Tapia v. City of Albuquerque

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment Dismissing Complaint in its Entirety, filed March 29, 2013 (Doc. 26)(“MTD & MSJ.”). The Court held a hearing on November 1, 2013. The primary issue is whether the Court will dismiss for failure to state a claim or grant summary judgment on the Plaintiffs’ claims against Defendants City of Albuquerque, Richard Berry, Robert J. Perry, and Bruce Rizzieri (“the City Defendants”). The Court will grant the MTD & MSJ. The Plaintiffs have not shown that the City of Albuquerque has a custom or policy that directly caused one of its officers to violate the Plaintiffs’ constitutional rights; accordingly, the City of Albuquerque is not subject to liability for the Plaintiffs’ constitutional claims. The Plaintiffs have not stated a claim for violations of the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment, and no evidence supports their allegations; accordingly, the Court will grant the MTD & MSJ as to those claims. No evidence supports the Plaintiffs’ allegations that the City Defendants breached a contract with them; the Court will, therefore, grant the MTD & MSJ as to that claim. Plaintiff Jessica Tapia has not stated a claim that any City Defendant violated a privacy right that the Constitution protects, and no evidence supports her allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not adequately alleged the elements of a negligence claim against any City Defendant, and statutory immunities protect the City Defendants from liability; accordingly, the Court will grant the MTD & 'MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants conspired to violate their Constitutional rights, and no evidence supports the Plaintiffs’ allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. The Plaintiffs have not stated a claim that the City Defendants engaged in unfair labor practices, and no evidence supports the Plaintiffs’ allegations; accordingly, the Court will grant the MTD & MSJ as to that claim. Finally, the Plaintiffs have not shown that the individual City Defendants violated Constitutional rights that were clearly established at the time the City Defendants violated them; accordingly, the individual City Defendants are entitled to qualified immunity.

FACTUAL BACKGROUND

The Court presents the factual background in multiple parts. To provide background for the MTD & MSJ, the Court takes the facts in, the first four sections from the Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, filed in state court January 15, 2013, filed in federal court March 4, 2013 (Doc. l-l)(“Complaint”). The Complaint’s organization is unclear. *1222 Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.

The Court sets forth the undisputed facts in the remaining sections. The Plaintiffs did not respond to the MTD & MSJ. Under the local rules, “[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.” D.N.M.LR-Civ. 56.1(b). Accordingly, the statement of undisputed facts incorporates all statements in the MTD & MSJ that evidence supports.

1.The Parties.

Plaintiff “Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheelchair lift on a City van.” Complaint ¶ Í, at 1 (emphasis omitted). Plaintiff “Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011.” Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff “[t]he New Mexico Transportation Union (“NMT[U]”), [sic] is the labor union that has represented City bus and van drivers since 1965; [Plaintiff] Ernest Lucero is the current NMTU Chairman.” Complaint ¶ 3, at 2 (emphasis omitted). “Defendant City of Albuquerque is the largest city in New Mexico; Albuquerque is in Bernalillo County, New Mexico.” Complaint ¶ 4, at 2 (emphasis omitted). Defendant “Richard Berry is the Mayor of Albuquerque; [Defendant] Robert J. Perry is the Chief Administrative Officer (CAO) of the City.” Complaint ¶ 5, at 2 (emphasis omitted). Defendant “[t]he City Personnel Board is supposed to be a neutral quasi-judicial hearing panel;” according to the Plaintiffs, “the current Personnel Board operates unlawfully under the control and direction of’ Perry. Complaint ¶ 6, at 2. Non-party “[t]he City Labor-Management Relations Board is supposed to be a neutral quasi-judicial hearing panel;” the current Labor Board operates under the control and direction of the City of Albuquerque, Berry, and Perry. Complaint ¶ 7, at 2. Defendant Bruce Rizzieri is “Director of the City’s Transit Department.” Complaint ¶ 8, at 2. Defendant “Paula Forney is a former assistant City attorney.” Complaint ¶ 9, at 2. Defendant “Carmen Wagner-Mogel was Jessica Tapia’s physician.” Complaint ¶ 10, at 2.

2. Facts Related to the NMTU and City Government Actors.

The Plaintiffs assert that NMTU “petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and van drivers in March, 2011,” but “the City would not formally recognize its majority status until October 5, 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624.” Complaint ¶ 10, at 3. Although the City Labor Board conducted that election, neither the City nor its labor board, supported “the NMTU in either its grievance or bargaining representation.” Complaint ¶ 11, at 3. “On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU.” Complaint ¶ 12, at 3. “However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded.” Complaint ¶ 13, at 3.

As a direct result of the City’s failure to acknowledge and support NMTU as the ‘ collective bargaining and grievance representative, NMTU and its officials were untrained, inexperienced, and without any office, staff, or operating funds. At the same time the union officers were attempting to represent drivers, the Transit Department unreasonably re *1223 quired them to fully perform their driving schedules.

Complaint ¶ 14, at 3^1. Tapia’s and Aragon’s grievances “were the first two grievances ever handled by NMTU’s new Chairman.” Complaint ¶ 15, at 4.

According to the Plaintiffs, the City Charter requires the mayor to administer and protect “the merit system,” and to appoint “an officer to administer the merit system.” Complaint ¶ 16, at 4. 1 According to the Plaintiffs, “[t]he City has not appointed or hired” such an officer. Complaint ¶ 17, at 4. “[Moreover, the Merit System Ordinance states that the Mayor” shall designate the CAO — “the City’s highest appointed official and the person authorized to ‘reprimand, suspend, demote or discharge employees’ ” — to administer that system. Complaint ¶ 18, at 4 (quoting MSO § 3-l-2(c)(3)). “The City Personnel Board is neither fair nor neutral,” but instead, “whenever possible[, it] upholds and advances management policies and interests over the rights of City employees. In this case the City dictated the actions of the Personnel Board.” Complaint ¶ 19, at 4.

[U]nder the administration of Mayor Richard Berry the Current Personnel Board and its Personnel Hearing Officers and the Labor Board all act under the direction of Mayor Berry and Robert Perry, without oversight from the City Council, collusively, and in violation of the City Charter and the rights of Plaintiffs and other City employees.

Complaint ¶ 20, at 5.

3. Conñict Between Tapia and the City of Albuquerque.

Tapia’s wrist was injured on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. “Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver.” Complaint ¶22, at 5. “Following her on-the-job wrist injury the Transit Department assigned Ms. Tapia to ‘monitor’ the public restrooms at the City’s Alvarado Transit Center. While ‘monitoring’ at the ATC, in November, 2010, Ms. Tapia was attacked by a homeless man who injured her shoulder.” Complaint ¶21, at 5. “By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do.” Complaint ¶ 23, at 5. .

On December 27, 2010, counsel wrote to ■ Transit Director Bruce Rizzieri and the Human Resources manager, to inquire about the City’s justification for putting Ms. Tapia in the cold Guard Shack with nothing to do. They did not respond. On January 21, 2011, counsel wrote again to further question and object to the City’s mistreatment of Ms. Tapia and to give notice of her tort claims.

Complaint ¶ 24, at 5.

On February 15, 2011, the Transit Department scheduled a Pre-Determination Hearing (PDH) for February 24, 2011, charging that Ms. Tapia ‘submitted a P-30 Request for Leave form with 68.270 hours of Absent Without Leave.’ Mr. Bird cancelled that ‘hearing’ after Ms. Tapia and her attorney appeared *1224 because, he said, he had forgotten to refer the case to the mediation office.

Complaint ¶25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶ 26, at 6. When Tapia’s attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia “submitted a P30 Request for Leave form with 68.270 hours of Absent Without Leave. This type of leave is unauthorized leave and considered absent from work without authorization. Your AW absences totaling 68.270 hours have placed you in violation of City Rules and Regulations.” Complaint ¶ 26, at 6 (source of quotation unidentified). “Ms. Tapia had submitted the form on the instructions of Transit’s Personnel Manager. Nonetheless, on March 18, 2011, [t]he Transit Department gave Tapia a 3-day suspension.” Complaint ¶ 27, at 6.

On April 18, 2011, the Transit Department gave [Tapia] another- -Notice, scheduling a pre-determination hearing for May 9, 2011. Included in the allegations was the contention that on “April 11, 2011 Clarence Decker ‘witnessed you in the Security Building at approx. 12:30 p.m. At 3:00 p.m., ‘(y)ou were not at your assigned work area.’ ”

Complaint ¶ 27, at 6 (source of quotation unidentified).

On April 21, 2011, another Notice scheduled a hearing for June 3, 2011. Among the allegations were that “On April 18-20, 2011 you did not show up for work or call in to be absent from work ... [sic] Your AW absences totaling 24 hours have placed you in violation of City Rules and Regs.” This was apparently also based on a complaint by Clarence Decker about Jessica Tapia’s ‘absents and failure to call in.’ ”

Complaint ¶ 28, at 6-7 (source of quotation unidentified). On May 18, 2011, in response to the hearing held on May 9, 2011, the Transit Department suspended Tapia without pay for eight work days, or sixty-four work hours, to be served from May 20, 2011 to May 31, 2011. See Complaint ¶ 29, at 7. On May 31, 2011, Maintenance Manager Dennis Stump gave Ms. Tapia notice of another Pre-determination Hearing scheduled for Thursday June 9, 2011. According to the City’s untrue account, Ms. Tapia had requested accommodation in October, 2010 ‘citing that you are unable to drive at night due to your medical condition.’ ” Complaint ¶ 30, at 31. “Without her knowledge the City had apparently paid a private investigator to follow her outside of work hours, with the result that she was accused of ‘driving at night’ and ‘purchasing liquor at a Walgreens establishment then attending what appeared to be a party.’ ” Complaint ¶ 31, at 7 (source of quotation unidentified).

Also, according to the Plaintiffs’ account, the City’s

FMLA- Coordinator contacted your ;physician to inquire if your medical condition had changed ... physician stated you had not been under her care since the first part of April when she certified your FMLA for intermittent leave and that she did not have a medical explanation for why you have not been to work.

(Emphasis added.)

Complaint ¶ 32, at 7 (omission in Complaint).

“On June 8, 2011, Jessica Tapia received the ‘results of pre-detérmination hearing’ that ‘on April 18-20, 2011, you did not show up for work or call in to be absent from work.’ The Transit department imposed a 15-workday, 120 hour suspension without pay.” Complaint ¶ 33, at 7. ‘Without further notice to Ms. Tapia or NMTU, the City terminated Ms. Tapia’s employment.” Complaint ¶ 34, at 8.

*1225 “On August 2, 2011, the City’s attorney, Paula Forney, drafted and issued a subpoena for Ms. Tapia’s medical records. Ms. Forney did that without informing Ms. Tapia or her attorney. Ms. Forney did not seek or secure a release.” Complaint ¶ 40, at 9. The subpoena, which Forney evidently issued to Dr. Wagner-Mogle, and stated “that it was: ‘[f]or the medical records of patient, Jessica Tapia ... requires you to appear for a deposition on August 10, 2011 at 10:00 a.m. ... and bring with you: Any and all documents in your possession regarding Jessica Tapia ... beginning 01/01/2010 to the present.’ ” Complaint ¶ 41, at 9. “In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that: ‘You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance.’ ” Complaint ¶ 42, at 9 (source of quotation not provided). On August 4, 2011, Dr. WagnerMogle sent Tapia’s records to Forney by facsimile transmission, without requesting or securing a release or other authorization, and without notifying Tapia. See Complaint ¶ 43, at 9. “On August 8, 2011, Ms. Forney wrote to counsel that she had received ‘A phone call from Ms. Tapia’s doctor acknowledging that she should not have sent Ms. Tapia’s records without a release.’ ” Complaint ¶ 44, at 10. “Ms. Tapia objected to the unauthorized release of her medical records, but on September 9, 2011, Personnel Hearing Officer Patrick Bingham issued the subpoena for medical records requested by Ms. Forney and granted the City attorney permission to serve discovery on Ms. Tapia.” Complaint ¶ 45, at 10.

After the hearing officer allowed “the City unlimited ‘discovery’ (including Ms. Tapia’s medical records), Ms. Forney propounded burdensome and offensive ‘discovery requests’ designed to embarrass Ms. Tapia and place pressure on the inexperienced NMTU officers who were attempting to represent her, rather than produce any actually useful information.” Complaint ¶ 46, at 10. “The Hearing Officer signed an order dismissing Ms. Tapia’s case, but the Personnel Board objected that Mr. Bingham’s order did not give any reasons or include any ‘findings.’ The Personnel Board remanded the case to the Personnel Hearing Officer to make findings and issue a ‘correct’ order.” Complaint ¶ 47, at 10. “Instead of the Hearing Officer making findings and issuing a correct corder [sic], Paula Forney wrote a set of ‘findings and conclusions’ dismissing Ms. Tapia’s case.” Complaint ¶ 48, at 10. “The Hearing Officer merely changed the title of the document prepared by Ms. Forney and signed the ‘Order’ drafted by Ms. Forney, dismissing Ms. Tapia’s Personnel Board case without a hearing.’ ” Complaint ¶ 49, at 10. “At its December 14, 2011, meeting the Personnel Board gave its rubber-stamp ‘approval’ of Ms. Forney’s findings and conclusions.” Complaint ¶ 50, at 11.

