A.M. ex rel. Youngers v. New Mexico Department of Health

MEMORANDUM OPINION

1

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Individual DOH Defendants’ Motion and Memorandum to Dismiss Plaintiffs Court Access Claims Under the First and Fourteenth Amendments on the Basis of Qualified Immunity, filed May 23, 2014 (Doc. 45)(“MTD”). The Court held a hearing on October 23, 2014. The primary issues are: (i) whether Defendants Dan Sandoval, Roger Adams, Joseph M'ateju, and Beth Schaefer (collectively “Individual DOH Defendants”) violated Plaintiff AM.’s right' to court access under the First and Fourteenth Amendments to the Constitution of the United States of America when they discharged A.M. in 1979 without opportunity to object and when they, during her subsequent confinement, did not ensure A.M.’s access to the judicial system; and (ri) whether qualified immunity protects the Individual DOH Defendants because the law was not clearly established. The Court will grant the MTD, because the Individual DOH Defendants are entitled to qualified immunity. The Court concludes that: (i) A.M. was denied meaningful access to the courts in violation of the First and Fourteenth Amendments; (ii) the Individual DOH Defendants proximately caused Mary Evan’s — the owner of the Homestead House — violation of A.M.’s First and Fourteenth Amendment right to access the courts; and (in) the Individual *1240 DOH Defendants are entitled to qualified immunity, because proximate causation for First and Fourteenth Amendment court access violations was not clearly established in 1979, and is not clearly established today. The Court therefore grants the MTD.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint, as it must when considering a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court has reorganized the factual material in the Complaint, however, to explain the facts more clearly.

1. The Parties.

A.M. is a sixty-six-year-old woman who has been diagnosed with various developmental disabilities. See Amended Original Complaint for Damages ¶ 66, at. 18, filed June 14, 2013 in the state court, filed July 26, 2013 in the district court (Doc. 1-2)(“Complaint”). A.M. was involuntarily committed to the New Mexico, Department of Health (“DOH”) by court order on May 8, 1963, when she was sixteen years old, because her developmental disabilities rendered her unable to care for herself. See Complaint ¶¶ 67-69, at 18-19. Because of her disabilities, AM. brings this action through her guardian ad litem, Joleen Youngers. See Complaint ¶ 66, at 18.

The DOH operates all of the state facilities that house and treat people with developmental disabilities in the State of New Mexico. See Complaint ¶ 8, at 4. One of these facilities is the Los Lunas Center for Persons with Developmental Disabilities — formerly known as the Los Lunas Hospital and Training School (“Los Lunas Hospital”). Complaint ¶ 8, at 4, The Fort Stanton Hospital and Training School (“Fort Stanton”) was another. DOH facility for individuals with developmental disabilities, and was an affiliate of the.Los Lunas Hospital; Complaint ¶¶ 8-9, at 4. Because the Complaint refers to the Los Lunas Hospital and Fort Stanton collectively as the “Training School,” the Court will do so throughout this Memorandum Opinion (“MO”). Complaint 111, at 1-2; id. 1111, at 4-5. Moreover, because the Complaint refers to the DOH and the Training School collectively as “the DOH Defendants,” the Court will do so throughout this MO. Complaint ¶ 11, at 4

Before . 1992, the New Mexico Human Services Department (“HSD”)was responsible for operating Adult Protective Services (“APS”) 2 in New Mexico. Complaint ¶ 22, at 8. APS is responsible, for protecting adults with developmental disabilities from exploitation, abuse, and neglect. See Complaint ¶ 22, at 8. APS must also ensure that those adults receive the treatment and social services that they need. . See Complaint ¶ 22, at 8. From 1992 to 2005, the New Mexico Children Youth and Families Department (“CYFD”) inherited HSD’s responsibilities for all protective services in the state, including APS. Complaint ¶ 23, at 8. CYFD was responsible for the continuing coordination and supervision of APS, for adopting rules and regulations necessary to implement and operate APS, and for evaluating APS’ effectiveness. See Complaint ¶23, at 8. In 2005, the New Mexico Aging and Long-Term Services Department (“ALTSD”) inherited APS from CYFD and has since then operated APS. Complaint ¶ 24, at 8-9. Similar *1241 to its predecessors, the ALTSD is responsible for the continuing coordination and supervision of APS, for adopting rules and regulations necessary to implement and operate APS, and for evaluating APS’ effectiveness. See Complaint ¶ 25, at 9. Because the Complaint refers to the ALTSD, APS, and the DOH Defendants as the “State Agency Defendants,” the Court will do so throughout this MO. Complaint ¶ 27, at 9.

Schaefer was an attorney for the DOH and the Training School from September 13,1976, to December 31, 2001. See Complaint ¶ 14, at 5. Sandoval was the Director of Resident Living for the.Training School between 1979 and. 1985. See Complaint ¶ 16, at 5. As Director of Resident Living, Sandoval was in charge of social services and the Training School’s social workers. See Complaint ¶ 45, at 12. Sandoval was also a member of the Training School’s Screening Committee on Admissions and Releases (“SCAR”) and, at times, its chairman. Complaint ¶ 16, at 6.

Defendant Roger Adams was the Training School’s Deputy Administrator or Acting Administrator “during the relevant time period.” 3 Complaint ¶ 18, at 6. Adams made hundreds of decisions regarding the placement and treatment of Training School residents — including the Training School’s placement and discharge decisions relating to A.M. See Complaint ¶ 18, at 6. Adams chaired SCAR, attended most SCAR • meetings, and - approved A.M.’s discharge from1 aftercare without taking any steps to ascertain whether she would be safe or have her medical and other needs met. See Complaint ¶ 18, at 6.

Defendant Joseph Mateju was the Training School Administrator “during the relevant time period.” 4 Complaint ¶ 20; at 7. As Administrator, he made the final decisions regarding the placement and treatment of Training School residents, and all placement and discharge decisions relating to A.M. See Complaint ¶ 20, at 7. He also had the authority to unilaterally accept and remove individuals from the Training School, See Complaint ¶ 20, at 7. Mateju was responsible for the placement of many residents — including A.M. — into third-party homes, boarding homes, and other outside facilities. See Complaint ¶20, at 7. Mateju personally attended SCAR meetings during which A.M. was discussed, and he personally approved decisions regarding her discharge from DOH treatment without taking any steps to ascertain whether she would be safe, or have serious medical and other needs addressed. See Complaint ¶ 20, at 7. Mateju had responsibility for ensuring that appropriate measures were taken to: (i) provide for A.M.’s health, safety, and well-being; (ii) ensure that she received appropriate services; and (iii) ensure that A.M. continued to receive those services in any third-party placements. See Complaint ¶ 20, at 7-8.

2. The Aftercare Program.

Over a period of two decades — through the 1970s and 1980s — the DOH Defendants systematically transferred hundreds of developmentally disabled individuals from state institutions to various private third parties throughout New Mexico. See Complaint ¶'2, at 2; id. ¶ 37, at 10. These private third parties ranged from boarding homes to private residences and commercial enterprises. See Complaint ¶ 2, at 2. The Defendants called this program “aftercare”; the developmentally disabled individuals placed with third parties through the aftercare program were called “after *1242 care residents.” Complaint ¶'2, at 2; id. ¶ 38, at 11.

The Defendants placed aftercare residents with private third parties “without anyone’s informed consent, without the appointment of guardians or any other legally-authorized surrogate decision-makers, without permission from the courts that committed them to the state institutions ..., and without due process of law.” Complaint ¶ 3, at 2. In' some cases, the Defendants contacted ex parte the judicial authorities that had committed aftercare residents to the Training School and “provided misleading information to them concerning the status of individuals discharged from the Training School.” Complaint ¶ 3, at 2-3. In other cases, the Defendants did not communicate with the judicial authorities that committed individuals to the Training School before transferring those individuals to private third parties. See Complaint ¶ 3, at 2-3.

After transferring aftercare residents to their third-party placements, the DOH and the Individual DOH Defendants “abandoned” them. Complaint ¶ 3, at 2. The DOH and the Individual DOH Defendants neither provided them with the services that they needed, nor protected them from abuse, neglect, or exploitation. See Complaint ¶ 3, at 2. When the events alleged in the Complaint occurred, approximately eight social workers at the Training School oversaw 431 aftercare residents, “while also performing social work duties for hundreds, of people still residing” at the Training School. Complaint ¶48, at 13. Although Training School policies required Training School personnel to oversee and conduct periodic visits of aftercare. residents, the.DOH Defendants “did not use any system to ensure that residents in aftercare would be safe or that they would receive minimally adequate services.” Complaint ¶ 43, at 12.

Sandoval, despite being charged with overseeing the Training School’s social workers, “did not know of any guidelines on how residents in aftercare placements would be cared for, did not know of a system to follow up with those residents, and did not know of a system .., to know how many residents were placed in private third-party placements.” Complaint ¶49, at 13. Sandoval did not know “what the conditions of the residents was” or “what services they needed.” Complaint ¶ 49, at 13.

Training School administrators — including the Individual DOH Defendants — were aware that the social workers assigned to oversee aftercare placements often did not visit aftercare residents in their third-party placements. See Complaint ¶ 47, at 12. They were aware that the social workers— when they checked on the aftercare residents at all — usually relied On telephone calls to the private third parties who ad ministered the placements rather than an in-person contact. See Complaint ¶ 47, at 12-13. Training School administrators— including Adams; Mateju, and Schaefer— had frequent conversations about the problem of social workers’ failure to make their required visits or to contact aftercare residents. See Complaint ¶ 51,' at 13-14. The DOH Defendants and the Individual DOH Defendants were “well aware of the dangers residents faced due to -the way in which the aftercare program was operated, but they proceeded anyway.” Complaint ¶52, at 14. -!

The “well-known failure”-of the Training School’s social. workers to provide oversight for aftercare residents- drove the DOH Defendants and the Individual DOH Defendants to “discharge” 5 Training *1243 School residents from aftercare “whenever and however possible.” Complaint ¶ 53, at 14. Schaefer supervised changes to the Training School’s discharge procedures in the late 1970s and early 1980s. See Complaint ¶55, at 14. Specifically, Schaefer told Training School administrators that “there were too many residents-on aftercare” and recommended that the Training School discharge residents from aftercare. Complaint ¶ 54, at 14. Sometime between September 1978 and the end of 1980, Schaefer began advising that all aftercare residents should be discharged from the Training School “without - judicial review and without any due process protections whatsoever.” Complaint ¶ 57, at 15.'

Schaefer told Training School administrators that “the state institutions’ custody of people committed to the institution by court order automatically lapsed” on the New Mexico Mental Health Code’s effective date of July 1, 1977, despite judicial orders of commitment for an indeterminate period! Complaint ¶ 56, at 15. Schaefer.advised Training School administrators that a change in the Mental Health Code meant that the court orders committing aftercare residents to State custody were void — regardless whether the residents’ original placements with private third parties had been judicially reviewed. See Complaint ¶ 56, at 15. Schaefer explained to Training School administrators and staff that “it’s different now and you don’t need a discharge order signed by a judge.” Complaint ¶ 61, -at 17 (internal quotation marks omitted).

According to Schaefer, Training School administrators were “reluctant to -proceed without a paper trail, so [she] instructed Defendant Adams to ‘just put a note in ... the file that says ..-. [that the aftercare resident] was discharged.’ ” Complaint ¶ 61, at 17 (alterations in Complaint); Once there was a “piece of paper in-the file,” residents could be, in Schaefer’s words, “cut loose” from the Training School without consideration of judicial orders, the residents’ health and safety, or the residents’ need for services. Complaint ¶61, at 17. Schaefer neither conducted legal research nor. consulted legal experts in developing these-, new discharge policies. See Complaint ¶ 56, at 15.

Schaefer acknowledged that former Training School residents were particularly vulnerable, and in danger of abuse and *1244 exploitation, once they were no longer under the Training School’s supervision. See Complaint ¶ 60, at 16-17. Schaefer was aware when she designed and directed the new . aftercare discharge policy that Training School personnel had not done any discharge planning for aftercare residents, and had failed to make contact with residents before or after their discharge, to assure their health and safety, and to assure that they were not being abused or exploited. See Complaint ¶ 59, at 16. Schaefer considered the fallout from the danger that such a policy posed to aftercare residents “to be merely a public relations issue, not a legal obstacle.” Complaint ¶ 61, at 17 (internal quotation marks omitted).

Under Schaefer’s direction, Training School administrators “deliberately decided not to appoint surrogate decision-makers for its residents or to otherwise provide procedural due process” before removing residents’ names from the Training School’s rolls. Complaint ¶ 57, at 15. “Training School residents were not even informed that they were no longer clients of the Training School.” Complaint ¶ 57, at 15. Aftercare residents “were routinely removed from the rolls of Training School clients” based solely on letters that Mateju sent to the district attorney in the county where each resident was originally committed. Complaint ¶65, at 18. These letters did not “supply[] the background information necessary for discharge, including the circumstances of residents and whether the resident or a responsible adult consented to discharge.” Complaint ¶ 65, at 18. Instead, judicial authorities were “misled into believing that residents consented to and were happy in their placements.” Complaint ¶ 65, at 18.

In Sandoval’s view, “discharge from aftercare was not a complete separation of the Training School’s responsibility for residents.” Complaint ¶ 68, at 17-18. “Even after residents were discharged from aftercare, the Training School at times took action to respond to allegations of abuse when they came to their attention.” Complaint ¶ 64, at 18. DOH Defendants and Individual DOH Defendants, however, “failed to establish any system permitting residents to complain about them treatment, or any system permitting the Training School to provide oversight at third-party placements.” Complaint ¶ 64, at 18. The DOH Defendants and Individual DOH Defendants decided that discharging residents from aftercare eliminated the need for social worker visits. See Complaint ¶ 51, at 13-14. Sandoval has admitted that he “wouldn’t know whether somebody was going to be taken care of after discharge from aftercare, and it never crossed his mind to be concerned that residents discharged from aftercare might be abused or neglected.” Complaint ¶ 63, at 17 (internal quotation marks omitted)(brackets omitted).

3. A.M.

A court order committed A.M. to Fort Stanton or to another state institution on May 8, 1963, when she was sixteen years old. See Complaint ¶ 66, at 18. By 1967, either through transfer or continuing placement, A.M. was a Fort Stanton resident. See Complaint ¶ 66, at 18. On November 12, 1979, the Defendants transferred A.M. to the Homestead House and “abandoned” her there as part of the aftercare program. Complaint ¶73, at 20. The Homestead'House was a private, unlicensed group shelter for elderly people that Mary Evans (“M.Evans”) owned. See Complaint ¶ 73, at 20. A.M. did not know M. Evans before she was transferred to the Homestead House. See Complaint ¶ 73, at 20. The DOH Defendants’ and the Individual DOH Defendants’ transfer of A.M. from Fort Stanton to the Homestead *1245 House “was without legal authority.” Complaint .¶ 78, at 20. A.M. was still in the DOH Defendants’ and Individual DOH Defendants’ legal custody after she was placed- with M. Evans at the Homestead House. See Complaint 1112, at 5.

