Petition for Writ of Certiorari — Coriz ex rel. Coriz v. Martinez

Supreme Court brief1991

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Text

i” ! Buprems Court, U.S.

90-1304 FILED

FEB 19 199)

OFFICE OF THE CLERK

No.

Jn the

Supreme Court of the Hnited States

October Term, 1990

ORLANDO CORIZ, JR., by and through

next friends ORLANDO CORIZ

and BERNICE D. CORIZ,

Petitioners,

Vv.

ARTHUR MARTINEZ and CARLOS GUILLEN,

in their individual capacities only,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

John B. Roesler

Caldwell, Smith, Jesmer & Roesler, P.A.

316 E. Marcy Street

Santa Fe, NM 87501

(505) 988-8868

Counsel for Petitioners

Kk VERGARA PRINTING CO (505) 473-1451

February 18, 1991

QUESTIONS PRESENTED

1. Where inadequacy of post-deprivation

state remedy is an element of a

Fourteenth Amendment procedural due

process claim, should the first step of

the Harlow v. Fitzgerald quaiified

immunity inquiry pertain to whether the

constitutional right was "clearly

established" by the federal "establishing

case," or should this part of the inquiry

be focused on adequacy of state remedy?

2. Under the second more fact-specific

"application" step of Harlow ("contours"

of the right "of which a_ reasonable

person would have known"), which of the

following divergent and conflicting

standards from the various’ circuits

should be the rule:

(a) strict factual correspondence

between the federal "establishing case"

and the case at bar;

(b) application of the _ general

legal principle to an analogous fact

pattern; or should public officials be

held to

3. Once past the hurdles of (1) a

"Clearly established" general legal

principle, and (2), e.g., of the three

differing approaches to this’ second

aspect of the Harlow test, a sufficiently

analogous factual pattern, then is the

"inadequacy of state remedy" element of

the procedural due process claim subject

to a higher burden of proof’ than

"preponderance of the evidence," i.e.,

must this element _be "clearly

established" as a matter of proof?

4. Should the qualified immunity

inquiry include reference to unreported

United States district court memoranda

and opinions, injecting a _ subjective

element into Harlow, and requiring public

officials to "know" the law via their

"reasonably competent legal advisors,"

v. Miera, when the law

is not reported or indexed?

_ Since the "lower courts are not

informed whether two confiicting opinions

from different district courts [including

the present intrajurisdictional conflict

of two unreported District Court

opinions], or even a split decision in

the court of appeals, makes the law

sufficiently unclear to mandate the

granting of immunity," People o hree

Mile Island, should such a split of

iii

decisions be conciusive and binding on

the Court with permanent, preclusive

effect as to the constitutional right at

issue?

6. Where petitioners are confronted

with the New Mexico State Tort Clains

Act, which insulates’ public’ school

teachers from all tort liability

including malicious acts, where a state

Court of Appeals decision has already

interpreted the Act as the sole avenue of

any tort relief, does this "remedy," or

the "remedy" of criminal action, subject

to prosecutorial discretion where there

is no compensation for damages,

constitute a “meaningful opportunity to

be heard," or is this inadequate post-

deprivation state remedy for

compensation?

7. Do the New Mexico State Tort Claims

Act, as described in 6 above, where there

is no compelling state interest

necessitating the taking of fundamental

constitutional rights, namely the

Fourteenth Amendment property right to

recover damages, and the right of access

to the courts as protected by the First

Amendment, the Fourteenth Amendment, and

Article IV, Section 2, Clause 1 of the

United States Constitution, and _ the

District Court and Court of Appeals’

decisions relegating petitioners’ to

inadequate "state remedy" without

recourse in federal court for violation

of procedural due process violate the

Equal Protection Clause of the Fourteenth

Amendment ?

8. Are the Fourteenth Amendment

property right to recover damages and the

rig’ to redress through access to the

coux s, as protected by the United States

Constitution, Article IV, Section 2,

Clause 1, the First Amendment, and the

Fourteenth Amendment, Section 1, violated

by the above-referenced New Mexico State

Tort Claims Act and the decisions of the

District Court and the Court of Appeals?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............. i-vi

TABLE OF AUTHORITIES ............ xii-xv

I TE io inca s cacrcddaces 2

IE ie 80 6 6x4 0440540 d% 08 2

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ........... 3

STATEMENT OF THE CASE ........... 6

REASONS FOR GRANTING THE WRIT ... 11

I THE TENTH CIRCUIT’S DECISION

W O Cc

W DS S

SU a nar cn ek wi oe 11

A. THE FIRST PART OF THE HARLOW

v. FITZGERALD, 457 U.S. 800

(1982) QUALIFIED IMMUNITY

DEFENSE, ASCERTAINMENT OF THE

"CLEARLY ESTABLISHED"

CONSTITUTIONAL RIGHT SET BY THE

FEDERAL "ESTABLISHING CASE,"

HAS BEEN CHANGED BY THE TENTH

CIRCUIT, AND

Vil

B. THE SECOND PART OF THE

HARLOW QUALIFIED IMMUNITY

DEFENSE, THE MORE FACT-

SPECIFIC "APPLICATION" OF

THE "CLEARLY ESTABLISHED"

CONSTITUTIONAL RIGHT “OF

WHICH A REASONABLE PERSON

WOULD HAVE.KNOWN," HAS

BEEN DROPPED BY THE TENTH

CIRCUIT wccccccccccccces ll

II. THE TENTH CIRCUIT HAS DECIDED

FIVE IMPORTANT QUESTIONS OF

FEDERAL LAW WHICH HAVE NOT

BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT: ......222226-. 18

1. WHICH OF THE CONFLICTING

STANDARDS AMONG THE CIRCUITS

SHOULD BE THE RULE WHEN

APPLY'™NG THE SECOND PART OF

THE HARLOW QUALIFIED

IMMUNITY DEFENSE? ...... 18

2. DO INTRAJURISDICTIONAL (OR

INTERJURISDICTIONAL )

CONFLICTS CONCLUSIVELY

ESTABLISH THAT THE LAW IS

NOT "CLEARLY ESTABLISHED"

UNDER THE HARLOW QUALIFIED

IMMUNITY DEFENSE? ...... 20

3. SHOULD PUBLIC OFFICIALS BE

HELD TO OBJECTIVELY "KNOW"

UNREPORTED AND UNINDEXED

UNITED STATES DISTRICT COURT

MEMORANDA AND OPINIONS VIA

villi

Page

THEIR "REASONABLY COMPETENT

LEGAL ADVISOR" IN THE HARLOW

“STATE OF THE LAW" OR "CLEARLY

ESTABLISHED" INQUIRY? ...... 23

4. WHAT CONSTITUTES A "MEANINGFUL

OPPORTUNITY TO BE HEARD" SO AS

TO SATISFY FOURTEENTH AMEND-

MENT PROCEDURAL DUE PROCESS

WITHIN THE “ADEQUACY OF POST-

DEPRIVATION STATE TORT REMEDY /

VIOLATION OF PROCEDURAL DUE ,

PROCESS" CONTEXT? .......... 24

5. DO THE NEW MEXICO STATE TORT

CLAIMS ACT AND THE DECISIONS

OF THE DISTRICT COURT AND THE

TENTH CIRCUIT DEPRIVE PETITION-

ERS OF EQUAL PROTECTION AND

THEIR CONSTITUTIONALLY PROTECTED

PROPERTY RIGHTS, AND THEIR

RIGHT TO REDRESS THROUGH

ACCESS TO THE COURTS? ...... 25

CONCLUSION ..cccccccccccccsccscccccce 29

APPENDIX A - OPINION of the United

States Court of Appeals for

the Tenth Circuit, filed

October 16, 1990

APPENDIX

B - ORDER of the United States

)

Court of Appeals for the

Tenth Circuit denying

Petition for Rehearing and

Suggestion for Rehearing En

Banc, filed November 21,

1990

United States District Court

opinion granting qualified

immunity, filed December 18,

1988

United States District Court

Order denying motion for re-

consideration and certifica-

tion for interlocutory

appeal on the qualified

immunity issue

United States District Court

Judgment after jury trial on

the substantive due process

issue

Excerpt from unreported U.S.

