41-4-3, the definitions section of the NMTCA, provides that for purposes of the Act, the term “law enforcement officer” means a full-time salaried public employee of a governmental entity, or a certified part-time salaried police officer employed by a governmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes. N.M. Stat. Ann. § 41-4-3(D). Section 41-4-12, in turn, was amended in 2020 to provide that, [f]or purposes of this section, “law enforcement officer” means a public officer or employee vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of or convicted of committing a crime, whether that duty extends to all crimes or is limited to specific crimes. N.M. Stat. Ann. § 41-4-12.

B. Analysis Defendants argue that Defendant Archuleta is entitled to summary judgment on Count II because, as a matter of law, he was not a law enforcement officer under Section 41-4-12 at the time of the incidents forming the basis of Plaintiffs’ complaints. (Doc. 67 at 6-12.) In support, Defendants contend that, for a public employee to be a law enforcement officer, the employee’s principal duties under law must consist of maintaining public order, making arrests, or holding in custody persons accused of committing a crime. (Id.) Defendants further contend that Defendant Archuleta’s principal duties at Cleveland did not fall into any of these categories. (Id.) In response, Plaintiffs argue that the 2020 amendments to Section 41-4-12 changed the standard for determining who is a law enforcement officer. (Doc. 81 at 2-6.) According to Plaintiffs, to prove that a public employee is a law enforcement officer under the amended version of Section 41-4-12, one need show only that the employee was vested by law with the power to maintain order, make arrests, or detain persons suspected or convicted of committing a crime, regardless of his principal duties. (Id.) Plaintiffs further contend that as a campus security aide at Cleveland, Defendant Archuleta was vested by law with the power to maintain order and detain criminal suspects. (Id. at 6.)

In their reply, Defendants counter that the 2020 amendments to Section 41-4-12 do not apply here. (Doc. 86 at 8-14.) Defendants also assert that, even if the amendments did apply, Plaintiffs still could not show that Defendant Archuleta was a law enforcement officer because the undisputed facts establish that he was not vested by law with the power to maintain order, make arrests, or detain persons suspected or convicted of committing a crime. (Id. at 14-18.)

As a threshold matter, the Court must resolve the parties’ legal dispute regarding whether the 2020 amendments to Section 41-4-12 apply in these cases. Concluding that they do, the Court must next determine whether the amendments modified the standard for determining whether a public employee is a law enforcement officer under Section 41-4-12, and if so, what the new standard is. Finally, the Court must determine whether Defendants have met their summary judgment burden to show that, as a matter of law, Defendant Archuleta was not a law enforcement officer under the applicable test.

1. The 2020 amendments to Section 41-4-12 apply in these cases.

The state legislature amended Section 41-4-12 twice in 2020, effective May 20, 2020, and September 20, 2020, respectively. N.M. Stat. Ann. § 41-4-12 (citing L. 2020, Ch. 5, § 14, eff. May 20, 2020; L. 2020, 1st Sp. Sess., Ch. 7, § 3, eff. Sept. 20, 2020). In the May 2020 amendment, the legislature added the following language to Section 41-4-12: For purposes of this section, “law enforcement officer” means a public officer vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of committing a crime, whether that duty extends to all crimes or is limited to specific crimes.

L. 2020, Ch. 5, § 14, eff. May 20, 2020. In the September 2020 amendment, in turn, the legislature added: (1) to the provision’s enumerated torts, “the independent tort of negligent spoliation of evidence” and “the independent tort of intentional spoliation of evidence”; and, (2) to the provision’s enumerated “power[s],” the power “to detain persons … convicted of committing a crime.” L. 2020, 1st Sp. Sess., Ch. 7, § 3, eff. Sept. 20, 2020.

Defendants argue that the 2020 amendments do not apply here because they postdate the alleged tortious misconduct forming the basis of Plaintiffs’ complaints. (Doc. 67 at 7 n.2; Doc. 86 at 8-14.) Plaintiffs, conversely, assert that the 2020 amendments do apply, because under Methola, 1980-NMSC-145, 622 P.2d at 234, the applicable version of the statute is the one that was in effect when they filed these cases in 2021. (Doc. 81 at 2-6.) As explained below, the Court agrees with Plaintiffs.

In Methola, the New Mexico Supreme Court considered whether the defendants in three cases were law enforcement officers under Section 41-4-12. 1980-NMSC-145, ¶¶ 1, 15, 622 P.2d at 235, 237. The alleged misconduct giving rise to the claims in one of the cases occurred in 1976, before the legislature amended Section 41-4-12 in 1977. Id. at ¶¶ 2, 13, 622 P.2d at 235-36.

However, none of the cases were filed until after the 1977 amendment was in effect. See id. at ¶¶ 2-4, 13-14, 622 P.2d at 235-36.