Counsel for Ms. Tapia subsequently filed a motion for sanctions against the City, Ms. Forney and the Personnel Hearing Officer for their violations of Ms. Tapia’s right to privacy. The Board members denounced Tapia’s counsel for bringing the charges before the Personnel Board and the Board unanimously refused to consider the issue.

Complaint ¶ 51, at 11.

4. Conflict Between Aragon and the City of Albuquerque.

“The City has held an extraordinary number of pre-disciplinary hearings in this case, spanning the time between the first such action on December 26, 2006, and the last on June 1, 2011.” Complaint ¶ 35, at 8 *1226 (footnote omitted). The Complaint lists, without farther explanation, a number of “Results of Pre-Disciplinary He[ar]ings” and states that “in addition the City has held two investigations ... and issued at least seven letters of investigation.” Complaint ¶ 35 n. 1, at 8.

The City has charged Ms. Aragon with very many infractions. On March 16, 2008, for example, the City charged Ms. Aragon with violating section 300, 301.1, 301.9, 302, 301.13, 401.11 (DI, E), 402.5(C), 902, 902.1 (C, D, G, J. [sic] L, Ml,-2, 3) and Sec. 12.34 (Major Policy Violations/Gross Misconduct, Transit SOP). Plaintiffs do not know what those charges are for or what happened to those charges.

Complaint ¶ 36, at 8. “On May 17, 2011, Deputy Operations Manager Annette Paez ordered Ms. Aragon to return to work, but Ms. Aragon was unable to comply because of her medical condition.” Complaint ¶ 37, at 8. “On June 1, 2011, Ms. Paez charged Ms. Aragon with violations of Section 300, 302, 402.5(c) and 902.1 (E. [sic] J, and M-3).” Complaint ¶ 38, at 8. “Although the record indicates an increasing concern over attendance and use of sick leave, the City has never explained the reasons for its disciplinary actions against Ms. Aragon.” Complaint ¶ 39, at 9.

“On October 17, 2011, Mr; Lucero wrote to Ms. Wardlaw to request Vanessa Aragon’s case and all other NMTU cases be stayed until the Union achieved the ability to represent the bargaining unit employees.” Complaint ¶ 52, at 11. ' “The City refused to agree to a continuance, claiming that Mr. Lucero had waited too long to request it.” Complaint ¶ 53, at 11. “Without any attempt to contact Ms. Aragon, the City’s Personnel Hearing Officer wrongly concluded that: ‘... it is more likely than not that Employee was aware of the hearing and did not appear so as to support the request for a continuance.’ ” Complaint ¶ 54, at 11 (omission in Complaint)(source of quotation not provided).

According to the City’s Personnel Hearing Officer, “Employee failed to establish good and sufficient cause for her untimely request for a continuance.”

The Hearing Officer therefore recommends that the Personnel Board deny Employee’s request for a continuance. The Employee having failed to appear or to otherwise prosecute her appeal, it is further recommended that the Personnel Board dismiss the appeal of Employee’s termination.

Complaint ¶ 55, at 12 (source of block quotation not provided).

Not knowing about the status of NMTU and its representational abilities and without inquiring or even asking Mr. Lucero, the Hearing Officer erroneously found that the request for a continuance was made because of “problems associated with the fact that NMTU was moving into new facilities.” In fact, there were-no “new facilities” and Ms. Aragon was unaware of what was happening, but the Hearing Officer, acting in collusion with the City, recommended termination without a hearing anyway.”

Complaint ¶ 56, at 12.

5. Undisputed Facts: Tapia’s Claims.

“Tapia was a sun van driver who got injured on the job.” MTD & MSJ Memo. ¶ 1.1, at 2 (setting forth this fact); Affidavit of Mary Scott ¶ 4, at 2, executed March 27, 2013, filed March 29, 2013 (Doc. 27-l)(“Scott Aff.”). “She was covered by the City under worker’s compensation.” MTD & MSJ Memo. ¶ 1.2, at 3 (setting forth this fact); Scott Aff. ¶ 6, at 2. “Tapia applied for and received” leave under Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (“FMLA”). MTD & MSJ *1227 Memo. ¶ 1.3, at 3 (setting forth this fact); Scott Aff. ¶ 8, at 2. “On June 8, 2010, Defendant Dr. Carmen Wagner-Mogle signed a certification for Tapia to receive FMLA leave for her diabetes, one time per week, 1-2 days per episode.” MTD & MSJ Memo. ¶ 1.3, at 3 (setting forth this fact); Scott Aff. ¶ 8, at 2. See City of Albuquerque Family and Medical Leave Certification at 1, executed June 8, 2010, filed March 29, 2013 (Doc. 27-2). “She was approved for intermittent FMLA leave beginning June 8, 2010, until June 7, 2011 for her diabetes.” MTD & MSJ Memo. ¶ 1.4, at 3 (setting forth this fact); Scott Aff. ¶ 9, at 2. See City of Albuquerque Family and Medical Leave Certification at 1. “She was returned to light duty from her on-the-job injury and assigned to the Vehicle Maintenance Division, to work swing shift, reporting to work at 3:30 p.m. on September 20, 2010.” MTD & MSJ Memo. ¶ 1.5, at 3 (setting forth this fact); Scott Aff. ¶ 10, at 3. See Inter-Office Memorandum from Danny R. Holcomb to Jessica Tapia at 1, executed September 28, 2010, field March 29, 2013 (Doc. 27-4). “On September 21, 2010, Dr. Carmen Wagner-Mogle wrote a letter to the city indicating that Tapia should be on day shift because she could not drive in the dark.” MTD & MSJ Memo. ¶ 1.11, at 3 (setting forth this fact); Scott Aff. ¶ 11, at 3. See Letter from Carmen Wagner-Mogle, M.D., to To Whom It May Concern, executed September 21, 2010, filed March 29, 2013 (Doc. 27-5). “The City complied and placed Tapia on day shift.” MTD & MSJ Memo. ¶ 1.7, at 3 (setting forth this fact); Scott Aff. ¶ 16, at 3.

“On November 2, 2010, Tapia was outside her assigned work area when she was accosted by a homeless person.” MTD & MSJ Memo. ¶ 8, at 3 (setting forth this fact); Scott Aff. ¶ 13, at 3. See Security Incident Report, executed November 3, 2010, filed March 29, 2013 (Doc. 27-6). “Tapia received worker’s compensation for this injury.” MTD & MSJ Memo. ¶ 9, at 3; Scott Aff. ¶ 13, at 3.

“On December 23, 2010, she was approved to return to work, with restrictions which included no driving heavy equipment or cars and limited use of her shoulder.” MTD & MSJ Memo. ¶ 10, at 4 (setting forth this fact); Scott Aff. ¶ 15, at 3. See Physical Evaluation Form, executed December 21, 2010, filed March 29, 2013 (Doc. 27-7). “Tapia was assigned, on day shift, to monitor the guard shack at [the Transit Department’s] Daytona facility.” MTD & MSJ Memo. ¶ 11, at 4 (setting forth this fact); Scott Aff. ¶ 16, at 3. “On February 11, 2011, Tapia submitted a request for leave, requesting 68.27 hours leave without pay.” MTD & MSJ Memo. ¶ 12, at 4 (setting forth this fact); Scott Aff. ¶ 17, at 3. See Interoffice Memorandum from James Bird to .Jessica Tapia at 1, executed February 24, 2011, filed March 29, 2012 (Doc. 27-8)(“March Pre-Determination Memo.”). “[T]he request was treated as an absence without leave because she took off those hours without obtaining approval.” MTD & MSJ Memo. ¶ 13, at 4 (setting forth this fact); Scott Aff. ¶ 18, at 4. 2 “Tapia was given notice of a pre-determination hearing and a hearing was conducted.” MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact); Scott Aff. ¶ 19, at

4. See March Pre-Determination Memo, to Tapia at 1; Interoffice Memorandum from James Bird to Jessica Tapia at 1, executed *1228 April 14, 2011, filed March 29, 2018 (Doc. 27-9)(“March Hearing Results Memo, to Tapia”). “On March 18, 2011, Tapia was assessed three days leave without pay as discipline for her improper usage of leave and her improper leave request.” MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact); Scott Aff. ¶ 19, at 4. See March Hearing Results Memo, to Tapia at 2. “She did not file an appeal over this discipline.” MTD & MSJ Memo. ¶ 14, at 4 (setting forth this fact). See Affidavit of Lucinda Montoya ¶ 4, at 2, executed March 26] 2018, filed March 29; 2013 (Doc. 27-39)(“Montoya Aff.”).

“On February 21, 2011, Dr. Carmen Wagner-Mogle submitted an FMLA certification for leave from 02-07-11 to 02-10-11 for acute bronchitis, which was approved” by the City of Albuquerque. MTD & MSJ Memo. ¶ 15, at 4 (setting forth this fact); Scott Aff. ¶ 20, at 4. See Family and Medical Leave Certification at 2-3; executed February 21, 2011, filed March 29, 2013 (Doc. 27-10). “On April 26, 2011, Dr. Wagner-Mogle submitted a new certification for Tapia’s diabetes, severe headaches, and fatigue, which entitled Tapia to be absent from work two times per month, one — three days duration for each episode.” MTD & MSJ Memo. ¶ 16, at 4 (setting forth this fact); Scott Aff. ¶ 21, at 4. See Family and Medical Leave Certification at 2-3, executed February 21, 2011, filed March 29, 2013 (Doc. 27-11).

“On April 11, 2011, Tapia clocked in at 9:59 a.m.; her work hours were from 10:00 a.m. to 6:30 P.M.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. “She did not clock out on April 11, 2011, but, when her supervisor looked for her, she was not at her work station at 3:00 p.m.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶22, at 4. “She called in to take FMLA [leave] on April 12, 2011.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 22, at 4. Tapia “did not inform her supervisor before taking the leave.*’ MTD & MSJ Memo. ¶17, at 5 (setting forth this fact). See Interoffice Memorandum from Dennis Stump to Jessica Tapia at 1, executed May 18, 2011, filed March 29, 2013 (Doc. 27-13)(“April Hearing Results Memo, to Tapia”). 3 Tapia “was given notice of a pre-determination hearing and given that hearing,” at which “[s]he was given an eight day suspension.” MTD & MSJ Memo. ¶ 17, at 5 (setting forth this fact); Scott Aff. ¶ 23, at 5. See April Hearing Results Memo, to Tapia at 2. “She did not file an appeal over that suspension.... ” MTD & MSJ Memo. ¶ 18, at 5 (setting forth this fact); Scott Aff. ¶ 23, at 5. See Montoya Aff. ¶ 5, at 2. 4

“On April 18-20, 2013., Tapia did not appear for work.” MTD & MSJ Memo. ¶ 24, at 5 (setting forth this fact); Scott Aff. ¶ 24, at 5. “She was given a notice of pre-determination hearing and given that hearing,” at which “[s]he was given a 15 day suspension.” MTD & MSJ Memo. ¶ 19, at 5 (setting forth this fact); Interoffice *1229 Memorandum from James Bird to Jessica Tapia, dated April 21, 2011, filed March 29, 2013 (Doc. 27-14)(“June Pre-Determination Hearing Memo, to Tapia”). See Interoffice Memorandum from James Bird to Jessica Tapia, executed June 9, 2011, filed March 29, 2013 (Doc. 27-15). “She did not file an appeal over that suspension.” MTD & MSJ Memo. ¶ 19, at 5 (setting forth this fact); Scott Aff. ¶ 24, at 5. See Montoya Aff. ¶ 6, at 2.

“The City administers its worker’s compensation claims in a department separate from the Transit Department.” MTD & MSJ Memo. ¶ 25, at 5; Scott Aff. ¶ 25, at 5. “On May 2, 2011, surveillance was done on Tapia because she was engaging in activities reportedly outside her restrictions for light duty work,” which “were that she could not operate heavy equipment or a car and only limited use of her shoulder.” MTD & MSJ Memo. ¶ 25, at 5 (setting forth this fact); Scott Aff. ¶ 25, at 5. “The surveillance demonstrated that she drove her car at night and used her shoulder in violation of her restrictions.” MTD & MSJ Memo. ¶ 25, at 5 (setting forth this fact). See Scott Aff. ¶ 25, at 5; Workers Comp Surveillance Report, dated May 6, 2011, filed March 29, 2013 (Doc. 27-16).

“On May 16, 2011, Tapia was denied her FMLA leave.” MTD & MSJ Memo. ¶21, at 5 (setting forth this fact); Affidavit of Carmen Ortiz, executed March 27, 2013, filed March 29, 2013 (Doc. 27-28)(“Ortiz Aff.”). “The last time she was paid regular pay was September 14 and 15, 2010, and she was paid for-16 hours.” MTD & MSJ Memo. ¶21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1. “Since that time, she was carried on FMLA leave, vacation, worker’s compensation, FMLA without pay, suspension and absent without leave.” MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at 1. Tapia’s denial of FMLA leave “was based on a conversation” that Carmen Ortiz, an executive assistant in the City of Albuquerque’s Human Resources Department, “had with Dr. Wagner-Mogle[’s staff].” MTD & MSJ Memo. ¶ 21, at 5 (setting forth this fact); Ortiz Aff. ¶ 3, at l. 5 Ortiz “asked for clarification from the doctor of Jessica Tapia’s most recent FMLA request dated May 16, 2011.” Ortiz Aff. ¶ 4, at 2. 6 “Dr. Wagner-Mogle’s office told [her] on May 16, 2011, that there’s ‘no reason [Tapia] should be out 5 weeks straight.’ ” Ortiz Aff. ¶ 4, at 2. See Information Sheet at 1, various dates, filed March 29, 2013 (Doc. 27-30).

