January 30, 2014 – Monique Villalobos v. Board of County Commissioners of Dona Ana County, New Mexico, Dona Ana County Detention Center, Christopher Barela, individually and as administrator of the Dona Ana County Detention Center, Amanda Bugl, individually, Adaly Moreno, individually, and Melissa Saenz, individually, No. 31,703

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 30, 2014

NO. 31,708

MONIQUE VILLALOBOS,
Plaintiff-A ppellant,
V.

BOARD OF COUNTY COMMISSIONERS

OF DONA ANA COUNTY, NEW MEXICO,
DONA ANA COUNTY DETENTION CENTER,
CHRISTOPHER BARELA, individually and as
Administrator of the Dona Ana County Detention
Center, AMANDA BUGL, individually, ADALY
MORENO, individually, and MELISSA SAENZ,

individually,
Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
James T. Martin, District Judge

Camumnez Law Finn, P.C.
Rosanne Camunez.
Las Cruces, NM

for Appellant

Beall & Biehler
Mary T. ‘Torres
Gianna M. Mendoza

Albuquerque, NM

for Appellees

OPINION
KENNEDY, Chief Judge.
{1} 	In this case, we hold that expert testimony is needed to establish the standard
of care for monitoring inmates in prisons. Monique Villalobos (Plaintiff), an inmate
at the Doña Ana County Detention Center (Detention Center), sued the Board of
County Commissioners of Doña Ana County, the Detention Center, and Christopher
Barela (collectively, County Defendants) for negligence after she was assaulted and
raped by three inmates: 	Amanda Bugl, Adaly Moreno, and Melissa Saenz
(collectively, Inmate Defendants). The district court granted summary judgment in
favor of County Defendants, finding that Plaintiff was required and failed, to provide
expert testimony regarding industry standards for operating a Detention Center and
monitoring inmates. 	We conclude that this is a case that involves issues a normal
juror would not necessarily know and requires expert testimony. We also conclude
there was no abuse of discretion in discovery rulings the district court made, and we
affirm.
I. 	BACKGROUND
{2} 	The undisputed facts are as follows. Plaintiff was an inmate at the Detention
Center in January 2007. While she was detained there, she was housed in a large open
pod with other females. On January 12, 2007, Plaintiff was playing cards with another

2
detainee when Inmate Defendants summoned her into a cell. 	When Plaintiff met
Inmate Defendants in the cell, they assaulted and raped her. Plaintiff did not report
the incident at that time and went back to playing cards. Approximately ten minutes
later, Inmate Defendants called Plaintiff into the same cell and assaulted and raped her
again. 	Plaintiff contacted a detention officer and reported the incident. 	After a
criminal investigation, Inmate Defendants were charged with and convicted of,
criminal sexual penetration and conspiracy to commit criminal sexual penetration.
{3} 	Plaintiff sued County Defendants for negligence, alleging that they failed to
protect her from the assault and that their policies have resulted in unacceptable
inmate violence of which she became a victim. She also included claims for battery,
sexual assault, a municipal policy of ignoring and fostering inmate violence, and
violation of her Fourth, Fifth, and Fourteenth Amendment rights.
{4} 	Eventually, County Defendants moved for summary judgment based on
qualified immunity, as well as Plaintiff’s lack of expert testimony, demonstrating the
standard of care required of County Defendants and any breach of that standard. The
district court agreed and found that “[a]ll of Plaintiff’s claims fail because she can
provide no expert testimony which demonstrates the standard of care in the detention
center industry regarding the supervision of inmates and detainees, that [County]
Defendants breached the relevant standard of care or [County] Defendants’ alleged
breach caused . . . Plaintiff’s injuries.” 	Plaintiff appealed, arguing that the district

3
court erred in its expert testimony requirement as well as two discovery issues. The
issue of qualified immunity was not appealed.
II. 	DISCUSSION
A. 	Expert Testimony Was Required to Establish the Standard of Care
{5} 	Plaintiff argues that the district court erred in its conclusion that she needed
expert testimony to establish an issue of fact regarding the standard of care of the
Detention Center’s staffing, supervision of inmates, and the Detention Center’s
operation at summary judgment. 	Summary judgment is proper where there is no
evidence raising a reasonable doubt that a genuine issue of material fact exists. See
Cates v. Regents of N.M. Inst. of Mining & Tech., 1998-NMSC-002, ¶ 9, 124 N.M.
633, 954 P.2d 65. “On appeal from the grant of summary judgment, we ordinarily
review the whole record in the light most favorable to the party opposing summary
judgment to determine if there is any evidence that places a genuine issue of material
fact in dispute.” 	City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-
NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no material issues of
fact are in dispute and an appeal presents only a question of law, we apply de novo
review and are not required to view the appeal in the light most favorable to the party
opposing summary judgment.” Id.
{6} 	In this case, Plaintiff alleges that the Detention Center breached its duty to
“provide adequate means and staff to monitor inmate behavior[] and to adequately