The Defendants allege, however, that A.M. was transferred to the Homestead House “pursuant to State District Court Order No. 1/387-388 filed on October 17, 1979 in Case No. CV-SQ-0095-79, Twelfth Judicial District, County of Lincoln” (“Oet.17, 1979, Order”). MTD 1 at 2. The Oct. 17, 1979, Order reads, in pertinent part:

1. Respondent has a developmental disability which is so greatly disabling that residential habilitation 6 is in her best interest;

2. Respondent’s habilitation at Fort Stanton' Hospital and Training School is not consistent with the least drastic means principle as respondent could benefit from a less restrictive setting such as a community based group home;

3.Placement in a community based program for persons with develop- • mental disabilities is not presently available for respondent.

IT IS ORDERED

That respondent be and hereby is committed to Fort Stanton Hospital and Training School for residential habilitation for a period not to exceed six months;

IT IS FURTHER ORDERED

That during the period of extended residential habilitation petitioner shall make application to less restrictive programs on behalf of respondent and shall make every effort to transfer respondent to a less restrictive setting. At the expiration of this order petitioner shall report to this Court concerning its progress toward releasing respondent if further confinement at Fort Stanton Hospital is sought.

Oct. 17,1979, Order, 7

Neither the .Homestead House nor M. Evans was a licensed service provider for *1246 people with developmental disabilities. See Complaint ¶ 73, at 20. Neither M. Evans nor any Homestead House employee had the necessary training or experience to properly care for A.M., and M. Evans had no legal right to hold A.M. See Complaint ¶¶ 76, 78, at 20.

A.M. lived with M. Evans for over thirty years. See Complaint ¶85, at 23. Although the Defendants retained legal control over , A.M. after placing her at the Homestead House, neither the Defendants nor any of their agents checked on A.M. in any fashion. See Complaint ¶¶'77, at 21; id'. ¶80, at 22. Instead, the Defendants “cloak[ed] the Homestead House and M. Evans with untoward authority and absolute control over Plaintiff, who was entirely dependent on this third-party placement for her day-to-day existence.” Complaint ¶ 77, at 21.

At the Homestead House, A.M. was “put to work.” Complaint ¶ 93, at 24-25 (internal quotation marks omitted). Although A.M-. performed housekeeping and other services at the Homestead House, M. Evans never compensated A.M. for her work. See Complaint ¶ 93, at 24-25. M. Evans threatened A.M. if she did not work, emotionally .abused A.M., and neglected her medical needs. See Complaint ¶ 91, at 24; id. ¶ 96, at 25. While in M. Evans’ custody, A.M.' did not receive social services; Medicaid and social security benefits; adequate medical, dental and psychological care; rehabilitative, educational and vocational services; • or day habilitation and therapy. See Complaint ¶ 85, at 23. M. Evans stole AJVL’s social security checks for her own use and did not spend the funds for A.M.’s benefit. See Complaint ¶ 94, at 25. The Defendants facilitated the transfer of A.M.’s social security checks to M. Evans with deliberate indifference to whether M. Evans was using or intended to use the social security funds for A.M.’s benefit. See Complaint ¶ 83, at 22. The Individual DOH Defendants “were aware that M. Evans intended to keep” A.M.’s federal benefits, “and force her to work in return for a place to live, and approved the arrangement.” Complaint ¶ 95, at 25. While at the Homestead House, A.M. was socially isolated and rarely allowed to leave. See Complaint ¶ 87, at 23.

The DOH transferred J.P., another developmentally disabled woman, to the Homestead House on the same day as A.M.’s transfer. See Complaint ¶ 88, at 24. While at the Homestead House, J.P. attempted to leave to find her children, from whom she had been separated. See Complaint' ¶ 88, at 24. J.P. climbed over the wall and wandered the streets calling out for her children, and eventually either returned or was brought back to the Homestead House. See Complaint ¶ 88, at 24. After this incident, -Evans took J.P.’s shoes and planted cacti at the place where J.P. had climbed the wall to prevent her from *1247 escaping. See Complaint ¶ 88, at 24. J.P. continued to try to escape. See Complaint ¶ 88, at 24. At one point, J.P, jumped over the wall and landed in the cactus. See Complaint ¶ 88, at 24. Through punishing J.P. for escaping, M. Evans made it clear to A.M. that she. could prevent A.M. from leaving the Homestead House. See Complaint ¶ 88, at 24.

The State eventually shut down the Homestead House. See Complaint ¶ 97, at 24. When that occurred, A.M. was transferred to M. Evans’ private residence— also an unlicensed group shelter. See Complaint ¶98, at 25. A.M.’s transfer from the Homestead House was without either A.M.’s consent or, most likely, judicial authority. See Complaint ¶ 98, at 25-26. If judicial authority was obtained for A.M.’s transfer, “the presiding judge was misled by DOH Defendants and the individual Defendants concerning the circumstances of Plaintiffs removal to M. Evans’ private residence.” Complaint ¶ 98, at 26.

In October, 1999, APS investigated allegations that M. Evans was physically neglecting A.M. See Complaint ¶ 99, at 26. APS found the allegations unsubstantiated. See Complaint ¶ 99, at 26. APS did not determine, however, whether M. Evans was .paying A.M. for her labor, whether M. Evans was properly accounting for A.M.’s federal benefits, why A.M. was not receiving any therapeutic services or medical or dental care, or why A.M. was kept isolated without any opportunity to socialize with others. See Complaint ¶ 99, at 26. APS’ investigation consisted solely of interviews with M. Evans and/or other non-disabled persons, “rather than engaging in any meaningful conversation with [A.M.] concerning her condition or circumstances.” Complaint ¶ 99, at 26.

In or about October, 2004, APS received allegations that M. Evans and John Evans — M. " Evans’ husband — were physically abusing and exploiting A.M. See Complaint ¶ 100, at 26. APS received a report that M. Evans and J. Evans “were taking Plaintiffs social security money but were not caring for her, and that Plaintiff was emotionally abused.” Complaint ¶ 100, at 26. The ¡reports also alleged that the Ev-anses- were abusing J.P. See Complaint ¶ 100, at 26, APS concluded that the Ev-anses had emotionally abused A.M., -and stated that its. report would be forwarded to the DOH and to law enforcement. See Complaint ¶ 100, at 26. -The case ' remained open for eighteen months, but was ultimately closed as unsubstantiated, because APS found the report to be “malicious.” Complaint ¶ 101, at 26-27. Again, APS did not engage in any meaningful conversation with A.M. before it closed its investigation. See Complaint ¶ 101, at 27.

In 2006 or 2007, “the Governor’s investigation]; 8 identified AM and JP as two of the former Training School resident [sic] who had been illegally discharged from the Training School.” Complaint ¶ 102, at 27. In March, 2008, “more than four years after DOH learned of the plight of former Training School residents, the DOH investigated Plaintiffs circumstances” as part of the Governor’s investigation. Complaint ¶ 106, at 28. - The DOH- limited its investigation, however, to an interview of M. Evans — it did not take into account the prior allegations of abuse, interview A.M., or conduct an independent investigation of A.M.’s circumstances. - See Complaint ¶ 106, at 28. That same mónth, APS in Grant County, New Mexico, also investigated A.M.’s circumstances after a caseworker at Fort Baynard 9 reported that M. *1248 Evans was physically and emotionally abusing A.M. See Complaint ¶ 106, at 28. APS acknowledged that: (i) A.M. was developmentally disabled; (ii) A.M. had expressed fear of M. Evans; (iii) a psychiatrist had recommended that a guardian be appointed for A.M.; (iv) M. Evans’ residence was an unlicensed facility; (v) A.M. had not seen a primary care physician in at least five years; and (vi) M. Evans never applied for disability benefits for A.M. See Complaint ¶ 108, at 28. Nonetheless, APS found the report unsubstantiated, declined to pursue a guardianship for A.M., and closed the report. See Complaint ¶ 108, at 28. The DOH did not, as part of its investigation, engage in meaningful conversation with A.M. concerning her condition or circumstances. See .Complaint ¶ 108, at 28.

In December, 2008, the DOH began a new investigation or re-opened its prior investigation into A.M.’s circumstances. See Complaint ¶ 110, at 29. The DOH referred to M. Evans as A.M.’s “guardian,” despite clear indications in A.M.’s file that M. Evans was never appointed her guardian. Complaint ¶ 110, at 29. The DOH continued to “interact exclusively or primarily with M.. Evans” during its investigation. Complaint ¶ 110, at 29. The DOH did not consider the prior allegations of abuse, interview A.M., or independently investigate A.M.’s circumstances. See Complaint ¶ 110, at 29. The DOH’s policy and practice of deferring to caregivers rather than interacting with the disabled individuals themselves or otherwise independently investigating aftercare residents’ circumstances continued into 2009. See Complaint ¶ 110, at 29.

In June, 2009, Tom Roach, an ALTSD employee, prepared a report - for the ALTSD and the DOH regarding A.M. and J.P. See Complaint ¶ 111, at 29. Roach stated that M. Evans was managing A.M.’s and J.P.’s care in exchange for payments for room and board. See Complaint ¶ 111, at 29-30. Roach stated that M. Evans had legal authority to make decisions for A.M. Nee Complaint ¶ 111, at 30. Roach reported that A.M. was “happy in her home” and was “getting all the care she needs from Ms. Evans.” Complaint ¶ 111, at 30 (internal quotation marks omitted). He also noted that “one recent APS referral for exploitation (04/06) was found to be malicious and unsubstantiated.” Complaint ¶ 111, at 30 (internal quotation marks omitted). Roach limited his investigation to an interview of M. Evans — he did not take into account prior allegations of abuse, interview A.M. or J.P., or independently investigate J,P.’s or A.M.’s circumstances. See Complaint ¶ 112, at 30. The State Agency Defendants “did nothing to assist AM or JP.” Complaint ¶ 113, at 30. The State Agency Defendants never sought a guardian, conservator, or representative payee for A.M., nor arranged for her to receive therapeutic services. See Complaint ¶ 113, at 30.

PROCEDURAL BACKGROUND

A.M. filed her original complaint in state court on June 13, 2013, see Original Complaint for Damages, filed June 13, 2013 in the state court, filed July 26, 2013 in the federal district court (Doc. 2), and an amended complaint on June 14, 2013, see Complaint at 1. The DOH Defendants and the Individual DOH Defendants removed the case to federal court on July 26, 2013. See Notice of Removal, filed June 26, 2013 (Doc. l~2)(“Notice of Removal”). A.M. alleges seven claims in her Complaint: (i) a claim under the Fourteenth Amendment against the Individual DOH Defendants for violating her substantive and procedural due-process rights, Complaint ¶¶126-40, at 32-36; (ii) a claim under the First *1249 Amendment against the Individual DOH Defendants for violating her rights to freedom of association and court, access, see Complaint ¶¶ 141-48, at 36-37; (iii) a claim under the Fourth Amendment to the Constitution of the United States of America against the Individual DOH Defendants for violating her right to be free from unlawful seizures, see Complaint ¶¶ 149-155, at 37-28; (iv) a claim under the Thirteenth Amendment to the Constitution of the United States of America against the Individual DOH Defendants for violating her right to be free from involuntary servitude, see Complaint ¶¶ 156-64, at 38-39; (v) a claim against the DOH Defendants for violating § 504 of the Rehabilitation Act, 29 U.S.C. § 794 , see Complaint ¶¶ 165-71, at 49-40; (vi) a claim against the DOH Defendants for violating the Medicaid Act, 42 U.S.C. §§ 1396 -1396p, see Complaint ¶¶ 172-80, at 41-43; and (vii) claims against the ALTSD and the APS for violating § 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-34 (“ADA”), and the regulations promulgated thereunder, 28 C.F.R. Ch. 1, pt. 35, Complaint ¶¶ 181-87, at 43-45.

Regarding AM.’s claim that the Individual DOH Defendants violated her right to court access under the First and Fourteenth Amendments, A.M contends that she has and had a constitutionally protected liberty interest to have her views and interests regarding placement, and the violation of her fundamental rights while confined, redressed in court. See Complaint ¶ 128, at 32-33. With respect to the Fourteenth Amendment, A.M. contends:

As a person with developmental disabilities who was involuntarily deprived of her liberties and placed' in the custody and control of the State, Plaintiff has a right to adequate, effective and meaningful access to the judicial system to litigate violations of her fundamental constitutional rights.' The right of access to the judicial system imposes affirmative. obligations upon the Individual DOH Defendants to ensure that committed persons with severe developmental disabilities like Plaintiff' may effectively exercise this right.

The individual Defendants did not obtain, nor take steps to enable Plaintiff to obtain, the appointment of guardians, guardians ad litem, conservators or attorneys who could serve and protect the interests of Plaintiff and thereby denied her access 'to the judicial" system. Thus Plaintiff was deprived' of any effective mechanism' by which she could challenge the legality of conditions of her placement and services.

Complaint ,¶¶ 135-36, at 34-35. Moreover, A.M. asserts that, as a proximate result of the Individual DOH Defendants’ failure to provide' A.M. with any of the “services, rights and protections to which she is and was entitled” under the Fourteenth Amendment, she suffered significant damages for which she seeks a remedy. Complaint ¶ 138, at 35.

With respect to A.M.’s court access claim under the First Amendment, she contends that the Individual DOH Defendants violated her right to seek redress of her grievances by the government when she was denied an opportunity to object to the illegal transfer either “through channels or in court.” Complaint ¶ 145, at 36. A.M. asserts that, “as a proximate result of the Individual DOH Defendants’ violation of Plaintiffs clearly established First Amendment rights, she has suffered significant damages, for which she seeks damages against the Individual Defendants in their individual capacities.” Complaint ¶ 146, at 36. - A.M. further asserts that the Individual DOH Defendants “knowingly, intentionally deliberately recklessly, maliciously and wrongly” violated the First and Fourteenth Amendments such that puni *1250 tive damages should be awarded for punishment and deterrence. Complaint ¶ 139, at 35 and ¶ 147, at 36.

1. The MTD.

The Individual DOH Defendants filed the MTD on May 23, 2014. . See MTD at 1. In the MTD, the Individual DOH Defendants ask the Court to dismiss A.M.’s court access claims under the First and Fourteenth Amendments on the basis of qualified immunity. See MTD at 1.