District Court opinion in

Garcia v. Miera, D.N.M. No.

Div. 83-0919C (April 4,

1985) regarding adequacy of

state remedy

Excerpt from unreported U.S.

District Court opinion in

McGinnis v. Cochran, D.N.M.

No. Civ. 85-261M (June 3,

1985) regarding inadequacy

of state remedy

APPENDIX H - Cover page from 817 F.2d No.

2, Garcia By Garcia, infra,

received "June 23, 1987" at

the New Mexico Supreme Court

Law Library

TABLE OF AUTHORITIES

CASES: Page

Anderson v. Creighton,

S&B es. eer 13,14

Bio-Medical Laboratories, Inc.

Vv. Trainor, 370 8.E. 24 223

ee ee as a es ae ka whe 24

Board of Regents v. Roth,

Sue Usle BGG CERF Z) ae cscensecsces 28

Cross Wood Products, Inc. v. Suter,

422 N.E. 2d 953 (I11. App. 1981). 15,24

Gallegos v. State, 107 N.M. 349,

TOR Wome BOR CEPEE) paces and av anes 6,25,27

Garcia v. Miera, D.N.M. No. Civ.

83-G919C (April 4, 1985) ..cseces x, 16

(excerpt from unreported decision)

Appendix F

Garcia By Garcia v. Miera,

817 F.2d 650 (10th Cir. 1987), £33, 8x

rehearing and rehearing en banc 8,9,14

denied (1988), cert. denied, 16,20

$08 BS.CO. 1220 (L9BS) wncccccccas 21,22

Harlow v. Fitzgerald, 457 U.S. wee oe tp

SOO (EGSS) cc rcvescvesessavesverss 12,15,19

20,21,23

Logan v. Zimmerman Brush Co.,

S55 UB. Be ERGO) 6c bina ce deus 24

Lum v. Jensen, 876 F.2d 1385 (9th

Cols BOP) chi wc ees 6005 6b ee hues 23

#13

Martinez v. California, 444 U.S.

| RE pe 28

Massachusetts Bd. of Retirement v.

Murgia, 427 U.S. 307 (1976) ..... 26

Mullane v. Central Hanover Bank

& Trust Co., 399 U.S. 306 (1950). 24,28

McGinnis v. Cochran, D.N.M. No. Civ.

S5-2G6iR (SUMO 2, EGOS) ccc scccces x

(excerpt from unreported decision)

Appendix G

People of Three Mile Island v.

Nuclear Reg. Com’rs, 747 F.2d 139

ee ee ree iii

EL gee 26

Procunier v. Navarette, 434 U.S.

ee gg wana ee.s 12

Ryland v. Shapiro, 708 F.2d 967

ee csc cee. 28

San Antonio School District v.

Rodriguez, ee eeeee B LEBFS) coc 25

Stoneking v. Bradford Area School

Dist., 882 F.2d 720 (3ra Cir.

Se A 3.13

Trimble v. Gordon, 430 U.S. 762

Sg ee | on 26

xiii

Williamson v. Lee Optical Of

Oklahoma, 348 U.S. 483 (1955) ... 26

CONSTITUTIONAL PROVISIONS:

Article IV, Section 2, Tlause 1,

United States Constitution ..... re

First Amendment, United States

CUOMGCAGWESON ce ccc ccawesseenseanse 3

Fourteenth Amendment, Section l,

United States Constitution ..... 4,26,

STATUTES:

28 U.S.C. Section 133k wvcucivss 7

28 U.S.C. Segtiom 1343 scccsesss 7

42 U.S.C. S@GELON 1963 .icacncccs 4,7

New Mexico State Tort Claims Act,

Section 41-4-1 through 41-4-27

oy, eee ee ee ee ee ee ee ee 2,6;

MISCELLANEOUS:

Comment, Harlow v. Fitzgerald:

The Lower Courts Implement The New

Standard For Qualified Immunity

Under Section 1983, 132 U.Pa.L.Rev.

O03 TXOEEE ccdbs cue eres 12,16,

18,19

Xiv

Page

A Study In Irrationality: Refusal

To Grant Substantive Due Process

Protection Against Excessive

Corporal Punishment In The Public

Schools, Rosenberg, 27 Houston Law

Review 399 (May 1990) ............ 8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

ORLANDO CORIZ, JR., by and through next

friends ORLANDO CORIZ and BERNICE D.

CORIZ,

Petitioners,

ARTHUR MARTINEZ and CARLOS GUILLEN,

in their individual capacities only,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners, Orlando Coriz, Jr., by

and through next friends Orlando Coriz

and Bernice D. Coriz, respectfully pray

that a writ of certiorari issue to review

the judgment and opinion of the Court of

Appeals for the Tenth Circuit entered in

the above-entitled proceeding on October

16, 1990 (Appendix A), as to which a

timely motion for rehearing was denied on

November 21, 1990. (Appendix B)

OPINIONS BELOW

The opinion of the Court of Appeals

for the Tenth Circuit, to be reported in

Federal Reporter, Second Series is

attached hereto as Appendix A. The

unreported opinion of the United States

District Court for the District of New

Mexico is attached hereto as Appendix C.

JURISDICTION

The dates of entry of the Tenth

Circuit judgment and opinion, and the

order denying petition for rehearing and

suggestion for rehearing en banc are,

respectively, October 16, 1990 (Appendix

A) and November 21, 1990. (Appendix B)

The statutory provision conferring

jurisdiction on this Court to review the

decision in question by writ of

certiorari is 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Article iV, Section 2, Clause 1,

United States Constitution:

The Citizens of each State

shall be entitled to all

Privileges and Immunities of

Citizens in the several States.

First Amendment,

United States Constitution

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 peaceably

to assemble, and to petition

the Government for a redress of

grievances.

Fourteenth Amendment, Section 1

United States Constitution

All persons born or naturalized

in the United States, and

subject to the jurisdiction

thereof, are citizens of the

United States and of the State

wherein they reside. No 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; nor deny to any person

within its jurisdiction the

equal protection of the laws.

42 U.S.C. Section 1983

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage,

of any State or Territory or

the District of Columbia,

Subjects, or causes to. be

subjected, any citizen of the

United States or other person

within the jurisdiction thereof

to the deprivation of any

rights, privileges, or

immunities secured by the

Constitution and laws, shall be

liable to the party injured in

an action at law, suit in

equity, or other proper

proceeding for redress. 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.

New Mexico State Tort Claims Act

[Sections 41-4-1 through 41-4-27 NMSA

1978,relevant sections re-printed]

[Section] 41-4-2 A. [I]t is

declared to be the public

policy of New Mexico that

governmental entities and

public employees shall only be

liable within the limitations

of the Tort Claims Act...and in

accordance with the principles

established in that act.

kkk

[Section } 41-4-4 A. A

governmental entity and a2iy

public employee while acting

within the scope of duty are

granted immunity from liability

for any tort except as waived

by Sections 41-4-5 through 41-

4-12 NMSA 4978. Waiver of this

immunity shall be limited to

and governed by the provisions

of Sections 41-4-13 through 41-

4-25 NMSA 1978.

kkk

[Sections] 41-4-5 through 41-4-

121 [There is no waiver of

immunity for Public Schools or

Public School Teachers, as

with, e.g., 41-4-10 Health Care

Providers, and 41-4-12 Law

Enforcement Officers. }

[Section] 41-4-17 A.

Exclusiveness of remedy.’ The

Tort Claims Act...shall be the

exclusive remedy against a

governmental entity or public

employee for any tort for which

immunity has been waived under

the Tort Claims Act and no

other claim, civil action or

proceeding for damages, by

reason of the same occurrence,

may be brought against a

governmental entity or against

the public employee or his

estate whose act or omission

gave rise to the suit or claim.