4
train and supervise staff.” In its motion for summary judgment, County Defendants
provided evidence through expert testimony that the Detention Center met or
exceeded accepted standards in the adult detention corrections field, including with
regard to staffing and monitoring of detainees/inmates, classification of inmates, and
with respect to its policies, procedures and post orders. 	Further, the only expert
testimony on the issue of negligence established that County Defendants did not fall
below the standard of care in the industry with regard to the management and
construction of the Detention Center. 	In her response, Plaintiff did not offer any
competent evidence to rebut County Defendants’ expert testimony and thus failed to
create a genuine issue of fact. Instead, Plaintiff argued below, as she does on appeal,
that she neither needed an expert to establish any standard of care County Defendants
owed her nor any duty breached and that the district court erred in ruling that she
needed an expert to help establish these facts. We lack case law on this topic. Both
Plaintiff and County Defendants relied on out-of-jurisdiction cases. For the reasons
that follow, we are persuaded that this case most resembles cases where courts ruled
that expert testimony was necessary, and we are persuaded by their reasoning. 	See
Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C. 1981). Although a case
in which an expert is not necessary to establish negligence in a prison context may
exist, it is not this case.

5
{7} 	Rule 11-702 NMRA (1994) provides that, “if scientific, technical[,] or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert may testify thereto in the
form of an opinion.” 	Mott v. Sun Country Garden Prods., Inc., 1995-NMCA-066,
¶ 34, 120 N.M. 261, 901 P.2d 192 (alteration, internal quotation marks, and citation
omitted). If a fact in issue is understandable by an average lay juror, “expert opinion
testimony is not necessary.” Id.
{8} 	In Hughes, the court determined that “[t]he question of whether prison officials
acted reasonably to secure the safety of an inmate is not one within the realm of the
everyday experiences of a lay person.” 	425 A.2d at 1303. 	Hughes concerned an
inmate who brought a negligence suit after being assaulted in prison, claiming that
failure to return him to protective custody after he had complained of an incident at
work and requested a work change was negligent. Id. at 1300. After the evidence was
presented to a jury, the court directed a verdict for the correctional institution on the
basis that the plaintiff had failed to establish the acceptable standard of care by expert
testimony. Id. at 1303. The court held that, because “[t]he reasonably prudent juror
cannot be expected to appreciate the ramifications of prison security as well as the
parallel considerations involving the safekeeping of prisoners, and therefore, whether,
under given circumstances, reasonable care was exercised[,]” expert testimony or
other evidence was needed to establish the standard. Id. The Hughes court also made

6
it clear that a plaintiff must demonstrate negligence by more than the mere existence
of the event. Id.
{9} 	Other courts have adopted the Hughes reasoning. 	The Tennessee Court of
Appeals held that the manner of an inmate’s death did not alone establish that the
facility was negligent. It stated that “[e]xcept in the most obvious cases, whether the
prison officials acted reasonably to protect a prisoner’s safety requires expert proof
or other supporting evidence.” 	Cockrum v. State, 843 S.W.2d 433, 438 (Tenn. Ct.
App. 1992). Other Tennessee cases reiterate this premise and have ruled that, “[i]f the
conduct of prison staff is not clearly improper, expert proof delineating the precise
scope of the staff’s duty and evaluating the adequacy of the staff’s conduct is
essential[,] the claimant cannot recover without it.” 	Atkinson v. State, 337 S.W.3d
199, 205 (Tenn. Ct. App. 2010).
{10} 	Courts that have not required expert testimony for prison-related negligence
have done so when less technical issues are at hand. 	In Morgan v. District of
Columbia, the question was severe overcrowding of the jails as related to a specific
instance of inmate violence. 	824 F.2d 1049, 1062 (D.C. Cir. 1987). 	The Morgan
court held that “[t]he mere fact that prison security is normally left to the discretion
of prison administrators does not, a fortiori, prevent the trial court from determining
that a reasonable jury could conclude upon egregious facts that the administrators
abused their discretion.” Id. In a related New Mexico case, we have held that a court