The Individual DOH Defendants point out that qualified immunity shields state officials from liability for civil damages if they violate a plaintiffs federally protected right, “so long as the state officials did not violate clearly established law.” MTD at 2 (citations omitted). The Individual'DOH Defendants cite to the United States Court of Appeals for the Tenth Circuit’s decision in Gomes v. Wood, 451 F.3d 1122 (10th Cir.2006), in support of their qualified immunity argument. See MTD at 3. According to the Individual DOH Defendants, Gomes v. Wood established that “[t]he law is clearly established if a reasonable official in the defendant’s circumstances would understand that her conduct violated the plaintiffs constitutional right.... If the law is not clearly established, we do not require officials to anticipate its future developments.” MTD at 3 (quoting Gomes v. Wood, 451 F.3d at 1134 )(internal quotation marks omitted). The Individual DOH Defendants contend that a law is clearly established if there is a Supreme Court of the United States of America or Tenth Circuit decision on point, “or if the clearly established weight of authority from other courts sufficiently defines the right.” MTD at 4 (citing Farmer v. Pemil, 288 F.3d 1254, 1259 (10th Cir.2002)). Further, the Individual DOH- Defendants assert that it is A.M.’s burden to point to Supreme Court or Tenth Circuit precedent to establish that the Individual DOH Defendants violated clearly established law that is “indisputable” and “unquestioned.” MTD at 4 (quoting Zweibon v. Mitchell, 720 F.2d 162, 172 (D.C.Cir.1983))(internal quotation marks excluded)(citing Pearson v. Callahan, 555 U.S. 223, 236 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009)).

The Individual DOH Defendants argue that, to maintain a First Amendment court access claim, there must be actual injury. See MTD at 6 (citing Ali v. District of Columbia, 278 F.3d 1, 8 (D.C.Cir.2002)). The Individual DOH Defendants note that actual injury means an actionable claim that was lost or rejected, or the presentation of which is currently being prevented. See MTD at 6 (citing Ali v. District of Columbia, 278 F.3d at 8 ). They contend that the Supreme Court has held that a claim for a denial of 'access may be brought in two circumstances: (i) where systematic official action “frustrates a plaintiff in preparing and filing suits, such as denial of access to a law library;” or (ii) where official action precludes a claim “resulting in the loss or inadequate settlement of a meritorious case or the loss of the opportunity to bring suit.” MTD at 6 (quoting Christopher v. Harbury, 536 U.S. 403, 412-14 , 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002)). The Individual DOH Defendants state that the Tenth Circuit has characterized actual injury as a showing that any denial or delay of access to court prejudiced the plaintiff in pursuing litigation. See MTD at 6 (citing Trujillo v. Williams, 465 F.3d 1210, 1226 (10th Cir.2006)).

The Individual DOH Defendants maintain that the cases cited in Plaintiffs Response to the Individual DOH Defendants’ Motion .to Dismiss Plaintiffs First Amendment and Fourth Amendment Claims on the Basis of. Qualified Immunity (Doc. 37) are not First Amendment cases. See MTD. at 6. The Individual DOH Defendants assert that Ward v. Kort, 762 F.2d *1251 856 (10th Cir.1985), and Silver v. Cormier, 529 F.2d 161 (10th Cir.1976), are Fifth and Fourteenth Amendment cases. The Individual DOH Defendants contend that none of the cases which A.M. cites in her Response are pertinent to First Amendment analysis and that it remains A.M.’s burden to identify binding precedent establishing a right to court access under the First Amendment in 1979. See MTD at 7.- In sum, the Individual DOH Defendants assert that Plaintiff has not shown that there was a clearly established First Amendment right to court access in 1979 when A.M. was allegedly discharged: See MTD at 7.

The Individual DOH Defendants also assert they are entitled to qualified immunity on A.M.’s court access claim brought under the Fourteenth Amendment. See MTD at 7. The Individual DOH Defendants contend that A.M. had “no clearly established, constitutionally protected, property interest in court access at the time of her alleged discharge and/or placement with M. Evans at the Homestead House in 1979.” MTD at 7. The Individual DOH Defendants argue that an “access to the courts” claim under the Fourteenth Amendment remained undecided until 2002 in the Supreme Court and 2004 in the Tenth Circuit. MTD at 8 (relying on Jennings v. City of Stillwater, 383 F.3d 1199, 1208-09 (10th Cir.2004) and Christopher v. Harbury, 536 U.S. 403, 413-14 , 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002)). The Individual DOH Defendants therefore assert that, at the time of A.M.’s alleged discharge and/or placement with M. Evans at the Homestead House in 1979, there was no clearly established right of access to the courts. See MTD at 8.

The Individual' DOH Defendants contend that the circumstances under which a plaintiff can succeed on' such, a claim are limited, assuming that a court access right exists. See MTD at 8. According to the Individual DOH Defendants, the Tenth Circuit adopted the two categories of court access' claims' that the Supreme Court created in Christopher v. Harbury, 536 U.S. 403 , 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002): (i) “forward looking claims,” in which “official action frustrates a plaintiff’s ability to-bring suit at the present time,” and (ii) “backwards looking claims,” in which a plaintiff “alleges that a specific claim cannot be' tried because past official action caused the loss or inadequate settlement of a meritorious case.” MTD at 8 (citing Jennings v. City of Stillwater, 383 F.3d at 1208 ). The Individual DOH Defendants argue that Á!M.’s court access claims are neither forward nor backward looking, and therefore do not fit into either category that the Tenth Circuit established. See, MTD at 8. According to the Individual DOH Defendants, classic “backwards looking claims” include denials of law library privileges to prisoners. MTD at 9. They maintain that an element of any “backwards looking claim” requires the plaintiff “to identify a remedy that would not otherwise be available in a lawsuit that could be brought.” MTD at 9 (citing Jennings v. City of Stillwater, 383 F.3d at 1209 ). The Individual DOH Defendants assert that A.M. has not alleged any remedies that are not otherwise available through other claims, brought in this lawsuit. See MTD at 9. According to the Individual DOH Defendants, litigating facts constituting denial of access would be a waste of time and money, because A.M. could end up “just as well off” by litigating a “simpler” case. MTD at 9. The Individual DOH Defendants contend that A.M. ignored the actual-damages requirement, and that, even assuming a court access claim under the Fourteenth Amendment exists, A.M. cannot overcome qualified immunity • “based only on the existence of such a right [and] without allegations of actual damages.” MTD at 9.

*1252 The Individual DOH Defendants next argue that the cases A.M. cites in her Response to the Individual DOH Defendants’ Motion to Dismiss Plaintiffs First Amendment and Fourth Amendment Claims on the Basis of Qualified Immunity, filed May 9, 2014 (Doc. 37), involve either a prisoner’s right of access to courts while incarcerated, or are not analogous to the facts alleged in this case. See MTD at 9-10. Further, the Individual DOH Defendants assert that the cases on which A.M. relies involve court access rights that were allegedly violated either “during confinement or during proceedings to involuntary confine the plaintiff.” MTD at 11. The Individual DOH Defendants argue that, even if a right to court access had been clearly established in 1979, “decisions involving court access during or preceding a transfer would not have placed a reasonable official on notice as to court access rights upon release from confinement.” MTD at 11 (emphasis in original). The Individual DOH Defendants conclude that the lack of a clearly established Fourteenth Amendment right of access to the courts upon release from a state institution in 1979 and A.M.’s failure to allege actual injury entitle them to qualified immunity. See MTD at 11. The Individual DOH Defendants, therefore, request that the Court dismiss with prejudice A.M.’s court access claims brought under the First and Fourteenth Amendments. See MTD at 11-12.

2. The Response.

A.M. filed her response to the MTD on June 18, 2014. See Plaintiffs Response to Individual DOH Defendants’ Motion and Memorandum to Dismiss Plaintiffs Court Access Claims Under the First and Fourteenth Amendments, filed June 18, 2014 (Doc. 52)(“Response”). In her Response, A.M. argues that the Individual DOH Defendants failed to obtain informed consent when they placed and abandoned A.M. at a third-party location. See Response at 8. A.M. further asserts that the Individual DOH Defendants never filed a motion to terminate A.M.’s “involuntary commitment” to the Training School in the state court that committed her to its custody, which denied A.M.’s access to court. See Response at 8. A.M. contends that she was deprived of the assistance of guardians, a guardian ad litem, a conservator, an attorney, or any other competent adult to assist her in the initiation of any court actions regarding her wrongful placement in an unfamiliar locality, or the “neglect and exploitation inflicted upon her in Silver City.” Response at 8. A.M. also asserts that she was deprived of assistance with managing her affairs while she was institutionalized, when being transferred to community placement, and after being placed there as a result of the Individual DOH Defendants’ decisions to “not seek appointment of a guardian, guardian ad litem, conservator, or attorney.” Response at 8. Finally, A.M. states that her “neglect and exploitation” in Silver City caused her serious medical and emotional harm, in addition to economic exploitation. Response at 8.

A.M. next contends that it is undisputed that she was denied any opportunity for court access to challenge her alleged discharge. See Response at 8. According to A.M., the Individual DOH Defendants did not seek judicial authority for A.M.’s final discharge, thus denying her right of access to the courts. See Response at 8 (citing Ward v. Kort, 762 F.2d 856, 858 (10th Cir.1985)). A.M. asserts that in, Ward v. Kort, the court could discern “no logic in holding that persons under mental commitments [¶]... ] are on a lower plane than convicted inmates and are not entitled to protection of the basic constitutional guarantee of access to the courts.” Response at 9 (quoting Ward v. Kort, 762 F.2d at 858 ). A.M. contends that the court access right of a person who is “civilly confined” *1253 helps ensure they are appropriately transitioned to community placement and guarantees judicial oversight of the person’s future circumstances. Response at 9. According to A.M., this right of access to courts for civilly confined persons arises from analogous convicted prisoner cases that the Supreme Court decided- in 1977 and the Tenth Circuit decided in 1976. See Response at 9 (citing Ward v. Kort, 762 F.2d at 858 ). Thus, A.M. argues that the Individual DOH Defendants cannot maintain that, at the time of A.M.’s purported discharge from the Training School on November 12, 1979, “the law was not clearly established that [A.M.] was entitled to access to the courts.” Response,at 9-10.

In response to the Individual DOH Defendant’s argument that A.M.’s reliance on Fifth and Fourteenth Amendment cases is fatal to her First Amendment court access claim, A.M. identifies three problems. See Response at 10. First, A.M. argues that her purported final discharge from Fort Stanton and her subsequent transfer to a private business, “for use as free labor” without the consultation of a court, “clearly blocked Plaintiffs ability to seek redress from the government,” regardless whether the same egregious facts had ever been presented to a federal court in the Tenth Circuit.. Response at 10. A.M. contends that the Individual DOH Defendants knew that A.M. was developmental^ disabled, and had represented to the committing court and to the Twelfth Judicial District Court “that she could not even function independently outside the institution.” Response at 10. A.M. maintains that the Individual DOH Defendants proceeded to send A.M. to a boarding home for the elderly where she was “put to work,” contrary to the Twelfth Judicial District Court’s specific instructions to send A.M. to a community placement for developmentally disabled adults. Response at 10. A.M. asserts that the Individual DOH Defendants failed to seek a judicial order from the committing court or the Twelfth Judicial District Court authorizing her discharge from the Training School. See Response at 10. A.M. argues that the reasonable inference from these facts, and from the administration of the aftercare program in general, is that the Individual DOH Defendants intentionally blocked A.M.’s access to the courts and to an advocate. See Response at 10. A.M. concludes that state actors were “prohibited from deliberately blocking a citizen’s access to the judicial process” in 1979 and that the lack of a fully analogous 1970’s First Amendment case is not fatal to her court access claims. Response at 11.

Second, A.M. asserts that the right of civilly ' confined persons’ court access “traces back to the 1970s at the latest” and that, “to be clear, the violations of [her] First and Fourteenth Amendment rights continued past the 1970s at the latest.” Response at 11. A.M. emphasizes that she does not claim that the State’s custody ended with A.M.’s discharge in 1979, nor that the constitutional violations began and ended in 1979, See Response at 11. A.M. instead argues that the Individual DOH Defendants’ conduct should be viewed according to the timing set forth in A.M'.’s allegations. See Response at 11 (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)). According to A.M., her right of court access claims are included in the First and Second Causes of Action, as well as in the preceding factual paragraphs, where she clearly states that she was never properly discharged and that her alleged discharge is a fiction. See Response at 12 (citing Complaint, ¶¶ 126, 141). 'A.M. states that, because all nonjudicial discharges and ex parte purported discharges are ineffective, A.M. remained in the custody of the Individual DOH Defendants during her placement with Homestead House and presently with her cur *1254 rent placement. 10 See Response at 12. A.M. asserts that, because she has remained in the Individual DOH Defendants’ custody, they were responsible for her when she was at the Homestead House up to and after A.M. sued the Individual DOH Defendants in 2013. See Response at 12. Moreover, according to A.M., the ongoing violations of A.M.’s First and Fourteenth Amendment rights continued until each Individual DOH Defendant left his or her employment with the State. See Response at 12.

Finally, A.M. does not agree with the Individual DOH Defendants that her court access right was not clearly established in 1979. See Response at ■ 12. A.M. contends, that in the 1970s, it was clearly established law “that the State could not involuntarily deny its citizens — even its developmentally disabled citizens — their Fourteenth Amendment right of .access to the court.” Response at 13. A.M. adds that, -with respect to the cases providing a Fifth Amendment right of court access, the right is incorporated into the Fourteenth, Amendment. See Response at 13. A.M. concludes that she should be permitted ■ to, litigate her court access claims as part of her First Cause of Action. See Response at 13.

. A.M. next defines right of access to the legal system as requiring meaningful access, and explains that meaningful access for her required periodic judicial reviews and the appointment of a legal guardian. See Response at 13. A.M. contends that, as a result of receiving no access or insufficient access to court, she did not receive judicial review of her involuntary civil commitment. See Response at 13. A.M. argues that it has been clearly established since 1972 that “civil commitments must serve a particular and legitimate purpose and cannot simply subject people to indefinite periods of commitment.” Response at 13. A.M. cites to Jackson v. Indiana, 406 U.S. 715 , 92 S.Ct. 1845 , 32 L.Ed.2d 435 (1972), where the Supreme Court invalidated a state statute allowing criminal defendants incompetent to stand trial to be committed indefinitely. See Response at 13. According to A.M., in that case, the Supreme Court found that the indefinite commitment violated due process, holding that a person can be held no more than a “reasonable period of time necessary to determine whether there is a substantial probability that he will attain the capacity to stand trial in the future,” and that due process “requires that the nature and duration of commitment bear some relation to the purpose for which the' individual is committed.” Response at 13 (quoting Jackson v. Indiana, 406 U.S. at 738 , 92 S.Ct. 1845 )(internal quotations omitted). As further support, A.M. relies on two cases: (i) O’Connor v. Donaldson, 422 U.S. 563 , 95 S.Ct. 2486 , 45 L.Ed.2d 396 (1975), in which the Supreme Court held that an individual who poses no danger to the community or himself cannot be held by the state based only on his or her mental illness; and (ii) Clark v. Cohen, 613 F.Supp. 684 (E.D.Pa.1985)(Huyett, J.), aff'd, 794 F.2d 79 , 86 (3rd Cir.1986), in which the United States District Court for the Eastern District of Pennsylvania held that a plaintiff’s “procedural due process rights were violated when she was held in a training school for people with developmental disabilities.” Response at 14.