STATEMENT OF THE CASE

in October, 1987, defendants-

respondents Arthur Martinez (a gym

teacher) and Carlos Guillen (a teacher’s

aide) at Espanola Valley High School, a

* See also Gallegos v. State, 107

N.M. 349, 352, 758 P.2ad 299 (1988):

"Since the Act provides the exclusive

remedy, to allow plaintiff to assert a

claim outside the Act would render the

Act meaningless."

public high school in New Mexico, used

excessive force in discipline on

plaintiff-petitioner Orlando Coriz, Jr.

who was thrown to the gym floor ard

suffered a broken arm, for not running

laps. Orlando Coriz, Jr., dy and through

his parents and next friends, Orlando

Coriz and Bernice D. Coriz, petitioners,

filed suit August 18, 1988, in federal

District Court under 42 U.S.C. Section

1983, for violation of Orlando Jr.’s

Fourteenth Amendment substantive = and

procedural due process rights.

Jurisdiction of the District Court was

predicated upon 28 U.S.C. Sections 1331

and 1343, and 42 U.S.C. Section 1983.

Defendants Martinez and Guillen were sued

in their individual capacities, acting

under color of state law.

~The claims were premised upon the

constitutional rights established in

Garcia By Garcia v. Miera, 817 F.2d 650

(10th Cir. 1987), rehearing and rehearing

en banc denied (1988), cert. denied, 108

S.Ct. 1220 (1988), which federal

"establishing case"* was received in the

New Mexico State Supreme Court Library on

June 23, 1987. (Appendix H) The legal

principle in Garcia By Garcia establishes

three categories of corporal

punishment. Punishments that

do not exceed the traditional

common law standard of

reasonableness are not

: It is noted that the Fifth

Circuit conflicts with the Tenth Circuit

and several other circuits regarding

these rights. There is no judicially

cognizable Liberty Interest for public

school children in the Fifth Circuit.

See discussion criticizing this

constitutionally disparate treatment of

children in A _Study In Irrationality:

Refusal To Grant Substantive Due Process

Protection Against Excessive Corporal

Punishment In The Public Schools,

Rosenberg, 27 Houston Law Review 399 (May

1990).

actionable; punishments’ that

exceed the common law standard

without adequate state remedies

violate procedural due process

rights; and finally,

punishments that are so grossly

excessive as to be shocking to

the conscience violate

substantive due process rights,

without regard to the adequacy

of state remedies.***Thus, if

the state were to provide no

adequate remedy to deter this

[mid-level ] degree of

[excessive] conduct and

compensate the victim of that

misconduct, we would find a

violation of procedural due

process.

Garcia By Garcia, supra, 817 F.2d at p.

656.

The District Court granted

defendants-respondents’ motion for

summary judgment on the mid-tier

procedural due process claim which was

based upon allegations of excessive force

and injury without adequate post-

deprivation state tort remedy for

compensation in New Mexico. (Appendix C)

The District Court decided that

inadequacy of state remedy was not

"Clearly established," because of two

conflicting, unreported, unindexed United

States District Court memoranda and

Opinions in the District of New Mexico

(Appendix F and Appendix G) on the issue

of adequacy of state remedy.

Petitioners’ request to the District

Court for certification of interlocutory

appeal was denied on this’ qualified

immunity issue. (Appendix D) The case

proceeded to jury trial on the higher,

substantive due process ("shocking to the

conscience") standard, which claim was

lost. (Appendix E)

Thereafter, on December 14, 1989,

petitioners timely appealed the

procedural due process qualified immunity

issue to the Court of Appeals for the

Tenth Circuit. On October 16, 1990, the

Tenth Circuit affirmed the District Court

(Appendix A), and denied petition for

rehearing and suggestion for rehearing en

banc on November 21, 1990. (Appendix B)

REASONS FOR GRANTING THE WRIT

I. THE TENTH CIRCUIT’S DECISION

CONFLICTS WITH OTHER CIRCUITS

A WIT UNITED STATES

SUPR OURT.

A. THE FIRST PART OF THE HARLOW vy.

FITZGERALD 457 U.S. 800 (1982)

QUALIFIED IMMUNITY DEFENSE,

ASCERTAINMENT OF THE “CLEARLY

ESTABLISHED" CONSTITUTIONAL

RIGHT SET BY THE FEDERAL

"ESTABLISHING CASE," HAS BEEN

CHANGED BY THE TENTH CIRCUIT,

AND

B. THE SECOND PART OF THE HARLOW

QUALIFIED IMMUNITY DEFENSE, THE

MORE eee W~ereCIFIC

"APPLICATION" OF THE "CLEARLY

ESTABLISHED" CONSTITUTIONAL

RIGHT "OF WHICH A REASONABLE

PERSON WOULD HAVE KNOWN," HAS

BEEN DROPPED BY THE TENTH

CIRCUIT.

There are two parts to Harlow’s

objective qualified immunity defense:

[1] conduct [which] does not

violate clearly established...

constitutional rights,

[2] of which a_ reasonable

person would have known.

Harlow, supra, at p. 818.

First, it must be - ascertained

whether there was a "clearly established"

constitutional right set by the federal

"establishing case"*’ at the time of the

See: Comment, Harlow v.

Fitzgerald: The Lower Courts Implement

The New Standard For Qualified Immunity

Under Section 1983, 132 U.Pa.L.Rev. 901,

923 (1984) ("correspondence between the

facts of the ’establishing’ case and the

facts of the case under consideration,"

emphasis supplied); Stoneking Vv.

Bradford Area School Dist., 882 F.2d 720,

726 (3rd Cir. 1989) ("([Wje reiterate the

conclusion we reached in Stoneking I that

the constitutional right Stoneking

alleges, to freedom from invasion of her

personal security...[,] was well

established at the time the assaults upon

her occurred."); Procunier v. Navarette,

alleged wrongdoing, then, secondly, the

district court must make a "subsequent

determination", * by a more "fact-

specific" inquiry whether, as a "matter

of law," the facts of the "establishing

case" are sufficiently close to the case

at bar so as to impute knowledge of the

constitutional right to the public

employee via his "reasonably competent

434 U.S. 555,565 (1978) (It is the

"constitutional right" which is subject

to the clearly established inquiry ); and

Anderson v. Creighton, 483 U.S. 635, 641

(1978) (The "clearly established" inquiry

pertains to "clearly established [legal]

principles").

Qualified immunity "requires us

to undertake ‘an inquiry into the general

legal principles governing analogous

factual situations, if any, and a

subsequent determination whether’ the

official should have related this

established law to the instant situation’

[citation omitted]." (Emphasis

supplied.) Stoneking (II), Supra, at p.

726.

legal advisor."”

Garcia By Garcia, supra, is the

"establishing case" in the case at bar

which clearly enunciated the "legal

right" (see text, supra) prior to the

incident in question (see Appendix C as

to timing of the reported decision). The

Garcia By Garcia court used the terms

"inadequate" state remedy to

"compensate," which triggers the

procedural due process violation. Garcia

By Garcia did not hold that it had to be

clearly established that the state remedy

waS inadequate, nor did it hold that

state remedy must be entirely impossible,

> "We think a reasonably competent

legal advisor to a school district should

have realized that egregious invasions of

a student’s personal security would be

unconstitutional." Garcia By Garcia,

Supra, 817 F.2d at p. 658. "{S]ubjective

beliefs...are irrelevant." Anderson,

Supra, at p. 642.

merely "inadequate" remedy for

"compensation." Although petitioners

argue that there is no state remedy

whatsoever, "[{a]n [in]Jadequate remedy at

law is one which is’ [not] clear,

complete...{or] practical and efficient

to the ends of justice and its prompt

administration...." Cross Wood Products,

oo, V. Suter, 422 N.E. 2a 953, 957 (Ill.