7
could find a jail breached its duty to inmates when an inmate was “severely, cruelly,
inhumanly, and brutally battered for three nights without intervention by any jail
personnel[,]” and the noise of the beating “was so loud that it . . . could be heard
throughout the jail.” Methola v. Cnty. of Eddy, 1981-NMCA-048, ¶ 15, 96 N.M. 274,
629 P.2d 350 (internal quotation marks omitted).
{11} 	The cases that Plaintiff relies on are further examples of the obvious cases
where expert evidence is not necessary because the facts at issue are understandable
by an average lay juror. 	In Adorno v. Corr. Servs. Corp., 312 F. Supp. 2d 505
(S.D.N.Y. 2004), the New York district court held that lay jurors did not need expert
testimony to determine whether a halfway house had notice that it was continuing to
employ a person who was sexually abusing female residents. Id. at 515. Similarly,
in a Texas case where an inmate died after a brutal beating that was observed by
guards, the court held that the decedent’s family was not required to put on expert
testimony regarding the standard of care in prisons. Wackenhut Corr. Corp. v. de la
Rosa, 305 S.W.3d 594, 623-24 (Tex. Ct. App. 2009) (“The only issue at trial was . . .
how far [the prison] had to go to detect the possession of weapons by inmates.
Specialized knowledge was not required to show that a search should be performed
on some or all inmates at a given time. 	The jury was presented with simple
explanations of [the prison’s] reason for not searching every inmate at the crash gate,

8
including preventing inmate congestion that could lead to assaults. The jury was fully
able to understand these arguments.”).
{12} 	Here, Plaintiff asserts that the area in which she was assaulted was an
architectural blind spot in the facility that could not be covered by video surveillance,
as well as not being directly monitored by guards. Plaintiff argues that jurors can use
common knowledge to find it negligent to allow inmates in an area that is not properly
subject to surveillance or monitored, either due to the existence of a blind spot or lack
of guards. We disagree and conclude that such a contention requires expert testimony.
Plaintiff did not provide any such testimony as to the standard of care for the
monitoring of inmates, jail design, video surveillance, or any other factors that
underlie such a standard. Wilkins v. District of Columbia, 879 F. Supp. 2d 35, 38, 41-
42 (D.D.C. 2012) (“According to [the] plaintiff’s expert witness, this failure to
monitor inmate movements violated national standards for the operation of jails. . . .
The question of whether prison officials acted reasonably to secure the safety of an
inmate is not one within the realm of the everyday experiences of a lay person, so [the
plaintiff] was required to present expert testimony to establish the standard of care.”
(internal quotation marks and citations omitted)); Estate of Belden v. Brown Cnty., 261
P.3d 943, 969 (Kan. Ct. App. 2011) (“There is nothing so obviously wrong with or
deficient in the Brown County jail policies and practices that we could suggest a jury
reasonably might find them to be negligent simply by reading them and considering

9
their application to these circumstances, even with a generous dollop of common
sense.”); Phillips v. District of Columbia, 714 A.2d 768, 773 (D.C. 1998) (stating that,
in an inmate suicide case, “the plaintiff was required to establish the applicable
standard of care, as well as a breach thereof, by expert testimony”). We hold that, in
order for a jury to make a decision regarding the standard of care of the monitoring
by prison officials in this instance, expert testimony is required. 	Contrary to
Plaintiff’s argument, the mere fact that she was assaulted does not prove that the
prison monitoring fell below the required standard of care.
B. 	Discovery Issues
{13} 	During the discovery phase of the case, Plaintiff requested certain information
dealing with the male side of the Detention Center and the mental health records of
Inmate Defendants. A protective order was drafted by County Defendants in order to
ensure the privacy of some of the protected information Plaintiff had requested.
Counsel for Plaintiff did not sign the protective order for several months, delaying the
production of the protected documents. At a hearing, the district court determined that
the information Plaintiff sought about the male side of the Detention Center was not
sufficiently related to her case to permit discovery and decided that she needed
permission from Inmate Defendants before County Defendants could release their
mental health records. The district court denied her request to extend discovery based
on the late production caused by her own delay in signing the protective order.

10
{14} 	Plaintiff also argues that the district court erred in denying her certain matters
in discovery. Specifically, she requested and was denied discovery regarding the male
side of the Detention Center and Inmate Defendant Moreno’s mental health records.
We review a district court’s discovery orders for an abuse of discretion. See Estate
of Romero ex rel. Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 6, 139 N.M. 671,
137 P.3d 611. Our basic discovery rule, Rule 1-026(B)(1) NMRA (2009), states that
“[p]arties may obtain discovery of any information, not privileged, which is relevant
to the subject matter involved in the pending action. The information sought need not
be admissible at the trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.”
1. 	Male Side of Detention Center
{15} 	In her briefs to this Court, Plaintiff relies on Rule 1-026(B)(1)’s broad
presumption in favor of discovery and argues that the male side of the Detention
Center was relevant to her case due to potentially similar blind spots and monitoring
and the Detention Center’s alleged notice of danger and failure to take corrective
action after a male inmate was killed in the showers in an alleged blind spot. County
Defendants argue that, because the male inmate’s death was gang-related and occurred
in the showers, it had nothing to do with the attack on Plaintiff. We do not consider
Plaintiff’s request for records of all male-on-male violence because she does not
address that topic on appeal.