The Methola court held that the 1977 amendment governed all three of the cases before it, including the case in which the alleged misconduct occurred in 1976. Id. at ¶ 14, 622 P.2d at 236- 37. The court first noted that the NMTCA “is a remedial act which applies only prospectively, in the absence of expressed legislative intent to make it retroactive.” Id. However, the court then concluded that “[s]ince the right to sue governmental entities and their officials [is] governed entirely by statute, the applicable statutes are those which were in effect when the suits became pending cases.”4 Id. In these cases, it is undisputed that the alleged misconduct giving rise to Plaintiffs’ claims occurred before the 2020 amendments to Section 41-4-12 became effective. Specifically, the student Plaintiffs testified that Defendant Archuleta touched them inappropriately before March 14, 2020, when he resigned from his employment at Cleveland. (Doc. 65-5; see, e.g., Doc. 76-8 at 4-8.) Critically, however, it is also undisputed that Plaintiffs did not file these cases until 2021, well after the 2020 amendments took effect.5 (Doc. 1-3 at 6; Civ. No. 21-648, Doc. 1-3 at 1; Civ. No. 21-751, Doc. 1-3 at 1.) Methola therefore dictates that the 2020 amendments apply here.

In support of their contrary position, Defendants cite to six cases in which courts found that the 2020 amendments did not apply. (Doc. 86 at 10-12.) But all of these cases are materially distinguishable. The first four cases were filed between 2014 and 2019, i.e., before the 2020 amendments became effective.6 Thus, they are clearly distinguishable from the cases at issue here, all of which were filed after the 2020 amendments took effect.

19, 2021). The Ortega and Trujillo courts’ determination that the September 2020 amendment did not apply to cases filed before September 2020 is thus consistent with Methola and with this Court’s conclusion that the 2020 amendments do apply to cases filed after both amendments’ effective dates.8 For all of these reasons, the Court concludes that the amended version of Section 41-4-12 governs in these cases.

2. The Court construes the definitions of “law enforcement officer” in Sections 41-4-3(D) and 41-4-12 harmoniously, giving effect to both.

Plaintiffs argue that the 2020 amendments to Section 41-4-12 significantly changed the and, (4) the action in Garcia v. Martinez, 2020 WL 2615533 (D.N.M. May 22, 2020) was filed on May 14, 2019, in D-101-CV-2019-01334 (N.M. 1st Jud. Dist. Ct.). Notably, although the Sanders and Enriquez courts stated that they would apply the version of the statute in effect when the conduct underlying the claims occurred, they did so by footnote without any substantive analysis. Sanders, 2023-NMCA-030, ¶ 1 n.1, 528 P.3d at 718; Enriquez, 2022 WL 17413723, at *1 n.1.

See Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1231 (10th Cir. 2004) (“Cases are not authority for propositions not considered.”) (brackets omitted). way the NMTCA defines the term “law enforcement officer,” such that the “principal duties” test derived from Section 41-4-3(D) no longer applies. (Doc. 81 at 2-6.) In support, Plaintiffs contend that “the statutory language the principal duties test is rooted in is replaced with different language in the statutory amendment discussing the power to act rather than an obligation to act.” (Id. at 5- 6.) In essence, Plaintiffs argue that the state legislature repealed the definition of “law enforcement officer” in Section 41-4-3(D) and replaced it with the definition in Section 41-4-12. (Id. at 2-6.)

The Court disagrees. The Court’s primary goal in construing the NMTCA must be to ascertain and give effect to legislative intent. New Mexico v. Thompson, 2022-NMSC-23, ¶ 17, 521 P.3d 64, 68.

The primary indicator of legislative intent is the plain language of a statute. And yet, [courts] must exercise caution in applying the plain meaning rule…. Statutes are enacted as a whole, and consequently each section or part should be construed in connection with every other part or section, giving effect to each, and each provision is to be reconciled in a manner that is consistent and sensible so as to produce a harmonious whole. Id. (citations and quotation marks omitted).

Section 41-4-3(D) has not been expressly repealed and judicial repeals by implication are not favored. Citation Bingo, Ltd. v. Otten, 1996-NMSC-003, ¶ 21, 910 P.2d 281, 287; New Mexico ex rel. Bird v. Apodaca, 1977-NMSC-110, ¶ 12, 573 P.2d 213, 217. Thus, the Court must “strive to construe” Sections 41-4-3(D) and 41-4-12 harmoniously and give effect to both. Alarcon v. Albuquerque Pub. Schs. Bd. of Educ, 2018-NMCA-021, ¶ 23, 413 P.3d 507, 517; see also New Mexico ex rel. Clinton Realty Co. v. Scarborough, 1967-NMSC-152, ¶ 9, 429 P.2d 330, 333 (“It is … a cardinal rule of construction that, where possible, effect must be given to every part of a statute. The court’s duty is to, so far as practicable, reconcile different provisions so as to make them consistent, harmonious and sensible.”). In doing so, the Court considers not only the statute’s language but also its object and legislative history and the context in which it was enacted.9 New Mexico v. Maestas, 2007-NMCA-001, ¶¶ 17, 19, 149 P.3d 933, 938; New Mexico v. Davis, 2003- NMSC-022, ¶ 6, 74 P.3d 1064, 1067; In re Portal, 2002-NMSC-011, ¶ 5, 45 P.3d 891, 892.

The amendment whose effect the parties dispute is the May 2020 amendment adding a definition of the term “law enforcement officer” to Section 41-4-12. (Doc. 81 at 2-6; Doc. 86 at 8- 14.) In pertinent part, the title of the bill adopting the May 2020 amendment is “Clarifying Duties of a Law Enforcement Officer in the Tort Claims Act.” L. 2020, Ch. 5, § 14, eff. May 20, 2020.