App. 1981). See also discussion infra,

irl-4.

Step two of Harlow is not the

"Clearly established" aspect of the

inquiry. Step two involves application

of the legal right by one of three

different and conflicting tests that have

developed within the various circuits:

(1) strict factual correspondence between

the federal "establishing case" and the

instant case, (2) application of the

general legal principle to an analogous

fact pattern, or (3) the requirement that

public officials anticipate legal

developments. ee Comment, Harlow v.

Fitzgerald: The Lower Courts Implement

the New Standard For Qualified Immunity

Under Section 1983, 132 U.Pa.L.Rev. 901,

923 (1984), and footnote 7 infra.

In the present case, the Tenth

Circuit has dropped the second part of

Harlow’s test. The Tenth Circuit has now

collapsed the two inquiries into one

"clearly established" probe,® which

was clearly established that New Mexico

did not provide an adequate post-

deprivation remedy." (Appendix A, p. 3)

"Because of the uncertain state of the

law, the defendants’ ‘actions could

reasonably have been thought consistent

with the right they are alleged to have

violated.’" (Appendix A, p. 4) The

Tenth Circuit did not aim the "clearly

established" inquiry at the Garcia By

Garcia "establishing case" at all, nor

result conflicts with the Supreme Court’s

decision in Harlow and the va-ious other

circuits’ which have adopted at least one

of three standards at this second stage

of establishing qualified immunity, which

differing standards should be reconciled

by the Supreme Court, because "[t]he

approach a court chooses may be [unfairly

and unevenly ] dispositive of the

plaintiff’s section 1983 claim"

did it take the “application of the

general legal principle" step enunciated

in Harlow and the other authorities cited

herein. The Tenth Circuit carried over

the "clearly established right" inquiry

to the second inquiry, which is subject

to one of the three varying standards as

set forth in the text above.

7 Circuits include the Second,

Third, Fifth, Ninth, and the Eleventh

which have applied one of the three

Standards set forth above. See Comment,

Harlow v. Fitzgerald: The Lower Courts

Implement The New Standard For Qualified

Immunity Under Section 1983, 132

U.Pa.L.Rev. 901, 923-32 (1984), and

authorities cited therein.

depending, arbitrarily, upon the circuit

within which the injured party may

reside. See Comment, Harlow Vv.

Fitzgerald: The Lower Courts Implement

The New Standard For Qualified Immunity

Under Section 1983, 132 U.Pa.L.Rev. 901,

923 (1984).

II. THE TENTH CIRCUIT HAS DECIDED FIVE

IMPORTANT QUESTIONS OF FEDERAL LAW

WHICH HAVE NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT:

1. WHICH OF THE CONFLICTING

STANDARDS AMONG THE CIRCUITS SHOULD

BE THE RULE WHEN APPLYING THE SECOND

PART OF THE HARLOW QUALIFIED

IMMUNITY DEFENSE?

See discussion in . supra.

Moreover, application of the

constitutional right/federal

"establishing case" to the facts of a

presenting case may come out differently

in four possible ways now, including the

Tenth Circuit’s one-step approach. The

disparate and confusing result stems from

the Supreme Court’s earlier abstention®

in Harlow, which may have been valid at

the time, but now calls for clarification

of the law and unification of the

circuits that have, subsequent to Harlow,

come up with disparate standards in

applying Harlow, where the approach may

be dispositive of underlying

constitutional rights and the degree of

immunity afforded to public employees.

"Harlow did not attempt to

resolve...the most difficult question

that is faced by a court attempting to

apply the redefined qualified immunity

standard: the extent to which courts

should require a correspondence between

the facts of ’establishing’ cases and the

facts of a case under consideration."

Comment, Harlow v. Fitzgerald: The Lower

Courts Implement The New Standard For

Qualified Immunity Under Section 1983;

132 U.Pa.L.Rev. 901, 923 (1984). Cf.

People Of Three Mile Island v. Nuclear

Reg. Com’rs., 747 F.2d 139, 144 (3rd Cir.

1984)

2. DO INTRAJURISDICTIONAL (OR

INTERJURISDICTIONAL) CONFLICTS

CONCLUSIVELY ESTABLISH THAT THE

LAW IS NOT "CLEARLY

ESTABLISHED" UNDER THE HARLOW

QUALIFIED IMMUNITY DEFENSE?

The Tenth Circuit’s opinion

(Appendix A, p. 3, fn. 2) finds that

"‘tjhe Garcia rule only applies to

interjurisdictional conflicts [, and

wjhen there is conflict within a

jurisdiction, it cannot be doubted that

the law there is not clearly

established." This is an incorrect

extrapolation from Garcia By Garcia.

Garcia By Garcia, supra, 817 F.2d at p.

658, only decided that conflicts, whether

inter- or intrajurisdictional, are

"relevant but not controlling" to the

Harlow inquiry. The Tenth Circuit has

incorrectly filled the gap left by this

Supreme Court in Harlow,” which will

undoubtedly lead to further conflict and

confusion within the circuits.

The present case is a ripe and

cogent example for the Supreme Court to

define the circumstances under which the

"state of the law" is to be evaluated,

particularly as presents with the

° "(Wile need not define here the

circumstances under which ‘the state of

the law’ should be ‘evaluated by

reference to the opinions of this Court,

of the Courts of Appeals, or of the local

District Court.’" Harlow, supra at p.

6is, fn. 32.

"Unfortunately Harlow declined to

define how...[the law] should be

evaluated in determining what is clearly

established...{legal principle, so ajs a

consequence, ‘lower courts are not

informed whether two conflicting opinions

from different district courts, or even a

split decision in the court of appeals,

makes the law sufficiently unclear to

mandate the granting of immunity.’"

(Emphasis supplied.) Garcia By Garcia,

supra, 817 F.2d at p. 658, fn. 11

untoward, locked-in’*® result in the Tenth

Circuit, in denigration of the

constitutional right at issue, and with

the dangerous precedent of imposing, in

all public liability/civil rights cases,

a gargantuan duty on public officials to

objectively "know" the law through their

reasonably competent legal advisors,”

when the law is not reported or indexed,

and where the Tenth Circuit’s opinion

"Both courts and commentators

have worried that the clearly established

test will give officials ’one liability-

free Violation’ of the

Constitution....[{citations omitted]. But

if courts cannot prospectively articulate

constitutional standards [as occurs in

the instant case], there looms the even

more unpalatable possibility of multiple

bites of a constitutionally forbidden

fruit. This is especially true in the

present factual context...[of] excessive

corporal punishment...." Garcia By

Garcia, supra, 817 F.2d at pp. 656-7, fn.

See fn. 5, supra.

contributes to disparity and conflict

among

the circuits on analogous

interjurisdictional conflicts.’

No.

SHOULD PUBLIC OFFICIALS BE HELD

TO OBJECTIVELY "KNOW"

UNREPORTED AND UNINDEXED UNITED

STATES DISTRICT COURT MEMORANDA

AND OPINIONS VIA THEIR

"REASONABLY COMPETENT LEGAL

ADVISOR" IN THE HARLOW "STATE

OF THE LAW" OR “CLEARLY

ESTABLISHED" INQUIRY?

ee discussion and citations

and footnotes 5 .and 11 referenced in II-

2, Supra.

WHAT CONSTITUTES A "MEANINGFUL

OPPORTUNITY TO BE HEARD" SO AS

TO SATISFY FOURTEENTH AMENDMENT

PROCEDURAL DUE PROCESS WITHIN

THE "ADEQUACY OF POST-

DEPRIVATION STATE TORT REMEDY/

VIOLATION OF PROCEDURAL DUE

PROCESS" CONTEXT?

"The circuits disagree as to

whether inter-circuit conflict on a point

of law negates the clearly established

nature of a right." Lum v. Jensen, 876

F.2G@ 1385,

1389 (9th Cir. 1989).

