Nix v. New Mexico Department of Public Safety et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
COLLEEN NIX,
Plaintiff,
v. No. 1:24-cv-00691-KG-LF
NEW MEXICO DEPARTMENT
OF PUBLIC SAFETY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion for partial summary judgment filed by
Defendant Kevin Keiner. Doc. 50. Plaintiff Colleen Nix responded to the motion, Doc. 70, and
Keiner replied. Doc. 87. For the reasons below, the motion is denied.
I. Background1
Under 42 U.S.C. § 1983, Nix alleges that Keiner, a New Mexico State Police Officer,
sexually assaulted her while she was intoxicated and asleep, in violation of her substantive due
process rights. Doc. 1 ¶¶ 40–50.2
The incident occurred in February 2023. Nix and Keiner were friends, but according to
Nix, Keiner wanted a romantic relationship, while she did not. See Doc. 50-1 at 19. On the
night of the incident, Nix was out drinking at a bar, id. at 3, and told Keiner that she was
intoxicated by text message. Id. at 5; Doc. 87 at 16. Nix was involved in a physical altercation
1 “The facts in this section are either undisputed or stated in light most favorable to the
nonmovant[],” Nix here. Parraz v. UNM Bd. of Regents, 2024 WL 3676928, at *1 (D.N.M.).
2 Nix also brings state law tort claims against Keiner and constitutional claims against the
New Mexico State Police and Department of Public Safety. Doc. 1. Keiner’s summary
judgment motion does not raise these claims, so the Court does not reach them.
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 1 of 7

2
with her brother after leaving the bar. Doc. 70 at 7; Doc. 87 at 8. After attempting to contact
another police officer, Nix called Keiner, who was on duty as a police officer until midnight that
evening, about the altercation at 10:56 p.m. Doc. 50 at 2–3, 6; Doc. 70 at 7. Nix called Keiner
to take her to the police station to file a report about the fight with her brother. Doc. 50-1 at 10–
11. Keiner responded to Nix’s call and arrived at Nix’s location a short time later while still on
duty wearing his police uniform and driving a police vehicle without the lights or sirens on.
Doc. 87 at 13.
Keiner told Nix that he was going take her to the police station to file a report about her
brother, but instead he drove her to his parent’s house. Doc. 50 at 4; Doc. 70 at 4–5. Keiner
arrived at his parents’ residence with Nix while he was “still on duty at approximately 11:15
p.m.” Doc. 87 at 15. Nix’s intoxication caused her to black out after getting into Keiner’s
vehicle—she did not know that Keiner was driving her to his parents’ house, and her next
memory was being in the shower with Keiner behind her and not knowing where she was. Doc.
50-1 at 12–13, 17. She blacked out again, and her next memory was seeing the flames of a pellet
stove before falling asleep and then waking up to Keiner having sexual intercourse with her. Id.
at 13, 16, 18. Keiner stopped what he was doing when Nix woke up, and Nix left the residence
and reported the incident to the police. Doc. 50-7 at 3.
II. Standard of Review
Summary judgment is warranted if there is “no genuine dispute of material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant “bears the
initial responsibility” to identify evidence from the record demonstrating the “absence of a
genuine dispute of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), meaning
that the “record taken as a whole could not lead a rational trier of fact to find” for the nonmovant.
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 2 of 7

3
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden then
shifts to the nonmovant to “go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Id. at 324.
III. Analysis
Because there are genuine disputes of material fact about whether Keiner violated Nix’s
substantive due process rights, Keiner’s motion for partial summary judgment is denied.
The relevant substantive law is well established. Sexual assault intrudes on a person’s
bodily integrity and therefore violates the substantive component of the Fourteenth
Amendment’s Due Process Clause. Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253,
1255 (10th Cir. 1996). Section 1983 creates a cause of action for federal constitutional
violations against persons acting “under color” of state law. 42 U.S.C. § 1983; see McCarty v.
Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011). A state official acts under color of state law by
“exercis[ing] 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. 42, 49 (1988)
(citation omitted). 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 488, 493 (10th Cir. 1995). This is a fact-intensive inquiry: Courts
“must examine the nature and circumstances of the actor’s conduct and the relationship of that
conduct to the performance of his official duties.” T.G. v. Rio Arriba Cty. Comm’rs, 2020 WL
6075662, at *4 (D.N.M.) (citation and alteration omitted).
The record in this case, viewed in Nix’s favor as the nonmovant, demonstrates genuine
disputes of material fact that only a jury can resolve about whether Keiner sexually assaulted Nix
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 3 of 7

