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Joseph E. William P. Plaintiff brings this action on behalf of M. Fact No. Joseph Whitley, Esq. CYFD retained custody of the children until March 19,when the family fled the area. From throughM. A referral in March led to a home visit by CYFD personnel Connie Lucero and Lydia Saenz that revealed extremely disgusting, unsafe and unfit living conditions at the family home.

Lucero observed that the children, especially M. In MarchM. Near the time of her admission, M. On March 25,M. The arrest, as well as the unsuitability of M. On May 2,M. On September 13,M. In DecemberM. School staff was concerned about M.

Rosales Aff. On March 17,after she threatened her foster mother with a piece of glass, M. On April 25,M. At Alliance, M. At that time, M. In JanuaryM. On March 5,a therapist at Pinon Hills advised Defendant Rosales that Alliance was attempting to establish a program to treat developmentally disabled children.

On April 23,M. CYFD had specific concerns over Alliance's lack of treatment goals, lack of schooling, delays in implementation of a behavioral management program, excessive isolation, and over-use of chemical restraints.

On May 28,after continued disruptive conduct, M. Alliance indicated that M. CYFD's decision to move M. The BHO authorized the placement of M. On June 19,M. Once is placed in state custody, CYFD prepares a treatment plan that is submitted to the state district court for approval and remains in effect until modifications are approved by the state court.

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The state court conducted periodic reviews at six month intervals. Defendants have submitted the treatment plans and periodic review reports under seal as Appendix 1. On July 28,Plaintiff filed her original Complaint, alleging claims for violation of her civil rights under 42 U. On October 2,the Governmental Defendants filed a Motion to Dismiss, asserting, inter alia, the defense of qualified immunity. Michel Count IVbreach of duty to protect against all Defendants Count Vand negligent supervision, negligent entrustment and negligent failure to warn against all Defendants Count VI.

In their Motion, Defendants argue that 1 they are entitled to qualified immunity, 2 that Plaintiff's AACWA claims are not cognizable, and 3 that the state tort claims should be dismissed due to lack of federal jurisdiction and sovereign immunity. A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, as well as any affidavits "show that there is no genuine issue as to any material fact.

When applying this standard, the Court examines the record and reasonable inferences in the light most favorable to the non-moving party. See Simms v. Oklahoma ex rel. The movant bears the initial burden of establishing that no genuine issue exists as to any material fact.

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See Adickes v. Zenith Radio Corp. Cities Service Co. The movant's initial burden may be discharged by showing there is an absence of evidence to support the non-moving party's case. See Celotex v. Catrett, U. Once the movant meets its burden, the burden shifts to the non-moving party to demonstrate a genuine issue for trial on a material matter.

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See McGarry v. Pitkin Co. Defendant Hartz argues that she is entitled to judgment because she had no personal involvement in M. See Worrell v. Henry, F. Maynard, 80 F. Grubbs, F. Aff of D. Response to Government Defs. Therefore, Defendant Hartz is entitled to summary judgment on Count I. Under the doctrine of qualified immunity, governmental officials performing discretionary functions generally are shielded from liability for civil damages so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

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Harlow v. Fitzgerald, U. Kansas Bd. In evaluating a claim of qualified immunity, the first question is whether the plaintiff has asserted a violation of a constitutional or statutory right. See Saucier v. Katz, U.

Romo, 94 F. If the plaintiff has asserted a violation of a constitutional or statutory right, then the question becomes whether that right was clearly established such that a reasonable person in the defendant's position would have known that his conduct violated the right. See Saucier, S. Gilley, U.

Summary judgment motions involving a qualified immunity defense are determined somewhat differently than other summary judgment motions. Romero v. Fay, 45 F. When a defendant raises qualified immunity on summary judgment, the burden shifts to the plaintiff to meet a strict two-part test. Scull v. New Mexico, F. McMullen, F. The first question is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. Katz, S.

Layne, U. In the course of determining whether a constitutional right was violated on the facts alleged, the Court may set forth legal principles that will become the basis for a Ladies seeking sex Mesilla New Mexico that a right is clearly established, but the focus in the first inquiry is whether a constitutional violation has been alleged. If a constitutional violation has been alleged based on a favorable view of the parties' submissions, the next sequential step is to ask whether the right that the defendant allegedly violated was clearly established at the time of the conduct at issue.

Rodriguez, 51 F. In determining whether the right was "clearly established," the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether "the right [was] sufficiently clear that a reasonable [state actor] would understand that what he is doing violates that right.

If, and only if, the plaintiff establishes both elements of the test does the defendant then bear the traditional burden of showing "that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.

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Following the sequential approach, the first question is whether, taken in the light most favorable to Plaintiff, the facts alleged show Defendants' conduct violated a constitutional right. Plaintiff alleges that Defendants are liable because they placed M.

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Whitley v. NEW MEXICO CHILDREN, YOUTH & FAMILIES, F. Supp. 2d (D.N.M. )