A.M. asserts that meaningful access, by definition, includes access to “practical assistance” in petitioning the court, and goes beyond merely informing the committing *1255 court or informing the subject of proceedings. See Response at 14. A.M. cites to Heryford v. Parker, 396 F.2d 393, 396 (10th Cir.1968), which involved a mentally deficient minor who was committed to a state training school, and who was denied his rights to counsel and confrontation. See Response at 15. According to A.M., the Tenth Circuit held that “Fourteenth Amendment due process requires that the infirm person, or one acting in his behalf, be fully advised of his rights and accorded each of them unless knowingly and understandingly waived.” Response at 15 (quoting Heryford v. Parker, 396 F.2d at 396 ). A.M. contends that she was deprived of counsel to represent her interests in proceedings to permanently transfer her from the Training School to another setting. See Response at 15-16. A.M. argues that her cognitive impairments prevented her from independently seeking judicial redress, either in the Training School or within the third-party placement, and that she could not contest the conditions of her confinement. See Response at 16. A.M. asserts that the Individual DOH Defendants failed to arrange for counsel or any other assistance, which prevented her from asserting her interests regarding her civil commitment, her confinement conditions, and her placement in a third-party setting. See Response at 16.

As support for her argument, A.M. alleges that the right to assistance to access judicial authorities in the civil context “is not limited to persons detained by the State.” Response at 16. A.M. points to Boddie v. Connecticut, in which the Supreme Court signaled that civil parties are entitled to the State’s assistance when seeking judicial remedies, holding that “a state could not deny the opportunity to secure a'divorce to individuals who were unable to initiate a divorce proceeding.” Response at 16 (citing Boddie v. Connecticut, 4 01 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971)). A.M. notes that the standard to determine whether a state is fulfilling its duty to afford court access is “whether the method it has chosen provides meaningful áceess to the courts.” Response at 16. A.M. argues that she never received assistance in accessing the court, that the committing court was never informed of what was occurring, and, thus, that the Individual DOH Defendants violated her clearly established First and Fourteenth Amendment rights. See Response at 16-17.

Finally, A.M. asserts that her right of court access required the state to affirmatively assist her with any and all claims implicating violations of her constitutional rights. See Response at 17. A.M. contends that her right to .court access required the Individual DOH .Defendants to appoint someone who could assist her in challenging her placement, confinement conditions, and .her medical treatment and services, or lack thereof. See Response at 17. A.M. cites to Ahern v. Veterans Administration, 537 F.2d 1098, 1101 (10th Cir.1976), in which the Tenth Circuit held that a patient must give informed consent to any medical treatment. See Response at 17 (citing Ahern v. Veterans Admin., 537 F.2d at 1101 ). A.M. also cites to Woods v. Brumlop, 1962-NMSC-133 , ¶ 25, 71 N.M. 221 , 377 P.2d 520, 524 , where the Supreme Court of New .Mexico articulated the same rule. See Response at 17. A.M. argues that the Individual DOH Defendants’ involuntary transportation of A.M. to a different city, with her subsequent loss of treatment and services provided at the Training School, occurred without anyone’s informed consent in violation of her court access right. See Response at 17.

3. The Reply.

The Individual DOH Defendants filed their reply to the Response on July 14, 2014. See Reply Supporting Individual *1256 DOH Defendants’ Motion and Memorandum to Dismiss Plaintiffs Court Access Claims Under the First and Fourteenth Amendments on the Basis of Qualified Immunity, filed May 20, 2014 (Doc. 54)(“Re-ply”). The Individual DOH Defendants contend that A.M. fails to cite to a case in her Response that establishes a First Amendment court access right at the time of the alleged conduct and that, accordingly, the Individual DOH Defendants are entitled to qualified immunity. See Reply at 1. The Individual DOH Defendants next assert that the right to court access under the Fourteenth Amendment was not recognized at the time of the challenged conduct or after. See Reply at 2. The Individual DOH Defendants state that the cases A.M. cites in her Response do not involve analogous factual situations, involving a court access right upon discharge, “as opposed to a right of court access upon involuntary or continued confinement.” Reply at 2. Moreover, the Individual DOH Defendants argue that A.M. fails to state a court access claim under the Fourteenth Amendment, because she does not allege the inability to file suit or the loss of a claim, as required to bring a court access claim under the Fourteenth Amendment. See Reply at 2,

The Individual DOH Defendants first elaborate on their argument that they are entitled to qualified immunity with respect to A.M.’s First Amendment court access claim. See Reply at 2. They assert that A.M. does not clearly address their argument that there must be a First Amendment case establishing the right to court access. See Reply at 2. The Individual DOH Defendants assert that A.M. instead relies on Fourteenth Amendment due-process cases and other “non-First Amendment cases” in her Response. Reply at 3. The Individual DOH Defendants argue that the MTD distinguishes the majority of A.M.’s “non-First Amendment” cases, and that the rest are factually distinguishable. See Reply at 3. According to the Individual DOH Defendants, A.M. cites to Baldwin v. Hale, 68 U.S. 1 Wall. 223, 17 L.Ed. 531 (1863), which involved the question “whether the insolvency laws of one state could discharge the contracts of citizens of other states absent notice,” and to Windsor v. McVeigh, 93 U.S. 275 , 23 L.Ed. 914 (1976), where the Supreme Court held that a Confederate Army officer was not allowed to defend himself in a confiscation action. Reply at 3. Further, the Individual DOH Defendants state that Ahern v. Veterans Administration, 537 F.2d 1098 , was a medical malpractice case. See Reply at 3. The Individual DOH Defendants assert that none of the cases cited in A.M.’s Response are First Amendment cases and that they do not support A.M.’s claim, because they either involve a prisoner’s court access right while incarcerated or are not factually analogous to A.M,’s present case. See Reply at 3. In conclusion, the Individual DOH Defendants argue that A.M. failed to meet her burden of pointing to a First Amendment case that establishes a court access right by 1979 and that the Individual DOH Defendants are thus entitled to qualified immunity on any First Amendment court access claims. See Reply at 3.

The Individual DOH Defendants next argue that they are entitled to qualified immunity on A.M,’s Fourteenth Amendment'court access claim. See Reply at 3. They contend that A.M.’s reliance on cases that were decided after the alleged conduct occurred is misplaced, and point to Jennings v. City of Stillwater and Christopher v. Harbury to support their argument that a right to court access under the Fourteenth Amendment remained undecided in the Supreme Court until 2002 and in the Tenth Circuit until 2004. See Reply at 4 (citing Jennings v. City of Stillwater, *1257 383 F.3d at 1208-09 , and Christopher v. Harbury, 536 U.S. 403, 413-14 , 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002)). The Individual DOH Defendants explain that these cases discuss the existence of a court access right under the Fourteenth-Amendment, without endorsing the validity of such a right. See Reply at 4. The Individual DOH Defendants contend- that A.M. fails to acknowledge Jennings v. City of Stillwater and in Christopher v. Harbury, but instead cites to the same cases that the MTD distinguished. See Reply at 4. The Individual DOH Defendants argue that the cases A.M. cites do not involve issues of court access, and that the ones which do “address only whether a right to court access was violated either during confinement or during proceedings to confine a plaintiff.” Reply at 4 (emphasis in original). The Individual DOH Defendants argue that, at the time of A.M.’s discharge, the decisions involving court access and confinement would not have placed a reasonable officer on notice that their conduct was unconstitutional. See Reply at 5. According to. the Individual DOH Defendants, at the time of discharge, there were no statutory or other requirements under New Mexico law “to petition the court with regard to [A.M.’s] discharge.” Reply at 5. The Individual DOH Defendants conclude that A.M. fails to satisfy her burden in showing that a court access right “in the context of a discharge from confinement” was clearly established in 1979 and that the Individual DOH Defendants are entitled to qualified immunity with respect to A.M.’s Fourteenth Amendment court access claim. Reply at 5.

Finally, the Individual DOH Defendants argue that A.M. has failed to state a Fourteenth Amendment court access claim, because in her Complaint she did not allege that she was unable to bring a lawsuit “to vindicate her alleged claims or that any claim had been lost.” Reply at 5. The Individual DOH Defendants note that A.M. does not dispute in her Response that the circumstances in which she can succeed in a court access claim are limited or that there are only two categories of court access claims. See Reply at 5. According to the Individual DOH Defendants, the two .categories, as the MTD describes, are (i) “forward looking claims” and (ii) “backward looking claims.” Reply at 5. The Individual DOH Defendants contend that A.M.’s Response also fails to dispute that her claim is not forward looking. See Reply at 6. The Individual DOH Defendants state that A.M. does not contest that her claim is not bhckwards looking. See Reply at 6 (noting that examples of backwards looking claims are cases where prisoners are denied law library privileges). The Individual DOH Defendants reiterate that a backward-looking claim requires a plaintiff “to identify a remedy that would not otherwise be available in a lawsuit that could be brought.” Reply at 6 (citing Jennings v. City of Stillwater, 383 F.3d at 1209 ). The Individual DOH Defendants conclude that, because A.M. fails to allege that her inability to bring suit “vindicated] her rights or the loss of a claim,” she fails to state a claim even if a court access right existed in 1979. Reply at 6.

4. The October 23,2014 Hearing.

The Court held a hearing on the MTD on October 23, 2014. See Transcript of Hearing (taken Oct. 23, 2014)(“Tr.”). 11 At the hearing, both sides largely repeated the arguments from their briefing. See *1258 Tr. at 131:9-146:25 (Constantaras, Court, Simmons). The Individual DOH Defendants argued that A.M. fails to state a Fourteenth Amendment court access claim, because she did not allege in her Complaint that she was “unable to bring a lawsuit to vindicate her alleged claims or that any claim has been lost.” Tr. at 131:17-21 (Constantaras). The Individual DOH Defendants argued that the present lawsuit supports their position, because A.M. is presently bringing the “very type of lawsuit that she’s claiming she could not have brought.” Tr. at 131:21-132:1 (Constantaras). Further, the Individual DOH Defendants asserted that A.M. had legal representation with respect to the Order in 1979. See Tr. at 132:1-3 (Constantaras). The Individual DOH Defendants argued that the Fourteenth Amendment “forbids a state to deprive individuals of life,-, liberty or property without due process of law,” but does not protect against deprivations by private third-parties. Tr, at 132:4-16 (Constantaras). They cited to DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989), as support that “the extent of governmental obligation in the latter area [is left to] the democratic political process.” Tr. at 132:17-22 (Constan-taras). The Individual DOH Defendants argued that there is no affirmative right to governmental aid where such aid might be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual. See Tr. at 132:24-133:4 (Constantaras).

The Individual DOH Defendants pointed again to DeShaney v. Winnebago, 489 U.S. at 197 , 109 S.Ct. 998 , noting that a state’s failure to protect an individual against private violence is not a constitutional violation. See Tr. at 133:5-15 (Constantaras). Although the court in DeShaney v. Winnebago was referring to the Due Process Clause, the Individual DOH Defendants argue that the principle-'applies to the Fourteenth' Amendment generally. See Tr. at 133:5-15 (Constantaras), The Individual DOH Defendants argued A.M. is bypassing the existing system of liability to hold states and its officials accountable for their failure'"to act in a reasonable manner or for negligent conduct by attempting to bring state tort claims disguised as violations of substantive or procedural due process. See Tr. at 133:15-134:6 (Constantaras).

The Individual DOH Defendants next argued that there must be actual injury in a court access claim, meaning “an actionable claim that a person desired to bring was lost or rejected or [¶]... ] prevented.” Tr. at 134:6-10 (Constantaras). According to the Individual DOH Defendants, because Á.M. was at the present hearing with legal representation, an actionable claim that was lost, rejected or prevented does not exist. See Tr. at 134:10-13 (Constantaras). The Individual DOH Defendants contend that the Tenth Circuit required plaintiffs to show that the denial or delay of court access prejudiced their pursuit of litigation. See Tr. at 134:13-16 (Constantaras). According to the Individual DOH Defendants, in this case, A.M. is pursuing litigation, and it is disingenuous for AM, to contend that she has been denied access to the courts. See Tr. at 134:16-22 (Constantaras).

The Individual DOH Defendants reiterated their arguments that court access claims remained undecided in the Supreme Court until 2002 and in the Tenth Circuit until 2004, meaning that there was no. clearly established court access right in 1979. See Tr. at 134:23-135:5 (Constantar-as). The Individual DOH Defendants reminded the court that there are two categories of court access claims: forward-looking claims, in which official action frustrates a plaintiffs ability to bring suit *1259 presently, and backward-looking claims, in which a plaintiff “alleges that a claim cannot be tried because past official action caused the loss or inadequate settlement of a meritorious case.” Tr. at 135:6-15 (Constantaras)(citing Jennings v. City of Stillwater, 383 F.3d at 1208 ). The Individual DOH Defendants argued- at the hearing that neither category applies in this present case. See Tr. at 135:15-16 (Constantaras).

Additionally, the Individual DOH Defendants asserted that A.M. ignored the requirement of actual damages and that, even assuming a court access right existed in 1979, A.M. cannot overcome qualified immunity “based only on the existence of such a right without allegations of actual damages.” Tr. at 135:17-25 (Constantaras). The Court then established that the parties immediate arguments were limited to the court access claim, and A.M. answered affirmatively. See Tr. at 136:4-9 (Court, Simmons). The Court asked what was being argued under the Fourteenth Amendment, and A.M. responded that procedural due-process violations under the Fourteenth Amendment would be argued in the separate procedural due-process motion. See Tr. at 136:14-23 (Simmons). The Court then confirmed that the MTD involved the First .Amendment, and A.M. proceeded to her argument. See Tr. at 136:24-25 (Court).

A.M. began by acknowledging that she has excellent and adequate representation and that she has access to the court in her present claim, but that her present situation is not what her court access claim addresses. See Tr. at 137:1-10 (Simmons). A.M. asserted that the Fifth Judicial District Court instructed the Individual DOH Defendants to have- A.M. placed with a community placement for developmentally disabled adults and instructed the Individual DOH Defendants to return to the. Court to discuss any questions that may arise. See Tr. at 137:10-20 (Simmons). According to A.M., she should have been kept at Fort Stanton, where she was safe, or an appropriate placement should have been found while she was still under a Court commitment. See Tr. at 137:20-24. A.M. asserted that she was not “free as a bird” in 1979 and that the Order that is still in place, which gives custody to the State of New Mexico, continues to restrict her liberty. Tr. at 137:25-138:3 (Simmons).