On May 31, 2011, Tapia was given a notice of pre-determination hearing. In that notice, she was cited:

a. For requesting a reasonable accommodation that she not work at night and she was observed during the surveillance driving at night.

*1230 b. She called in for FMLA for May 6, 2011, and she was observed during the surveillance purchasing liquor, in addition to driving at night.

c. The City’s FMLA representative called Dr. Wagner-Mogle about Tapia needing her FMLA recertified [because of a change in her medical condition] and was-told by the doctor’s staff that the doctor had not seen Tapia since the beginning of April and that the doctor could, find no reason for Tapia to have been off work for so long because Tapia did not have a reasonable medical explanation for her absences.

d. Tapia was notified on May 16, 2011 that she needed to renew her FMLA certification and that she could not be. approved for any further FMLA leave without the recertification. She had not been recertified as of May 31, 2011.

MTD & MSJ Memo. ¶22, at 6 (setting forth these facts); Scott Aff. ¶ 26, at 6. See Interoffice Memorandum from Dennis Stump to Jessica Tapia, executed June 1, 2011, filed May 31, 2011 (Doc. 27-17)(“Sec-ond June Pre-Determination Memo, to Tapia”). “On June 28, 2011, Tapia’s employment was terminated.” MTD & MSJ Memo. ¶ 23, at 6 (setting forth this fact); Scott Aff. ¶ 27, at 6. See Interoffice Memorandum from Dennis Stump to Jessica Tapia at 4, executed June 28, 2011, filed March 29, 2013 (Doc. 27-18)(“Termination Memo, to Tapia”).

“On July 8, 2011, Mr.. Livingston, on her behalf, filed an appeal contesting the termination.” MTD & MSJ Memo. ¶ 24, at 7 (setting forth -this fact); Scott Aff. ¶ 28, at 6. See Letter from Paul Livingston to Rob Perry, executed July 8, 2011, filed March 29, 2013 (Doc. 27-19). “Patrick Bingham, a contractf ] hearing officer, was assigned to hear” ‘ Tapia’s appeal. MTD & MSJ Memo. ¶ 25, at 7 (setting forth this fact); Scott Aff. ¶ 29, at 7; Montoya Aff. ¶ 9, at 2. “The City obtained leave to serve discovery and served a subpoena, to obtain Tapia’s medical records from Dr. WagnerMogle.” MTD & MSJ Memo. ¶26, at 7 (setting forth this fact). See Montoya Aff. ¶ 10, at 2; Subpoena, executed August 8, 2011, filed March 11, 2013 (Doc. 14)(“For-ney Subpoena”). “Tapia and her counsel were given notice of the subpoena and were served with the discovery requests.” MTD & MSJ ¶ 26, at 7 (setting forth this fact); Montoya- Aff. ¶ 11, at 2. See Letter from Constance L. Zamora to Medical Records Custodian, executed August 2, 2011, filed March 11, 2013 (Doc. 14). Dr. Wagner-Mogle’s office sent Tapia’s medical records to the City of Albuquerque by facsimile transmission. See Letter from Constance L. Zamora to Honora Persson at 1, executed August 9, 2011, filed March 11, 2013 (Doc. 14). 7 “The City returned the documents to Dr. Wagner-Mogle without reading them.” MTD & MSJ Memo. ¶29, at 7 (setting forth this fact). See Letter from Constance L. Zamora to Honora Persson at 1.

“Paul Livingston withdrew as Tapia’s counsel on September 19, 2011 and Ernest Lucero entered his appearance as chairman of NMTU.” MTD & MSJ Memo. ¶ 30, at 2 (setting forth this fact). See Ortiz Aff. ¶ 8, at 2; Notice of Withdrawal and Substitution of Representation, filed March 29, *1231 2013 (Doc. 27-31). “The grievance was dismissed for discovery abuse when neither Mr. Livingston nor Mr. Lucero adequately responded to the discovery, which was approved by the hearing officer.” MTD & MSJ Memo. ¶ 31, at 7 (setting forth this fact); Scott Aff. ¶ 31, at 7. (See Order Dismissing Grievant’s Claim, no date provided, filed March 29, 2013)(Doc. 27-11); Montoya Aff. ¶ 12, at 2. “The Personnel Board upheld the termination for discovery abuse.” MTD & MSJ Memo. ¶ 32, at 8 (setting forth this fact); (Scott Aff. ¶ 31, at 7; Montoya Aff. ¶ 13, at 2). See Hearing Officer’s Proposed Findings of Fact and Conclusions of Law, executed by Hearing Officer December 2, 2011, accepted by the City Personnel Board December 14, 2011, filed March 29, 2013 (Doc. 27-22). “Mr. Livingston appealed the result of termination to the state district court.” MTD & MSJ Memo. ¶ 33, at 8 (setting forth this fact); Montoya Aff. ¶ 14, at 3. “When Mr. Livingston failed to provide the required statement of appellate issues, the case was dismissed for lack of prosecution.” MTD & MSJ Memo. ¶ 34, at 8 (setting forth this fact). See Order Dismissing Appeal, executed June 25, 2012, filed March 29, 2013 (Doc. 27-33)(“Tapia Appeal Dismissal Order”).

6.The Undisputed Facts: Aragon’s Claims.

“Aragon was employed as a motor coach operator.” MTD & MSJ Memo. ¶ 35, at 8 (setting forth this fact); Scott Aff. ¶ 33, at 7.“On May 17, 2011, she was given a direct order to appear for work no later than May 23, 2011.” MTD & MSJ Memo. ¶ 36, at 8 (setting forth this fact); Scott Aff. ¶ 34, at 7. See Interoffice Memorandum from Annette Paez to Vanessa Aragon at 1, executed May 17, 2011, filed March 29, 2013 (Doc. 27-23)(“Pre-Deter-mination Memo, to Aragon”). “She failed to appear as ordered and her employment was terminated on July 18, 2011.” MTD & MSJ Memo. ¶ 37, at 8 (setting forth this fact); Scott Aff. ¶ 34, at 7. See Interoffice Memorandum from Annette S. Paez to Vanessa Aragon at 4-5, executed July 18, 2011, filed March 29, 2013 (Doc. 27-24)(“Aragon Termination Memo.”).

“Mr. Livingston, who had entered his appearance on March 21, 2011 on Aragon’s behalf, filed an appeal of that termination.” MTD & MSJ Memo. ¶ 38, at 8 (setting forth this fact); Scott Aff. ¶ 35, at 7. See Electronic Mail Transmission from Paul Livingston to Selinda Guerrero, et al., dated March 21, 2011, filed March 29, 2013 (Doc. 27-25); Montoya Aff. ¶ 15, at 3. “Barbara Albin was assigned as the hearing officer.” MTD & MSJ Memo. ¶ 39, at 9 (setting forth this fact); Scott Aff. ¶ 36, at 7; Montoya Aff. ¶ 16, at 3. “On October 6, 2011, Mr. Livingston withdrew his appearance and Ernest Lucero entered his appearance-on behalf of NMTU.” MTD & MSJ Memo. ¶40, at 9 (setting.forth this fact); Montoya Aff. ¶ 17, at 3. See Recommendation of the Hearing Officer at 1, executed November 9, 2011, filed March 29, 2013 (Doc. 27-26)(“Hearing Officer’s Recommendation Re: Aragon”). “The hearing was scheduled to begin October 18, 2011.” MTD & MSJ Memo. ¶ 41, at 9 (setting forth this fact); Scott Aff. ¶ 38, at 8.See Montoya Aff. ¶ 18, at 3; Hearing Officer’s Recommendation Re: Aragon at 1. “At 7:30 p.m.,- October 17, 2011, Lucero asked the City to concur in his request to vacate the hearing.” MTD & MSJ Memo. ¶ 42, at 9 (setting forth this fact); Scott Aff. ¶ 39, at 8; Hearing Officer’s Recommendation Re: Aragon at- 1. “The City declined,” and, “[o]n October 18, 2011, Lucero, representatives of the city and the hearing officer appeared as scheduled,” but “Aragon did not.” MTD & MSJ Memo. ¶ 43, at 9 (setting forth these facts); Scott Aff. ¶ 40, at 8. See Montoya Aff. ¶ 19, *1232 at 3. “The hearing officer concluded that it was more likely than not that[,] from the facts established after inquiry[,] Aragon was. aware of the scheduling hearing and chose not to appear to lend credence to NMTU’s motion to vacate the hearing.” MTD & MSJ Memo. ¶44, at 9 (setting forth this fact); Scott Aff. ¶ 41, at 8. “On December 19, 2011, Aragon appealed the termination to' the state district court.” MTD & MSJ Memo. ¶ 45, at 9; Montoya Aff. 1K20, at 3. See Docket Sheet in Vanessa Aragon v. City of Albuquerque, No. D-202-CV-2011-12542, dated March 26, 2013, filed March 29, 2013 (Doc. 27-34). “On May 17, 2012, District Court Judge Clay Campbell dismissed the appeal for lack of prosecution.” MTD & MSJ Memo. ¶'46, at 10 (setting forth this fact). See Order Granting Motion to Dismiss for Lack of Prosecution, filed in state court in No. D-202-CV-2011-12542 May 17, 2012, filed in federal court in this case March 29, 2013 (Doc.- 27-35)(“Aragon Appeal Dismissal Order”).

7. The Undisputed Facts: NMTU’s . Claims. ■

“On June 30, 2011, the collective bargaining agreement between the City and the American Federation of State, County and Municipal Employees (hereinafter AFSCME) for representation of Transit bus and van drivers expired.” MTD & MSJ Memo. ¶ 47, at 10' (setting forth this fact); Scott Aff. ¶ 42, at 8; Montoya Aff. ¶ 21, at 3. “On August 1, 2011, the City’s Labor-Management Relations Board (hereinafter the Labor Board) ordered that a representational election” to choose the union that would represent bus and sun van drivers would proceed. MTD & MSJ Memo. ¶ 48, at 10 (setting forth this fact); Scott Aff. ¶ 43, at 8; Montoya Aff. ¶ 22, at 3. “AFSCME appealed the order of the Labor Board to state district court.” MTD & MSJ Memo. ¶49, at 10 (setting forth this fact); Montoya Aff. ¶ 23. at 3. See Docket in Am. Fed. of State, Cnty. & Mun. Emps. v. NM Transp. Union, dated March 27, 2013, filed March 29, 2013 (Doc. 27-36).

“On August 10, 2011, AFSCME filed a prohibited practice complaint (hereinafter PPC) with the Labor Board alleging violations of the City’s Labor-Management Relations Ordinance (hereinafter LMRO) by NMTU.” MTD & MSJ Memo. ¶ 50, at 10 (setting forth this fact); Scott Aff. ¶ 44, at 9; Montoya Aff. ¶ 24, at 3. “On September 14, 2011, a representational election was held pursuant to the Labor Board’s order and NMTU prevailed.” MTD & MSJ Memo. ¶ 51, at 10 (setting forth this fact); Scott Aff. ¶ 45, at 9; Montoya Aff. ¶ 25, at 3. “On October 24, 2011, the Labor Board found that while NMTU had acted inappropriately in soliciting membership during working hours, AFSCME had failed to file the PPC within the time limits established in the LMRO.” MTD & MSJ Memo. ¶ 52, at 10 (setting forth this fact); Scott Aff. ¶ 46, at 9. See Findings & Conclusions, executed October 24, 2011, filed March 29, 2013 (Doc. 27-27). “On May 23, 2012, Judge Nan Nash issued her memorandum opinion and order holding that, if the election the Labor Board ordered was held, the results would be null and void because NMTU did not provide current interest cards, justifying the election.” MTD & MSJ Memo. ¶ 53, at 11 (setting forth this fact). See Memorandum Opinion and Order at 5, filed in state court in CV-2011-8899 March 23, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-37)(“Judge Nash’s MOO”). Judge Nash also .held that,

because the ordinance was not clear on this point, NMTU should be given another opportunity to collect interest cards and, if they can again garner thirty percent, another election should be *1233 held. Both the collection of interest cards and the possible election should take place within a reasonable amount of time from this order.

Judge Nash’s MOO at 5.

“The denial of AFSCME’s PPC by the Labor Board was dismissed as moot by the state district court.” MTD & MSJ Memo. ¶ 54, at 11 (setting forth this fact). See Order Dismissing Appeal as Moot and Granting All Motions to Dismiss Without Prejudice at 1, filed in state court in American Federation of State, County and Municipal Employees v. New Mexico Transportation Union, No. D-202-CV-2011-11682 July 9, 2012, filed in federal court in this case March 29, 2013 (Doc. 27-38). 8

“Neither NMTU nor Lucero filed a PPC before the Labor Board challenging the post-termination hearings of Tapia and Aragon.” MTD & MSJ Memo. ¶ 55, at 11 (setting forth this fact); Scott Aff. ¶ 46, at 9; Montoya Aff. ¶ 26, at 4. “Between the election in September 14, 2011, and the date of invalidation of the election on May 23, 2012, no collective bargaining agreement (hereinafter CBA) was negotiated between NMTU and the City.” MTD & MSJ Memo. ¶ 46, at 11 (setting forth this fact); Scott Aff. ¶ 48; at 9.