4
while acting under color of state law. As detailed above, Nix called Keiner the night of the
incident in Keiner’s capacity as a police officer to report a physical altercation with her brother.
Keiner responded by driving to Nix’s location in a marked police car, in his police uniform, and
while on duty and told Nix that he was taking her to the police station to file a report—official
police action. But instead of driving Nix to the station—and knowing that Nix had texted him
earlier that she was intoxicated—Keiner took her to his parent’s house where he allegedly
engaged in sexual activity with her while she was asleep and intoxicated. See supra at 1–2.
Under § 1983’s fact-bound inquiry, a reasonable jury could conclude that Keiner acted “under
pretense of law” and “pretended authority” here as a police officer to bring an intoxicated
woman needing police assistance to his parent’s residence to sexually assault her. T.G., 2020
WL 6075662, at *3 (citation omitted). That is enough to preclude partial summary judgment.
Keiner resists these conclusions, but his arguments lack merit. First, he contends that no
reasonable jury could conclude that he sexually assaulted Nix because Nix lacks “personal
knowledge of the key events”: “She cannot testify to whether she did or did not consent” because
she cannot remember the incident, she “cannot recall how the sexual activity began, and [she]
offers no admissible evidence establishing that a violation of her bodily integrity occurred.”
Doc. 50 at 8. This argument fails. It goes without saying: “[A] person who is asleep at the time
of an assault—especially when that person [is] also intoxicated from drinking alcohol—is
incapable of appraising the nature of the sexual conduct, physically incapable of declining
participation in the act, [and] physically incapable of communicating unwillingness to engage in
the act.” United States v. Freeman, 70 F.4th 1265, 1273 (10th Cir. 2023). Here, Nix testified
specifically that she was so intoxicated that she “blacked out” and could recall only being in the
shower with Keiner behind her without knowing where she was and later “waking up” to find
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 4 of 7

5
Keiner “on top of [her] and his penis inside of [her].” Doc. 50-1 at 13, 16, 18. Keiner disputes
Nix’s account, but the question of whose story is more credible is for the jury to resolve—not
this Court at summary judgment. E.g., Logan v. Corning, Inc., 159 F.R.D. 46, 50 (D. Kan. 1994)
(“[S]ummary judgment is not the proper stage for the determination of credibility or to weigh a
party’s evidence.”).
Next, Keiner argues that Nix’s assertion that “she was too intoxicated to consent” fails
“as a matter of law” because she offers no expert testimony to establish her intoxication;
meanwhile, Keiner’s expert concluded that Nix “was not incapacitated and retained the
functional capacity to consent.” Doc. 50 at 9. This argument, too, goes against basic summary
judgment principles. Keiner cites no authority for his assertion that expert testimony is required
“as a matter of law” to show intoxication in § 1983 due process sexual assault cases, and it is
again up to the jury to weigh the evidence and decide if the account of Keiner’s expert is more
believable than Nix’s own account. E.g., Logan, 159 F.R.D. at 50; Cereceres v. Walgreen Co.,
645 F. Supp. 3d 1110, 1119 (D. Colo. 2022) (“[I]t is up to the jury to decide…what weight to
accord to [an expert’s] testimony”). The Court cannot resolve this credibility battle at the
summary judgment stage.
Last, Keiner argues that no reasonable jury could conclude that he was acting under color
of state law because the record undisputedly demonstrates a “private encounter [with Nix], in a
non-custodial setting, shaped by…Keiner’s personal motivations—not an exercise of police
authority.” Doc. 50 at 10–11. The Court disagrees. As detailed above, there is enough evidence
in the record for a rational jury to conclude that Keiner used the pretense of police authority and
assistance to bring an intoxicated woman to his residence where he sexually assaulted her.
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 5 of 7

6
Keiner cites two precedential Tenth Circuit decisions to support his color-of-law
argument, but both are distinguishable for the reasons above. See Doc. 50 at 12–13, 15. Haines
v. Fisher involved a police officer who pretended to rob a convenient store clerk whom he knew
as part of a practical joke involving other officers, but the plaintiff’s § 1983 claims failed
because the officer was not acting under the pretense of police authority or wearing police
attire—the practical joke was outside the scope of official police duties. 82 F.3d 1503, 1506
(10th Cir. 1996). Similarly, in Jojola, the plaintiffs’ § 1983 claim failed because there were no
allegations that the janitor acted under color of state law to “entice[]” their child, a minor student,
“into the classroom” to sexually assault her “through the use or misuse of any state authority he
may have possessed.” 55 F.3d 488, 494 (10th Cir. 1995).
Keiner also cites decisions from this Court and other circuits, but these rulings are also
distinguishable for the same reasons identified above. See Doc. 50 at 11, 14–15. They also do
not bind this Court. In Vincent v. City of Lexington, for example, a Fourth Circuit panel held that
an on-duty police officer who killed his wife during a domestic dispute at their home was not
acting under color of state law because the “only fact distinguishing this murder from other fatal
domestic disputes is that [the killer] was a policeman”—no official police action took place.
1993 WL 336484, at *1–2 (unpublished). In Almand v. DeKalb County, the Eleventh Circuit
similarly held that a police officer who broke into a woman’s home and sexually assaulted her
was not acting under color of state law—“[c]onsidering that [the officer] gained entry to the
apartment by forcibly breaking in, any thug or burglar could have committed the same violent
acts.” 103 F.3d 1510, 1514–15 (11th Cir. 1997). Finally, in T.G., this Court held that a deputy
sheriff who tased his coworker (a corrections officer) during a “purely private altercation” at
work was not acting under color of state law because the deputy did not “invoke[] authority as a
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 6 of 7

7
sheriff” during the incident. 2020 WL 6075662, at *13–19. A reasonable jury in this case, in
contrast, could conclude that Keiner used his authority and offer of assistance as a police officer
to bring Nix to his parent’s home the night of the incident. Partial summary judgment on Nix’s
§ 1983 due process claim is therefore unwarranted.
IV. Conclusion
Keiner’s motion for partial summary judgment on Nix’s § 1983 substantive due process
claim (Doc. 50) is denied.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access
system.
Case 1:24-cv-00691-KG-LF Document 125 Filed 01/23/26 Page 7 of 7