A.M. argued that she was told that she had to go to Silver City with M. Evans and that she was obligated to comply, because she remained in the custody of the State of New Mexico. See Tr. at 138:3-8 (Simmons). A.M. observed that the guardian ad litem that she had at the time was not informed of the transfer and that, instead, a note was placed in her file; she further stated .that this caused disagreement among the Individual DOH Defendants. See Tr. at 138:8-21 (Simmons). Additionally, according to A.M., there was no periodic judicial review of her confinement conditions. See Tr. at 138:11-12 (Simmons). A.M. maintains that, because- of the Individual DOH Defendants’ actions, her guardian ad litem and the Court -had no way of knowing that she was being transferred. See Tr; at 139:4-18 (Simmons). A.M. contends -that the law regarding a right to court-access was clearly established in 1979, as demonstrated by Jackson v. Indiana, 406 U.S. 715 , 92 S.Ct. 1845 , 32 L.Ed.2d 435 (1972), involving mentally ill criminal defendants, and by O’Connor v. Donaldson, 422 U.S. 563 , 95 S.Ct. 2486 , 45 L.Ed.2d 396 (1975), a civil case applying the court access right. See Tr. at. 139:19-25 (Simmons). The Individual DOH Defendants’, decision to forego judicial oversight, A.M. argued, blocked her access to court. See Tr. at 139:25-140:6 (Simmons). A.M. asserted that her *1260 access to court had to be through the court itself or through her guardian ad litem, and that the Individual DOH Defendants blocked both; according to A.M., now that she finally has legal representation, she is able to access the courts. See Tr. at 140:8-18 (Simmons).

On rebuttal, the Individual DOH Defendants asserted that, in 1979, an attorney represented A.M., and that, had she remained at Fort Stanton, she would likely be bringing the same claims. See Tr. at 140:21-141:6 (Constantaras). The Individual DOH Defendants argued that the Court must consider the reasonableness of each Individual DOH Defendant, and that the Order from 1979 expires by operation of law and has some temporal limit. See Tr. at 141:6-12 (Constantaras). The Individual DOH Defendants argued, therefore, that A.M. does not presently remain in the State of New Mexico’s custody. See Tr. at 141:12-19 (Constantaras). The Individual DOH Defendants corrected their prior reference to DeShaney v. Winnebago, 489 U.S. at 195 , 109 S.Ct. 998 , stating that the case involved substantive, not procedural, due process. See Tr. at 141:20-142:4 (Constantaras). Here, the Individual DOH Defendants stated, substantive due process is in question, but A.M. was not deprived of life, liberty or property, because the Fourteenth Amendment does not extend to actions of non-governmental, private third-parties. See Tr. at 142:7-17 (Constantaras). The Individual DOH Defendants noted that there is no historical support for an expansive reading of Constitutional text and that the Supreme Court has been clear with respect to the Fourteenth Amendment’s application to government actors. See Tr. at 142:18-143:5 (Constantaras). The Individual DOH Defendants argued that a state cannot be held liable for failing to provide its citizens with protections, the Fourteenth Amendment does not afford. See Tr. at 143:14-22 (Constantaras). The Individual DOH Defendants concluded that, even if A.M. were to amend the Complaint to assert “actual physical private violence,” the claims would be futile under a Fourteenth Amendment analysis. Tr. at 143:22-144:2 (Constantaras).

A.M. asked the Court to allow her to state two additional points, and the Court agreed. See Tr. at 144:5-7 (Simmons). First, A.M. stated that, if she had remained at Fort Stanton, as the Individual DOH Defendants suggested, she would have been entitled to periodic judicial review of her confinement conditions. See Tr. at 144:8-11 (Simmons). A.M. argued that the State of New Mexico and the Individual DOH Defendants blocked periodic judicial review of her placement by transferring her to M. Evans. See Tr. at 144:17-20 (Simmons). A.M. stated that, as a ward of the State of New Mexico, the State of New Mexico and not M. Evans restricted her liberty; she was unable to leave M. Evans’ Homestead House because the State of New Mexico had placed her there. See Tr. at 144:21-145:1 (Simmons). A.M. argued that she was entitled to periodic judicial review of her conditions of confinement during her placement at the Homestead House and that, had periodic judicial review occurred, A.M. could have been placed in a “decent and friendly” rehabilitation facility. Tr. at 145:1-9 (Simmons). Vulnerable people are subject to exploitation if oversight is not provided, A.M. stated; periodic judicial review helps prevent exploitation. See Tr. at 145:11-12 (Simmons).

Second, A.M. addressed the Individual DOH Defendants’ contention that A.M. was not a ward of the State of New Mexico because of the Order’s expiration. See Tr. at 145:25-146:3 (Simmons). A.M. stated that, to her knowledge, court orders do not expire by their own terms; one must go to *1261 court to have the order vacated or set aside. See Tr. at 146:4-8 (Simmons). A.M. concluded that the Order remains in effect today and that she remains in the State, of New Mexico’s custody. 12 See Tr. at 146:8-12 (Simmons).

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-pled 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)(“[O]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-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing 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)(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 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 complainant 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:

“[Plausibility” in this context must refer to the scope of the allegations in a com *1262 plaint: 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. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570 , 127 S.Ct. 1955 ) (citations omitted).

Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed. R. Civ. P. 8(c), there are exceptions: (i) where the defendant asserts an immunity defense — the courts. handle these cases differently than other motions;to dismiss, see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M.2012)(Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009); Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir.2008)); and (ii) where the facts .establishing the affirmative defense are apparent on the face of the complaint, see Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965)(“Under Rule 12(b), a defendant may raise an affirmative defense by a motion to dismiss for the failure to.state a claim. If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule.”). The defense of limitations is the affirmative defense most likely to be established by the uncontroverted facts in the complaint. See 5 Charles Alan Wright et al„ Federal Practice and Procedure § 1277 (3d ed.2014). If the complaint sets forth dates that appear, in the first in-stancé, to fall outside of the statutory limitations period, then the defendant may move for dismissal under rule 12(b)(6). See Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 273-75 (10th Cir.1955); Gossard v. Gossard, 149 F.2d 111, 113 (10th Cir. 1945); Andrew v. Schlumberger Tech. Co., 808 F.Supp.2d 1288, 1292 (D.N.M.2011)(Browning, J.). The plaintiff may counter this motion with an assertion that a different statute of limitations or an equitable tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not clarified whether this assertion must be pled with supporting facts in the complaint or may be merely argued in response to the motion. Cf. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir.1954)(hold-ing that, once a plaintiff has pled facts in the complaint indicating that the statute of limitations is-a complete or partial bar to an action, it is incumbent upon the plaintiff to plead, either in the complaint or in amendments to it, facts establishing an exception to the affirmative defense). It appears, from case law in several circuits, that the plaintiff may avoid this problem altogether — at least at the motion-to-dismiss stage — by simply refraining from pleading specific or identifiable dates, see Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir.2007); Hollander v. Brown, 457 F.3d, 688 , 691 n. 1 (7th Cir.2006); Harris v. New York, 186 F.3d 243 , 251 (2d Cir.1999); Honeycutt v. Mitchell, 2008 WL 3833472 (W.D.Okla. Aug. 15, 2008)(West, J.), and, although the Tenth Circuit has not squarely addressed this practice, the Court has permitted this avoidance practice, see Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1208-09, 1234-38 (D.N.M. 2014) (Browning, J.).

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

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the - *1263 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 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[ 13 ] 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 tradi *1264 tional 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 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 tort-feasor 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 and 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) (citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).

2. Individual Liability.

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 re *1265 cover 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.). 14

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

Evén if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ 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 Cnty. 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, 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-United States Circuit Judge for the United States Court of Appeals 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 ) (citations in original). Additionally, “[f]oreseeable 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 *1266 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) op Torts'§ 453 cmt. b (1965)).

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s 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))(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. at 404 , 117 S.Ct. 1382 (“[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.” Ashcroft v. Iqbal, 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 *1267 conclusion, set forth a test for supervisory liability under § 1988 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.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, 520 U.S. 397 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997), 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 féderal 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. Brown, 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-párt 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 ... — express or otherwise — 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 its inhabitants’ *1268 rights. See Graves v. Thomas, 450 F.3d at 1218 .

LAW REGARDING THE RIGHT TO COURT ACCESS

State constitutions mentioned open courts as early as the eighteenth century. The Delaware Declaration of Rights of 1776, for example, provided that “every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land.” Del. Declaration of Rights of 1776, art. 12. Delaware’s 1792 Constitution added that “[a]ll courts shall be open.” Del. Const, of 1792, art. 1 § 9. Other state constitutions drafted in the late eighteenth century contained similar language. 15 Pennsylvania’s 1776 Constitution states that “all courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay.” Pa. Const, of 1776, § 26. The Supreme Court explained in Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142 , 28 S.Ct. 34 , 52 L.Ed. 143 (1907):

The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution.

207 U.S. at 148 , 28 S.Ct. 34 . The right of access to the courts, however, did not fully develop in the case law until the mid-to late-twentieth century. Moreover, courts have recognized the right of access to the courts as being rooted in the Due Process Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the privileges and immunities provisions of Article IV and the Fourteenth Amendment, and the Petition Clause of the First Amendment. See Christopher v. Harbury, 536 U.S. 403 , 415 & n. 12, 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990); Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir.1983); U.S. Const. amend. XIV; U.S. Const. amend. I; U.S. Const. amend. V; U.S. Const. art. IV, § 2, cl. 1.

1. The Right to Court Access in the Prisoner Context.

The right of access to the courts emerged primarily in the prisoners’ rights context. The Supreme Court first examined a prisoner’s right to access the courts in Ex parte Hull, 312 U.S. 546 , 61 S.Ct. 640 , 85 L.Ed. 1034 (1941). See Bounds v. Smith, 430 U.S. 817, 822 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977)(noting that the Supreme Court first recognized prisoners’ right to court access in Ex parte Hull). In Ex parte Hull, a prisoner sought judicial relief for the actions of prison officials in preventing his filing of a writ of habeas corpus. See 312 U.S. at 548 , 61 S.Ct. 640 . The prisoner had been convicted of a statutory sex offense and had twice attempted to file a petition for writ of habeas corpus without success. See 312 U.S. at 547-48 , 61 S.Ct. 640 . Prison officials blocked both attempts: first, a prison official refused to notarize the documents, and, second, the prison guards confiscated documents that *1269 the prisoner had attempted to mail to his father for filing. See 312 U.S. at 547-48 , 61 S.Ct. 640 . The Supreme Court issued an order to show cause why the petition for writ of habeas corpus should not be granted. See 312 U.S. at 548 , 61 S.Ct. 640 . In response, the prison ward stated that, in November, 1940, he had published a regulation stating that all prisoner documents and petitions had to be submitted first to the institutional welfare office and then, upon approval, to the Parole Board’s legal investigator. See 312 U.S. at 548 , 61 S.Ct. 640 . The prisoner subsequently challenged the validity of the regulation, alleging that he had been denied his procedural due process. See 312 U.S. at 549 , 61 S.Ct. 640 . The Supreme Court held that the prison’s regulation was invalid, and that the state and its officers “may not abridge or impair [a] petitioner’s right to apply to a federal court for a writ of habeas corpus.” 312 U.S. at 549 , 61 S.Ct. 640 . Whether a petition for habeas corpus addressed to a federal court is valid and proper “are questions for that court alone to determine,” the Supreme Court stated. 312 U.S. at 549 , 61 S.Ct. 640 . While Ex parte Hull was the first Supreme Court case recognizing a prisoner’s right of court access, the Supreme Court did not discuss the roots and origins of the right.

A series of prisoner court access cases followed Ex parte Hull, which involved indigent prisoners who could not afford appellate docket fees, or who could not obtain trial transcripts and counsel. See Griffin v. Illinois, 351 U.S. 12, 18-19 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956)(holding that the state must provide trial records for indigent prisoners on appeal, and noting that “at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations”); Burns v. Ohio, 360 U.S. 252 , 79 S.Ct. 1164 , 3 L.Ed.2d 1209 (1959)(holding that it was a violation of due process and equal protection for a state to require an indigent prisoner pay a filing fee before filing a motion for leave to appeal); Smith v. Bennett, 365 U.S. 708 , 81 S.Ct. 895 , 6 L.Ed.2d 39 (1961)(holding that an indigent’s inability to file a petition for writ of habeas corpus, because of his inability to pay the filing fee, violated the Equal Protection Clause of the Fourteenth Amendment); Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963)(holding that a state must provide indigent prisoners with counsel for direct appeal to comply with the Equal Protection Clause of the Fourteenth Amendment); Williams v. Oklahoma City, 395 U.S. 458, 459 , 89 S.Ct. 1818 , 23 L.Ed.2d 440 (1969)(stating that avenues of appellate review “must be kept free of unreasoned distinctions that can only impede open and equal access to courts,” and holding that indigents are entitled to receive free transcripts of a petty offense trial under equal protection principles); Gardner v. California, 393 U.S. 367 , 89 S.Ct. 580 , 21 L.Ed.2d 601 (1969)(holding that an indigent prisoner must receive ha-beas corpus proceeding transcripts under the Equal Protection Clause of the Fourteenth Amendment); Mayer v. Chicago, 404 U.S. 189 , 92 S.Ct. 410 , 30 L.Ed.2d 372 (1971)(holding that refusing to provide indigent defendants with transcripts of non-felony trials was a violation of equal protection).

The Supreme Court expanded beyond the indigent prisoner category in Johnson v. Avery, 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 (1969), holding that it was unconstitutional to prevent prison inmates from assisting one another in the preparation of petitions for post-conviction relief, unless an alternative form of aid was provided. See 393 U.S. at 490, 89 S.Ct. 747 . In that case, a prisoner was serving a life sentence at the Tennessee State Peniten *1270 tiary and had been transferred to a maximum' security building for violation of a prison regulation prohibiting writ preparation assistance between inmates. See 393 U.S. at 484, 89 S.Ct. 747 . The prison’s regulation stated that “[n]o inmate will advise; assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters.” 393 U.S. at 484, 89 S.Ct. 747 . The prisoner challenged .the regulation, and on appeal, the Supreme Court .found it invalid. See 393 U.S. at 485-90, 89 S.Ct. 747 . The Supreme Court first noted the importance of the writ of habeas corpus, insisting that “there -is no higher .duty than to maintain it unimpaired.” 393 U.S. at 485, 89 S.Ct. 747 . The Supreme Court held that Tennessee’s adoption and enforcement of a rule which, hr effect, prohibited illiterate or poorly educated prisoners from filing ha-beas corpus petitions was unconstitutional. See 393 U.S. at 487, 490, 89 S.Ct. 747 . The Supreme Court noted that, while there was no. general obligation of state or federal courts, to appoint counsel for prisoners expressing a will to seek post-conviction relief, without some form of aid, the prisoner is denied access to the courts. See 393 U.S. at 488, 89 S.Ct. 747 . Justice Douglas’ concurring opinion observed that the Due Process Clause of the Fourteenth Amendment secures the right of “reasonable access to the courts.” 393 U.S. at 498 n. 24, 89 S.Ct. 747 (Douglas, J., concurring).