11
{16} 	“The pretrial discovery rules, including Rule [1-026], intend a liberal pretrial
discovery, to enable the parties to obtain the fullest possible knowledge of the facts
before trial. Notwithstanding objection to the depositions, the presumption is in favor
of discovery.” Marchiondo v. Brown, 1982-NMSC-076, ¶ 13, 98 N.M. 394, 649 P.2d
462. However, “[a]lthough the rules favor allowance of liberal pretrial discovery, the
trial court is vested with discretion in determining whether to limit discovery.”
DeTevis v. Aragon, 1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558 (citation
omitted). Apart from broad language calling for liberal discovery, Plaintiff fails to
cite any authority to support her claim that the male side of the Detention Center was
vital to her case, and the denial of discovery regarding it was in error. She instead
states that information about an attack in a blind spot on the male side of the Detention
Center would be relevant to whether County Defendants were on notice that their
monitoring system put inmates at risk for being attacked in a blind spot. However,
Plaintiff points us to no authority or expert opinion suggesting a duty to eliminate or
monitor all blind spots. 	Because Plaintiff fails to cite any authority to support her
claim that the district court abused its discretion in denying her discovery about the
male side of the Detention Center, we defer to the district court’s judgment and
conclude that the district court did not abuse its discretion.
2. 	Mental Health Records of Inmate Defendant Moreno

12
{17} 	Plaintiff also contends that she was entitled to discovery regarding the mental
health records of one of her attackers, Inmate Defendant Moreno, as it would be
important in determining whether Inmate Defendant Moreno was properly classified
and housed with Plaintiff. She further alleges that it was error for County Defendants
to refuse to produce the mental health files of Inmate Defendants, particularly since
they had already filed an unopposed protective order.
{18} 	The district court denied discovery of the mental health records as protected by
state and federal law and outside the scope of the protective order, as well as unlikely
to lead to discoverable evidence. 	Without a release from Inmate Defendants, the
district court would not order production of the mental health records. 	The only
protective order in this case was requested by County Defendants in April 2010. The
order was not signed by Plaintiff’s counsel for several months and was eventually
filed on October 13, 2010. The deadline for discovery was November 11, 2010, but
Plaintiff’s counsel requested an extension because her late signing of the protective
order meant that she had only begun to receive much of her requested discovery.
{19} 	Generally, mental health records are privileged under New Mexico law. Rule
11-504(B) NMRA (1995) (“A patient has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications, made for the
purposes of diagnosis or treatment of the patient’s physical, mental[,] or emotional
condition . . . among the patient, the patient’s physician or psychotherapist, or persons

13
who are participating in the diagnosis or treatment under the direction of the physician
or psychotherapist[.]”). Plaintiff does not argue that any exception to this privilege
applies for Inmate Defendant Moreno’s mental health records. Plaintiff was permitted
other information regarding classification of Inmate Defendant Moreno and the other
Inmate Defendants, which was separate from the mental health records. Plaintiff does
not clarify the difference between these records, and why she needed the ones she was
denied. 	To the extent that she argues the protective order adequately protects the
confidentiality of the records, we agree with the district court that County Defendants
cannot release Inmate Defendant Moreno’s mental health records without her consent,
and her ambiguous request did not make it clear if she was attempting to obtain
unprivileged records. NMSA § 43-1-19(A) (2009) (“Except as otherwise provided[,]
. . . no person shall, without the authorization of the client, disclose or transmit any
confidential information from which a person well acquainted with the client might
recognize the client as the described person[.]” (emphasis added)). Plaintiff’s delay
in pursuing that authorization from Inmate Defendant Moreno deprived her of the
opportunity to obtain an expert regarding Inmate Defendant Moreno’s mental health.
The district court did not abuse its discretion in denying discovery of Inmate
Defendant Moreno’s mental health records.
III. 	CONCLUSION

14
{20} 	Because expert testimony was required in order to establish the prison industry
standards in monitoring inmates, and Plaintiff provided none, we affirm the district
court’s award of summary judgment. 	We also hold that there was no abuse of
discretion in the district court’s discovery rulings regarding the male side of the
Detention Center and Inmate Defendant Moreno’s mental health records.
{21} 	IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Chief Judge
WE CONCUR:
___________________________
JAMES J. WECHSLER, Judge
___________________________
LINDA M. VANZI, Judge