Herrera v. Santa Fe Pub. Sch.

956 F.Supp.2d 1191

Candice HERRERA, Arianna London, Ashley Hurtado, and T.H., a minor by and through her father and guardian Vincent Herrera, and all others similarly situated, Plaintiffs,

v.SANTA FE PUBLIC SCHOOLS, Santa Fe Public Schools Board of Education, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, in their official capacities as members of the Santa Fe Public Schools Board of Education, Bobbie J. Gutierrez, in her official capacity as Superintendent of Santa Fe Public Schools, Melanie Romero, individually and in her official capacity as Principal of Capital High School, Robert Stephens, in his official capacity as Principal of Santa Fe High School as a necessary party for complete relief, Asi New Mexico, LLC, John/Jane Doe Nos. 1–8, Defendants.

No. CIV 11–0422 JB/KBM.

United States District Court, D. New Mexico.

June 28, 2013.

Megan Cacace, Relman, Dane & Colfax PLLC, Washington, D.C., Aimee Bevan, O'Friel & Levy, P.C., Reed N. Colfax, Relman, Dane & Colfax PLLC, Santa Fe, NM, for Plaintiffs.

Andrew M. Sanchez, Sr., Matthew Lee Campbell, Cuddy & McCarthy, LLP, Albuquerque, NM, Gerald A. Coppler, Coppler Law Firm, P.C., Santa Fe, NM, for Defendants Santa Fe Public School Board of Education, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, Bobbie J. Gutierrez, Melanie Romero.

Terry R. Guebert, Alisa Wigley–DeLara, Christopher J. DeLara, Guebert Bruckner, P.C., Albuquerque, NM, for Defendant ASI New Mexico LLC.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Individual School Defendant Melanie Romero's Motion for Summary Judgment on Count I of the Second Amended Complaint Based Upon Qualified Immunity, filed Nov. 13, 2012 (Doc. 113)(“Motion for Summary Judgment”). The Court held a hearing on December 20, 2012. The primary issues are: (i) whether the personal involvement of Defendant Melanie Romero, the principal of Capital High School in Santa Fe, New Mexico, in the Plaintiffs' pat-down searches, to which they were subjected for admittance to the Capital High School prom, violated the Plaintiffs' rights guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution; and (ii) whether the Plaintiffs' constitutional rights that Romero violated, if any, were clearly established at the time of the prom in April, 2011. The Court will grant the Motion for Summary Judgment, because Romero is entitled to qualified immunity. The Court concludes that, by requesting that guards from Defendant ASI, New Mexico, LLC perform pat-down searches of all Prom attendees, Romero violated the Plaintiffs' constitutional rights. The Court further concludes, however, that the Plaintiffs' right to be free from these suspicionless pat-down searches was not clearly established at the time of the Prom in April, 2011. Additionally, with respect to Plaintiff Candice Herrera's 42 U.S.C. § 1983 claim, the Plaintiffs establish a genuine issue of fact whether Romero saw the ASI New Mexico guard require C. Herrera to lift her dress, and expose her bare leg above her knee. Romero is entitled to qualified immunity, however, even if Romero saw that conduct, because it was not clearly established in April, 2011, that a search requiring female students to lift their dresses up above their knees was an unreasonable, and thus unconstitutional, search in the public school context.

FACTUAL BACKGROUND

This case arises from searches that occurred at the April 16, 2011, Capital High prom. See Second Amended Complaint ¶¶ 3–4, at 2–3, filed September 18, 2012 (Doc. 100); Motion for Summary Judgment ¶ 1, at 6 (setting forth this fact); Plaintiffs' Opposition to Defendant Romero's Motion for Summary Judgment Based On Qualified Immunity ¶ 1, at 8, filed November 30, 2012 (Doc. 126)(“MSJ Response”)(not controverting this fact). Capital High is a high school located in Santa Fe, New Mexico, and is in the Santa Fe Public School District. See Second Amended Complaint ¶¶ 18–20, at 5–6; Motion for Summary Judgment ¶ 2, at 6 (setting forth this fact); MSJ Response ¶ 2, at 8 (not controverting this fact). Each of the four individual Plaintiffs were subject to pat-down searches when they entered the prom. C. Herrera, in her deposition, testified:

[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.

Deposition of Candice Herrera at 198:17–199:3, 199:18–200:9 (taken July 27, 2012), filed November 13, 2012(Doc. 113–4)(“C. Herrera Depo.”); MSJ Response ¶ 1A, at 3 (setting forth this fact); MSJ Reply at 4 (not controverting this fact).¹ Plaintiff T.H. testified in her deposition:

She asked me to spread my arms out and she ran her hands along my arms which she could clearly see. And then she continued down to pat down my waist and my hips.... And then she—and then she went back up and cupped both my breasts and shook them. And then she continued down to pat down the sides of my dress. And then she lifted up my dress and with her bare hands she ran her hands down along the inside of my legs.