Two years later, the Supreme Court affirmed a district court decision requiring “basic codes and references” in a prison’s law library. Younger v. Gilmore, 404 U.S. 15, 15 , 92 S.Ct. 250 , 30 L.Ed.2d 142 (1971). In Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), the Supreme Court then expanded the principles of prisoner habeas court access under the Fourteenth Amendment to prisoner- civil rights actions, noting that the required assistance in an inmate’s initial preparation of petitions extended to actions arising under the Civil Rights Act of 1871. See 418 U.S. at 579 , 94 S.Ct. 2963 . In that case, a prisoner filed a complaint under 42 U.S.C. § 1983 , on behalf of himself and other prisoners, alleging, among other things, that the inmate legal assistance program did not comply with constitutional standards. See 418 U.S. at 542-43 , 94 S.Ct. 2963 . The relevant prison regulation stated: “No other offender than the legal advisor is permitted to assist you in the preparation of legal documents unless with the specific written permission of the Warden.” 418 U.S. at 577-78 , 94 S.Ct. 2963 . The' Supreme Court applied the habeas corpus inmate assistance principles of Johnson v. Avery, 393 U.S. at 485-90, 89 S.Ct. 747 , and held that inmates can assist one another in the preparation of civil rights actions, see Wolff v. McDonnell, 418 U.S. at 580 , 94 S.Ct. 2963 . The Supreme Court explained that “[b]oth ... [petitions for habeas corpus and civil rights actions] serve to protect basic constitutional rights,” concluding that a lack of assistance with civil rights actions also deprives prisoners of their right to court access. See 418 U.S. at 579 , 94 S.Ct. 2963 . The case was remanded to the district court for an evaluation Johnson v. Avery of the constitutional sufficiency of the “legal ad-visor” that the prison’s regulation provided. 418 U.S. at 580 , 94 S.Ct. 2963 .

By 1977, the Supreme Court recognized in Bounds v. Smith that “it is now established beyond a doubt that prisoners have a constitutional right of access to the courts [...] and that such access must be adequate, effective and meaningful.” 430 U.S. at 821-22 , 97 S.Ct. 1491 . In that case, prisoners in North Carolina filed actions under 42 U.S.C. § 1983 alleging violations of their Fourteenth. Amendment right of access to the courts because of the state’s “failure to provide legal re *1271 search facilities.” 430 U.S. at 818 , 97 S.Ct. 1491 . The Supreme Court first discussed at length the inmáte court access right and its development in the case law, without directly discussing its constitutional origin. See 430 U.S. at 821-826 , 97 S.Ct. 1491 (citing primarily Ex parte Hull, 312 U.S. at 549 , 61 S.Ct. 640 ; Burns v. Ohio, 360 U.S. at 252 , 79 S.Ct. 1164 ; Griffin v. Illinois, 351 U.S. at 20 , 76 S.Ct. 585 ; Johnson v. Avery, 393 U.S. at 489, 89 S.Ct. 747 ; and Wolff v. McDonnell, 418 U.S. at 577-80 , 94 S.Ct. 2963 ). The Supreme Court noted that “[m]eaningful access is the touchstone” of the inmate right to court access. 430 U.S. at 823 , 97 S.Ct. 1491 . It held that all states have “affirmative obligations to assure all prisoners meaningful access to the courts.” 430 U.S. at 824 , 97 S.Ct. 1491 . The Supreme Court explained that law libraries were “one constitutionally acceptable* method” of providing meaningful access to the courts. 430 U.S. at 830 , 97 S.Ct. 1491 . The Supreme Court suggested training inmates as paralegals to work under attorney supervision, the use of volunteer law students, paraprofessionals, volunteer attorneys, and staff attorneys, and the hiring of attorneys on a part-time compensation basis, as non-exhaustive alternatives. 430 U.S. at 831 , 97 S.Ct. 1491 (encouraging “local experimentation”). Finally, the Supreme Court articulated that all 'remedial plans are* subject to evaluation for compliance with constitutional standards. See 430 U.S. at 832 , 97 S.Ct. 1491 (citing Stevenson v. Reed, 530 F.2d 1207 (5th Cir. 1976)). The Supreme Court later interpreted Bounds v. Smith as “suggesting] that the State must enable the prisoner to discover grievances, and to litigate effectively once in court.” Lewis v. Casey, 518 U.S. 343, 354 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996)(emphasis in original)(citing Bounds v. Smith, 430 U.S. at 825 -26 & n. 14, 97 S.Ct. 1491 ).

Prison regulations that infringe on an inmate’s constitutional rights are valid if they are “reasonably related to legitimate penological interests.” Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir.2010)(citing Turner v. Safley, 482 U.S. 78, 89 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987)). Prisoners bringing civil rights claims have to plead “sufficient factual allegations to raise relief above the speculative level.” Gee v. Pacheco, 627 F.3d at 1187 (internal quotation marks omitted). A prisoner must demonstrate actual injury from the interference with his or her access to the courts; this principle derives from the doctrine of standing. See Lewis v. Casey, 518 U.S. at 349 , 116 S.Ct. 2174 . In other words, the alleged shortcomings of the state must have “hindered [the prisoner’s] éfforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. at 351 , 116 S.Ct. 2174 . See Harmon v. Keith, 383 Fed. Appx. 770, 771 (10th Cir.2010)(“An inmate lacks standing to raise a right-of-access claim unless he is able to demonstrate actual injury.”). The prisoner must show that “any denial or delay of access to the court prejudiced him in pursuing litigation.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir.1996). A prisoner must exhaust all available administrative remedies before filing an action under 42 U.S.C § 1983. See Jones v. Bock, 549 U.S. 199, 211 , 127 S.Ct. 910 , 166 L.Ed.2d 798 (2007). See also 42 U.S.C. § 1997e(a).

2. The Right to Court Access in the Civil Context.

The Fourteenth Amendment right to court access began to develop beyond the prisoner setting in the early 1970’s,, particularly in the ’context of civil indigents’ inability to pay court fees. In Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971), the Supreme Court held that the Fourteenth Amendment’s *1272 Due Process Clause “prohibit^] a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” 401 U.S. at 374 , 91 S.Ct. 780 . In that case, the indigent plaintiffs brought an action challenging Connecticut procedures that required a filing fee for the initiation of a divorce. See 401 U.S. at 372 , 91 S.Ct. 780 . The plaintiffs alleged that, because of their inability to pay the necessary filing fees, their access to the courts had been restricted. See 401 U.S. at 372 , 91 S.Ct. 780 . The Supreme Court recognized that the possibility of a due process court access claim in the civil context was novel, and noted the importance of court access when a judicial proceeding is the only available remedy. See 401 U.S. at 375-76 , 91 S.Ct. 780 . The Supreme Court found it proper to engage in a due-process analysis, because marriage “involves interests of basic importance in our society” and because the dissolution of a marriage requires a resort to state courts. See 401 U.S. at 376-77 , 91 S.Ct. 780 . The Supreme Court explained that two important principles were embedded in due-process jurisprudence: (i) due process requires, at minimum, a “meaningful opportunity to be heard” for persons whose claims must be settled through the judicial process; and (ii) a statute or a rule may be held constitutionally invalid “when it operates to deprive an individual of a protected right.” 401 U.S. at 377-79 , 91 S.Ct. 780 . The Supreme Court concluded that Connecticut’s refusal to admit the plaintiffs to its courts, because of their inability to comply with the filing fee requirements, “must be regarded as the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and, in the absence of a sufficient countervailing justification for the State’s action, a denial of due process.” 401 U.S. at 380-81 , 91 S.Ct. 780 . Moreover, the Supreme Court recognized that the state’s, interest in the required fee did not justify the -denial of access and that the Due Process Clause protects the. right of court access only in circumstances where resorting to the judicial process is the only available remedy. See 401 U.S. at 382-83 , 91 S.Ct. 780 .

Two’ subséquent civil indigent filing fee cases, however, limited the right of court' access in the civil context to issues of “constitutional significance.” Ortwein v. Schwab, 410 U.S. 656, 659 , 93 S.Ct. 1172 , 35 L.Ed.2d 572 (1973)(holding that obtaining discharge of one’s debts in bankruptcy was not a fundamental right, and. thus the filing fee did not deny the plaintiff court access); United States v. Kras, 409 U.S. 434, 446 , 93 S.Ct. 631 , 34 L.Ed.2d 626 (1973)(holding that plaintiffs seeking an increase in welfare payments did not have an interest that rose to the constitutional significance as that of the plaintiffs in Bod-die v. Connecticut; therefore, the filing fee did not violate the plaintiffs’ right to court access). According to the Supreme Court, while “resortfing] to state courts was the only avenue to dissolution of marriages,” bankruptcy and welfare payment disputes could be handled by other means. United States v. Kras, 409 U.S. at 443-44 , 93 S.Ct. 631 . See Ortwein v. Schwab, 410 U.S. at 659, 93 S.Ct. 1172 . The claims in Ortwein v. Schwab and United States v. Kras, therefore, did not rise to the constitutional level of the claims in Boddie v. Connecticut and thus did not fall within the scope of the right to court access. See United States v. Kras, 409 U.S. at 443-44 , 93 S.Ct. 631 ; Ortwein v. Schwab, 410 U.S. at 659, 93 S.Ct. 1172 , Welfare payment and bankruptcy disputes, unlike marriage dissolution, were not recognized as “fundamental ... demanding] the lofty requirement of a compelling governmental interest before they may be significantly regulated.”. *1273 United States v. Kras, 409 U.S. at 446 , 93 S.Ct. 631 . See Ortwein v. Schwab, 410 U.S. at 659, 93 S.Ct. 1172 .

While much of the case law focused on a right to court access under the Fourteenth Amendment, a separate strand of jurisprudence recognized a right to court access rooted in the First Amendment’s “right to petition” language. U.S. Const, amend. I. The First Amendment right to court access, however, initially developed narrowly in the antitrust context. With respect to the Sherman Act, 15 U.S.C. §§ 1 et seq., the Supreme Court noted in 1961 that “[t]he right to petition is one of the freedoms protected by the Bill of Rights, and we cannot [¶]... J lightly impute to Congress an intent to invade these freedoms.” E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 , 81 S.Ct. 523 , 5 L.Ed.2d 464 (1961). Subsequently in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 , 92 S.Ct. 609 , 30 L.Ed.2d 642 (1972), the Supreme Court recognized that “the right of access to courts is. indeed but one aspect of the right to petition,” concluding:

[I]t would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.

404 U.S. at 510-11, 92 S.Ct. 609 .

It was not until 1983 that the Supreme Court expanded the First Amendment right to access the courts outside of the antitrust context. See Bill Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731 , 103 S.Ct. 2161 , 76 L.Ed.2d 277 (1983). Bill Johnson’s Rests., Inc. v. N.L.R.B. affirmed the Supreme Court’s acknowledgement in California Motor Transport Co. v. Trucking Unlimited that the right of court access is an aspect of the First Amendment right to petition and applied it to a labor dispute. See 461 U.S. at 741 , 103 S.Ct. 2161 . Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. at 733 , 103 S.Ct. 2161 , involved a labor dispute between a restaurant and its waitresses, who had complained of unfair labor practices and picketed the restaurant site in protest. See 461 U.S. at 733 , 103 S.Ct. 2161 . The restaurant filed a complaint against the waitresses .in state court, alleging that the waitresses had engaged in mass picketing, harassment of customers, and blockage of the restaurant’s entrance and exit areas of the restaurant, and had created a threat to the public. See 461 U.S. at 734 , 103 S.Ct. 2161 . Upon review of the dispute, the National Labor Relations Board ordered, among other things, that the restaurant withdraw its state court complaint. See 461 U.S. at 737 , 103 S.Ct. 2161 . The primary issue before the Supreme Court was whéther the National Labor Relations Board could issue a cease-and-desist order to halt an allegedly retaliatory lawsuit that the restaurant filed in a state court. See 461 U.S. at 737 , 103 S.Ct. 2161 . The Supreme Court identified the right to court access as deriving from the First Amendment’s “right to petition the Government for redress of grievances.” 461 U.S. at 741 , 103 S.Ct. 2161 . The Supreme Court concluded that an employer’s well-founded lawsuit “may not be enjoined as an unfair labor practice” and that the restaurant’s lawsuit should be allowed to proceed under the First Amendment principle of a right to access the courts. See 461 U.S. at 742-43 , 103 S.Ct. 2161 .

3. Court Access for the Developmentally Disabled.

Various courts and jurisdictions have identified mentally disabled, institutional *1274 ized patients as a group with specific needs who possess a right of access to the courts similar to that of prisoners in the state’s custody. The right of court access “is guaranteed to people who are involuntarily committed to a mental institution,” and this right “is not limited to people who are committed following criminal proceedings.” Cornett v. Donovan, 51 F.3d 894, 897-98 (9th Cir.1995)(eiting King v. Atiyeh, 814 F.2d 565 , 568 n. 2 (9th Cir.1987)). “Kin-voluntary mental commitment to a mental treatment facility implicates an important, constitutionally-protected liberty interest of the person committed.” Doe v, Gallinot, 657 F.2d 1017, 1021 (9th Cir.1981). Commitment to a mental hospital is a “massive curtailment of liberty” and is “more than a loss of freedom from confinement,” and thus requires due-process protection. Doe v. Gallinot, 657 F.2d at 1021 (quoting Humphrey v. Cady, 405 U.S. 504, 509 , 92 S.Ct. 1048 , 31 L.Ed.2d 394 (1972), and Addington v. Texas, 441 U.S. 418, 425-26 , 99 S.Ct. 1804 , 60 L.Ed.2d 323 (1979)). With respect to a state’s involvement in the commitment of the mentally ill, the Supreme Court has noted:

The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.

Addington v. Texas, 441 U.S. at 426 , 99 S.Ct. 1804 (evaluating the proper standard for civil commitment proceedings for the mentally ill). -Indeed, “[pjersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982). While the specific court access rights of a developmentally disabled, involuntarily committed person have not been comprehensively articulated, a few pivotal cases provide guidance.

One of the earliest and most cited cases to identify a developmentally disabled, involuntarily committed persons’ right to judicial process is Doe v. Gallinot, 657 F.2d at 1019-21 . In that case, the United States Court of Appeals for the Ninth Circuit evaluated the constitutionality of California’s Lanterman-Petris-Short Act (“LPS”), Cal. Welf. & Inst. Code/§§ 5000 et seq. Under the LPS .Act, a person judged to.be “gravely disabled” because of mental illness could be committed to a mental institute for “72 hours on an emergency basis, and up to 14 more days for involuntary treatment, with no requirement that the state initiate a hearing before an indepéndent tribunal to determine whether adequate cause for commitment exists.” Doe v. Gallinot, 657 F.2d at 1019 , See Cal. Welf. & Inst. Code §§ 5000-5466 . In Doe v. Gallinot, police officers found the plaintiff in a hospital parking lot “acting apprehensively” and transported him to a nearby mental health facility. 657 F.2d at 1020 . At the facility, a psychiatric nurse examined the plaintiff and determined him to be “gravely disabled.” 657 F.2d at 1020 . On the nurse’s certification pursuant to the LPS Act, the plaintiff was committed to a state hospital for 72 hours. See 657 F.2d at 1020 . The plaintiff received medications, and physician certification committed the plaintiff to the additional fourteen days of involuntary commitment. See 657 F.2d at 1020 . The plaintiff was informed of his right to judicial review and subsequently requested review. See 657 F.2d at 1020 . After appearing in court, the plaintiff was - released, but was later confined pursuant to the LPS Act on six additional occasions before filing suit for declaratory, injunc- *1275 tive, and monetary relief in 1976. See 657 F.2d at 1020-21 . The Ninth Circuit evaluated the procedural aspects of the LPS Act and held that “a mandatory- hearing must be afforded every individual in connection with a certification for 14-day intensive treatment under the LPS Act, at which a neutral decisionmaker will verify that sufficient cause for such confinement exists.” 657 F.2d at 1024 . The Ninth Circuit concluded that due process requires a hearing after the seventy-two-hour period. See 657 F.2d at 1025 . While the Ninth Circuit did not specifically mention a right of court access, it discussed the Fourteenth Amendment’s Due Process Clause as it relates to mentally disabled persons and their involuntary confinement. See 657 F.2d at 1025 (affirming the district court ruling that “due process requires a probable cause hearing after the 72-hour emergency detention period for persons alleged to be gravely disabled”).

