Tafoya v. Bobroff

• Decision Date: 28 September 1994
• Docket Number: Civ. No. 94-0310 JB.
• Citation: 865 F. Supp. 742
• Parties: Rita TAFOYA, Personal Representative of Frank Tafoya, Deceased, Plaintiff, v. Jack BOBROFF, Craig O'Neil, John Does 1, 2, & 3, and Albuquerque Public School Board, Defendants.
• Court: U.S. District Court — District of New Mexico

865 F. Supp. 742

Rita TAFOYA, Personal Representative of Frank Tafoya, Deceased, Plaintiff, v. Jack BOBROFF, Craig O'Neil, John Does 1, 2, & 3, and Albuquerque Public School Board, Defendants.

Civ. No. 94-0310 JB.

United States District Court, D. New Mexico.

September 28, 1994.

COPYRIGHT MATERIAL OMITTED

Sterling F. Black, Albuquerque, NM, for plaintiff.

Eleanor K. Bratton, Michael L. Carrico, Modrall, Sperling, Roehl, Harris & Sisk Albuquerque, NM, for defendants.

MEMORANDUM OPINION AND ORDER

BURCIAGA, Chief Judge.

THIS MATTER is before the Court on Defendants' March 29, 1994 motion to dismiss or in the alternative for summary judgment. The Court, having reviewed the pleadings, the submissions of the parties and the relevant law, and being otherwise fully advised in the premises, finds Defendants' motion to dismiss is well taken and is granted.

In this case Plaintiff seeks compensatory damages for the wrongful death of Frank Tafoya. Plaintiff Rita Tafoya is decedent's personal representative. Defendants are the Albuquerque Public School Board ("APS"), and its Superintendent Jack Bobroff, its Security Officer Craig O'Neil, and other APS officers or employees John Does I, II, and III.

Plaintiff's decedent interviewed for the job of security officer with Defendant APS on February 14, 1992. Plaintiff alleges that decedent told Defendant O'Neil, head of the APS Security Office, of decedent's high blood pressure, diabetes, thyroid condition, and injured leg at the interview. Decedent's application showed that he was fifty-one years old, and he appeared overweight. During the interview, Defendant O'Neil required decedent and several other applicants to complete a physical agility test, including a timed 1.5-mile run around a cinder track. Near the end of the run, decedent collapsed from a cardiovascular failure, and died soon thereafter. The Office of the Medical Examiner conducted an autopsy, including alcohol and drug screening tests, and determined the cause of death to be atherosclerotic cardiovascular disease.

Plaintiff filed suit on December 16, 1993 in state court. Defendants removed to the United States District Court for the District of New Mexico on March 24, 1994. Plaintiff's Amended Complaint states causes of action under the New Mexico Tort Claims Act, the New Mexico Human Rights Act, the Americans With Disabilities Act, the Rehabilitation Act of 1973, the Civil Rights Act of 1991, and the United States and New Mexico Constitutions.

I. STANDARDS FOR MOTION TO DISMISS

For the purposes of a motion to dismiss, this Court must accept the material allegations of the complaint as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir.1967). Dismissal is appropriate only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Court must construe the pleadings liberally and, if any possibility of relief exists, should not dismiss the claim. Gas-a-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973).

II. NEGLIGENCE CLAIM UNDER THE NEW MEXICO TORT CLAIMS ACT

Section 41-4-4 of the New Mexico Tort Claims Act ("Tort Claims Act") states: "A governmental entity and any 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 1978." N.M.Stat.Ann. § 41-4-4 (Michie 1989 & Supp.1994). The parties do not dispute that Defendant APS is a governmental entity, and that Defendants Jack Bobroff, Craig O'Neil, and John Does I, II, and III, were public employees acting within the scope of duty at the time of decedent's death. Therefore, the Tort Claims Act applies to Plaintiff's negligence claim, and Defendants are immune from liability for any tort except as waived by the Act.

