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 Defendant Kevin Keiner’s motion for partial summary
judgment, Doc. 107. Plaintiff Colleen Nix responded to the motion, Doc. 126, and Keiner
replied, Doc. 137. For the reasons below, the motion is denied.
I. Background
“The facts in this section are either undisputed or stated in light most favorable to the
nonmovant[].” Parraz v. UNM Bd. of Regents, 2024 WL 3676928, at *1 (D.N.M.). Nix alleges
that Keiner, a New Mexico State Police Officer, sexually assaulted her while she was intoxicated
and asleep in February 2023. Doc. 1 ¶¶ 40–50. At the time, Nix and Keiner were friends. Id.
Nix alleges that Keiner sought a romantic relationship, while she did not. See Doc. 50-1 at 19.
On the night of the incident, Nix was drinking at a bar while Keiner was on duty. Id. at 3.
Nix texted Keiner that she was intoxicated. Id. at 5; Doc. 87 at 16. Upon leaving the bar, Nix
became involved in a physical altercation with her brother. Doc. 70 at 7; Doc. 87 at 8. Nix
attempted to contact another police officer but received no response; she then called Keiner. Id.
Nix asked Keiner to drive her to the police station to file a report regarding the altercation. Doc.
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50 at 2–3, 6; Doc. 70 at 7. Keiner drove to Nix’s location in his police vehicle while in uniform.
Doc. 87 at 13.
Although Keiner told Nix that he would take her to the police station, he instead drove
her to his parents’ residence. Doc. 50 at 4; Doc. 70 at 4–5. They arrived at approximately 11:15
p.m., while Keiner was still on duty. Doc. 87 at 15. Due to her level of intoxication, Nix lost
consciousness shortly after entering the vehicle. Doc. 50-1 at 12–13, 17. Her next memory was
standing in a shower with Keiner behind her, without knowing where she was. Id. She again
lost consciousness, briefly recalled seeing the flames of a pellet stove, and then fell asleep. Id. at
13, 16, 18. She “[woke] up to [Keiner] on top of her and his penis inside of” her. Doc. 50-1 at
13. Keiner stopped when Nix woke up. Id.
Nix promptly left the residence and reported the incident to the police. Doc. 50-7 at 3. A
Sexual Assault Nurse Examiner (“SANE” nurse) examined her and found a 0.5 cm tear at the six
o’clock position of her vagina. Doc. 126 at 3–4. The SANE nurse later testified that the location
is the “most prominent place” for injury in a nonconsensual sexual encounter. Doc. 126-2 at 3.
In April 2023, the New Mexico Department of Public Safety terminated Keiner, see Doc.
70-16 at 1, after an internal investigation found that he “had sexual intercourse with [Nix] while
she was not in a state of mind to consent.” Doc. 70-7 at 3.
Nix asserts three state-law claims against Keiner: battery, intentional infliction of
emotional distress (“IIED”), and negligence per se. Doc. 1 at 10–11.1 Keiner moves for partial
summary judgment, arguing that no reasonable jury could find battery because Nix consented to
1 Nix also brings constitutional claims against Keiner, the New Mexico State Police, and
the New Mexico Department of Public Safety. Doc. 1. The Court has already denied Keiner’s
partial motion for summary judgment on the 42 U.S.C. § 1983 claim. See Doc. 125.
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the sexual contact, and that Nix’s IIED and negligence per se claims are barred by immunity
under the New Mexico Tort Claims Act (“NMTCA”). See generally Doc. 107.
II. Legal Standards
The legal standards for (A) summary judgment and (B) immunity under the NMTCA are
described below.
A. Summary judgment
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.
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.” Celotex, 477 U.S. at 324 (internal quotation marks and
citation omitted).
A. The NMTCA
Under the NMTCA, governmental entities and public employees, including law
enforcement officers, are immune from tort liability unless the Act waives immunity. NMSA
1978, § 41-4-4 (1996). Any provision of the NMTCA purporting to waive governmental
immunity must be strictly construed. Armijo v. Dep’t of Health & Env’t, 1989-NMCA-043, ¶ 6.
The Act provides a limited waiver for certain enumerated torts committed by law enforcement
officers, including assault, battery, false imprisonment, and false arrest, when committed “within
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the scope of [their] duties.” § 41-4-12. Conduct falling outside the “scope of duty” is not
shielded. Celaya v. Hall, 2004-NMSC-005, ¶ 9.
III. Analysis
For the reasons below, the Court denies Keiner’s motion for partial summary judgment
on Nix’s claims for (A) battery and (B) IIED and negligence per se.
A. Summary judgment on the battery claim is denied.
Because genuine disputes of material fact exist as to whether Keiner committed battery
against Nix, his motion for partial summary judgment is denied. Under New Mexico law,
battery occurs when a person “acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such a contact, and...an
offensive contact with the person of the other...results.” State v. Ortega, 1992-NMCA-003, ¶ 13
(citing Restatement (Second) Torts § 18). A contact is “offensive” if it would offend a
reasonable sense of personal dignity. Restatement (Second) of Torts § 19. Consent is a
complete defense to battery. Yount v. Johnson, 1996-NMCA-046, ¶ 17.
Viewed in the light most favorable to Nix, the record presents a genuine dispute of
material fact as to whether Keiner committed battery. Nix testified that she blacked out after
entering Keiner’s vehicle and was unaware that he had driven her to his parents’ residence. Doc.