PROCEDURAL BACKGROUND

The Court will discuss the procedural background in two parts. First, the Court will discuss the Plaintiffs’ Complaint and the Defendants’ removal to federal court. Second, the Court will discuss the MTD & MSJ.

1. The Plaintiffs File their Complaint; the Defendants Remove to Federal Court.

The Plaintiffs filed their Complaint in state court, stating that they “bring their claims under 42 U.S.C.Sec.l983[sie], and the laws and Constitutions of the United States and the State of New Mexico.” Complaint ¶ 9, at 2-3. The Plaintiffs allege six causes of action. See Complaint ¶¶ 57-84, at 12-16. Under “Count 1 Due Process and Equal Protection,” the Plaintiffs assert that Tapia and Aragon, “[a]s classified, full-time, City employees ... had legitimate expectations of continued employment absent just cause for disciplinary action. They had the right to a full and fair hearing to challenge their termination.” Complaint ¶ 57, at 12. “Similarly,” the Plaintiffs allege, “NMTU and its leadership had a due process right and an obligation to represent employees in the bargaining unit at post-termination grievance hearings that are fundamentally fair and proeedurally correct.” Complaint ¶ 58, at 12. According to the Plaintiffs, the “Defendants denied the employees’ rights and hearings and dismissed their cases on pretextual grounds,” and, thereby, “the City Defendants have violated Plaintiffs’ rights to due process and equal protection of the laws.” Complaint ¶¶ 59-60, at 13.

Under “Count 2 Breach of Employment Contracts,” the Plaintiffs allege that, “[a]s tenured public employees, Plaintiffs Tapia and Aragon were covered by a contract of employment that consisted of the Merit System Ordinance, the Personnel Rules and Regulations and applicable collective bargaining agreements.” Complaint ¶ 62, at 13. The Plaintiffs contend that they *1234 “were contractually entitled to notice and an opportunity to be heard, and to be disciplined only for just cause.” Complaint ¶ 62, at 13. The Plaintiffs submit that, thereby, the Defendants “have violated their contractual obligations and are liable for damages to be determined at trial.” Complaint ¶ 64, at 13.

Under “Count 3 Violation of Right to Privacy,” the Plaintiffs contend that “Forney used a misleading letter and an illegitimate subpoena that she issued herself to secure Jessica Tapia’s medical records from Dr. Carmen Wagner-Mogle,” and that Dr. “Wagner-Mogle sent Ms. Tapia’s medical records to Ms. Forney without any knowledge or authorization by Ms. Tapia.” Complaint ¶¶ 66-67, at 13-14. The Plaintiffs assert that “Dr. Wagner-Mogle communicated with Ms. Forney and other City representatives about Jessica Tapia and her medical condition and records on at least several occasions,” but “never contacted or attempted to contact Ms. Tapia or her attorney.” Complaint ¶ 68, at 14. The Plaintiffs state that “[t]he acts of Defendants, specifically Paula Forney, Dr. Carmen Wagner-Mogle and the Transit Department deliberately and willfully violated Jessica Tapia’s right to privacy in her medical records.” Complaint ¶ 69, at 14. The Plaintiffs contend that the “Defendants also hired a private investigator and followed Ms. Tapia, seeking and securing information about her personal life and activities entirely unconnected with her work.” Complaint ¶ 70, at 14. The Plaintiffs assert that the “Defendants are liable for their violations of Ms. Tapia’s right to privacy.” Complaint ¶ 71, at 14.

Under “Count 4 Negligence,” the Plaintiffs assert that, “[a]s described herein, Defendants have treated Jessica Tapia and Vanessa Aragon negligently and with deliberate indifference with respect to their employment.” Complaint ¶ 73, at 14. “In addition,” the Plaintiffs state, “Ms. Tapia sustained two injuries, the first resulting from operation of a wheelchair lift while on duty; the second of which was a result of her assignment to monitor the restroom facilities at the Alvarado Transit Center, a building managed and maintained by the City Transit Department.” Complaint ¶ 74, at 15. The Plaintiffs assert that “Tapia has given notice of her tort claim to the City of Albuquerque.” Complaint ¶ 75, at 15. The Plaintiffs maintain that “[t]he city and its Transit Department, as well as its Director, are liable for the damages proximately caused by their negligence in an amount to be determined at trial.” Complaint ¶ 76, at 15.

Under “Count 5 Conspiracy to Deny Constitutional Rights,” the Plaintiffs assert that “[t]he City Defendants, aware of Plaintiffs’ rights to due process and equal protection, acted deliberately to deny the right to a hearing, one of the most fundamental rights of public employees subjected to wrongful disciplinary actions.” Complaint If 78, at 15. “In particular,” according to the Plaintiffs, “Paula Forney, the Personnel Hearing Officers, the Personnel Board, and Bruce Rizzieri and other City officials met, discussed, and arranged for the denial of Plaintiffs’ due process and equal protection rights.” Complaint 79, at 15.

Under “Count 6 Unfair Labor Practices,” the Plaintiffs state that, “[l]ong after the submission of NMTU’s majority petition for representation of the Transit drivers’ bargaining unit in March, 2011, and the expiration of the Collective Bargaining Agreement on June 30, 2011, the City and Transit Department continued recognizing AFSCME as the exclusive bargaining and grievance representative.” Complaint ¶ 81, at 15-16. According to the Plaintiffs,

*1235 [t]he City and its Labor Board have ignored and opposed the legitimate representational interests of NMTU, discarded NMTU’s prohibited practice complaints without hearings, insisted on an election when none was needed, and then did nothing to support or enable NMTU to represent employees after, it prevailed in the election.

Complaint ¶ 82, at 16. The Plaintiffs maintain that “[t]he City’s misconduct and the Hearing Officers’ and Personnel Board’s lack of concern over — and engagement in — collusive tactics in this case, including biased hearing officers eager to dismiss rather than hear employee cases, and unethical and illegal conduct, clearly demonstrated the City’s policy and practice with respect to the rights of its employees and the obligations of City management towards those employees.” Complaint ¶ 83, at 16. The Plaintiffs assert that they “are entitled to compensatory, declaratory, and injunctive relief for the City’s failure to comply with its laws, failure to recognize and hear employee grievances, and collusive and conspiratorial conduct with respect to these and other employees’ rights and grievances.” Complaint ¶ 84, at 16.

The Plaintiffs ask for the following forms of relief:

A. Declaratory, injunctive and compensatory relief for denial of fair hearings and the rights to due process and equal protection of law;

B. Damages for breaches of contract;

C. Declaratory, injunctive, and compensatory relief and exemplary and punitive damages for violation of Jessica Tapia’s right to privacy.

D. Damages for negligence with respect to Ms. Tapia’s injuries;

E. Declaratory, injunctive, and compensatory relief for unfair labor practices and collusive misconduct between and among City officials and attorneys, the Personnel Board and its Personnel Hearing Officers and the Labor Board.

F. Declaratory and injunctive relief requiring the City to hire or appoint a person to oversee, administer, and protect the Merit System and ensure a fair, neutral and effective personnel hearing process for City employees.

G. Costs and attorneys’ fees; and

H. Such other and further relief as the Court deems just and proper.

Complaint ¶¶ A-H, at 16-17.

On March 4, 2013, the Defendants filed their Notice of Removal. See Doc. 1.

On March 8, 2013, the City Defendants filed their .Answer to Complaint for Violation of. Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, Affirmative Defenses and Counterclaim. See Doc. 13 (“City Defendants’ Answer”). The City Defendants raise two counterclaims: (i) malicious abuse of process, contending, in essence, that the Plaintiffs’ claims are meritless and that they are abusing the legal process, see City Defendants’ Answer ¶¶ 48-56, at 16-17; and (ii) prima facie tort, contending that the Plaintiffs have intentionally brought a meritless claim to harm the City of Albuquerque, see City Defendants’ Answer ¶¶ 57-64, at 18-19.

On March 2013, Forney filed her Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices by Defendant Paula Forney and Counterclaim. See Doc. 15 (“Forney’s Answer”). Forney raises counterclaims for malicious abuse of process and prima facie tort, largely for the same reasons that the *1236 City Defendants give. See Forney’s Answer ¶¶ 1-13, at 19-21.

2.The MTD & MSJ.

The City Defendants move the Court to dismiss the Complaint or, in the alternative, to grant summary judgment. See MTD & MSJ Memo, at 1. The City Defendants assert that:

3. Count 1 should be dismissed because plaintiffs were given all process to which they were entitled.

4. Count 2, Breach [sic] of contract should be dismissed because defendants did not breach any contract with plaintiffs.

5. Count 3, right to privacy, should be dismissed because there are no allegations or facts to support that plaintiffs’ right to privacy was breached.

6. Count 4, negligence, should be dismissed because there is no waiver of immunity under the [New Mexico] Tort Claims Act[, NMSA 1978, § 41-1 to -30 (“NMTCA”) ].

7. Count 4, negligence, should also be dismissed because the worker’s compensation act provides the exclusive remedy for on the job injuries.

8. Count 8, conspiracy, should be dismissed because there are no allegations or facts to support the existence of a conspiracy.

9. Count 6, unfair labor practices, should be dismissed because ... the district court decided that the election violated the LMRO.

MTD & MSJ. ¶¶ 3-9, at 1-2. The City Defendants assert that: (i) the individual defendants are entitled to qualified immunity, see MTD & MSJ ¶¶ 10-11, at 2; and (ii) if the individual defendants are entitled to qualified immunity, the City of Albuquerque cannot be held liable for constitutional violations, see MTD & MSJ ¶ 12, at 2.

After referring to the familiar standards for judicial review of motions to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure and motions for summary judgment under rule 56 of the Federal Rules of Civil Procedure, see MTD & MSJ Memo, at 11-13, the City Defendants first argue that the Court should dismiss Count 1 — that is, Tapia’s and Aragon’s due-process claim. See MTD & MSJ Memo, at 13. The City Defendants assert that “[t]he only allegations relevant to due process on behalf of the individual employees is their allegation that they had a right to a fair hearing before being deprived of their employment,” and that “[t]he undisputed material facts demonstrate that Aragon and Tapia had available to them full and fair hearings.” MTD & MSJ Memo, at 13. The City Defendants point out that Tapia did not “comply with the discovery ordered by the hearing officer, resulting in the dismissal of her appeal.” MTD & MSJ Memo, at 13. With respect to Aragon, the City Defendants point out that she “knowingly failed to appear for the hearing.” MTD & MSJ Memo, at 13. They state that her representative asked to continue the hearing the night before it was scheduled — and that it had been scheduled for nearly two months before it happened. See MTD & MSJ Memo, at 13. According to them, Aragon knew about the hearing schedule and did not appear for the hearing, which led to the hearing officer concluding that Aragon abandoned her appeal. See MTD & MSJ Memo, at 13-14. Moreover, they state that Tapia’s and Aragon’s appeals were both dismissed for failure to prosecute. See MTD & MSJ Memo, at 14.

The City Defendants point to the Court’s decision in Tapia v. Beffort, No. CIV 02-0513 JB/ACT, 2003 WL 24130246 *1237 (D.N.M. Nov. 26, 2003) (Browning, J.), where

the Court addressed the adequacy of the state remedy which allowed for “(i) a de novo evidentiary hearing before a hearing officer appointed by the Personnel Board; (ii) the rights, among others, to counsel, to discovery, to present evidence, to compel the attendance of witnesses and to cross examine witnesses; (iii) a recommendation from the hearing officer to the Personnel Board; and (iv) a final decision by the Personnel Board whether, based on the evidence, GSD had terminated Tapia for ‘just cause.’ ” Id. at *4 . Plaintiffs, here were provided those same procedures. The Court in Tapia , [sic] concluded:

Tapia cannot pursue a due process claim in this Court. See, e.g., Parratt v. Taylor, 451 U.S. [527] at 544[, 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981)]; Pitts v. Bd. of Educ. of U.S.D. 305, Salina, Kansas, 869 F.2d [555, 557 (10th Cir.1989) ]; Bums v. Harris Co. Bail Bond Bd., 139 F.3d 513, 519 (5th Cir.1998) (“[A] plaintiff cannot argue that her due process rights have been violated when she has failed to utilize the state remedies available to her.”); Copple v. City of Concordia, Kan., 814 F.Supp. 1529, 1539 (D.Kan.1993) (“By knowingly failing to take advantage of the post-termination procedures available to him, [the plaintiff] has waived his right to challenge them in this action.”)(citing Pitts v. Board of Education, 869 F.2d at 557). Thus, the Court finds that, because an adequate state administrative remedy existed and Tapia failed to avail himself of that remedy, Tapia cannot now pursue a due process claim in federal court.

MTD & MSJ Memo, at 14 (quoting Tapia v. Beffort, 2003 WL 24130246 , at *9). The City Defendants also point to Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), in which the Supreme Court of the United States held that

an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy[.]