The legislative intent this title evinces is straightforward, i.e., to “[c]larify[]” the “[d]uties” that make a public employee a law enforcement officer under the NMTCA. Id. Manifestly, it does not evince an intent to repeal the term “duties” in Section 41-4-3(D) and replace it with the term “powers” for purposes of defining who is a law enforcement officer under the Act.

Further, the body of the May 2020 amendment also continues to refer to duties. The amendment defines law enforcement officers as public employees vested by law with the “power” to maintain order, make arrests, or detain criminal suspects, and then adds, “whether that duty extends to all crimes or is limited to specific crimes.” Id. (emphasis added); N.M. Stat. Ann. § 41- 4-12 (emphasis added). The legislature’s continued references to “duties” in the title and text of the May 2020 amendment clearly indicate that the legislature intended the nature of a public employee’s duties to remain the determinative factor in assessing whether the employee is a law enforcement officer under the Act.

However, such a construction would actually render Section 41-4-3’s definition superfluous, because the only section of the NMTCA in which the term “law enforcement officer” appears, other than Section 41-4-3, is Section 41-4-12.

In other words, if the Court were to construe Section 41-4-12’s definition to supplant Section 41-4-3’s for purposes of applying Section 41-4-12, Section 41-4-3’s definition would no longer have any effect at all. Such a construction would therefore be improper. See Alarcon, 2018-NMCA-021, ¶ 65, 413 P.3d at 527 (“Statutes must be construed so that no part of the statute is rendered surplusage or superfluous.”) (quotation marks and citation omitted).

On the other hand, the Court cannot ignore the May 2020 amendment’s new reference to “power[s]” any more than it can ignore the amendment’s continued references to “duties.” Rather, the Court must strive to give effect to both of these terms as used in Sections 41-4-3(D) and the amended version of Section 41-4-12. Thompson, 2022-NMSC-23, ¶ 17, 521 P.3d at 68.

Fortunately, the title of the May 2020 amendment clearly states how the legislature intended this to be done, i.e., by using the amendment to Section 41-4-12 to “[c]larify[]” the scope of the “[d]uties” to which Section 41-4-3(D) refers. L. 2020, Ch. 5, § 14, eff. May 20, 2020. Read together in this way, and incorporating the additional “power” enumerated in the September 2020 amendment, Sections 41-4-3(D) and 41-4-12 indicate that the test for whether a public employee is a law enforcement officer under the NMTCA is whether the employee’s principal duties under law include maintaining public order, making arrests, or detaining persons suspected or convicted of committing a crime, where the employee’s duties under law are those duties the law vests the employee with the power to perform. N.M. Stat. Ann. §§ 41-4-3(D), 41-4-12; see also Limacher v. Spivey, 2008-NMCA-163, ¶ 14, 198 P.3d 370, 373 (“When deciding whether a particular employee is a law enforcement officer as defined in Section 41–4–3(D), our jurisprudence tells us to first look to the statutory definition of that particular employee’s duties and then determine whether the employee’s primary duties match any of the statutory criteria.”).10 3. Plaintiffs have failed to show a genuine factual dispute regarding whether Defendant Archuleta’s principal duties under law included In 2014, the New Mexico Court of Appeals stated that, [s]ignificantly, [Section 41-4-3(D)] directs us to determine a public employee’s “principal duties under law.” However, not all duties of public employees are enumerated in a statute or regulation.

Accordingly, our cases have also considered such sources as departmental job descriptions and affidavits in determining the duties of public employees.

Rayos v. New Mexico ex rel. New Mexico Dep’t of Corr., Adult Prob. & Parole Div., 2014-NMCA-103, ¶ 8, 336 P.3d 428, 431 (citation omitted) (emphasis in original). However, as just discussed, the May 2020 amendment clarified that “principal duties under law” must, in fact, be “vested by law,” i.e., by a statute or regulation. L. 2020, Ch. 5, § 14, eff.

May 20, 2020. maintaining public order, making arrests, or detaining persons suspected or convicted of a criminal offense.

Defendants argue that Defendant Archuleta was not a law enforcement officer at the relevant times because his principal duties under law did not include maintaining public order, making arrests, or detaining persons suspected or convicted of committing a crime. (Doc. 67 at 9- 11; Doc. 86 at 14-18.) Plaintiffs disagree, arguing that Defendant Archuleta was “vested by law with the power to both maintain order and … detain individuals suspected of committing crimes.” (Doc. 81 at 6.) As explained below, however, Plaintiffs fail to show a genuine factual dispute on this point.

Under Section 41-4-3(D), the duty to “maintain public order” is limited to “traditional law- enforcement duties that directly impact public order.” Hernandez v. Fitzgerald, 840 F. App’x 333, (10th Cir. 2020) (quoting Limacher, 2008-NMCA-163, ¶ 15, 198 P.3d at 374) (brackets omitted). This “inquiry is fact-specific and informed by a practical, functional approach as to what law enforcement entails today.” Id. (quoting Coyazo v. New Mexico, 1995-NMCA-056, ¶ 18, 897 P.2d 234, 237-38) (quotation marks omitted). “[A] connection to law enforcement activity, even being a member of [a] law-enforcement team, is insufficient by itself to make one a law enforcement officer”; rather, “the person’s duties must directly impact public order.” Dunn v. McFeeley, 1999-NMCA-084, ¶ 25, 984 P.2d 760, 767. “Traditional law-enforcement duties that directly impact public order include preserving the public peace, preventing and quelling public disturbances, and enforcing state laws.” Hernandez, 840 F. App’x at 338 (quoting Limacher, 2008- NMCA-163, ¶ 23, 198 P.3d at 376) (quotation marks omitted).