The Tenth Circuit had previously recognized the right to court access for prisoners, consistent with Supreme Court precedent. In 1985, however, the Tenth Circuit extended the general principles of a prisoner’s right of court access to an institutionalized, mentally ill patient who was found not guilty of an offense reason of insanity. See Ward v. Kort, 762 F.2d at 856-57 . The Colorado State Hospital, where the plaintiff had been admitted, had a contract with a law firm for patient counseling, and the attorneys typically provided services “such as making wills, helping draft contracts and legal pleadings, handling disputes with the patients and the Colorado State Hospital.” 762 F.2d at 857 . The plaintiff met with an attorney under contract to discuss legal issues, but the attorney told the plaintiff that he could not file an action on his behalf. See 762 F.2d at 857 . The plaintiff did not pursue the action further and he did not request that the attorney do any research. See 762 F.2d at 857 . The plaintiff ultimately filed a civil rights complaint consisting of three claims, including one for denial of access to the courts, alleging that the Colorado State Hospital had failed to provide him with adequate access to legal and research materials. See 762. F.2d at, 857. Further, the plaintiff alleged that the hospital’s, attorney contract: (i) “provide[d] too little an allocation of counsel’s time to fulfill the needs to the patient;” (ii) did not provide for any representation; and (iii) did “not provide for adequate research on behalf of the patients.” 762 F.2d at 858 . On appeal, the plaintiff, contended that “a right of access to the courts should be recognized for inmates confined under a civil commitment, as he is, to afford those patients a reasonable opportunity to identify their fundamental rights, to recognize violations of those rights, and to bring such violations before, the courts for relief.” 762 F.2d at 858 .

The Tenth Circuit'held that “plaintiff, as a person under mental commitment, is entitled to protection of his right of access to the courts,” noting that there was “no logic in holding that persons under mental commitments like plaintiff are on' a lower plane than convicted inmates and are not entitled to protection of the'basic constitutional guarantee of access to the courts.” 762 F.2d at 858 . “Access to the courts of the United States,” the Tenth Circuit explained, “is a constitutional right guaranteed by the due process clauses of the fifth and fourteenth amendments. This right of access to the courts cannot be infringed upon or burdened.” 762 F.2d at 858 (quoting Silver v. Cormier, 529 F.2d 161, 163 (10th Cir.1976)). - The Tenth Circuit relied on Wolff v. McDonnell, Johnson v. Avery, and Bounds v. Smith, among others, for the principles and scope of a prisoner’s right of access to the courts. See Ward v. *1276 Kart, 762 F.2d at 858 . The Tenth Circuit affirmed that the “right of access to the courts requires prison authorities to assist inmates in the preparation and filling of meaningful legal papers.” 762 F.2d at 858 (quoting Bounds v. Smith, 430 U.S. at 828 , 97 S.Ct. 1491 ).

Moreover, the Tenth Circuit adhered to the long-standing holding that “there is no constitutional right to representation by-counsel in habeas proceedings in the federal courts” and that legal representation for an indigent party is not mandatory in civil rights actions but remains “within the discretion of the federal court.” Ward v. Kort, 762 F.2d at 860 . The Tenth Circuit concluded that the Colorado State Hospital’s present arrangement infringed on the plaintiffs right of access to the courts and that a modification of the hospital’s contractual agreement for patient legal counseling was required to protect the right. See 762 F.2d at 860 . The contract’s modification was to be such that the plaintiff would “have assistance of counsel through the completion of a federal habeas or civil rights complaint, including necessary research and consideration of the facts and the law.” 762 F.2d at 860-861 . Finally, the Tenth Circuit stated that “such protection of plaintiffs rights will follow the Supreme Court’s teaching that ‘meaningful access to the courts is the touchstone.’ ” 762 F.2d at 861 (citing Bounds v. Smith, 430 U.S. at 823 , 97 S.Ct. 1491 ).

Although Ward v. Kort involved a criminally-charged person, federal district court decisions involving non-criminally charged, mentally disabled plaintiffs held in state institutions have cited the case. See Armstead v. Pingree, 629 F.Supp. 273, 277 (M.D.Fla.1986)(Melton, J.)(holding that the state’s withholding of medical records belonging to involuntarily confined, mentally ill patients, from counsel was a violation of the right to court access under the Fourteenth Amendment); Holly v. Anderson, No. 04-CV-1489 JMR/FLN, 2008 WL 1773093 , at *7 (D.Minn. Apr. 15, 2008)(Rosenbaum, J.)(stating that the application of prisoner court access principles to civilly committed mental patients is appropriate and noting that the plaintiff did not have a claim for court access violations, because he did not show that an inability to access a lawyer or legal materials prevented him from filing a claim); Robbins v. Budke, 739 F.Supp. 1479 (D.N.M.1990)(Mechem, J.). Cases involving criminal defendants have also cited to Ward v. Kort for the proposition that prisoner court access principles can extend beyond the prisoner context. See John L. v. Adams, 750 F.Supp. 288, 291 (M.D.Tenn.1990)(Sandidge, J.)(stating that “[e]ourts also-recognize that people in involuntary institutionalized settings other than penal institutions are entitled to an affirmative right of access to the courts” and noting that Ward v. Kort held “that Bounds applies to individuals who are under involuntary civil commitment to a mental hospital”), aff'd in part, rev’d in part, 969 F.2d 228 (6th Cir.1992).

In 1990, the Honorable Edwin Leard Mechem, Senior District Judge of the United States District Court for the District of New Mexico, evaluated whether psychiatric patients at the Las Vegas Medical Center (“LVMC”) in Las Vegas, New Mexico, had been deprived of their right of access to the courts. See Robbins v. Budke, 739 F.Supp. at 1479 . The Protection and Advocacy System of New Mexico (“P & A”), P & A’s executive director, and LVMC’s patients brought a claim against the state officials and LVMC administrators, alleging that the “policies and procedures of LVMC that govern P & A’s access to patients and records violate the patients’ constitutional right of access to the courts as guaranteed by the due process clause of the Fourteenth Amendment *1277 and the Protection and Advocacy for Mentally 111 Individuals of 1986, 42 U.S.C. § 10801 et seq.” Robbins v. Budke, 739 F.Supp. at 1481 . Further, the plaintiffs alleged that the defendants violated P & A’s “constitutional right of access to LVMC patients, facilities, and records as guaranteed under the First Amendment and the Act[.]” Robbins v. Budke, 739 F.Supp. at 1481 . Judge Mechem.began by acknowledging the history of “abhorrent” LMVC conditions, some of which contributed to Congress’s passing of the P & A Act in 1986 to address “conditions and instances of gross abuse and neglect” of the mentally ill. Robbins v. Budke, 739 F.Supp. at 1481 . Judge Mechem noted that the purpose of the P & A Act was to “assure that the constitutional and statutory rights of the mentally ill are protected and to assure investigation of abuse and neglect.” Robbins v. Budke, 739 F.Supp. at 1481 . P & A had begun visiting patients at LMVC in 1986; at the time, they were granted unlimited twenty-four-hour access to patient living units and staff. See Robbins v. Budke, 739 F.Supp. at 1481 .

After P & A submitted a negative report to the Joint Commission on Accreditation of Health Care Organizations (“JCAHO”) about the LVMC’s conditions, the LVMC reevaluated its previous policies for P & A’s access to patients and their records. See Robbins v. Budke, 739 F.Supp. at 1481-82 . It passed new regulations that severely limited P & A’s access to patients. See Robbins v. Budke, 739 F.Supp. at 1482 . P & A’s access to the LVMC’s mentally ill or developmentally disabled patients, which accounted for five out of 150 patients, was also severely limited. See 739 F.Supp. at 1483 . Restrictions for all patients included, among other things, that a patient had to request a P & A visit, that the hospital had to be informed of that patient’s identity and unit, that a LVMC employee had to schedule an appointment, that a staff member had to escort a patient to the meeting, and that private patient questions were not permitted during P & A’s presentations for the mentally ill. See 739 F.Supp. at 1482-83 . Additionally, with respect to the mentally ill and developmentally disabled, P & A could inspect the facilities only “upon request, during regularly scheduled visiting hours, [¶]... ] with advance notice,” and accompanied by the LVMC director. 739 F.Supp. at 1483 . Judge Mechem noted that conditions at the LVMC had improved significantly since 1985, but that “complaints of abuse and neglect continue[d] and require[d] investigation.” 739 F.Supp. at 1483 .

Relying on Ward v. Kort, Judge Me-chem began his analysis by acknowledging that “residents institutionalized at LVMC have a constitutional right of meaningful access to the courts.” Robbins v. Budke, 739 F.Supp. at 1485 . Judge Mechem observed that “no minimum requirements have been established which a state must meet in order to provide adequate access;” instead, a court “should focus on whether the individual plaintiffs before it have been denied meaningful access.” 739 F.Supp. at 1485 (citing King v. Atiyeh, 814 F.2d at 568 ). Judge Mechem stated that, to determine whether access is adequate, effective, and meaningful, the defendants’ “policies and practices must be viewed in light of the characteristics and needs of the patients, including their need for a therapeutic environment and treatment of their illnesses.” Robbins v. Budke, 739 F.Supp. at 1485 . While the LVMC defendants had a right to impose “reasonable restrictions” on all visitors, regulations and practices that “unjustifiably obstruct the availability of representation or other aspects of the right of access to the courts are invalid.” 739 F.Supp. at 1485 -86 (citing Procunier v. Martinez, 416 U.S. 396, 419 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974); Mississippi *1278 Prot. & Advocacy Sys., Inc. v. Cotten, No. CIV. A. J87-0503(L), 1989 WL 224953 , at *2 (S.D.Miss. Aug. 7, 1989)(Lee, J.) aff'd sub nom Mississippi Prot. & Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054 (5th Cir.1991)).

Judge Mechem stated that the mentally ill are vulnerable to abuse and neglect, “because many mentally ill individuals have difficulty recognizing the concept that they have rights and will not necessarily identify even the most egregious abuse as a violation of them rights.” 739 F.Supp. at 1486 . Judge Mechem observed that mentally ill patients have difficulty assessing whether their rights' have been violated or what remedies exist; in addition, they struggle to form trusting relationships and may fear asking about their rights in front of their caregivers. See 739 F.Supp. at 1486 . Judge Mechem stated that, as a constitutional matter, states can choose among several methods of providing adequate court access, but that institutionalized mentally ill individuals warrant “special considerations” because of their general characteristics, and their inability to recognize rights violations and resources. See 739 F.Supp. at 1487 (citing Doe v. Gallinot, 657 F.2d at 1022 -23 n. 7). Judge -Mechem held that many of the LVMC’s new restrictions on P & A were impermissible, and that P & A also has a right of access to patients and records that both the Constitution and statutes protect. See 739 F.Supp. at 1487 .

In 1995, the Ninth Circuit again addressed the rights of involuntarily confined, mentally disabled persons. See Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir.1995). In that case, involuntarily committed patients at the Idaho State Hospital South (“SHS”) filed & lawsuit alleging a violation of the right of access -to the courts. See 51 F.3d at 896. Specifically, the plaintiffs alleged that SHS’ failure to provide a law library or legal assistance to handle matters beyond the initial preparation of a habeas corpus petition or civil rights action violated their right of access to the courts. See 51 F.3d at 896. The plaintiffs contended that institutionalized mental patients have a right of court access which extends beyond the pleading stage, because they “have difficulty prosecuting their claims.” 51 F.3d at 898. The primary issue on appeal was the scope of the plaintiffs’ right to court access,, and whether the state was constitutionally required to provide legal assistance to an institutionalized person “only at the pleads ing stage or through a later stage, conceivably even through final disposition of a cause of action.” 51 F.3d at 897. First, the Ninth Court stated that there were three requirements to establish standing: “the plaintiffs must show 1) injury in fact, 2) .that the injury is traceable to the challenged-action, and 3) that it is likely the injury will be redressed by the relief requested.” 51 F.3d at 897. Because one of the plaintiffs was no longer institutionalized at the time of the lawsuit, he failed to meet the third standing requirement; the remaining plaintiffs were found to have standing to pursue the action. See 51 F.3d at 897.

In discussing the right of access to the courts, the Ninth Circuit began with an evaluation of the right to court access in the prisoner context and stated that the right of court access-also applies to “people who are involuntarily committed to a mental institution.” 51 F.3d at 897-98, The Ninth Circuit noted that the right of access “helps ensure that the unlawfully detained obtain their freedom [¶]... ] and that the lawfully detained have recourse for violation - of fundamental constitutional rights.” 51 F.3d at 898 (citing Johnson v. Avery, 393 U.S. at 485, 89 S.Ct. 747 , and Wolff v. McDonnell, 418 U.S. at 579 , 94 S.Ct. 2963 ). Relying on the well-devel *1279 oped federal case law on prisoner court access, the Ninth Circuit found that precedent did not support a right of access that extends beyond the pleading stage. See Cornett v. Donovan, 51 F.3d at 899. The Ninth Circuit noted that the pleading stage encompasses a complaint, an answer, and counter claims or cross-claims, which “enables the inmate to rebut the State’s arguments.”. See 51 F.3d at 899. Further, the Ninth Circuit noted the distinction between the right of access to the courts and the right to counsel. 51 F.3d at 899 (“The right of access is a right of ‘access’ and not of ‘representation.’ ”). The Ninth Circuit concluded that the right of access “requires the state to provide assistance through the pleading stage, including preparation of a reply to an answer, cross-claim or counterclaim.” 51 F.3d at 900 (noting the consistency of its holding with other U.S. Courts of Appeals, including the Tenth Circuit).