A. No Waiver of Immunity under Section 41-4-6

Plaintiff alleges that two sections in the Tort Claims Act waive Defendants' immunity with respect to her claim. First, she alleges that Defendants' negligence "in the operation or maintenance of any building, public park, machinery, equipment or furnishings" caused decedent's death. N.M.Stat.Ann. § 41-4-6 (Michie 1989 & Supp.1994). Section 41-4-6 of the Tort Claims Act waives immunity for such negligence. Id. However, the facts that Plaintiff alleges simply do not fit the terms of this section as the New Mexico courts construe them. The New Mexico Supreme Court recently discussed the scope of section 41-4-6 in Archibeque v. Moya, 116 N.M. 616, 866 P.2d 344 (1994). In Archibeque, the plaintiff, a prisoner at the Central New Mexico Correction Facility, sued the defendant, a prison intake officer, alleging that the defendant had negligently released the plaintiff into the general prison population despite the fact that one of the plaintiff's known enemies was in that population. Id. at 618, 866 P.2d at 346. This enemy and other inmates assaulted the plaintiff the same night he entered the general prison population. Id. On a certified question from the United States Court of Appeals for the Tenth Circuit, the Archibeque court held that the Tort Claims Act rendered the defendant, a public employee acting within the scope of duty, immune from tortious liability and did not waive that immunity. Id.

The court rejected the plaintiff's argument that section 41-4-6 waived the defendant's immunity, holding that the "operation" and "maintenance" of a penitentiary facility did not include "the security, custody, and classification of inmates." Id. at 619, 866 P.2d at 347. The court characterized the defendant's acts as "an administrative function associated with the operation of the corrections system," rather than "operating and maintaining the prison's physical premises." Id. According to the court, "to read section 41-4-6 as waiving immunity for negligent performance of administrative functions would be contrary to the plain language and intended purpose of the statute." Id.

The court's language in Archibeque clearly excludes actions such as Defendants' in the present case from the section 41-4-6 waiver of immunity. Defendants' allegedly negligent acts concerned "the security, custody, and classification" of interviewees. Id. Giving a physical agility test to the interviewees was "an administrative function associated with the operation of" the APS facility, rather than "operating and maintaining the APS' physical premises." Id. According to the Archibeque decision, section 41-4-6 waiver of immunity does not apply in such a case. Accord Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (1991); Castillo v. County of Santa Fe, 107 N.M. 204, 755 P.2d 48 (1988). Thus, section 41-4-6 of the Tort Claims Act cannot support the waiver of Defendants' immunity. See also Martinez v. Kaune Corp., 106 N.M. 489, 745 P.2d 714 (Ct.App.1987), cert. denied, 106 N.M. 439, 744 P.2d 912 (1987) (negligent inspection of foods and food processing operations was not negligent operation or maintenance of any building); Pemberton v. Cordova, 105 N.M. 476, 734 P.2d 254 (Ct.App.1987) (negligent supervision of student, who assaulted another student, was not negligent operation or maintenance of any building).¹

B. No Waiver of Immunity under Section 41-4-12

Plaintiff also argues that section 41-4-12 of the Tort Claims Act waives Defendants' immunity for decedent's death. Section 41-4-12 waives immunity for:

wrongful death ... resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.

N.M.Stat.Ann. § 41-4-12 (Michie 1989 & Supp.1994) (emphasis added). Plaintiff alleges that Defendants negligently caused decedent's death, and in doing so deprived him of rights, privileges, or immunities secured by the Fourteenth Amendment of the United States Constitution and by article II, section 4 of the New Mexico Constitution. Plaintiff then alleges that because Defendants are law enforcement officers or their superiors acting within the scope of duty, section 41-4-12 waives immunity for their acts. Plaintiff's argument fails because in her complaint she has alleged only that Defendants acted negligently in depriving decedent of his life. Therefore, she has not alleged a violation of section 41-4-12 or the United States or New Mexico Constitutions.

First, Plaintiff has not properly alleged a violation of section 41-4-12. The law in this area is clear:

This Court has held that a law enforcement officer or agency may be held liable under section 41-4-12 for negligently causing infliction of one of the predicate torts. See Cross v. City of Clovis, 107 N.M. 251, 755 P.2d 589 (1988); Schear v. Board of County Comm'rs, 101 N.M. 671, 687 P.2d 728 (1984); Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980). But no case has held that simple negligence in the performance of a law enforcement officer's duty amounts to commission of one of the torts listed in the section.

Bober v. New Mexico State Fair, 111 N.M. 644, 653-54, 808 P.2d 614, 623-24 (1991).

Second, Plaintiff has not properly alleged that Defendants deprived decedent of rights, privileges, or immunities secured by the United States or New Mexico Constitutions. The United States Supreme Court has unequivocally stated that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) (emphasis in original); see also Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). The Court...