In their Motion, Defendants cite to evidence that, as a campus security aide at Cleveland, Defendant Archuleta’s principal duties under law did not include maintaining public order, making arrests, or detaining persons suspected or convicted of committing a crime. (Doc. 67 at 9-11.)

Among other things, Defendants rely on RRPS Security Manager Donald Mangin’s attestation that campus security aides “do not … have power or authority vested to law enforcement officers pursuant to federal, state, or local laws.” (Doc. 65-2 at 3.)

Nevertheless, Plaintiffs fail to present any evidence or argument to show that a statute, regulation, or other law did in fact vest Defendant Archuleta with the power or duty to maintain public order, make arrests, or detain persons suspected or convicted of committing a crime. (See generally Doc. 81.) Regarding statutes, campus security aides are certainly subject to state statutory obligations as “school employees,” but these broadly applicable duties do not include arresting or detaining suspects or engaging in other traditional law enforcement activities. See, e.g., N.M. Stat. Ann. § 22-10A-5.1 (requiring “school employee[s]” to report ethical misconduct by other school employees to state public education department or school superintendent).

Nor have Plaintiffs presented any evidence or argument tending to show that campus security aides are members of any narrower group of school employees who have the statutory power or duty to maintain public order, make arrests, or detain persons suspected or convicted of a criminal offense. (See generally Doc. 81.) Initially, Plaintiffs have not cited to any state statute that refers to campus security aides specifically. Further, Plaintiffs have made no attempt to demonstrate that campus security aides qualify as “school security personnel” under state law. N.M. Stat. Ann. § 22-10A-40. School security personnel are “retired or former certified and commissioned law enforcement officers who are employed by a school district and authorized by department rules and local school board policy to carry a firearm on school premises.” N.M. Stat. Ann. § 22-10A-40(A)(5). But Plaintiffs have not presented any evidence or argument tending to show that, as a campus security aide, Defendant Archuleta either carried a firearm in the course of his duties or met the stringent requirements that would have allowed him to do so.11 Also, Plaintiffs have not cited to any statutory provision indicating that campus security aides are “licensed school employee[s].” Cf., e.g., N.M. Stat. Ann. §§ 22-10A-3 (requiring licensure for teachers, instructional supervisors, school administrators, and school healthcare providers), 22-10A-17 (requiring licensure for enumerated instructional support providers), 22- 10A-17.1 (requiring licensure for educational assistants). And only “licensed school employee[s]” are statutorily obligated to “enforce all laws and rules applicable to the employee’s public school” and “exercise supervision over students.”12 N.M. Stat. Ann. § 22-10A-3(F)(1), (3).

Similarly, Plaintiffs have not cited to any regulations at all, much less a regulation that vests campus security aides with the power or duty to maintain public order, make arrests, or detain persons suspected or convicted of a criminal offense. (See generally Doc. 81.) Further, the Court has located only one specific reference to campus security aides in state regulations, and this reference merely indicates that they fall within the definition of “[s]chool personnel,” i.e., “all members of the staff, faculty, and administration employed by the local school board” and “authorized agents of the schools, such as volunteers or chaperones, whose responsibilities include

Not surprisingly, there is a state regulation that gives “[p]ublic school authorities, which include all officials, employees and authorized agents of public schools, whose responsibilities include supervision of students … comprehensive authority within constitutional bounds to maintain order and discipline in school.” N.M. Admin. Code § 6.11.2.8(A). But Plaintiffs have not argued, and the Court is not persuaded, that this regulation confers a power or duty to maintain public order within the meaning of Sections 41-4-3(D) and 41-4-12. First, maintaining order and discipline in a school is substantively different from maintaining public order in the traditional law-enforcement sense, because the rules, policies, and procedures that govern behavior in school settings are necessarily far stricter and more comprehensive than the laws that govern the behavior of the general public.13 Second, if the regulation were construed to confer the power to maintain public order, it would make law enforcement officers of virtually every public school employee whose principal duties include student supervision, a result that is patently absurd.

Further, although a state regulation does authorize “certified school personnel,” “school security personnel,” and “school bus drivers” to conduct searches, N.M. Admin. Code § 6.11.2.10(B)(2), Plaintiffs have not argued or submitted evidence to show that campus security aides fall within any of these categories. (See generally Doc. 81.) Rather, campus security aides appear to derive their authority to search from an authorized person’s request for assistance with a particular search, which extends to “that search only.” N.M. Admin. Code § 6.11.2.10(B)(2); (accord Doc. 65-2 at 4 (Defendant Archuleta’s job duties included “[a]ssist[ing] with searches”);

Doc. 65-6 at 4 (Defendant Archuleta “couldn’t search [students] on [his] own without an administrator being present or giving [him] the authorization to do so”); Doc. 65-16 at 4 (Security Manager Mangin’s subordinates “are told they will not conduct a search unless requested by an administrator”).)