MTD & MSJ Memo, at 14 (quoting 468 U.S. at 533 , 104 S.Ct. 3194 ). The City Defendants argue that, because the Plaintiffs did not perfect their appeals and allowed them to be dismissed for failure to prosecute, they have waived their due process claim.' See MTD & MSJ Memo, at 15. Moreover, they state that the Complaint does not argue that the Plaintiffs lacked the right to that appellate process, but “only that the process was in some undefined manner flawed.... If plaintiffs would háve followed through with their appeals, they could have raised all the arguments stated in their complaint in state court.” MTD & MSJ Memo, at 15. The City Defendants acknowledge that the Plaintiffs filed the Complaint in state court before the Defendants removed the case to federal court, but state that “[s]imply filing the claim in state court does not satisfy the exhaustion requirement for purposes of a due process claim.” MTD & MSJ Memo, at 15 n. 2.

The City Defendants also assert that no authority supports the notion that NMTU has “a due process right and an obligation to represent employees in the bargaining unit at post-termination hearings,” and that, even if such authority existed, “it is undisputed that NMTU failed to represent *1238 its members” in two distinct ways: (i) it did not respond to discovery requests on Tapia’s behalf; (ii) it did not have Aragon appear for her hearing, which made ‘more likely than not that [Aragon] knew about the hearing and did not appear to support the request for a continuance.’ MTD & MSJ Memo, at 15 (quoting Recommendation of the Hearing Officer ¶ 12). 9 According to the City Defendants, “[n]either NMTU nor Lucero filed a PPC before the Labor Board challenging the City’s failure to recognize NMTU as the collective bargaining agent.” MTD & MSJ Memo, at 15. The City Defendants point out that the LMRO establishes the Labor Board, and quote the Supreme Court of New Mexico’s explanation of the Labor Board:

The Merit System Ordinance provides that employees with complaints regarding “the interpretation or application of a collective bargaining agreement may not utilize the grievance resolution procedures of this Ordinance. All such claims shall be properly referred to the Labor-Management Relations Board.” Id. Sec. 2-9-25(B). The [Labor Board], established pursuant to the Labor-Management Relations Ordinance, is empowered to, inter alia, determine whether the City or any employee collective bargaining organization has violated the provisions of any written agreement in force. If it determines that either has committed such a prohibited act the [Labor Board] is required to state its findings of fact and its conclusion in the form of an order. Albuquerque, N.M., Rev. Ordinances Art. II, Secs. 2-2-9 to - 10 (1977).

MTD & MSJ Memo, at 16. The City Defendants point out that “[i]t is undisputed that none of the plaintiffs filed a PPC before the Labor Board, thus depriving the Labor Board of any authority to address the terminations of plaintiffs or to grant them and the union ‘due process.’ ” MTD & MSJ Memo, at 16.

The City Defendants also cite the Court’s decision in Abreu v. N.M. Children, Youth & Families Department, 797 F.Supp.2d 1199 (D.N.M.2011) (Browning, J.), in which the Court pointed out that some source of law defines property interests for due-process purposes; the City Defendants point out that the Complaint does not explain the source of NMTU’s and Lucero’s asserted property right to represent employees. See MTD & MSJ Memo, at 16-17. They note that,

[presumably, because the complaint speaks in terms of NMTU not being recognized by the City as the collective bargaining representative, the source of such property interest may be the CBA. From the undisputed statement of facts above, however, there was no CBA negotiated between NMTU and the City, the representational election was invalidated, thus there was no source of a protected property interest.

MTD & MSJ Memo, at 17.

Further, the City Defendants argue that, even if they owed due process to NMTU and Lucero,

there are no allegations that the post-termination hearings were fundamentally unfair. The complaint alleges that the City somehow violated NMTU’s rights by not recognizing NMTU as the bargaining representative. This allegation ignores the fact that the election was set aside for NMTU’s violation of the election process. Further, Mr. Livingston pointedly withdrew from his rep *1239 resentation of Tapia and Aragon during the post-termination process. He withdrew his representation of Tapia during the course of her being compelled to respond to the City’s discovery. With regard to Aragon, he withdrew his appearance twelve days before her scheduled hearing. If NMTU was concerned about Lucero being “untrained, inexperienced, and without any office, staff or operating funds,” [Cjomplaint, ¶ 14, it should have continued to retain Mr. Livingston and not permitted him to withdraw his representation. When the terminations were upheld by the Personnel Board, Livingston filed an appeal to state court but then those appeals were dismissed for his failure to prosecute. Neither the City nor its employees can be liable for violating NMTU/Lucero’s right to due process when they did not exercise the process available to them

MTD & MSJ Memo, at 17-18. The City Defendants also state that “it is unclear how the individual defendants violated the due process rights of any plaintiff.” MTD & MSJ Memo, at 18.

The City Defendants also acknowledge that the Complaint entitles count 1 “due process and equal protection,” but state that the Complaint “does not state any facts to support an alleged violation of equal protection. Thus the Court should dismiss the equal protection claim for failure to state a claim upon which relief may be granted.” MTD & MSJ Memo, at 18.

With respect to the Plaintiffs’ breach-of-contract claim, the City Defendants assert that “[t]he complaint contains no factual allegations to support their breach of contract claim” — specifically, that the Merit System Ordinance, the Personnel Rules and Regulations, and collective bargaining agreements create an implied contract of employment. MTD & MSJ Memo, at 18. The City Defendants argue that the Complaint does not allege that they violated any contract with NMTU, because, the parties assert, “[i]t is undisputed that there was never a contract negotiated with NMTU during this period of time.” MTD & MSJ at 18.. The City Defendants state that, before “the AFSCME contract which expired in July, 2011, NMTU had, a CBA with the City- NMTU lost the election with AFSCME, thus AFSCME became the representative.” MTD & MSJ Memo, at 18 n. 4. The Defendants contend that the Complaint’s “allegation does not withstand either a motion to dismiss or a motion for summary judgment.” MTD & MSJ Memo, at 18. The City Defendants argue that “[t]he complaint does not allege that any individual defendant has a contract with plaintiffs. It is undisputed that no individual defendant has a contract with any plaintiff. This count can only be against” the City Defendants. MTD & MSJ Memo, at 18 n. 5.

The City Defendants point to the Court’s decision in Armijo v. State Department of Transportation, in which the Court commented ... that the allegations in the complaint do not give any

[ jindication of the factual support he would need to prevail on his claim. Count II, for Breach of Contract, for example, states that the Department would follow state employment policies and procedures, and that the Department terminated him in breach of those policies without just cause. [Armijo] does not, however, indicate what contractual provisions or employment policies the Department breached. For example, he does not say to what his employment contract entitles him or of what the Department deprived him. The Federal Rules of Civil Procedure allow for liberal pleading, but a plaintiff must provide some facts that the Court can evaluate to determine *1240 whether there is a reasonable likelihood that the plaintiff will be able to muster factual support for his claims.

Not Reported in F.Supp.2d, 2009 WL 1329192 , *7 (D.N.M.2009) (Browning, J.). Further, according to Armijo,

“Defendant terminated Plaintiff without just cause, acting outside of its own written employment policies and procedures.” Complaint' ¶ 22, at 4. Whether the termination occurred without just cause, or outside employment policies and procedures, is a legal conclusion. Armijo, however, fails to lay out a minimal factual narrative to apply in reaching such legal conclusions. To find in Armijo’s favor, based on the Complaint, the Court would be forced to speculate and supply facts. Under such circumstances, the Complaint is inadequate.

Id. Plaintiffs complaint here fails to satisfy the same minimum pleading re- - quirements.

MTD & MSJ Memo, at 19. The City Defendants acknowledge that a personnel manual can, in some circumstances, give rise to an implied contract, but point to the Court’s decision in Eoff v. New Mexico Corrections Department, Nos. CIV 10-0598 JB/RHS, CIV 10-0599 JB/DJS, & 10-0600 JB/WDS, 2010 WL 5477679 (D.N.M. 2010) (Browning, J.), in which the Court held that the State Personnel Act, N.M. Stat. Ann.1978, § 10-9-4, was the exclusive remedy for breach-of-contract claims based on the State Personnel Act, and that the New Mexico Legislature did not intend to permit plaintiffs to pursue a breach-of-contract claim at common law. See MTD & MSJ Memo, at 19-20. According to the City Defendants, the Plaintiffs’ breach-of-contract claims fall for the same reason, because the Plaintiffs’ breach-of-contract claims arise out of the MSO, the CBA, and the City of Albuquerque’s Personnel Rules, the -State' Personnel Act provides the exclusive remedy. See MTD & MSJ Memo, at 20-21. Accordingly, the City Defendants ask the Court to dismiss the breach-of-contract claim, “because the MSO and Rules are the exclusive remedy for their alleged claims of breach of contract.” MTD & MSJ Memo, at 21.

The City Defendants then turn to Count 3, which they note “alleges claims against defendants Dr. Wagner-Mogle and Paula Forney for their actions with regard to the subpoena of Tapia records,” and “that the ‘defendants’ also hired a private investigator to conduct surveillance of Tapia.” MTD & MSJ Memo, at 21 (citing Complaint ¶¶ 66-71, at 13-14). The City Defendants state that the MTD & MSJ Memo, addresses neither Dr. Wagner-Mogle’s liability nor Forney’s liability. See MTD & MSJ Memo, at 21. 10 According to the City Defendants’ narrative, “[t]he City served a subpoena on Dr. Wagner-Mogle for production of Tapia’s medical records in preparation for her post-termination hearing.” MTD & MSJ Memo, at 21. Acknowledging the Complaint’s allegation that “Tapia and her attorney were aware of the service of the subpoena for Tapia’s medical records,” MTD & MSJ Memo, at 21 (citing Complaint ¶ 45, at 10), the City Defendants state that “Dr. Wagner-Mogle provided the medical records and the City sent them back, unread. Dr. WagnerMogle also sent a copy of those records to Tapia and her attorney.” MTD & MSJ Memo, at 21 (citing Dr. Wagner-Mogle’s Motion to Dismiss at 8). The City Defen *1241 dants assert that “Tapia objected to production of the medical records, not with the form of the subpoena but with the substance.” MTD & MSJ Memo, at 21. According to the City Defendants, under rule 45(c)(3) of the Federal Rules of Civil Procedure, a party who objects to production of records pursuant to subpoena must file a timely motion to that effect. See MTD & MSJ Memo, at 21. According to the City Defendants, “[t]he hearing officer overruled her objection and compelled her to produce those records. She failed to produce the records which may have resulted in her appeal being dismissed for failure to cooperate in discovery.” MTD & MSJ Memo, at 21-22. The City Defendants assert that, because Tapia did not produce the requested records, “her right to privacy could not have been violated.” MTD & MSJ Memo, at 22. Moreover, they state that, “[i]f her failure to produce those records contributed to her termination, she had the right to and did appeal the determination of the personnel board to the district court,” but “failed to perfect the appeal[,] resulting in the appeal being dismissed for lack of prosecution.” MTD & MSJ Memo, at 22.

With respect to Tapia’s private-investigator claim, the City Defendants state:

The undisputed facts are that Tapia was on light duty, with restrictions from her doctor which included not driving in the dark and no heavy lifting using her shoulder. The Risk Management Division of the City, which is responsible for managing employees on light duty as a result of on-the-job injuries, hired' an investigator to conduct surveillance on Tapia. The investigator determined that Tapia was driving át night and lifting heavy objects. She was giving a pre-determination hearing to respond to those allegations and was terminated partly as a result of the surveillance. She filed an appeal, failed to comply with discovery and her termination was upheld. Her subsequent appeal to state court was dismissed for lack of prosecution.

MTD & MSJ Memo, at 22. Moreover, they note that the Complaint does not name a single government defendant for having implemented the surveillance, and that the City of Albuquerque “cannot be held liable under § 1983 without proof of a custom or policy.” MTD & MSJ Memo, at 22. Accordingly, they submit that Tapia’s “right to privacy, to the extent it existed, was not violated either by service of the subpoena of her medical records or the City’s conduct of surveillance.” MTD & MSJ Memo, at 22.

The City Defendants also ask the Court to dismiss Count 4 — that is, the Plaintiffs’ negligence claim — because there is no waiver of sovereign immunity under the NMTCA, and because the New Mexico Workers’ Compensation Act, N.M. Stat. Ann.1978, § 52-l-9(“NMWCA”), is the exclusive remedy for on-the-job injuries. See MTD & MSJ Memo, at 23. The City Defendants note that Count 4 “states that only Tapia was injured on the job; the complaint does not define how the defendants were negligent with regard to Aragon.” MTD & MSJ Memo, at 23. With respect to the NMWCA, the City Defendants note that “[t]he complaint only alleges in support of the claim for negligence that Tapia was injured twice on the job. Since the [NMWCA] provides that the exclusive remedy for on-the-job injuries is through the [NMJWCA this claim should be dismissed.” MTD & MSJ Memo, at 23. With respect to the sovereign immunity argument, the City Defendants cite the NMTCA’s limits on the scope of liability for government entities and government employees, and state that “[t]he complaint does not identify any waiver of immunity for negligence for defendants for terminat *1242 ing plaintiffs. Thus Count 4 should be dismissed on the basis of lack of waiver of immunity as well as on the exclusive remedy embodied in the WCA.” MTD & MSJ Memo, at 23-24.