Where issues of state governmental

immunity exist, there is no clear,

complete, practical and efficient

entitlement to damages; the legal remedy

is uncertain and inadequate. See Bio-

Medical Laboratories, Inc. v. Trainor,

370 N.E. 2d 223, 227 (Ill. 1977), Cross

Wood Products, Inc., supra, Logan Vv.

Zimmerman Brush Co., 455 U.S. 422, 429

fn. 5 (1982) ("meaningful" post-

deprivation state remedy is required in

order to satisfy procedure due process),

and Mullane v. Central Hanover Bank &

Trust Co., 399 U.S. 306 (1950).

The above authorities should be

applied to the New Mexico State Tort

Claims Act which does not afford an

adequate or meaningful opportunity to be

heard or to obtain compensation. See

description of the New Mexico State Tort

Claims Act in issues 6 and 7 of Questions

Presented, and relevant excerpts from the

New Mexico State Tort Claims Act in this

petition. Because teachers are

absolutely immune from any tort claim in

New Mexico,**® petitioners do not have

adequate state remedy for compensation.

5. DO THE NEW MEXICO STATE TORT

CLAIMS ACT AND THE DECISIONS OF

THE DISTRICT COURT AND THE

TENTH CIRCUIT DEPRIVE PETITION-

ERS OF EQUAL PROTECTION AND

THEIR CONSTITUTIONALLY

PROTECTED PROPERTY RIGHTS, AND

THEIR RIGHT TO REDRESS THROUGH

ACCESS TO THE COURTS?

Under the "strict scrutiny" test,

San Antonio School District v. Rodriguez,

- See also "Exclusiveness') of

Remedy" provision in the New Mexico Tort

Claims Act, together with the New Mexico

Court of Appeals decision in Gallegos,

Supra, 107 N.M. at p. 352, which holds

that the Act provides the exclusive

remedy for all tort claims against state

employees. See fn. 1, Supra.

411 U.S. 1,33 (1973), the "fair and

substantial relation" test, Plyler v.

Doe, 457 U.S. 202, 220 (1981), Trimble v.

Gordon, 430 U.S. 762 (1977),

Massachusetts Bd. of Retirement v.

Murgia, 427 U.S. 307, 317 (1976)

(Marshall, J., dissenting), and_ the

"rational relation" test, Williamson v.

Lee Optical Of Oklahoma, 348 U.S. 483,

486 (1955), petitioners have been denied

equal protection of the laws as protected

by the Equal Protection Clause of the

Fourteenth Amendment.

The New Mexico State Tort Claims

Act, insofar as it bars all tort claims

against public school teachers,

arbitrarily, without rational or

compelling state interest, by not

enacting some provision for waiver of

sovereign immunity as it has with other

groups of similarly situated public

employees, insofar as the Act provides in

its "Exclusiveness of Remedy" clause that

it is the sole avenue of any tort relief

against public employees, insofar as

Gallegos, Supra, has additionally

interpreted the Act as the sole means of

bringing any tort claim against a public

employee, and the decisions of the

District Court and Tenth Circuit relegate

petitioners to this inadequate "state

remedy" without an avenue of relief in

federal court for violation of procedural

due process, constitute a de facto

deprivation of two very substantial,

fundamental constitutional rights: (1)

the right to redress by access to the

courts, as protected by Article Iv,

Section 2, Clause 1 of the United States

Constitution, the First Amendment, and

Section 1 of the Fourteenth Amendment

(see Ryland v. Shapiro, 708 F.2d 967 (5th

Cir. 1983)); and (2) the Fourteenth

Amendment property interest in

compensation for damages (see Board Of

Regents v. Roth, 408 U.S. 564 (1972),

Mullane, Supra, and artinez =

California, 444 U.S. 277 (1980)).

CONCLUSION

For the above-stated reasons, this

petition for writ of certiorari should be

granted, particularly to clarify the now

four divergent standards for applying the

Harlow qualified immunity defense, which

difference affects substantive and

procedural rights of claimants as well as

the degree of immunity afforded to public

employees.

Respectfully submitted,

(Dé. ra Sal Co

ihe B. Roesler

ldwell, Smith, Jesmer &

Roesler, PA.

316 E. Marcy Street

Santa Fe, NM 87501

(505) 988-8868

Counsel for Petitioners

February 18, 1991

7 =

= oo

F i LEE pee

APPENDIX A veastd Mey Cua

PUBLISH ROBERT ok

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ORLANDO CORIZ, JR.,

by and through next

friends ORLANDO CORIZ

and BERNICE D. CORIZ, NO. 89-2313

Plaintiffs-Appellants,

Vv.

ARTHUR MARTINEZ and

CARLOS GUILLEN, in their

individual capacities only,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. 88-0979M)

John B. Roesler, Smith & Roesler, P.C.,

Santa Fe, New Mexico,

Attorney for Plaintiffs-Appellants.

Daniel H. Friedman, Simons, Cuddy &

Friedman, Santa Fe, New

Mexico, Attorney for Defendants-

Appellees.

Before ANDERSON, BARRETT, Circuit Judge,

and CHRISTENSEN,* District Judge.

ANDERSON, Circuit Judge.

Plaintiff-appellant Orlando Coriz

Jr. appeals a summary judgment entered

against him on his procedural due process

claim on the grounds that the defendants

were qualifiedly immune. We affirm.

In the fall of 1987, defendant

Guillen, an aide to defendant Martinez, a

gym teacher at Espanola Valley High

School, threw Coriz to the floor in an

effort to maintain discipline. Coriz

suffered a broken arm and filed suit

under 42 U.S.C. Section 1983, alleging,

inter alia, that his right to procedural

due process had been violated because he

* The Honorable A. Sherman Christensen,

Senior Judge, United States District

Court for the District of Utah, sitting

by designation.

had no adequate post-deprivation remedy.’

The district court granted defendants’

motion for summary judgment on this

Coriz’s substantive due process

and other claims were tried to a jury,

which found against him.

The defendants contend that the

adverse verdict on the substantive due

process claim "moots" Coriz’s procedural

due process claim. We disagree. There

are

three categories of corporal

punishment.- Punishments that

do not exceed the traditional

common law standard of

reasonableness are not

actionable; punishments”) that

exceed the common law standard

without adequate state remedies

violate procedural due process

rights; and, finally,

punishments that are so grossly

excessive as to be shocking to

the conscience violate

substantive due process rights,

without regard to the adequacy

of state remedies.

Garcia by Garcia v. Miera, 817 F.2d 650,

656 (10th Cir. 1987), cert. denied, 485

U.S. 959 (1988). The jury’s decision

that the punishment in this case did not

reach the third level in no-~ way

foreclosed a finding that the punishment

reached the second level.

claim, finding that they were qualifiedly

immune because the inadequacy of Coriz’s

post-deprivation remedy was not clearly

established.

In a situation such as this, "where

the State is truly unable to anticipate

and prevent a random deprivation of a

liberty interest," Zinermon v. Burch, 110

S. Ct. 975, 987 (1990), "postdeprivation

tort remedies are all the process that is

due, Simply because they are the only

remedies the State could be expected to

provide," id. at 985. "[A]n unauthorized

intentional deprivation. . .by a state

employee does not constitute a violation

of the procedural requirements of the Due

Process Clause of the Fourteenth

Amendment if a meaningful postdeprivation

remedy for the loss is available."

Hudson _\. Palmer, 468 U.S. 517, 533

(1984).

"(Gjovernment officials performing

discretionary functions[{] generally are

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory or

constitutional rights of which a

reasonable person would have _ known."

Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). "[O]nce a defendant raises a

qualified immunity defense the plaintiff

assumes the burden of showing that the

defendant has violated clearly

established law." Hannula v. City of

Lakewood, 907 F.2d 129, 131 (10th Cir.

1990).