Deposition of T.H. at 58:20–23, 59:9–14 (taken August 13, 2012), filed November 13, 2012 (Doc. 113–7)(“T.H. Depo.”). See MSJ Response ¶ 1B, at 3–4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff Ashley Hurtado testified about the ASI New Mexico guard's pat-down search:

She went down the side of my body and then she went with her hands with her palms facing in and went around my breasts and went inside with her thumb to check if I had anything in my cleavage. Went down—again down my body. Went down both my thighs. My inner included.

Deposition of Ashley Hurtado at 109:23–110:4 (taken July 30, 2012), filed November 13, 2012 (Doc. 113–5)(“Hurtado Depo.”). See MSJ Response ¶ 1C, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff Arianna London also testified about the ASI New Mexico employee's pat-down search:

So she told me to spread my legs and then she patted my legs down. And then she went all the way up and then she did the other leg and then she lifted my skirt a little bit and she patted my legs even more. And then she patted the front of me, so she did my stomach and my sides and then she did my chest. And then she put her hands underneath the seams of my dress and on the sides and on the back. And then she patted my back side down.

See Deposition of Arianna London 181:22–185:14, 186:14–21 (taken August 24, 2012), filed November 13, 2012 (Doc. 113–6)(“London Depo.”). See MSJ Response ¶ 1D, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact).

The governing and policy-making body for the Santa Fe Public School District (“SFPS”) is the Board of Education of SFPS (“Board of Education”). N.M.S.A.1978, § 22–5–4; Second Amended Complaint ¶¶ 17–18, at 5; Motion for Summary Judgment ¶ 3, at 6 (setting forth this fact).² Romero had no authority to make policies within SFPS. CompareN.M.S.A.1978, § 22–10A–18 (providing powers and duties and duties of school principal), withN.M.S.A.1978, § 22–5–4 (Providing the powers and duties of a Board of Education); Motion for Summary Judgment ¶ 7, at 7 (setting forth this fact). ³ Romero maintained authority, however, to set policies and procedures related to Capital High and Capital High events. See, e.g., Transcript of the Videotaped Deposition of Bobbie J. Gutierrez, Vol. I at 123:4–9 (taken March 22, 2012), filed November 30, 2012 (Doc. 126–9)(“Gutierrez Depo. Vol. I”); Deposition of Melanie Romero at 132:7–24 (taken March 19, 2012), filed November 30, 2012 (Doc. 126–5)(“Romero Depo.”); Deposition of Martin “Mark” Archuleta, Vol. I at 122:17–123:6 (taken March 9, 2012)(“Archuleta Depo.”); MSJ Response ¶ 3, at 8 (setting forth this fact); Individual School Defendant Melanie Romero's Reply to Plaintiffs' Opposition to Defendant Romero's Motion for Summary Judgment Based Upon Qualified Immunity [Doc. 126] at 2, 5, filed December 17, 2012 (Doc. 130)(“MSJ Reply”)(not controverting this fact).

At the time of the prom, Romero was the Capital High principal. See Second Amended Complaint ¶ 20, at 6; Motion for Summary Judgment ¶ 4, at 7 (setting forth this fact); MSJ Response ¶ 4, at 8 (not controverting this fact). The prom was held off Capital High promises at the Santa Fe Convention Center located in Santa Fe. See Second Amended Complaint ¶ 3, at 2; id. ¶ 27, at 8; Motion for Summary Judgment ¶ 5, at 7 (setting forth this fact); MSJ Response ¶ 5, at 8 (not controverting this fact). The prom was a school-sponsored event. See Second Amended Complaint ¶¶ 27–28, at 8; Motion for Summary Judgment ¶ 6, at 7 (setting forth this fact); MSJ Response ¶ 6, at 8 (not controverting this fact). ASI New Mexico provided school security services generally to SFPS and specifically for the prom based on a publicly bid and awarded contract pursuant to the New Mexico Procurement Code. See Second Amended Complaint ¶¶ 24–26, at 7; Proposal No. 1, General 2008–09 School Security Services at 11–15 (dated May 1, 2008), filed October 2, 2012 (Doc. 102–3)(“ASI New Mexico Proposal”); Motion for Summary Judgment ¶ 8, at 7 (setting forth this fact); MSJ Response ¶ 8, at 8 (not controverting this fact).

At the time of the prom, and for a number of years before the prom, the two high schools in the SFPS, Capital High and Santa Fe High School, had a practice of having guards provided by ASI New Mexico perform pat-down searches of all attendees at proms and similar events, such as...