The City Defendants also ask the Court to eliminate Count 5 — the conspiracy count — “because it does not state specific facts in support of the alleged conspiracy.” MTD & MSJ Memo, at 24. The City Defendants assert that the Complaint is unclear “whether the alleged conspiracy sounds in tort or attempts to state a constitutional claim.” MTD & MSJ Memo, at 24. They argue that, if the conspiracy claim is a tort claim, the NMTCA bars it. See MTD & MSJ Memo, at 24. If, however, it asserts a constitutional claim, the City Defendants maintain that the Court should dismiss it: they cite Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir.2004), in which the United States Court of Appeals for the Tenth Circuit stated:

Mr. Montgomery also raises a civil conspiracy claim against the City and the FOP. He claims that together they decided to “publicly discredit, harass, annoy, cause harm, deny benefits!,] and terminate his employment.” ... We agree with the district court that Mr. Montgomery has failed to state a claim for civil conspiracy under § 1983 because he did not “allege specific facts showing an agreement and concerted action amongst the defendants.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 , 533 (10th Cir.1998). Furthermore, he “d[id] not identify any of the alleged participants in the alleged conspiracy or the manner in which the conspiracy operated.” ... Mr. Montgomery merely alleged many unlawful acts by various defendants and stated, without any specific facts evincing an agreement among the various defendants, that they conspired against him. The district court appropriately granted summary judgment on the civil conspiracy claim.

MTD & MSJ Memo, at 24 (quoting Montgomery v. City of Ardmore, 365 F.3d at 939-40 ). The City Defendants point out that the Complaint alleges “that the identified individuals, Paula Forney and Bruce Rizzieri and various other unidentified city employees, conspired against plaintiffs by ‘[meeting], discussing], and arranging] for the denial of Plaintiffs’ due process and equal protection rights.’” MTD & MSJ Memo, at 24-25 (quoting Complaint ¶ 79, at 15). Citing a decision from the Court of Appeals of New Mexico, the City Defendants state that a complaint must allege the following three elements to state a cause of action for conspiracy: “ ‘[ (i) ] the existence of the conspiracy; [ (ii) ] the wrongful act or acts done pursuant to the conspiracy; and [ (iii) ] the damage resulting from such act or acts.’ ” MTD & MSJ Memo, at 25 (quoting Las Luminarias of the N.M. Council of the Blind v. Isengard, 1978-NMCA-117 , 92 N.M. 297, 300 , 587 P.2d 444, 447 (citations omitted)). The City Defendants assert that the Plaintiffs have not met this standard, because it alleges “no wrongful acts ... against co-conspirators Rizzieri or Forney. Other than Paula Forney and Bruce Rizzieri, no other coconspirators are identified.” MTD & MSJ Memo, at 25. Accordingly, the City Defendants ask that

if the Court considers the civil conspiracy in Count 5 as a “conspiracy” to violate plaintiffs’ constitutional due process rights as opposed to a conspiracy to commit a tort, plaintiffs have still not met their burden to set forth a civil conspiracy: they have not alleged any wrongful acts by the coconspirators[,] the alleged acts in furtherance of the conspiracy!,] and the resultant damages.

MTD & MSJ Memo, at 25.

The City Defendants argue that the Court should dismiss Count 6 — the unfair *1243 labor practices claim — “because ■ the district court decided that the election violated the LMRO.” MTD & MSJ Memo, at 25. The City Defendants state that, in that count,

plaintiff, presumably NMTU, asserts that the City and the Labor Board, which is not a named defendant, “have ignored and opposed the legitimate representational interests of NMTU, discarded NMTU’s' prohibited practice complaints without hearings, insisted on an election when none was needed, and then do nothing to enable NMTU to represent employees after it prevailed in the election.” Complaint, p'. 16, ¶ 82. There are no facts to support these allegations.

MTD & MSJ Memo, at 25. The City Defendants allege that, after the state court invalidated the election in which NMTU prevailed, see Judge Nash’s MOO at 5, and after the NMTU did not appeal that decision, “AFSCME remained the bargaining representative under the CBA’[s] evergreen clause which provides for the bargaining agreement in the absence of a new one being implemented.” MTD & MSJ Memo, at 26. Moreover, the City Defendants note,

NMTU did not file any PPC on behalf of itself or plaintiffs other than to seek an election, which did not involve Tapia or Aragon. AFSCME did file a PPC arguing that NMTU violated the LMRO by seeking membership cards from employees while on City time. The Labor Board found that NMTU had violated the LMRO, but that AFSCME had failed to file its PPC within the time limits allowed. AFSCME appealed this finding to state district court. That appeal was deemed moot when the district court invalidated the election. NMTU has not filed any PPCs with the Labor Board challenging the City’s actions. Thus, factually the complaint states no claim for an unfair labor practice and legally the complaint states no claim because NMTU has not exhausted the remedies available. The City requests that the Court dismiss Count 6.

MTD & MSJ Memo, at 26.

The City Defendants also assert that they are entitled to qualified immunity. See MTD & MSJ Memo, at 26. The City Defendants review the familiar standards for qualified immunity, see MTD & MSJ Memo, at 26-27, and argue that the Complaint does not clearly explain how Berry, Perry, and Rizzieri violated the Plaintiffs’ constitutional rights. See MTD & MSJ Memo, at 28. About Berry, the City Defendants note the Complaint’s allegations that he is the mayor, that he de-certified AFSCME, and that he certified NMTU after the election. See MTD & MSJ Memo, at 28 (citing Complaint ¶ 12, at 3). The City Defendants state that “[t]he complaint also alleges that the Mayor, under the City Charter, is responsible for appointing an officer to administer the merit system.” MTD & MSJ Memo, at 28. The City Defendants assert that “[t]his allegation is not specific to Mayor Berry.” MTD & MSJ Memo, at 28 n. 8. The City Defendants maintain that the Complaint alleges “that the Personnel Board and the Labor Board act under the direction of Mayor Berry, without oversight from the city council and ‘in violation of the City Charter.’ ” MTD & MSJ Memo, at 28 (quoting Complaint ¶ 20, at 5).

The City Defendants assert that “Perry is identified as the Chief Administrative Officer,” and “is alleged to have directed the actions of the Personnel Board, the Labor Board and the hearing officers to violate some unnamed provision of the City Charter and the rights of plaintiffs.” MTD &. MSJ Memo, at 28 (citing Complaint ¶ 20, at 5). “These are the only *1244 references to Defendant Perry in the complaint.” MTD & MSJ Memo, at 28. The City Defendants observe that the Complaint identifies Rizzieri’s position as director of the Transit Department, and that it alleges “that counsel for Tapia wrote to Mr. Rizzieri, complaining about Tapia’s assignment to the ‘cold guard shack with nothing to do.’ ” MTD & MSJ Memo, at 28 (quoting Complaint ¶ 24, at 5). “The only other reference to Mr. Rizzieri is to claim that he conspired to deprive plaintiffs’ [sic] of their due process and equal protection rights.” MTD & MSJ Memo, at 28 (citing Complaint ¶ 79, at 15).

According to the City Defendants, these assertions do not demonstrate that any of the Plaintiffs’ constitutional rights were violated. See MTD & MSJ Memo, at 29. They argue, citing cases from the Supreme Court and from the Tenth Circuit, that “[t]here is no allegation that any individual defendant specifically acted with intent to deprive plaintiffs of their rights. Intentional conduct is required to establish violation of a constitutional right.” MTD & MSJ Memo, at 29 (citing Daniels v. Williams, 474 U.S. 327, 330 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S 344, 348, 106 S.Ct. 668 , 88 L.Ed.2d 677 (1986); Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996); Archuleta v. McShan, 897 F.2d 495 (10th Cir.1990)). According to the City Defendants, no facts “support any allegations of a violation of equal protection and the individual defendants are entitled to qualified immunity for that claim, as well.” MTD & MSJ Memo, at 29. The City Defendants assert that,

[i]f the Court determines that the complaint states a claim against any individual named City defendant, that defendant is entitled to qualified immunity. Not only did the complaint fail to identify any constitutional violation, if such constitutional [violation] was alleged, it was not clearly established that the actions of defendants violated that constitutional right.

MTD & MSJ Memo, at 29.

The City Defendants also assert that, if Berry, Perry, and Rizzieri are entitled to qualified immunity,, the City of Albuquerque also cannot be held liable. See MTD & MSJ Memo, at 30. Quoting the familiar standards for municipal liability under § 1983, the City Defendants argue that the named defendants’ activities did not violate the constitution, and that the City of Albuquerque did not know that the defendants were violating any of the Plaintiffs’ rights. See MTD & MSJ Memo, at 30. Moreover, they assert that the Complaint “does not allege that the City had any de facto policies of violating the due process or Fourth Amendment rights of its employees. Thus the City should be dismissed from this case on Counts 1 and 5.” MTD & MSJ Memo, at 30.

The Plaintiffs did not file a response.

The Court held a hearing on November 1, 2013. See Transcript of Hearing, taken November 1, 2013, filed November 8, 2013 (Doc. 63)(“Tr.”). The City Defendants noted that, because the Plaintiffs had not responded to the MTD & MSJ Memo., it was difficult to argue, but briefly outlined the MTD & MSJ Memo.’s arguments. See Tr. at 45:11-18 (Forney). 11 The City De *1245 fendants asserted that the Court had dealt with the constitutional claims at issue in this case in Salazar v. City of Albuquerque, No. CIV 10-0645 JB/ACT, 2013 WL 5554185 (D.N.M. Aug. 20, 2013) (Browning, J.)(‘‘Salazar /”) — specifically, they argue that the Plaintiffs have not shown a violation of due process, because they did not use the process available to them to contest their termination. See Tr. at 45:19-22 (Forney). With respect to the breach of contract claim, the City Defendants argued that Salazar I dealt with that- claim, but also pointed the Court to its decision in Eoff v. New Mexico Corrections Department, reiterating the MTD & MSJ Memo.’s argument. See Tr. at 45:23-46:4 (Forney). The City Defendants maintained that Dr. Wagner-Mogle’s attorney had dealt with that claim in argument on Dr. Wagner-Mogle’s Motion to Dismiss. See Tr. at 46:4-5 (Forney). As to the negligence and the conspiracy claims, the City Defendants argued that the Court had disposed of them in Salazar I, and reiterated that the NMTCA had not waived sovereign immunity. See Tr. at 46:6-8 (Forney). The City Defendants asserted that “[t]he unfair labor practice goes back to the due process. No person, no plaintiff filed a claim before the Labor Board, so there’s no unfair labor practices to be alleged.” Tr. at 46:9-12 (Forney). “Finally,” the City Defendants argued that they “are entitled to qualified immunity if the court[ ] finds a violation of any constitutional provision. They didn’t — they weren’t aware that any of their actions were wrong to the extent that the complaint identified any wrongdoing by any specific defendant, which it did not. So I raised it my brief.” Tr. at 46:13-18 (Forney).

The Court asked the Plaintiffs if they could distinguish Salazar I; the Plaintiffs stated that the Court should not grant the MTD & MSJ Memo, for the reasons that the Court gave in Salazar I, and elaborated:

And in fact, this kind of judicial disposition by reference to other cases is particularly offensive to the notion of individualized justice. And Your Honor, you made rulings in Salazar, but you haven’t given us explanations of those rulings, and I — I fully intend to move to set those aside and to ask that they be quashed. And you’ve also published rulings, Your Honor, in Salazar which we should not be bound by in this case, and so that’s one of the problems that needs to be dealt with in an initial conference, Your Honor: How these cases interrelate, what rulings are appropriate for one, what facts can be imported from one case into another.

Tr. at 49:3-15 (Livingston). The Plaintiffs also contended that the facts of the cases differ, and that the City Defendants are “going solely on speculation of — and speculation about the law,” and argued that “we need to get into the facts of each case, not just arguments on each count.” Tr. at 47:16-24 (Livingston). The Plaintiffs complained that the case is being micromanaged to eliminate the case count-by-count, and contended that

originally, when a motion to dismiss for failure to state a claim was evolved in the judicial system, it was a motion to dismiss the complaint for failure to state *1246 a claim. Now, how that has evolved to the kind of — the kind of micromanagement that results in an 88-page decision on a motion for judgment on the pleadings which has been converted from a motion to dismiss is beyond me. It cannot be that there’s that many facts under the plausible pleadings standard, Your Honor, that defeat the claim and that yet there can be three years and 88-page decisions still on that issue and still pending motions which have not been explained.

Tr. at 48:2-12 (Livingston). 12 The Plaintiffs argued that the pleading “is a mess,” and that the City Defendants ask the Court to “just dismiss the case.... It doesn’t matter why; it doesn’t matter what reasons; it doesn’t matter that they have justification.” Tr. at 48:13-17 (Livingston). The Plaintiffs stated that “[t]he city just wants the case dismissed, and of course, they’ll all concur in each other’s motions, but do the — do the parties, do the real people who are involved in this, do they know anything about what’s happening? I think the answer’s no.” Tr. at 48:17-21 (Livingston). The Plaintiffs also complained that the Court “has allowed them to get away with the notion of informed consent that’s not in writing even though it’s required to be in writing. Your Honor has taken their word for the fact that they’ve given informed consent even though they don’t think they have to give informed consent.” Tr. at 48:22^49:1 (Livingston). The Plaintiffs stated that

there’s a variety of things wrong here, but in this particular case, there’s no basis for dismissing it. There’s no basis for summary judgment, but what there is, is there’s a dual pleading, a motion to dismiss and a motion for summary judgment in the same pleading based on two different standards with 38 exhibits, Your Honor. They attached 38 exhibits to this motion.