The Supreme Court evaluated the right of court access for disabled citizens in Tennessee v. Lane, 541 U.S. 509 , 124 S.Ct. 1978 , 158 L.Ed.2d 820 (2004)., There, paraplegics alleged that they had been’ denied physical access to Tennessee’s courthouses in violation of the Americans with Disabilities Act of 1990 (“ADA”). Tennessee v. Lane, 541 U.S. at 513-14 , 124 S.Ct. 1978 . The ADA provided that “no qualified individual with a disability shall, by reason of such disability, bé excluded from participation or denied the benefits of the services, programs or activities- of a public entity.” Tennessee v. Lane, 541 U.S. at 513 , 124 S.Ct. 1978 . See 42 U.S.C. § 12132 . The question presented in Tennessee v. Lane was whether Title II of the ADA exceeded Congress’ power under Section 5 of the Fourteenth Amendment. See Tennessee v. Lane, 541 U.S. at 513 , 124 S.Ct. 1978 . While the Supreme Court had previously held that Eleventh Amendment Immunity barred private ADA Title I suits for monetary compensation, the question whether the Eleventh- Amendment permitted suits for money damages under Title II remained an open question. See Tennessee v. Lane, 541 U.S. at 514 , 124 S.Ct. 1978 ; Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001).

The Supreme Court held that Title II of the ADA was a valid exercise of Congress’ Section 5 powers and discussed the Fourteenth Amendment due process right to court access as it applies to disabled persons. See Tennessee v. Lane 541 U.S. at 523, 533 , 124 S.Ct. 1978 . The Supreme Court observed that the respondent was a criminal defendant, and that the Due Process Clause and the Sixth Amendment Confrontation Clause afford court access, but also explained that the Due Process Clause “requires the States to afford certain civil litigants a ‘meaningful opportunity to be heard’ by removing obstacles to their full participation in judicial proceedings.” Tennessee v. Lane, 541 U.S. at 523 , 124 S.Ct. 1978 , (citing Boddie v. Connecticut, 401 U.S. at 379 , 91 S.Ct. 780 ). The Supreme Court emphasized that the ADA’s Title II does not require States to employ “any and all means to make judicial services accessible to persons with disabilities,” nor to “compromise their essential eligibility criteria for public programs.” Tennessee v. Lane, 541 U.S. at 531-32 , 124 S.Ct. 1978 . Instead, according to the Supreme Court, Title II requires “reasonable modifications” and a variety of possible measures. 541 U.S. at 532 , 124 S.Ct. 1978 . “The duty to accommodate,”: the Supreme Court explained, “is perfectly consistent with the well-established due process principle that ‘within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard’ in its courts.” 541 U.S. at 532 , 124 S.Ct. 1978 (citing Boddie v. Connecticut, 401 U.S. at *1280 379 , 91 S.Ct. 780 ). The Supreme Court concluded that Title II validly imposed an “affirmative obligation [on the state of Tennessee] to accommodate persons with disabilities in the administration of justice.” Tennessee v. Lane, 541 U.S. at 533 , 124 S.Ct. 1978 .

4. Procedural Requirements for a Court Access Claim.

The Supreme Court has recognized that the basis for the constitutional right of court access is “unsettled,” but has identified the Privileges and Immunities Clause of Article IV, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses as sources. See Christopher v. Harbury, 536 U.S. at 415 & n. 12, 122 S.Ct. 2179 . In Lewis v. Casey, 518 U.S. 343 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996), the Honorable Clarence Thomas, Associate Justice of the Supreme Court, expressed his concern as to the vague constitutional roots of the right to court access. See 518 U.S. at 365-85 , 116 S.Ct. 2174 (Thomas, J., concurring). Justice Thomas noted the Supreme Court’s “inability ... to agree upon the constitutional source of the supposed right” and stated that “in no instance ... [has the Supreme Court] engaged in rigorous constitutional analysis of the basis for the asserted right.” 518 U.S. at 367 , 116 S.Ct. 2174 (Thomas, J., concurring). Despite the uncertainties of the right’s constitutional roots, the present framework for the analysis of a court access claim is grounded in decades of case law in the prisoner and civil context. The Honorable Stephanie K. Seymour, now Senior Judge for the Tenth Circuit, has noted that the right of court access is “basic to our system of government” and that it is well established as a fundamental right that the Constitution protects. Smith v. Maschner, 899 F.2d at 947 (quoting Nordgren v. Milliken, 762 F.2d 851, 853 (10th Cir.1985)). The elements of a court access claim, under any source, appear to be uniform. See Christopher v. Harbury, 536 U.S. at 413-16 , 122 S.Ct. 2179 (discussing the various roots of the right to court access and the general elements of a court access claim). “Interference with the right of access to the courts gives rise to a claim for relief under section 1983.” Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir.1983). See McKay v. Hammock, 730 F.2d 1367, 1375 (10th Cir.1984).

The Fourteenth Amendment mandates that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The right of court access under the Fourteenth Amendment’s due-process right is substantive rather than procedural; “[i]ts exercise can be shaped and guided by the state, but cannot be obstructed, regardless of the procedural means applied.” Morello v. James, 810 F,2d 344, 346 (2nd Cir.1987)(citing Bounds v. Smith, 430 U.S. 817, 823-824 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977)). The First Amendment mandates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances,” U.S. Const, amend. I. It has long been established that the First Amendment rights of free speech, free assembly, and freedom to petition for redress of grievances are “protected by the Fourteenth Amendment from invasion by the States.” Edwards v. South Carolina, *1281 372 U.S. 229, 235 , 83 S.Ct. 680 , 9 L.Ed.2d 697 (1963).

The Supreme Court has divided court access claims into two categories: “forward looking claims” and “backwards looking claims.” Jennings v. City of Stillwater, 383 F.3d at 1208 (citing Christopher v. Harbury, 536 U.S. 403, 413 , 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002)). Forward looking claims involve official action that “frustrates a plaintiff’s ability to bring a suit at the present time,” and backwards looking claims “arisé when plaintiffs allege that a specific claim cannot be tried [¶]... ] because past official action causes the loss or inadequate settlement of a meritorious claim.” Jennings v. City of Stillwater, 383 F.3d at 1208 (quoting Christopher v. Harbury, 536 U.S. at 413-414 , 122 S.Ct. 2179 )(internal quotations omitted). When a éourt access claim looks backwards, it must “identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought.” Christopher v. Harbury, 536 U.S. at 404 , 122 S.Ct. 2179 . To give a defendant fair notice,- a complaint must address the- underlying cause of action and its lost remedy. See 536 U.S. at 404 , 122 S.Ct. 2179 .

A prisoner court access claim seeking relief through a law library or through legal assistance, because official action “is presently denying an opportunity to litigate for a [future] class of potential plaintiffs,” is an example of a forward-looking court access claim. 536 U.S. at 413 , 122 S.Ct. 2179 (citing Bounds v. Smith, 430 U.S. at 828 , 97 S.Ct. 1491 , and Lewis v. Casey, 518 U.S. at 346-48 , 116 S.Ct. 2174 ). In cases challenging filing fees as a denial of court access, “the object is an order requiring waiver of a fee to open the courthouse door for [future] desired litigation.” Christopher v. Harbury, 536 U.S. at 413 , 122 S.Ct. 2179 (citing Boddie v. Connecticut, 401 U.S. at 372 , 91 S.Ct. 780 , and M.L.B. v. S.L.J., 519 U.S. 102, 106-07 , 117 S.Ct. 555 , 136 L.Ed.2d 473 (1996)). In forward-looking claims, “the opportunity has not been lost for all time;” rather, it has been lost in the short term. Christopher v. Harbury, 536 U.S. at 413 , 122 S.Ct. 2179 . The objective , of a forward-looking claim is to “place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.” Christopher v. Harbury, 536 U.S. at 413 , 122 S.Ct. 2179 . In contrast, backward-looking, claims “cannot now be tried (or tried with all material evidence), no matter what official action may be in the future.” Christopher v. Harbury, 536 U.S. at 413-14 , 122 S.Ct. 2179 . Examples of backward-looking claims include police cover-ups over a period of time that resulted in a plaintiffs inability to seek redress. See Christopher v. Harbury, 536 U.S. at 414 , 122 S.Ct. 2179 (citing Foster v. Lake Jackson, 28 F.3d 425, 429 (5th Cir.1994), and Swekel v. River Rouge, 119 F.3d 1259, 1261 (6th Cir.1997)). The ultimate objective of a backward-looking claim is “not the judgment in a further lawsuit, but simply the judgment in the., access claim itself, in providing relief obtainable in no other suit in the future.” Christopher v. Harbury, 536 U.S. at 414 , 122 S.Ct. 2179 .

Whether a claim turns on “a litigating opportunity yet to be gained or an opportunity already lost,” the purpose of recognizing a court access claim “is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Christopher v. Harbury, 536 U.S. at 414-15 , 122 S.Ct. 2179 . “However unsettled .the basis of the constitutional right of access to courts,” court access cases “rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S. at 415 , 122 S.Ct. 2179 . A plaintiff bringing a *1282 court access claim, whether forward- or backward-looking, must identify a “non-frivolous, arguable underlying claim.” Christopher v. Harbury, 536 U.S. at 415 , 122 S.Ct. 2179 (internal quotation marks omitted). See Lewis v. Casey, 518 U.S. at 353 & n. 3, 116 S.Ct. 2174 , The plaintiffs complaint must describe the underlying cause of action, “whether anticipated or lost,” and the official action which frustrated the litigation. Christopher v. Harbury, 536 U.S. at 415 , 122 S.Ct. 2179 . If the plaintiff has a backward-looking claim, the complaint “must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought.” Christopher v. Harbury, 536 U.S. at 415 , 122 S.Ct. 2179 . All elements in a court access claim must be “addressed by allegations in the complaint sufficient to give fair notice to a defendant.” Christopher v. Harbury, 536 U.S. at 416 , 122 S.Ct. 2179 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-515 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002)).

Backward-looking claims inherently pose a “particular risk” and require careful examination, because the actions underlying this claim “will not be tried independently, a fact that enhances the natural temptation on the part of plaintiffs to claim too much, by alleging more than might be shown in a full trial focused solely on the details of the predicate action.” Christopher v. Harbury, 536 U.S. at 416 , 122 S.Ct. 2179 . Therefore, the application of the “nonfrivo-lous” test and the claim’s “arguable”, nature are of particular importance. Christopher v. Harbury, 536 U.S. at 416 , 122 S.Ct. 2179 . In Christopher v. Harbury, the plaintiff brought a backward-looking claim alleging that government officials’ deliberate concealment of information that military officers in Guatemala detained, tortured and killed her husband, was a violation of court access. See 536 U.S. at 405 , 122 S.Ct. 2179 . The Supreme Court held that the plaintiffs complaint failed to identify “an underlying cause of action for relief that the plaintiff would have raised had it not been for the deception alleged.” 536 U.S. at 405, 418 , 122 S.Ct. 2179 . The Supreme Court noted that the plaintiffs request for relief was “nearly unintelligible,” because .the plaintiff failed to show that the Government official’s action had compromised an underlying action. 536 U.S. at 418 , 122 S.Ct. 2179 (“The District Court and the defendants were left to guess at the unstated cause of action supposed to have been lost.”). In Jennings v. Stillwater, the Tenth Circuit applied the backward- and forward-looking. categories to a case alleging-.that destruction of a rape kit, and police .officers’ investigative omissions and irregularities, violated the plaintiffs right to court access. See 383 F.3d at 1200 . The Tenth Circuit rejected the plaintiffs backward-looking claim, noting that any remedy “that could conceivably be awarde.d to Plaintiff as a result of the alleged police misconduct” had already been sought and obtained in a suit against Oklahoma State University and the four football players.that had allegedly raped her. 383 F.3d at 1209 . Notably, the Tenth Circuit stated that, unlike other Courts of Appeals, the Tenth Circuit “has not recognized a constitutional cause of action based on denial of access to the courts under [the] circumstances [of police cover-ups].” 383 F.3d at 1208-09 .

Recently, in Lynch v. Barrett, 703 F.3d 1153 (10th Cir.2013), cert. denied, — U.S. - — , 133 S.Ct. 2352 , 185 L.Ed.2d 1078 (2013), the Tenth Circuit evaluated a backward-looking claim in the civil rights context. The plaintiff brought a § 1983 civil rights action alleging violation of his right to. court access against police officers who had allegedly. refused to disclose “who [had] exercised excessive force against [the plaintiff] in the course of an arrest.” 703 *1283 F.3d at 1155 . In addition, the plaintiff alleged that the City of Denver "violated his right of access to the courts by “adopting a policy and practice that precipitated the ‘conspiracy of silence’ waged against him.” 703 F.3d at 1155 . The plaintiff had already litigated the underlying claim of excessive force unsuccessfully, and had thus lost his opportunity to recover. See 703 F.3d at 1157 . The defendants argued that qualified immunity barred plaintiffs suit. See 703 F.3d at 1158 . The Tenth Circuit found that the plaintiff had an actionable backward-looking denial-of-access claim. See 703 F.3d at 1157 . In the subsequent analysis of qualified immunity, the Tenth Circuit stated that, “while the precise source of the constitutional right to court access remains ambiguous, the existence of such right, generally speaking, is quite clear.” 703 F.3d at 1161 . The Tenth Circuit stated that in Christopher v. Harbwry, 536 U.S. at 414 n. 9, 122 S.Ct. 2179 , the Supreme Court “was careful not to endorse the validity of ... backwards looking [right-of-access] claims.” 703 F.3d at 1161 (citing Jennings v. Stillwater, 383 F.3d at 1209 ). Because the question “whether an evidentiary cover-up by police officials may violate an individual’s constitutional right to court access was not clearly established at the time of the alleged violation,” the Tenth Circuit concluded that the defendants were entitled to qualified immunity. 703 F.3d at 1162 . “[T]hat we are ‘morally outraged’ by the alleged conduct,’ ” the Tenth Circuit concluded, “does not mean necessarily that the offic[ers] should have realized that [they] violated a constitutional right of access.” 703 F.3d at 1163 (citing Foster v. City of Jackson, 28 F.3d 425, 430 (5th Cir.1994)).

Under a § 1983 court access claim, therefore, the second prong of a qualified immunity analysis requires" that the-contours of the right “be sufficiently clear that a" reasonable official would understand that what he was doing violates that right.” Lynch v. Barrett, 703 F.3d at 1161 . To overcome a defendant’s claim of qualified immunity, a plaintiff must show that the scope of his or her court access right “was sufficiently clear” such that a reasonable’ state actor would have understood that his or her actions against the plaintiff “were not merely ill-advised, but violate' that right.” 703 F.3d at 1161 . To simply say that “the Constitution recognizes a right to court accéss casts too high a level of generality over our inquiry.” Lynch v. Barrett, 703 F.3d at 1161 . For a plaintiff to show that his or her right to court access was “clearly established in the proper sense,” the plaintiff “should identify cases of controlling authority ... at the time of the incident ... [or] a consensus of eases of persuasive authority clearly establishing the scope of the right encompasses the facts presented, such that a reasonable officer could not have believed that his actions were [consistent with that right].” 703 F.3d at 1161 (citing Wilson v. Layne, 526 U.S. 603, 617 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999))(internal quotations omitted).

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 quota *1284 tions omitted) (citations omitted). Most rights under the Constitution secure protection only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 , 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. at 48 , 108 S.Ct. 2250 (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'

This text is long and has been trimmed here. Open the source document for the complete record.