In sum, Plaintiffs have not cited to, and the Court has not located, any law that vests campus security aides like Defendant Archuleta with the power or duty to maintain public order, make arrests, or detain persons suspected or convicted of committing a crime. Rather, to the extent campus security aides engage in any of these activities, their power or duty to do so appears to arise out of school board policy, contract, or an administrator’s request.14 (Docs. 65-2, 65-3, 65-4; Doc. 65-6 at 4; Doc. 65-16 at 4.) Plaintiffs have therefore failed to show a genuine factual dispute regarding whether Defendant Archuleta was a law enforcement officer subject to suit under Section 41-4-12 at the relevant times, and Defendant Archuleta is entitled to summary judgment on Count II of Plaintiffs’ complaints. N.M. Stat. Ann. §§ 41-4-3(D), 41-4-12.

II. Defendant RRPS is entitled to summary judgment on Count II.

In their Motion, Defendants argue that Defendant RRPS is also entitled to summary judgment on Count II of Plaintiffs’ complaints. (Doc. 67 at 6-12.) In Count II, Plaintiffs assert intentional tort claims under Section 41-4-12 against both Defendants. (Doc. 1-3 at 10-11; Civ. No. 21-648, Doc. 1-3 at 4-5; Civ. No. 21-751 at 1-3 at 5-6.) But they do not, in that count, make any allegations about what Defendant RRPS did or failed to do. (See generally id.) It thus appears that Plaintiffs’ Count II claims against Defendant RRPS are based on a theory of vicarious liability for Defendant Archuleta’s alleged misconduct pursuant to the doctrine of respondeat superior. (Id.;

Under the NMTCA, a public employer may be held vicariously liable for injuries resulting from its employee’s commission of a tort “for which immunity has been waived.” Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶ 14, 916 P.2d 1313, 1318. But as explained in Section I., supra, as a matter of law Section 41-4-12 does not waive Defendant Archuleta’s immunity. Thus, Defendant RRPS cannot be held vicariously liable for injuries caused by Defendant Archuleta’s alleged intentional torts under that section, and the Court will grant summary judgment in favor of Defendant RRPS as well as Defendant Archuleta on Count II.

III. Defendant RRPS is entitled to summary judgment on Count III.

Defendants also argue that the Court should grant Defendant RRPS summary judgment on Count III of Plaintiffs’ complaints. (Doc. 67 at 12-13.) In Count III, Plaintiffs bring claims against Defendant RRPS under Section 41-4-12 based on its alleged negligent supervision of Defendant Archuleta. (Doc. 1-3 at 11; Civ. 21-648, Doc. 1-3 at 5-6; Civ. 21-751, Doc. 1-3 at 6-7.) According to Defendants, Defendant RRPS is entitled to summary judgment on these claims because (1) as a governmental entity, it cannot be a law enforcement officer under Section 41-4-12, and (2) Plaintiffs have not identified any supervisory law enforcement officer or other employee for whose negligence Defendant RRPS could be vicariously liable under that section. (Doc. 67 at 10-13.) As explained below, the Court agrees.

First, Section 41-4-12 does not apply to Plaintiffs’ negligent supervision claims against Defendant RRPS based on a theory of direct liability for its own acts because, as a matter of law, it is not a law enforcement officer under the NMTCA.15 As a governmental entity, Defendant RRPS cannot be a “full-time salaried public employee of a governmental entity,” a “certified part-time salaried police officer employed by a governmental entity,” or a “public officer or employee.” N.M. Stat. Ann. §§ 41-4-3(D), 41-4-12; see Fernandez v. Mora-San Miguel Elec. Co-op., Inc., 462 F.3d 1244, 1250 (10th Cir. 2006) (“[A]n agency cannot be a ‘full-time salaried public employee’ as required by the definition of ‘law enforcement officer.’”); Dunn, 1999-NMCA-84, ¶ 23, 984 P.2d at 766 (“[A]n agency could not be a ‘full-time salaried public employee.’”).

Second, Plaintiffs have not shown a genuine factual dispute regarding whether Section 41- 4-12 applies to their negligent supervision claims against Defendant RRPS based on a theory of vicarious liability for the acts of a supervisory employee. It is true that a negligence claim against a law enforcement officer is cognizable under Section 41-4-12 when the officer’s negligent supervision of a subordinate proximately causes the subordinate to commit one of the section’s enumerated intentional torts. Quezada v. County of Bernalillo, 944 F.2d 710, 719-20 (10th Cir. 1991), overruled on other grounds by Saucier v. Katz, 533 U.S. 194 (2001); Ortiz v. N.M. State Police, 1991-NMCA-031, ¶¶ 2-14, 814 P.2d 117, 118-20. It is also true that, in such circumstances, the public entity that employs the supervisory law enforcement officer can be held vicariously liable for injuries caused by the officer’s negligence. Quezada, 944 F.2d at 719-20; Ortiz, 1991- NMCA-031, ¶ 2 n.1, 814 P.2d at 118 n.1. However, Plaintiffs’ reliance on this theory of liability is misplaced, because they have not argued, much less cited to any evidence to show, that any of Defendant Archuleta’s supervisors were law enforcement officers.16 (See Doc. 81 at 8-9.)