Now, I’m supposed to respond to that in the initial stages before the Court has even had a conference and evoked all that attention, and then the Court can take that under advisement for a year or so and then issue a decision, well, that’s not the way it’s supposed to proceed. The rules don’t allow that. They certainly don’t require it. Rule 1 requires a speedy, efficient disposition of the ease. Rule 12 allows for dismissal under some circumstances, but Rule 16 is very specific in — in requiring judicial management of the case from the point of view of being fair, not just getting rid of the case, Your Honor.

So, sure, this ease can be gotten rid of. We would then ask for leave to amend to clarify it, but Your Honor, I spend a lot of time on pleadings. I do the best I can with them. I make them as clear as I can. I base them on the facts, and then we get these responses. They’re joint responses. The pleadings don’t indicate who is having what response, and so we get pleadings that— that are just — just incompetent.

Tr. at 49:2-50:2 (Livingston).

After a brief digression regarding the Court’s disposition of a different motion, see Tr. at 50:3-51:11 (Livingston, Court), the Plaintiffs concluded by stating that

we need to get this case, along with the other cases, straightened out so that we don’t have what happened in Salazar happen here. And I’m glad Ms. Forney keeps mentioning that and trying to make this into the same as the Salazar case, because if that’s true, I’m going to be three years from now, if I’m still *1247 alive, I’ll be here arguing this case again, and I don’t want to do that, Your Honor, and I’m sure the Court doesn’t want that.

Tr. at 51:17-24 (Livingston).

After no other Defendant accepted the Court’s invitation to comment, see Tr. at 52:2-4 (Court, Green), the Court invited the City Defendants to reply, see Tr. at 52:5 (Court). The City Defendants stated that they were clear on the case’s status and that they have filed all the motions that the pleadings require. See Tr. at 52:7-10 (Forney). The City Defendants further stated:

The rules of civil procedure provide for an affidavit to be filed under Rule 56 if a party opponent needs to discover facts to respond to the motion. Mr. Livingston never filed that affidavit. He never responded to the motion. He said this pleading is a mess. He never described how it was a mess. He never responded to the motion or my argument or — so I think the Court should grant the motion and dismiss the — the city defendants. That’s all the Court can do.

Tr. at 52:11-18 (Forney).

The Court took the MTD & MSJ under advisement. See Tr. at 52:21-22 (Court).

LAW REGARDING RULE (12)(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 , 127 S.Ct. 2499 , 168 L.Ed.2d 179 (2007) (“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) (“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))).

A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (internal quotation marks omitted)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at .678, 129 S.Ct. 1937 . “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that All the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555 , 127 S.Ct. 1955 (citation omitted).

To survive a motion to,dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded *1248 factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556 , 127 S.Ct. 1955 ). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (emphasis omitted). The Tenth Circuit stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ) (internal citations omitted).

LAW REGARDING SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). “The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial.” Celo-tex Corp. v. Catrett, 477 U.S. at 331 , 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original). 13 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, All U.S. at 324, 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238 , 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for *1249 which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505 . See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conelusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005 , at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005 , at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505 . A mere “scintilla” of. evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539 . “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., All U.S. at 249, 106 S.Ct. 2505 . Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., All *1250 U.S. at 254, 106 S.Ct. 2505 . Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 .

There are, however, limited circumstances in which the Court may disregard a party’s version of the facts. This doctrine developed most robustly in the qualified-immunity arena. In Scott v. Harris, 550 U.S. 372 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769 . The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at 586-87], 106 S.Ct. 1348 (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008) (quoting Scott [v. Harris], 550 U.S. at 380, 127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

*1251 Thomson v. Salt Lake Cnty., 584 F.3d at 1312 . “The Tenth Circuit, in Rhoads v. Miller, [ 352 Fed.Appx. 289 (10th Cir.2009) (Tymkovich, J.)(unpublished), 14 ] explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).

In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378 , 127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable'jury could have believed him,” id. at 380 , 127 S.Ct. 1769 . In Scott , the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379, 127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ...

Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and this court’s precedent.

Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249 -50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92 ). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurringXciting Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., *1252 dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts”).

LAW REGARDING FAILURE TO RESPOND TO A MOTION

“Failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.” D.N.M.LR-Civ. 7.1(b). The court cannot, however, grant a motion to dismiss or a motion for summary judgment based solely on plaintiffs failure to respond and must consider the merits of the motion. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir.2003) (“[É]ven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiffs complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.”); Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.2002) (holding that a district court cannot' grant an unopposed motion for summary judgment unless the moving party has first met its burden of production and demonstrates it is legally entitled to judgment under rule 56). The requirement that a court consider the merits before granting an unopposed motion to dismiss is “consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test ‘the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.’” Issa v. Comp USA, 354 F.3d at 1177 -78 (quoting Mobley v. McCormick, 40 F.3d at 340 ). Similarly, when a party fails to respond to a motion for summary judgment, a district court can properly grant the motion only “if the motion demonstrates no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Reed v. Bennett, 312 F.3d at 1196 . Failure to respond does “not relieve the court of its duty to make the specific determination required by Fed.R.Civ.P. 56(c).” Reed v. Bennett, 312 F.3d at 1196 . Accordingly, although the local rules provide that a party’s failure to respond to a motion for summary judgment or to a motion to dismiss for failure to state a claim is deemed consent to the Court granting the motion, the Court will nonetheless rule substantively on such motions and generally does not grant dispositive motions on procedural defaults alone. See D.N.M.LR-Civ 7.1(b) (“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”); Sawyer v. USAA Ins. Co., 912 F.Supp.2d 1118, 1144 (D.N.M.2012) (Browning, J.)(“It is important that Sawyer filed no written response to BCBSKC’s motions and, under the rules, is deemed to have consented to the Court granting the motion.... The Court nonetheless carefully considered the merits of this motion and held a hearing, at which Sawyer presented no evidence.”).

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in *1253 any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 . “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) (“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”)(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983 . See Ashcroft v. Iqbal, 556 U.S. at 675 , 129 S.Ct. 1937 (“Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) (“Bivens”),] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745 , at *25 (D.N.M. Dec. 8, 2011) (Browning, J.)(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 689 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998).

1. Color of State Law.

“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.’” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. at 49 , 108 S.Ct. 2250 (quoting United, States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941)). “The authority with which the defendant is allegedly ‘clothed’ may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493 . Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that “‘the conduct allegedly causing *1254 the deprivation of a federal right’ must be ‘fairly attributable to the State.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 , 102 S.Ct. 2744 , 73 L.Ed.2d 482 (1982)).

In the context of a public employee, the Tenth Circuit has directed that, while “ ‘state employment is generally sufficient to render the defendant a state actor .... [,]’ at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’ ” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935 -36 n. 18, 102 S.Ct. 2744 ; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v.' Chavez, 55 F.3d at 493 . What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer, acts in accordance with his or her duty. Instead one must examine “the nature aiid circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”

David v. City & Cnty. of Denver, 101 F.3d 1344 , 1353 (10th Cir.1996) (internal citations omittedXquoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).

2. Individual Liability.

Under § 1983, “Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 . Thus, government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be “ ‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep’t of Soc. Servs., 436 U.S. at 663 , 98 S.Ct. 2018 ). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046 ). As the Court has previously concluded: “[A] plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles— including principles of causation.... ” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009) (Browning, J.).

The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983, and stated that fact that the “conduct of other people may have concurrent *1255 ly caused the harm does not change the outcome as to [the defendant],” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximatel/ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange County Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir.1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989).

Trask v. Franco, 446 F.3d at 1046 . Thus, in the context of a claim under the Fourth Amendment to the Constitution of the United States of America, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255 . The Tenth Circuit gave an example of a superseding intervening cause, quoting the Honorable Samuel J. Alito, then-Circuit Judge for the Third Circuit, now-associate Justice for the Supreme Court:

Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400 ). Additionally, “[foreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If

the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s *1256 personal participation, [] exercise of control or direction, or [] failure to supervise.’” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997) (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)).

The Tenth Circuit has' recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745 , at *25-*26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” 556 U.S. at 676 , 129 S.Ct. 1937 . The Tenth Circuit in Dodds v. Richardson held:

Whatever else can be said about Iqbal , and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be Subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution....”

614 F.3d at 1199 . The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200 . It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200 . The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

A plaintiff may [ ] succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.

Dodds v. Richardson, 614 F.3d at 1199 -1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Bd. of Cnty. *1257 Comm’rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.

Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brovm, 520 U.S. at 404-05 , 117 S.Ct. 1382 ) (internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ...&emdash;express or otherwise&emdash;showing their authorization or approval of such misconduct.’ ” Dodds v. Richardson, 614 F.3d at 1200 -01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976)).

4. Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218 . When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality’s inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218 .

LAW REGARDING STATE ACTION AND CIVIL-RIGHTS CLAIMS

The Supreme Court has stated that it is a judicial obligation to not only

preserve an area of individual freedom by limiting the reach of federal law and avoid the imposition of responsibility on a State for conduct it could not control, but also to assure that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 295 , 121 S.Ct. 924 , 148 L.Ed.2d 807 (2001) (internal quotations and citations omitted). The rights under the Fourth and Fourteenth Amendments to the Constitution of the United States of America at issue secure protec *1258 tion only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 , 98 S.Ct. 1729 , 56 L.Ed.2d 185 (1978) (“[M]ost rights secured by the Constitution are protected only against infringement by governments.”). Under some circumstances, however, private parties’ conduct may be deemed to be state action when the “conduct allegedly causing the deprivation of a federal right may be fairly attributable to the State.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 , 102 S.Ct. 2744 , 73 L.Ed.2d 482 (1982). Whether the conduct may in fact be “fairly attributed” to the state requires a two-part inquiry. “First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937 , 102 S.Ct. 2744 . “Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937 , 102 S.Ct. 2744 . See West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988) (explaining that, to state a claim under § 1983, the plaintiff must show: (i) deprivation of a right that the federal Constitution or federal laws secure; and (ii) that a person acting under color of state law caused the deprivation).

The Supreme Court in Lugar v. Edmondson Oil Co., Inc. explained that the two prongs merge when the claim is “directed against a party whose official character is such as to lend the weight of the State to his decisions,” whereas they remain distinct when analyzing private parties’ conduct. 457 U.S. at 937 , 102 S.Ct. 2744 . The first prong of the test in Lugar v. Edmondson Oil Co., Inc. — that the deprivation of a right is attributable to the state — is satisfied when “the authority of state officials ... put the weight of the State behind [the defendant's private decision[.]” 457 U.S. at 940 , 102 S.Ct. 2744 . The Supreme Court in Lugar v. Edmondson Oil Co., Inc. further instructed that the second prong, identification of a defendant as a state actor, may arise “because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.” 457 U.S. at 937 , 102 S.Ct. 2744 .

In Lugar v. Edmondson Oil Co., Inc., the Supreme Court determined that the plaintiffs allegation that private conduct unlawful under state law deprived the plaintiff of his property without due process failed to state a claim under § 1983. See 457 U.S. at 940 , 102 S.Ct. 2744 . The Supreme Court also held that the plaintiffs claim alleging that the private parties had invoked a state statute maliciously or without valid grounds did not give rise to state action. See 457 U.S. at 940 , 102 S.Ct. 2744 . Instead, that claim amounted to nothing more than the private misuse or abuse of a state statute. See 457 U.S. at 940-41 , 102 S.Ct. 2744 .

For a private individual to be acting under color of state law, the deprivation of a federal right “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor ... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduc t is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. at 937 , 102 S.Ct. 2744 .

*1259 Congress did not, in using the term “under the color of state law,” intend to subject private citizens, acting as private citizens, to a federal lawsuit whenever they seek to initiate a prosecution or seek a remedy involving the judicial system. To hold otherwise would significantly disregard one purpose of the state action requirement, which is to “preserven an area of individual freedom by limiting the reach of federal law and federal judicial power.” Lugar, 457 U.S. at 936 , 102 S.Ct. 2744 . Instead, in enacting § 1983, Congress intended to provide a federal cause of action primarily when the actions of private individuals are undertaken with state authority. See id. at 934 , 102 S.Ct. 2744 . Thus, absent more, causing the state, or an arm of the state, to initiate a prosecution or serve process is insufficient to give rise to state action.

How v. City of Baxter Springs, 217 Fed.Appx. 787, 793 (10th Cir.2007) (unpublished).

1. Whether There is State Action by Private Actors is a Legal Determination Made by the Court.

The Tenth Circuit has described the determination of state action as “particularly fact-sensitive, so the circumstances must be examined in their totality.” Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir.2004). According to the Tenth Circuit, “[t]he Supreme Court has counseled us that the state action inquiry, although a legal determination to be made by the court, [see Gilmore v. City of Montgomery, 417 U.S. 556, 570 , 94 S.Ct. 2416 , 41 L.Ed.2d 304 (1974),] requires the sifting [of] facts and weighing [of] evidence.” Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1271 (10th Cir.1989) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961)). In Gilmore v. City of Montgomery, the Supreme Court found that, although it was the Supreme Court’s role to determine whether the use of zoos, museums, parks, and other recreational facilities by private school groups and private non-school organizations “involved government so directly in the actions of those users as to warrant court intervention on constitutional grounds,” the factual record before the Supreme Court “[did] not contain sufficient facts upon which to predicate legal judgments of this kind.” 417 U.S. at 570 , 94 S.Ct. 2416 .