Coriz has failed to show that it was

clearly established that New Mexico did

not provide an adequate post-deprivation

remedy. As this court noted in Garcia by

Garcia v. Miera, 817 F.2d 650, 656 (10th

Cir. 1987), cert. denied, 485 U.S. 959

(1988), federal utane in New Mexico had

split on the question of whether the

state provided adequate post-deprivation

remedies for students whose procedural

due process rights were allegedly

violated by excessive punishment.’

Coriz argues that the Harlow inquiry

into whether’ the law was clearly

established should apply only to the

defendants’ acts, not to the adequacy of

Coriz, quoting our statement in

Garcia that "conflict is relevant to the

Harlow inquiry, but not controlling," 817

F.2d at 658, contends that the district

erred by relying solely upon this split

within New Mexico in concluding that the

law was not clearly established. The

Garcia rule only applies to

interjurisdictional conflicts. See Lum

v. Je n, 876 F.2d 1385, 1389 (9th Cir.

1989), cert. denied, 110 S. Ct. 867

(1990). When there is conflict within a

jurisdiction, it cannot be doubted that

the law there is not clearly established.

the remedies available to redress those

acts. We concede that this is an unusual

application of qualified immunity, but we

conclude that the district court applied

the law correctly.’ The right Coriz

claims the defendants violated is not

simply to be free from randon,

unauthorized deprivations of liberty, but

to be free from such deprivations in the

absence of adequate post-deprivation

remedies. ee Paratt v. Taylor, 451 U.S.

527. 537 (1981) ("Nothing in [the

Fourteenth] Amendment protects against

all deprivations of life, liberty or

property by the State. The Fourteenth

? The district court also could

have certified to the New Mexico Supreme

Court the question of whether Coriz had a

state-law remedy. If the answer was

affirmative, Coriz’s claim would fail,

for the absence of an adequate post-

deprivation remedy is an element of his

claim.

Amendment protects only against

deprivations ‘without due process of

law.’"); see also Hudson v. Palmer, 468

U.S. at 533 ("the state’s action is not

complete until and unless it provides or

refuses to provide a suitable

postdeprivation remedy"). Because of the

uncertain state of the law, the

defendants’ "actions could reasonably

have been thought consistent with the

right{ ] they are alleged to have

violated." Anderson v. Creighton, 483

U.S. 635, 638 (1987).

The judgment of the district court

is AFFIRMED.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ORLANDO CORIZ, JR.,

by and through next

friends; ORLANDO CORIZ;

and BERNICE D.CORIZ

No. 89-2313

Plaintiffs-Appellants,

V «

ARTHUR MARTINEZ and

CARLOS GUILLEN, in their

individual capacities only,

Defendants-Appellees.

ORDER

Filed November 21, 1990

Before HOLLOWAY, Chief Judge, BARRETT,

MCKAY, LOGAN, SEYMOUR, MOORE, ANDERSON,

TACHA, BALDOCK, BRORBY, and EBEL, Circuit

Judges, and CHIRSTENSEN,* District Judge.

*The Honorable A. Sherman Christensen,

Senior Judge, United States District

Court for the District of Utah, sitting

by designation.

This matter comes on for

consideration of appellants’ petition for

rehearing and suggestion for rehearing en

banc in the captioned cause.

Upon consideration whereof, the

petition for rehearing is denied by the

panel that rendered the decision sought

to be reheard.

In accordance with Rule 35(b) of the

Federal Rules of Appellate Procedure, the

Suggestion for rehearing en banc was

transmitted to all the judges of the

court in regular active service. No

member of the panel and no judge in

regular active service on the court

having requested that the court be polled

on rehearing en banc, Rule 35, Federal

Rules of Appellate Procedure, the

suggestion for rehearing en banc is

denied.

Entered for the Court

[sf

ROBERT L. HOECKER, Clerk

as , ia yr

¥ \. OG

APTP™DIX C pt? en new

pee oe “is eae

IN THE UNITED STATES DISTRICT COURT uv

FOR THE DISTRICT OF NEW MEXICO

ORLANDO CORIZ, JR., No. 88-979-M

by and through next Civil

friends ORLANDO CORIZ

and BERNICE CORIZ,

Plaintiffs, Entered on

Docket

Vi 12/16/88

ARTHUR MARTINEZ and

CARLOS GUILLEN, in

their individual

capacities only,

Defendants.

MEMORANDUM OPINION

AND ORDER

This matter came on for

consideration on defendants’ motion to

dismiss and for partial summary judgment.

Having considered the motion, the

response, and reply, and being otherwise

fully advised in the premises, I find

that the motion is well taken in part and

it will be granted in part and denied in

part.

Background

This is a civil rights action in

which the plaintiff claims that while he

was a student at Espanola High School, a

teacher, defendant Martinez, deputized a

student, defendant Guillen, to act as

Martinez’ teacher’s aide and that

Martinez instructed and authorized

Guillen to "use any kind of force

including beating up the students in

Martinez’ gym class if they did not

behave or do what they were told."

Plaintiff alleges that pursuant to this

authorization, Guillen used excessive

force in uplifting plaintiff and slamming

him down thereby breaking plaintiff’s

arm. Plaintiff claims that such conduct

violated his substantive due process and

his procedural due process rights as

protected by the Fourteenth Amendment.

Defendants’ Motion to Dismiss Defendant

Martinez

Defendants’ motion to dismiss

defendant Martinez is not well taken and

it will be denied.

Qualified Immunity

Plaintiff’s complaint alleges that

defendants’ conauct violated his

procedural due process rights because no

adequate post-deprivation remedy exists

in New Mexico. Defendants move for

Summary judgment claiming that they are

entitled to qualified immunity on this

issue because the law of this District is

not clearly established as to whether New

Mexico provides adequate post-deprivation

remedies to satisfy procedural due

process requirements. The doctrine of

qualified immunity provides that

"government officials performing

discretionary functions, [sic] generally

are shielded from liability for civil

damages insofar as their conduct does not

violate clearly established statutory or

constitutional rights of which a

reasonable person would have _ known."

Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

Although corporal punishment in

public schools implicates a _ liberty

interest, pre-deprivation notice and

hearing are necessary only when state

post-deprivation remedies are inadequate.

See Ingraham v. Wright, 430 U.S. 651

(1977). The sole question presented to

me on the issue of qualified immunity,

therefore, is whether at the time of the

alleged violation an objective school

official could determine whether New

Mexico provided adequate post-deprivation

remedies such that pre-deprivation due

process was not required. See Harlow,

457 U.S. at 818.

In Garcia v. Miera, No. 83-0919-C

slip op. at 10 (D.N.M. Apr. 4, 1985),

reversed on other grounds 817 F.2d 650

(10th Cir. 1982), cert. denied 108 S.Ct.

1220 (1988), the court concluded that New

Mexico provides adequate common law

remedies to afford the plaintiff

procedural due process. Just two months

later in McGinness v. Cochran, No. 85-

261-M, slip op. at 6 (D.N.M. June 3

1985), I concluded that New Mexico failed

to provide adequate remedies. The Tenth

Circuit in Garcia v. Miera, 817 F.2d 650,

656 (10th Cir. 1987) cert. denied 108

S.Ct. 1220 (1988) noted the conflict

between these opinions but found that it

was unnecessary for them to reach that

issue. These facts clearly indicate to

me that at the time of the violation a

conflict existed in the District of New

Mexico as to whether New Mexico afforded

sufficient post-deprivation remedies.

Accordingly, defendants Martinez and

Guillen are entitled to the qualified

immunity defense and summary judgment is

granted in favor of the defendants on

this issue.

IT IS SO ORDERED.

/s/_E. L. Mechem

SENIOR UNITED STATES DISTRICT JUDGE

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

FILED

AT ALBUQUERQUE

JAN 4 1989

ORLANDO CORIZ, JR., by and JESSE CASAUS

through next friends ORLANDO CBx

CORIZ and BERNIC D. CORIZ, ENTERED ON DOCKET

Plaintiff, hphchd Saad

Vv. No. 68-979-M Civil

ARTHUR MARTINEZ and CARLOS

GUILLEN, in their individual

capacities only,

Defendants.