150-1 at 12–13. Her next memory was showering and feeling Keiner behind her. Id. at 12–13,
17. She also recalls falling asleep and later waking to Keiner engaging in vaginal intercourse
with her. Id. at 13, 16, 18. On this record, a reasonable jury could find that Keiner intentionally
caused offensive contact with Nix without her consent.
Keiner resists this conclusion, but his arguments fail. First, he argues that no reasonable
jury could find battery on the ground that Nix “cannot testify to whether she did or did not
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consent” due to her intoxication and unconsciousness. Doc. 107 at 4. But “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). Nix
testified that she “blacked out” from intoxication, felt Keiner behind her in the shower, and
“woke up” to find him “on top of [her] and his penis inside of [her].” Doc. 50-1 at 13, 16, 18.
This testimony, if credited, would permit a reasonable jury to infer that Nix did not—and could
not—consent to the offensive touching. That inference is supported by medical evidence,
including a SANE examination identifying a vaginal tear consistent with nonconsensual sexual
contact. Doc. 126 at 3–4. 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, 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 claim that she was too intoxicated to consent fails “as a
matter of law” because she offers no expert testimony, while his expert opines that she “was not
incapacitated and retained the functional capacity to consent.” Doc. 107 at 6–7. 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 a state law battery
case, and it is 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
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to accord to [an expert’s] testimony.”). Partial summary judgment on Nix’s state-law battery
claim is therefore unwarranted.
B. Summary judgment on the remaining state-law claims is denied.
Keiner also seeks summary judgment on Nix’s IIED and negligence per se claims,
arguing that sovereign immunity bars those claims because the NMTCA does not waive
immunity for those torts. See Doc 107 at 8–9; see also § 41-4-12. But the record presents a
genuine dispute of material fact as to whether Keiner was acting within the scope of his duties
when the alleged torts occurred, and therefore summary judgment is unwarranted.
An officer is acting within the “scope of duty” when performing duties “requested,
required or authorized to perform by the governmental entity, regardless of the time and place of
performance.” § 41-4-3(G). The relevant inquiry is whether the officer acted “with the view of
furthering the employer’s interest,” rather than from an “external, independent, and personal
motive.” Rivera v. N.M. Highway & Transp. Dep’t, 1993-NMCA-057, ¶ 7. Even when a public
employee acts with a wrongful motive, the conduct remains within the scope of duty so long as
there is “a connection between the public employee’s actions at the time of the incident and the
duties” the employee was “requested, required or authorized to perform.” Henning v. Rounds,
2007-NMCA-139, ¶ 22 (internal citation omitted). “Whether an employee is acting within the
scope of duties is a question of fact.” Celaya, 2004-NMSC-005, ¶ 9.
Under these principles, the record presents a genuine dispute of material fact as to
whether Keiner acted within the scope of his duties when he allegedly committed the state-law
torts. Nix called Keiner for assistance after attempting to reach another police officer. When
Keiner responded, he was on duty, in uniform, and operating a police vehicle. Doc. 50 at 2–3, 6;
Doc. 70 at 7. He stated he would transport her to the police station to make a police report. Doc.
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50 at 4; Doc. 70 at 4–5. Instead, Keiner transported Nix to his parents’ residence and allegedly
engaged in sexual conduct while she was intoxicated and unconscious. Doc. 50-1 at 13, 16, 18.
From this, a reasonable jury could find that Keiner invoked his authority as a law enforcement
officer to control Nix’s transportation and circumstances, creating a “connection” between his
official duties and the ensuing events. Henning, 2007-NMCA-139, ¶ 22. But a reasonable jury
could also find that Keiner abandoned those duties and acted from an “external, independent and
personal motive” by driving to a private residence and engaging in sexual intercourse with Nix.
Narney v. Daniels, 1992-NMCA-133, ¶ 32. Because the record supports competing inferences,
the Court cannot determine whether Keiner acted within the scope of his duties at this stage.
The Courts finds Chavez v. Los Lunas Pub. Sch. Dist. instructive. See 2011 WL
13286202, at *3 (D.N.M.). There, a public-school teacher alleged that, following a work-related
meeting, the principal blocked her from leaving his office and subjected her to unwanted sexual
contact. Id. She further alleged that, after reporting the incident, the principal used his authority
to terminate her. Id. The court concluded that the teacher’s allegations created a genuine dispute
of material fact as to whether the principal acted within the scope of his employment, precluding
judgment as a matter of law under the NMTCA. Id. So too here. Keiner’s conduct supports
competing inferences as to whether he acted to further his employer’s interests or his own.
Therefore, the scope-of-duty determination remains a question of fact for the jury.
Finally, because the parties’ briefing focuses on whether the IIED and negligence per se
claims are barred under the NMTCA, neither party addresses the merits of those claims. See
Doc. 107 at 8–9; Doc. 126 at 13. The Court therefore declines to reach the merits at this time. In
light of the genuine dispute regarding whether Keiner was acting within the scope of his duties,
the parties may submit supplemental briefing addressing whether Nix’s IIED and negligence per
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se claims can withstand summary judgment. Any such briefing shall address whether the record,
viewed in the light most favorable to Nix, presents a genuine dispute of material fact as to each
element of those claims.
IV. Conclusion
For the reasons above, the Court denies Keiner’s motion for partial summary judgment
on Nix’s state-law claims, Doc. 107. Defendants may file a motion for summary judgment
addressing the merits of Nix’s IIED and negligence per se claims within fourteen (14) days of
this Order. Nix must file any response within fourteen (14) days thereafter, and Defendants may
file a reply within seven (7) days of the response.
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
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Electronically filed documents can be found
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