On the other hand, leaving the determination of state action to the jury has shown to be ill-advised. The cases in which the acts of private entities have been held to constitute state action or to be under color of law, and cases in which they have not, tend to be distinguished “by fine shadings in the sometimes complex interrelationships that develop between the state and private bodies.” Adams v. Vandemark, 787 F.2d 588 , 1986 WL 16606, at *2 (6th Cir.1986) (unpublished): In Adams v. Vandemark, the United States Court of Appeals for the Sixth Circuit reviewed a jury instruction from the United States District Court for the Eastern District of Michigan, instructing the jury on when to find state action. The Sixth Circuit found that the few words that were given to the jury on when to find state action “gave the jury little to guide it in making its determination on this crucial element of the claim for relief.” 1986 WL 16606, at *2 . The Sixth Circuit noted that the application of the symbiotic-relationship test and the joint-relationship test are “very difficult and complex questions,” and, “[t]o the extent a jury is to decide upon the proper factual predicates for this essentially legal determination, it must be given instructions that are clear, precise and informative as to the factors involved and the factual issues to be determined.” *1260 1986 WL 16606, at *2 . The Sixth Circuit found that the defendants were entitled to a new trial, because the jury was given no direction that could have enabled it to make the necessary underlying factual determination regarding state action. 1986 WL 16606 , at *2-*3.

2. Tests for Determining State Action by a Private Party.

The Supreme Court has articulated four different tests for courts to use in determining whether conduct by an otherwise private party is state action: (i) the public-function test; (ii) the nexus test; (iii) the symbiotic-relationship test; and (iv) the joint-action test. See Johnson v. Rodrigues (Orozco), 293 F.3d 1196, 1202-1203 (10th Cir.2002) (reviewing the various tests); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995) (noting that “[ajpplication of the state action doctrine has béen characterized as one of the more slippery and troublesome areas of civil rights litigation.” (internal quotation marks omitted)).

a.Public-Function Test.

Under the public-function test, a court determines whether a private party has exercised “powers traditionally exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 , 95 S.Ct. 449 , 42 L.Ed.2d 477 (1974). The public-function test is difficult to satisfy, because while many functions may be traditionally governmental, few are “exclusively” governmental functions, as the test requires. Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1456 . The courts have found exclusive government functions to include holding elections, performing necessary municipal functions, and running á nursing facility. See Johnson v. Rodrigues (Orozco), 293 F.3d at 1203 .

b.Nexus Test.

Under the nexus test, state action is present if the state has ordered the private conduct, or “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 993 , 102 S.Ct. 2777 , 73 L.Ed.2d 534 (1982). A court determines under the nexus test whether there is a sufficiently close nexus between the state and the challenged conduct, such that the conduct “may be fairly treated as that of the state itself.” Jackson v. Metro. Edison Co., 419 U.S. at 351 , 95 S.Ct. 449 . “Private use of state-sanctioned private remedies or procedures does not rise to the level of state action.... But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 486 , 108 S.Ct. 1340 , 99 L.Ed.2d 565 (1988) (internal citations omitted).

c.Symbiotic-Relationship Test.

Under the sjunbiotic-relationship test, state action is present if the state “has so far insinuated itself into a position of interdependence” with a private party that “it must be recognized as a joint participant in the challenged activity.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961). “[Ejxtensive regulation, receipt of substantial state funds, and the performance of important public functions do not necessarily establish the kind of symbiotic relationship between the [state] and a private [party] that is required for state action.” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1451 .

The applicable decisions clearly establish no bright-line rule for determining whether a symbiotic relationship exists *1261 between a government agency and a private entity. Questions as to how far the state has insinuated itself into the operations of a particular private entity and when, if ever, the operations of a private entity become indispensable to the state are matters of degree.

Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1452 .

d. Joint-Action Test.

State action exists under the joint-action test if the private party is a “willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 , 101 S.Ct. 183 , 66 L.Ed.2d 185 (1980). Courts look to “whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1453 . “[I]f there is a substantial degree of cooperative action between state and private officials ... or if there is overt and significant state participation, in carrying out the deprivation of the plaintiffs constitutional rights, state action is present.” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1454 (internal quotation marks and citations omitted). Joint participation can also take the form of a conspiracy between public and private actors; in such cases, the plaintiff must show that the public and private actors shared a common, unconstitutional goal. See Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir.2000). Even a conspiracy claim requires a sufficient level of state involvement to constitute joint participation in the unconstitutional actions. See Soldal v. Cook County, 506 U.S. 56 , 60 n. 6, 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992). The Tenth Circuit has previously dismissed constitutional claims against a private individual where the plaintiff did not give specific facts showing a conspiracy evidencing state action. See Martinéz v. Winner, 771 F.2d 424 , 445 (10th Cir.1985) (“Beyond the bare conclusory allegation that [the defendant], a private citizen, conspired with the other defendants to deprive plaintiff of his constitutional and civil rights, no facts are stated indicating that [the defendant] did anything ... ”).

In Gallagher v. Neil Young Freedom Concert, the Tenth Circuit surveyed several instances in which courts have found action “under color of state law” where governmental and private parties have acted together in joint-action:

We have applied the joint action test in several cases involving allegations that private citizens acted in concert with police officers in making arrests. In both Carey v. Continental Airlines Inc., 823 F.2d 1402 (10th Cir.1987), and Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.1987), we held that citizens who made complaints to police officers that resulted in arrests were not state actors. We found nothing in the record in either case from which we could infer that the allegedly unconstitutional arrests “resulted from any concerted action, whether conspiracy, prearranged plan, customary procedure, or policy that substituted the judgment of a private party for that of the police or allowed a private party to exercise state power.” Carey, 823 F.2d at 1404 . In both cases, the record indicated that the police officers had made an independent decision to make the challenged arrest. In contrast, in Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1429 (10th Cir.1984), cert. denied, 474 U.S. 818 , 106 S.Ct. 65 , 88 L.Ed.2d 53 (1985), we concluded that a store security guard who reported a suspected shoplifter to the police was a state actor. We noted that the officer that made the arrest did not make an independent investigation but relied on the judgment of the security *1262 guard. In Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1982) (per curiam), we applied the joint action test by focusing on the manner in which the alleged constitutional deprivation was carried out. There, the plaintiff challenged the seizure and sale of his property and named as defendants not only state officials but also the wrecking company that towed his truck and subsequently sold it. We found the company to be a state actor because it had “jointly participated in seizing the truck by towing it away” and because the company’s sale of the plaintiffs property was “an integral part of the deprivation.” Id. at 1345 .

49 F.3d at 1453-56 . The Tenth Circuit noted that, “just as with the other tests for state action, the mere acquiescence of a state official in the actions of a private party is not sufficient.” 49 F.3d at 1453 . The Tenth Circuit found that the joint-action test can be satisfied where police are involved in cooperative action with a private party when “the police have substantially assisted in the allegedly wrongful conduct.” 49 F.3d at 1455 . Joint participation typically arises when the authorities agree to facilitate through affirmative action a private party’s unconstitutional acts. See Soldal v. Cook County, 506 U.S. 56 , 60 n. 4, 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992).

3. The Influence of Police Involvement on Private Action as State Action.

The Tenth Circuit has found that the involvement of the police does not necessarily convert a defendant’s abuse of state law into conduct attributable to the state for purposes of § 1983 liability. See Yanaki v. Iomed, Inc., 415 F.3d 1204, 1210 (10th Cir.2005) (citing Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Taylor v. Gilmartin, 686 F.2d 1346, 1348-49 , 1355 n. 3 (10th Cir.1982); Torres v. First State Bank of Sierra County, 588 F.2d 1322, 1327 (10th Cir.1978)). In Yanaki v. Iomed, Inc., the plaintiffs argued that the involvement of the police acting in concert with the defendants in the search of the plaintiffs’ residence converted the defendants’ actions into conduct attributable to the state for the purposes of § 1983 liability. See 415 F.3d at 1209-10 . The Tenth Circuit held that the plaintiffs “fail[ed] to satisfy the first part of the [Lugar v. Edmondson Oil Co., Inc.] color of law test because the conduct that Plaintiffs complain deprived them of their constitutional rights was caused by and [could] only be attributed to the private Defendants.” 415 F.3d at 1210 . The Tenth Circuit, therefore, found it unnecessary to address whether the private defendants were state actors. See 415 F.3d at 1210 . Additionally, merely following a procedure established by state law does not transform a private party’s activity into state action. See Scott v. Hem, 216 F.3d 897, 906-07 (10th Cir.2000); Kirksey v. Theilig, 351 F.Supp. 727, 733 (D.Colo.1972) (holding that self-help repossession of an automobile by a private party is not action under color of state law).

LAW REGARDING PROCEDURAL DUE PROCESS

The Fourteenth Amendment states: “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 , 118 S.Ct. *1263 1708 , 140 L.Ed.2d 1043 (1998). “Under either form of protection, however, a person must have a protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271 , at *6 (D.N.M. Oct. 9, 2008) (Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s procedural due-process rights were violated: (i) “ ‘Did the individual possess a protected property interest to which due process protection was applicable?’ and (ii) “ ‘Was the individual afforded an appropriate level of process?’ ” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999)).

“The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the ‘broad and majestic terms’ enshrined in the Fourteenth Amendment.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls, v. Roth, 408 U.S. at 577 , 92 S.Ct. 2701 . “Such an interest arises not from the Due Process Clause of the Constitution itself, but is ‘created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.’ ” Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577 , 92 S.Ct. 2701 (“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”); Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (“Rather, property interests, which are the subject of the present litigation, ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577 , 92 S.Ct. 2701 )); Paul v. Davis, 424 U.S. 693, 710 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976) (“[Liberty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”).

“[0]nce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972)). “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542 , 105 S.Ct. 1487 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 , 70 S.Ct. 652 , 94 L.Ed. 865 (1950)). “[D]ue process is flexible and calls [only] for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976) (internal quotation marks and brackets omitted). The Supreme Court has described

the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant *1264 property interest. This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment.

[T]he pretermination hearing, though necessary, need not be elaborate. We have pointed out that [t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545 , 105 S.Ct. 1487 (footnote omitted) (citations and internal quotation marks omitted). The United States Court of Appeals for the Second Circuit has stated:

The Supreme Court ... explained that procedural due process is a flexible standard that can vary in different circumstances depending on “ ‘the private interest that will be affected by the official action’ ” as compared to “the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 , 124 S.Ct. 2633, 2646 , 159 L.Ed.2d 578 (2004) (quoting Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893 ). A court must carefully balance these competing concerns, analyzing “‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and the ‘probable value, if any, of additional or substitute safeguards.’ ” Id. (quoting Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893 ).

United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir.2004). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government’s interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893 . For example, “[w]here ... the state must act quickly, a meaningful postdeprivation hearing is adequate.” Clark v. City of Draper, 168 F.3d at 1189 . See also Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.1989) (removal of a child from parents’ custody requires predeprivation hearing “except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” (internal quotation marks omitted)).

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834 , at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S. 478, 504 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). “The *1265 qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir.1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir.2001).

Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). That means a court can often avoid ruling on the plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2030-31 , 179 L.Ed.2d 1118 (2011).

Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991) (per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).

Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231 , 129 S.Ct. 808 (quoting Harlow v. Fitz gerald, 457 U.S. at 818, 102 S.Ct. 2727 ). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194 , 205, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).

1. Procedural Approach to Qualified Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236 , 129 S.Ct. 808 . The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant’s actions violated the constitution, and then the court determines if the right violated was clearly e *1266 stablishedwill often be beneficial. See Pearson v. Callahan, 555 U.S. at 241 , 129 S.Ct. 808 . In rejecting the prior mandatory approach, the Supreme Court recognized that “[tjhere are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237 , 129 S.Ct. 808 . The Supreme Court also recognized that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241 , 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, - U.S. -, 132 S.Ct. 2088, 2093 , 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior case law “comports with our usual reluctance to decide constitutional questions unnecessarily”). Once the plaintiff establishes an inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867 , 870-71 (10th Cir.1993).

The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: When (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking” because of inadequate briefing; (vi) discussing both elements risks “bad decision-making,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42 , 129 S.Ct. 808 ). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S.Ct. at 2031-32 . See Kerns v. Bader, 663 F.3d at 1181 . 15 “Courts should think carefully be *1268 fore expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the ease.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080 , 179 L.Ed.2d 1149 (2011) (quoting Pearson v. Callahan, 555 U.S. 223, 236-37 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009)). See Camreta v. Greene, 131 S.Ct. at 2032 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). 16 The Tenth Circuit will ra *1269 mand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182 .

2. Clearly Established Bights in the Qualified Immunity Analysis.

In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Nisi., 473 F.3d 1323, 1327 (10th Cir.2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and ‘unquestioned.’ ” Lobozzo v. Colo. Dep’t of Corr., 429 Fed. Appx. 707, 710 (10th Cir.2011) (unpublishedXquoting Zweibon v. Mitchell, 720 F.2d 162,172-73 (D.C.Cir.1983)).

“Ordinarily, in order for the law to be clearly established; there must be-a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On thé 'other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective *1270 legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in originalXquoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151 ). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” P

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