ORDER

This matter came on for

consideration on plaintiff’s motion to

reconsider my memorandum opinion and

order of December 16, 1988 or in the

alternative for certification for

interlocutory appeal. Having considered

the motion and being otherwise fully

advised in the premises, I find that the

motion is not well taken and it will be

denied.

IT IS SO ORDERED.

/s/_E. L. Mechem

SENIOR UNITED STATES DISTRICT JUDGE

APPENDIX E

FILED

sec

aT ALC RUE

UNITED STATES STRI Cc ———

T DI CT COURT NOV 15 1983

FOR THE DISTRICT OF NEW MEXICO §s¢sS& CASAUS

Cra

ORLANDO CORIZ, JR., by and pyrene NCCE

, -, by an Es 879.

through next friends ORLANDO = pp) $-84—

CORIZ and BERNICE D. CORIZ,

Plaintiffs, Case No:

88-979-M

Vv. Civil

ARTHUR MARTINEZ and CARLOS

GUILLEN, in their individual

Ccepacities only,

Defendants.

X Jury Verdict. This action came

before the Court for a trial

by jury. The issues have been tried

and the jury has rendered

its verdict on November 8, 1989.

Decision by Court. This action came

to trial or hearing before the

Court. The issues have been tried

Or heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED that the

plaintiffs, Orlando Coriz, Jr., by and

through next friends Orlando Coriz and

Bernice D. Coriz, take nothing, that the

action be dismissed on the merits, and

that the defendants Arthur Martinez and

Carlos Guillen recover of the plaintiffs

their costs of action.

DATED at Albuquerque, New Mexico,

this 15th day of November, 1989.

Nov. 15, 1989 Jesse Casaus

Clerk

/s/Cecilia M. Reyes

(By) Deputy Clerk

page 20

a. er x ce

yi Ce eee “<9

APPENDIX F ee

- =

pen 7

IN THE UNITED STATES DISTRICT COURT a

FOR THE DISTRICT OF NEW MEXICO om

TERESA GARCIA, et al.,

Plaintiffs, No. CIV 83-0919C

vs.

THERESA MIERA, et al.,

Defendants.

MEMORANDUM OPINION

This case is before the Court on

Defendants’ Motion for Summary Judgment.

The Court has considered carefully all of

the arguments advanced by the parties,

together with the Supporting

documentation and legal authority, and

corcludes that the motion should be

granted.

Background.

The Plaintiff is an eleven year old

girl who attended Penasco Elementary

School in Penasco, New Mexico in 1982 and

1983. Defendant Theresa Miera was the

Principal of Penasco Elementary School

during this time. Defendants J. D.

Sanchez and Judi Mestas were teachers at

the school. Defendant Edward Leyba was a

school administrator. Defendant Felix

Duran was Superintendent of the Penasco

School District.

The Plaintiff sued for damages

resulting from apatikines she received at

school on two separate occasions. She

alleges that on February 10, 1982,

Defendant Miera called her to the

Principal’s office for disciplinary

reasons. Defendant Sanchez then held the

Plaintiff up in the air so that her body

hung upside down while Miera paddled the

Plaintiff with a wooden paddle. This

paddling caused

issue was not clearly established at the

time the Plaintiff was paddled in the

Penasco Elementary School.* Accordingly,

under the immunity standard of Harlow v.

Fitzgerald, 457 U.S. 800 (1982), all the

Defendants are entitled to summary

judgment on the Plaintiff’s substantive

due process claim.*

3 Indeed, earlier in this case the

Court certified for interlocutory appeal

the issue of the viability of Plaintiff’s

substantive due process claim, citing

"Substantial ground for difference of

opinion." Order of Sept. 5, 1984. The

Tenth Circuit declined to accept the

interlocutory appeal.

; The Plaintiff argues that her

allegations of malice should defeat the

good faith immunity defense, citing

Harlow, 457 U.S. at 817. This argument

is unpersuasive for two reasons. First,

malice would be an essential element of

the substantive due process claim, as

defined by Hall v. Tawney, 621 F.2d at

613. Under the Plaintiff’s reasoning,

the immunity defense could never apply to

this type of claim. Second, and perhaps

more importantly, the Supreme Court in

Harlow expressly rejected the subjective

ltteer

Procedural Due Process

The starting point for analysis of a

procedural due process claim in the

context of school discipline is’ the

Supreme Court’s decision in Ingraham v.

Wright, 430 U.S. 651 (1977). The Court

in Ingraham expressly stated that

"Corporal punishment in public schools

implicates a constitutionally protected

liberty interest, but we hold that the

traditional common-law remedies are fully

adequate to afford due process." Id. at

672. The remedies on which the Court

relied were the state of Florida’s tort

element of the good faith immunity

defense, due to the "substantial costs"

of the subjective inquiry. 457 U.S. at

816-17. The defense now is based on the

"objective reasonableness of an

official’s conduct, aS measured _ by

reference to clearly established law."

Id. at 818.

and criminal provisions. The Defendants

here argue that New Mexico also has

adequate common-law remedies to redress

this alleged violation. Alternatively,

the Defendants argue that they are

entitled to a good faith immunity defense

on this claim, and that the facts of this

case do not rise to a procedural due

process violation. The Court agrees with

the Defendants’ arguments.

The Supreme Court in Ingraham

concluded that given Florida’s common-law

safeguards against abuse, "the Due

Process Clause does not require notice

and a hearing prior to the imposition of

corporal punishment in the public

schools." 430 U.S. at 682. Instead, the

Court ruled that "the Fourteenth

Amendment’s requirement of procedural due

process is satisfied by Florida’s

preservation of common-law constraints

and remedies." Id. at 683. In Florida,

school authorities who inflicted

excessive punishment could be held liable

in damages and, if they acted with

malice, subjected to criminal penalties.

a, OTT These post-deprivation

remedies provide restraint on_ school

authorities who might otherwise exceed

their common-law privilege to use

reasonable corporal punishment. See id.

at 674. As the Court stated:

In those cases where severe

punishment is contemplated, the

available civil and criminal

sanctions for abuse -- considered in

light of the openness of the school

environment -- afford significant

protection against unjustified

corporal punishment.... Teachers and

school authorities are unlikely to

inflict corporal punishment

unnecessarily or excessively when a

possible consequence of doing so is

the institution of civil or criminal

proceedings against then.

Id. at 678.

In this case, the Plaintiff and the

Defendants differ sharply over whether

New Mexico has post-deprivation remedies

which are adequate to redress a violation

of a student’s liberty interest. The

Defendants cite to this Court’s opinion

in Willcox v. Salazar, No. 81-1051-C

(D.N.M. Mar. ib 1982) for the

proposition that New Mexico does have

adequate post-deprivation remedies. In

Willcox the plaintiff alleged a

procedural due process violation arising

from a school paddling. The court

granted the Defendants summary judgment

on this count for the following reasons:

New Mexico has, just as Florida did

in Ingrahan, common law tort

remedies and criminal penalties

covering situations where _ school

children may be abused by school

personnel. Apart from the tort

actions for negligence, assault and

aie

battery, New Mexico criminal

statutes Sections 30-3-1, 30-3-4,

30-3-5, and 30-6-1, N.M.S.A. 1978

set forth criminal sanctions for the

physical abuse of children.

Additionally, the New Mexico courts

have held that failure to

judiciously administer corporal

punishment can be grounds for a

teacher’s termination as it

constitutes an unsatisfactory work

performance under the _ teacher’s

employment contract. Morgan v. New

Mexico State Board of Education, 83

N.M. 106 (Ct. App. 1971).