Plaintiffs try to salvage their negligent supervision claims against Defendant RRPS by citing to Turner v. City of Portales, Civ. No. 98-1367, 1999 WL 35808310, at *2 (D.N.M. Nov. 18, 1999). (Doc. 81 at 9.) However, Turner is distinguishable. The court in that case did deny summary judgment on the plaintiff’s negligence claims under Section 41-4-12 in light of Ortiz and Quezada. Id. But in Turner, the plaintiff sued not only the defendant city, but also a captain in the city police department, i.e., a supervisory law enforcement officer whom the city employed. Id. Thus, even assuming the Turner plaintiff brought negligence claims under Section 41-4-12 against the city as well as the captain—a point the decision does not address—the city could have been vicariously liable for the captain’s negligence. Id.; Ortiz, 1991-NMCA-031, ¶ 2 n.1, 814 P.2d at 118 n.1. Here, in contrast, Plaintiffs have not identified any supervisory law enforcement officer for whose conduct Defendant RRPS could be vicariously liable under Section 41-4-12. (See generally Doc.

81.) The Court will therefore grant Defendant RRPS summary judgment on Count III.

IV. Defendant RRPS is not entitled to summary judgment on Count IV.

Finally, Defendants argue that Defendant RRPS is entitled to summary judgment on Count IV of Plaintiffs’ complaints, in which Plaintiffs assert negligence claims under Section 41-4-6 of the NMTCA.17 (Doc. 67 at 15-20; see Doc. 1-3 at 11-12; Civ. 21-648, Doc. 1-3 at 6-7; Civ. 21- 751, Doc. 1-3 at 7-8.) Section 41-4-6 provides that the NMTCA’s general grant of immunity does not apply to liability for injuries caused by public employees’ negligent operation or maintenance of a public facility. N.M. Stat. Ann. § 41-4-6(A). Defendants argue that Defendant RRPS is entitled to summary judgment on Plaintiffs’ claims under Section 41-4-6 because the undisputed facts show that it “had no knowledge of a dangerous condition on the premises of [Cleveland]” and so “there As noted above, Plaintiffs assert Count IV against Defendant Archuleta as well as Defendant RRPS. (Doc. 1-3 at 11-12; Civ. No. 21-648, Doc. 1-3 at 6-7; Civ. No. 21-751, Doc. 1-3 at 7-8.) However, Defendants argue, and Plaintiffs concede, that Section 41-4-6 does not apply to Defendant Archuleta. (Doc. 67 at 13-15; Doc. 81 at 13-14.) Thus, the Court will grant summary judgment in Defendant Archuleta’s favor on Count IV. is no waiver of governmental immunity.” (Doc. 67 at 15-20.) Plaintiffs, conversely, contend that Defendant RRPS is not entitled to summary judgment on these claims because it “had actual knowledge of the danger [Defendant] Archuleta posed to students and did not follow [its] own policies … designed to make sure searches happened in a way that was safe for students.” (Doc.

81 at 13.) As explained below, the Court finds that genuine issues of material fact preclude summary judgment on Plaintiffs’ claims under Section 41-4-6.

A. Legal Standards Section 41-4-6 of the NMTCA provides that [t]he immunity granted pursuant to [Section 41-4-4 of the NMTCA] does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings. N.M. Stat. Ann. § 41-4-6(A).

To assess the viability of a claim under this section, courts must first “determine… as a matter of law” whether the defendant owed the plaintiff a duty. Sanders v. New Mexico Corr. Dep’t, 2024-NMSC-027, ¶ 57, 562 P.3d 572, 584. In making this determination, courts should remain mindful that “the waiver of liability in Section 41-4-6(A) incorporates the concepts of premises liability found in [New Mexico] case law.” Id. at ¶¶ 45, 57, 562 P.3d at 582, 584. Thus, under this section, a “duty of ordinary care originates with the property but is not limited by geography or a physical defect on the property.” Id. at ¶ 58, 562 P.3d at 584. Rather, the duty to use ordinary care in maintaining or operating a public facility may arise out of property ownership, statute, regulation, or contract. Id. at ¶¶ 53-55, 562 P.3d at 583-84. Among other things, the New Mexico Supreme Court has recognized a public school’s duty to protect students from foreseeable risks of assault on the school’s campus. Encinias, 2013-NMSC-045, ¶¶ 2, 17-18, 310 P.3d at 614, 619.

“Once duty has been established,” courts must next assess whether the plaintiff can show that the alleged negligence at issue falls within the “spectrum” of conduct to which Section 41-4- applies. Sanders, 2024-NMSC-027, ¶ 59, 562 P.3d at 584-85. Section 41-4-6 does not apply “when negligence creates an unsafe condition for a single individual.” Id. at ¶ 74, 562 P.3d at 587.

Rather, to be actionable under this provision, “the negligent operation or maintenance must create a dangerous condition that threatens the general public or a class of users of the [facility].” Vanhorn v. Carlsbad Mun. Sch. Dist., 2024-NMCA-035, ¶ 6, 545 P.3d 1182, 1185 (quoting Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 8, 141 P.3d 1259, 1261) (quotation marks omitted).

Specifically, the negligence must consist of either (1) “an operational failure to respond to or discover conditions which can pose a danger to a class of persons involved in or affected by an activity on the [public] property,” or (2) “a failure to create and/or to implement reasonably appropriate safety policies and operational procedures to make public properties safe for the public who use them.” Sanders, 2024-NMSC-027, ¶¶ 50, 59, 562 P.3d at 583-85 (quoting Gebler v. Valencia Reg’l Emergency Commc’ns Ctr., 2023-NMCA-070, ¶ 26, 535 P.3d 763, 769).

In addition, because it is ultimately a negligence claim, a plaintiff asserting a claim for negligent operation or maintenance of a public facility under Section 41-4-6 must show not only that (1) the defendant owed the plaintiff a duty of care, but also that (2) the defendant breached the duty, (3) the plaintiff was injured, and (4) the defendant’s breach proximately caused the plaintiff’s injury. Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 22, 335 P.3d 1243, 1249. Regarding the second element, determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances.

Lujan v. New Mexico Dep’t of Transp., 2015-NMCA-005, ¶ 13, 341 P.3d 1, 5. In general, these “[q]uestions of ‘reasonableness’ are quintessential issues for a jury to resolve.” Id. at ¶ 33, 341 P.3d at 10. Regarding the fourth element, in turn, “[p]roximate cause is that which, in a natural or continuous sequence, produces the injury and without which the injury would not have occurred.”

Id. at ¶ 35, 341 P.3d at 10. Ordinarily, “[d]etermining proximate cause is a question of fact for the jury,” and “[o]nly when the facts are undisputed and the reasonable inferences from those facts are plain and consistent, does proximate cause become an issue of law.” Id. (quotation marks omitted).

B. There are genuine issues of material fact regarding whether Defendant RRPS negligently created a dangerous condition at Cleveland that proximately caused the student Plaintiffs’ injuries.

Defendants argue that Defendant RRPS is entitled to summary judgment on Count IV of Plaintiffs’ complaints “because the undisputed material facts show that there was no known dangerous condition on the premises of [Cleveland] because [Defendant] Archuleta was not known by [Defendant RRPS] to be a danger to anyone.” (Doc. 67 at 17.) Defendants further argue that “there are no facts in the record to suggest that Defendant [RRPS], in the exercise of ordinary care, could have discovered that [Defendant] Archuleta would sexually assault any student” and “no facts to show that Defendant [RRPS] could have protected [the student] Plaintiffs from the alleged assaults.” (Id. at 20.) As explained below, the Court disagrees on all three of these points.

Defendants contend it is undisputed that Defendant RRPS (1) never received any “complaint regarding or relating to [Defendant] Archuleta,” and (2) never “had any notice or knowledge that [Defendant] Archuleta had ever engaged in any prior improper behavior of any kind.” (Doc. 65 at 7-8.) In fact, however, Plaintiffs dispute these factual contentions, pointing to J.M.’s deposition testimony that he met with Cleveland’s principal, Scott Affentranger, to report that Defendant Archuleta had “touched [him] in a sexually inappropriate manner.” (Doc. 76 at 6; Doc. 76-10 at 2-3.) In this regard, J.M. testified that he told Principal Affentranger “essentially what happened,” including that: (1) “the last time that [he] had been searched … there was some really weird and off-putting things that had went on”; (2) “something went on that is … outside the guidelines of how a security guard is supposed to perform a search”; (3) Defendant Archuleta “was getting really high on the thigh area” of J.M.’s leg; and, (4) as J.M. was facing the wall, he was “kind of in shock, and then [his] brain registered that [his] left testicle had been touched.” (Doc. 76-10 at 3.) J.M. further testified: “I told Mr. Affentranger how I felt about it, and he didn’t care. He kind of told me that essentially, he doesn’t have to deal with it. He has, you know, bigger stuff to deal with.”18 (Id.) Defendants argue that J.M.’s statements to Principal Affentranger are “vague” and “insufficient as a matter of law to show that Defendant [RRPS] ever had actual knowledge or any notice whatsoever of improper sexual touching by [Defendant] Archuleta against any student.” (Doc. 67 at 18.) In fact, however, J.M.’s testimony about what he told Principal Affentranger is easily clear enough to create a genuine factual dispute regarding whether the principal had actual knowledge that Defendant Archuleta had touched J.M. in a sexually inappropriate way. Moreover, actionable negligence under Section 41-4-6 extends not only to public employees’ negligent response to a known dangerous condition, but also to their negligent failure to discover a dangerous condition. Sanders, 2024-NMSC-027, ¶¶ 50, 59, 562 P.3d at 583-85. And even if J.M.’s testimony about what he told Principal Affentranger were not specific enough to show that the principal had actual notice of Defendant Archuleta’s alleged misconduct, it is far more than adequate to support

Of course, the parties’ genuine factual disputes regarding Defendant RRPS’s actual or constructive knowledge of the danger Defendant Archuleta allegedly posed are material only if there is evidence that it acquired such knowledge before the last time Defendant Archuleta touched or tried to touch a student Plaintiff inappropriately. Only then can Plaintiffs show that the school’s failure to act reasonably in response to its actual or constructive knowledge proximately caused them injury. Zamora, 2014-NMSC-035, ¶ 22, 335 P.3d at 1249; Lujan, 2015-NMCA-005, ¶ 35, P.3d at 10. But as explained below, the Court finds that there are genuine factual disputes on this point as well.