Since New Mexico has-7~ sufficient

common law and criminal law remedies

to control excessive corporal

punishment of public school students

by teachers, I conclude, based on

the holding in Ingraham, that these

traditional common law remedies are

fully adequate to afford due

process. Ingraham v. Wright, supra,

at 672.

Id., slip op. at 3-4.

Nonetheless, an argument could be

made that the New Mexico Tort Claims Act

bars a state tort remedy by cloaking

school officials with sovereign immunity.

In Garcia v. Albuquerque Public Schools

Board, 95 N.M. 391 (Ct. App. 1980), a

student who was struck by his’ public

school teacher suec the school board and

the teacher. The district court

dismissed the complaint because the

defendants had immunity under the Tort

Claims Act. The Court of Appeals

affirmed. It would appear, therefore,

that New Mexico may not provide a tort

remedy against excessive corporal

punishment.

This Court did not consider the

Garcia case when it decided Willcox.

Garcia was not cited to the Court by the

parties in Willcox, and upon reflection

the Court is not convinced that Garcia

would bar a student’s tort remedy. The

sole basis for the plaintiffs’ appeal in

Garcia was that the Tort Claims Act was

unconstitutional. The three-judge panel

lectin

disagreed in its affirmance of the

district court’s dismissal. Judge Lopez

authored the opinion finding the Act

constitutional. Judge Sutin concurred

specially, agreeing that the Act is

constitutional but pointing out that the

plaintiffs had stated a claim under the

Act. The Act grants immunity, unless

expressly waived, for any tort liability

incurred while a public employee is

acting "within the scope of duty."

N.M.Stat.Ann. Section 41-4-4(A) (1982

Repl. Pamp.). "Scope of duties" means

"performing any duties which a public

employee is requested, required or

authorized to perform." N.M.Stat.Ann.

Section 41-4-3(F) (1984 Cum.Supp.).

According to Judge Sutin, the defendant

teacher was not acting within the scope

of his duties when he allegedly

maliciously, willfully or negligently hit

the plaintiff. The third judge on the

Garcia panel, Judge (now Justice) Walters

dissented, finding the Tort Claims Act

unconstitutional.

The Garcia case obviously does not

provide a clear precedent for’ the

conclusion that students have no tort

remedy against public school teachers who

inflict excessive corporal punishment.

Two of the judges in Garcia would have

provided the plaintiff a remedy, finding

the teacher to be without’ sovereign

immunity either because he acted outside

of the scope of his duties, or because

the Tort Claims Act was unconstitutional.

Based on this Court’s prior decision in

Willcox, and on the uncertainty of the

Court of Appeals’ decision in Garcia, the

Court concludes that New Mexico does

provide adequate common-law remedies to

afford the Plaintiff procedural due

process. Furthermore, even if the Tort

Claims Act does bar the Plaintiff’s tort

remedy, the state’s criminal sanctions

for the physical abuse of children may in

themselves provide adequate procedural

due process protection. See Ingraham v.

Wright, 430 U.S. 651, 678 #£(1977)

(deterrence based on civil or criminal

proceedings).

Even if New Mexico’s common-law

remedies are not adequate under the

Supreme Court’s analysis in Ingraham v.

Wright, the Court also concludes that the

Defendants are entitled to the good faith

immunity defense on this claim. The law

on this issue was not clearly established

at the time the Plaintiff was paddled.

On its face, Garcia seems to indicate

that New Mexico would not _ provide

adequate post-deprivation remedies for a

procedural due process violation. Yet,

this Court in Willcox held that New

Mexico’s remedies were adequate. The

Defendants in this case could not

reasonably have known that New Mexico’s

remedies were inadequate and that they

had to provide pre-punishment procedural

due process. Accordingly, the Defendants

are shielded from liability on this claim

based on good faith immunity.

Finally, even if New Mexico’s post-

deprivation remedies were inadequate, and

even if the Defendants were not entitled

to the good faith immunity defense, the

Court concludes that the facts of this

case do not rise to a procedural due

process violation. Defendant Miera, the

school Principal, affcrded the Plaintiff

sufficient due process before making the

decision to paddle the Plaintiff. Based

on the uncontroverted facts, the

Plaintiff has failed to make out a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

; s F J }: (

BILLY MC GINNIS, a minor UNITED STATES DISTA TEC us,

by his next friends and parents, 4!8sQue@OUL Mew emt VL |

BILL and BARBARA MC GINNIS, OY

Jum QS yee

Plaintiffs,

Ss } osm >

Vv.

ae ENTERED ON DOCK ry

HILLARD COCHRAN, individually — a

and in his official capacity a

as a Carisbad School District Re

Teacher,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER came on for

consideration on dituntant*s motion to

dismiss. Having considered the motion,

the response, and the briefs of counsel,

I find that the motion is not well taken

and it will be denied.

Plaintiff Billy McGinnis, (Billy)

was at the time of the incident that gave

rise to this lawsuit an eleven-year old

special education student at Alta Vista,

a public Middle School in Carlsbad, New

Mexico. Plaintiffs Bill and Barbara

McGinnis are the parents of Billy

McGinnis. Defendant Hillard Cochran is a

former chorus teacher at the Alta Vista

Middle School. The plaintiffs bring this

suit pursuant to 42 U.S.C. Section 1983

with

Defendant moves to dismiss

plaintiffs’ procedural due process claim

relying on Ingraham _v. Wright, supra.

"In those cases where severe punishment

is contemplated, the available civil and

criminal sanctions for abuse--considered

in the light of the openness of the

school environment--afford significant

protection against unjustified corporal

punishment. Teachers and school

authorities are unlikely to inflict

corporal punishment unnecessarily or

excessively when a possible consequence

of doing so is the institution of civil

Or criminal proceedings against the."

Ia. atc 678. In holding that’ the

traditional common law remedies were

adequate to afford due process, the

Supreme Court in Ingraham relied on the

State of Florida’s tort and criminal law

ities eeetennis

provisions. The defendant argues that

New Mexico also has adequate remedies to

redress this alleged violation in the

N.M.Stat.Ann. Section 30-3-1, 30-3-4, 30-

3-5, and 30-6-1 (Rep.Pam.1984).

It is not clear that the law of New

Mexico is analogous to the Florida law on

which the Ingraham decision was based.

In Garcia v. Albuquerque Public School

Board, 95 N.M. 391 (Ct.App.1980), a

student who was struck by his’ public

school teacher sued the school board and

the teacher. The district court

dismissed the complaint because

defendants had immunity under the Tort

Claims Act. The Court of Appeals

affirmed

The sole basis for the plaintiffs’

appeal in Garcia was that the Tort Claims

Act was unconstitutional. That argument

was rejected by a divided Court of

Appeals. The plaintiffs agree that the

New Mexico Tort Claims Act Section 41-4-1

et seq. (1978) apparently gives’ the

defendant governmental immunity from the

state claims of their complaint.

However, the plaintiffs argue that the

decision in Garcia is incorrect.

A state may consent to be sued in

federal court. However, the state’s

consent must be unequivocally expressed.

Pennhurst State School & Hospital vv.

Halderman, 79 L.Ed.2d 67 (1984). No such

unequivocal consent to be sued has been

expressed by the state. It appears that

New Mexico does not provide any tort

remedy against public school teachers who

inflict excessive punishment on their

students.

Billy McGinnis was’ afforded no

teil

procedural due process at any time.

There was no compliance with the school’s

regulations concerning punishment, as

shown by the administration’s suspension

of the defendant as a result of this

incident. Unlike Ingraham, in which the

Supreme Court held that there was no

Section 1983 procedural due _ process

action because of the availability of a

state tort action, there appears to be no

state tort action in this state and this

lawsuit may constitute the plaintiffs’

only procedural due process. Defendant’s

motion to dismiss the procedural due

process claim will therefore be denied.

STATE CLAIMS

The defendant moves to dismiss the

state claims contending that he has

immunity under the New Mexico Tort.

APPENDIX H

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.