An incident report indicates that Defendant Archuleta first searched J.M. in Principal Affentranger’s office on October 4, 2019, and that Principal Affentranger and Assistant Principal Millan Baca were present for this search. (Doc. 65-17.) The record does not include any testimony from J.M. about this particular search, though he did testify that he was searched many times that school year. (Doc. 65-11 at 4.) Rather, on the present record, the four searches about which J.M. testified in detail occurred in the school security office with no one else present, and these are the searches during which he claims Defendant Archuleta touched or tried to touch him inappropriately. (Doc. 76-10 at 4-12.) Specifically, J.M. testified that during the first inappropriate search, Defendant Archuleta touched his left testicle; during the second, Defendant Archuleta grabbed him between his legs and “tried to grab everything”; and, during the third and fourth, Defendant Archuleta tried to touch his genitals but he prevented the contact by slapping Defendant Archuleta’s hand away or backing up.19 (Id.) The record evidence does not indicate precisely when these allegedly inappropriate searches occurred. J.M. testified that he believes they occurred “towards the end of the year.” (Id. at 4-5, 11.) But it is not clear whether he meant the end of the calendar year, i.e., the year 2019, or the end of the school year, i.e., 2019-2020.20 (Id.) Moreover, J.M. testified that “a few weeks or something like that, a month,” passed between the first and second inappropriate searches, “[p]robably a few months[, p]robably like a month or two” between the second and third, and “two weeks, a week and a half” between the third and fourth. (Doc. 65-11 at 9; Doc. 76-10 at 8, 11-12.)

Assuming the fourth inappropriate search occurred shortly before Defendant Archuleta’s March 14, 2020 resignation and subtracting the intervals to which J.M. testified from that date, a reasonable factfinder could infer that the third inappropriate search occurred in February 2020, the second in November 2019, and the first in October 2019. (Id.; Doc. 65-5.)

Further, J.M. testified that he believes he told Principal Affentranger about Defendant Archuleta’s alleged inappropriate conduct “after the second incident.” (Doc. 76-10 at 3.) But when he testified about exactly what he told Principal Affentranger, he described the first alleged instance of inappropriate sexual contact, when Defendant Archuleta touched his left testicle, and not the second, when Defendant Archuleta grabbed his entire crotch. (Id. at 3-9.) Moreover, the record does not clearly indicate what J.M. meant by “after the second incident.” (See id. at 3.) For

Moreover, even if J.M. did not tell Principal Affentranger about the alleged left-testicle search until after the alleged crotch-grabbing search, as noted above, a reasonable factfinder could conclude that the crotch-grabbing search occurred in November 2019, and there is record evidence that Defendant Archuleta touched or tried to touch at least two of the student Plaintiffs inappropriately after that month. First, as just discussed, J.M. testified that after the crotch- grabbing search, Defendant Archuleta tried to touch his genital area again during three additional searches. (Doc. 76-10 at 11-12.) And second, there is record evidence that Defendant Archuleta touched D.M.’s penis and buttocks during a search on March 5, 2020.21 (Doc. 65-10 at 8-12; Doc.

76-2; Doc. 76-8 at 3-8, 11-12.)

Although both sides’ arguments about Count IV focus on J.M.’s testimony about his meeting with Principal Affentranger, the Court notes that other evidence also supports Plaintiffs’

Second, D.M. testified that just before Defendant Archuleta touched his penis and buttocks on March 5, 2020, he told Defendant Archuleta, in Assistant Principal Baca’s presence, “[d]on’t touch my dick.”23 (Doc. 76-8 at 2-3, 8, 11-12.) D.M. testified that he said this because Defendant Archuleta had also touched his penis during a search the previous school year. (Id. at 8.)

Particularly when viewed cumulatively and in the light most favorable to Plaintiffs, Ricci, 557 U.S. at 586, the foregoing evidence supports the reasonable inference that RRPS administrators either knew of or in the exercise of ordinary care should have discovered the danger Defendant Archuleta posed to Cleveland students before the last time he touched or tried to touch a student Plaintiff inappropriately.

And if all of this were not enough, Plaintiffs also point to evidence that Defendant RRPS created a dangerous condition at Cleveland by failing in multiple ways to “implement reasonably appropriate safety policies and operational procedures to make public properties safe for the public

76-10 at 4-10.)

Defendants argue that even if Defendant RRPS did fail to implement school policies in these ways, Plaintiffs cannot show that consistent implementation of the policies would have prevented the student Plaintiffs’ injuries, because D.M. and L.M. testified that Defendant Archuleta also touched them inappropriately while searching them in an administrator’s presence.24 (Doc. 86 at 27; see Doc. 65-15 at 2-8; Doc. 76-8 at 7-8, 11-12; Doc. 76-11 at 4, 7-11.) But there are two problems with this argument. First, the argument does not address Defendant RRPS’s alleged failure to implement its policy requiring that searches of students be video recorded whenever possible.25 Moreover, a reasonable factfinder could infer that video recording Defendant Archuleta’s searches of students would have either deterred him from touching students

86 at 27 (citing Doc. 76-10 at 6-7); see Doc. 76-10 at 6-8.)

CONCLUSION For the reasons stated herein, the Court GRANTS Defendants Archuleta’s and Rio Rancho Public Schools Board of Education’s Joint Motion and Memorandum for Summary Judgment on the Basis of Governmental Immunity (Doc. 67) insofar as the Motion seeks summary judgment (1) in favor of both Defendants on Count II; (2) in Defendant RRPS’s favor on Count III; and, (3) in Defendant Archuleta’s favor on Count IV. However, the Court DENIES the Motion insofar as it seeks summary judgment in Defendant RRPS’s favor on Count IV.

IT IS SO ORDERED. tila Vlas CUA. Q_— KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE Presiding by Consent