STATE OF NEW MEXICO COUNTY OF VALENCIA ELEVENTH JUDICIAL DISTRICT M.S., Plaintiff, v. No. BELEN CONSOLIDATED SCHOOL DISTRICT, CITY OF BELEN, and ESTATE OF MICHAEL ESQUIBEL, in his personal capacity acting under color of law, Defendants. COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, PERSONAL INJURIES, AND VIOLATIONS OF THE NEW MEXICO TORT CLAIMS ACT Plaintiff, M.S., through counsel MARTINEZ, HART & THOMPSON, P.C. (F. Michael Hart and Kelly Stout Sanchez), for her Complaint against Defendants states: PARTIES 1. This action arises under the provisions of the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. 1983 and the New Mexico Tort Claims Act, NMSA 1978, 41-4-1 through -29. 2. Plaintiff M.S. is a resident of the County of Valencia, State of New Mexico. 3. Defendant Belen Consolidated School District (hereafter BCSD ) is a public body and political subdivision with headquarters in Valencia County, New Mexico and organized under the laws of the State of New Mexico. BCSD. 4. Belen Middle School is, and at all material times was, a body of Defendant 5. Belen High School is, and at all material times was, a body of Defendant BCSD.
6. Defendant City of Belen is a municipality which operates, manages and has the exclusive authority over the Belen Police Department. 7. At all material times, Michael Esquibel, deceased (hereafter Esquibel ) was an officer of the Belen Police Department and a public employee. 8. At all material times, Esquibel acted within the course and scope of his duties as public employees, was a state actor and acted under color of state law. JURISDICTION AND VENUE 9. For the claims at issue in this lawsuit, immunity has been waived pursuant to NMSA 1978, 41-4-6 and -12. 10. The personal injury claims against Esquibel survive his death pursuant to NMSA 1978, 37-2-1. 11. Defendant City of Belen received timely notice of tort claims against it pursuant to NMSA 1978, 41-4-16. 12. Defendant BCSD received timely notice of tort claims against it pursuant to NMSA 1978, 41-4-16. 13. All events alleged in this Complaint occurred in the City of Belen, County of Valencia, State of New Mexico. 14. Jurisdiction and venue are proper with this Court. GENERAL ALLEGATIONS 15. The City of Belen and the Board of Education for the Belen Consolidated Schools entered into a Memorandum of Understanding regarding law enforcement presence as School Resource Officers in the Belen public schools. 2
16. The presence of school resource officers in the Belen Consolidated Schools was to provide a safe learning environment and improve relationships between law enforcement officers and youth. 17. Esquibel was a Student Resource Officer at Belen Middle School from about 2009 until about 2011. 18. Esquibel was a school resource officer at both Belen Middle School and Belen High School from about 2012 until 2014. 19. As a school resource officer, Esquibel was required to provide for the protection of students and staff from negative influences and criminal conduct. 20. At all times material, Esquibel was in his Belen Police Department uniform while he was on the BCSD schools campus as the school resource officer. 21. At all times material, Esquibel was armed when he was on the BCSD schools campus as the school resource officer. 22. M.S. was a student at Belen Middle School from the fall of 2008 to the spring of 2011. 23. M.S. was a student at Belen High School from the fall of 2011 to the spring of 2015. 24. M.S. met Esquibel when she was a student at Belen Middle School and he was the school resource officer there. 25. Esquibel developed an inappropriate relationship with Plaintiff while Plaintiff was in seventh grade. 3
26. Esquibel publicly displayed obviously inappropriate behavior toward M.S., beginning when she was in middle school and continuing when she was in high school. Such behavior and conduct included but is not limited to: a. using his authority to remove M.S. and/or her friends from class and from detention; b. regularly walking with M.S. to and from class; c. allowing M.S. to make off with his keys, phone or handcuffs as a means of showing off; d. telling people (including teachers at the schools), or allowing Plaintiff to tell teachers, in his presence, and/or playing along with the assertion, that Esquibel was M.S. father; e. bringing M.S. food and other favors when she was at school and in class; f. removing M.S. from campus during lunch time, against school rules; g. giving M.S. a ride in his police unit; h. attending M.S. sports practice; i. wrestling with M.S.; and j. hiding M.S. from teachers who were looking for her. 27. At least one teacher at the middle school knew that Esquibel had falsely held himself out as Plaintiff s father, and yet no reasonable action was taken to remedy the danger Esquibel posed to Plaintiff. 28. Esquibel used the authority given to him by the BCSD and the City of Belen to inflict serious physical and emotional harm to M.S. through sexual abuse. 4
29. Esquibel used his authority to lure M.S. to his apartment where he sexually abused her. 30. Esquibel sent lewd, provocative, and graphic text and image messages to M.S. cell phone, including images of himself. 31. Esquibel, as a school resource officer, had extraordinary power over M.S., a student at Belen Middle and later, Belen High School. 32. Esquibel, as a school resource officer, used his extraordinary power over M.S. in committing the sexual abuse against her. 33. On information and belief, M.S. is not the only minor student at Belen High School with whom Esquibel maintained an inappropriate sexual relationship. 34. On information and belief, Esquibel gifted a smart phone, containing a picture of his penis, to another then-student at Belen High School. 35. On September 5, 2014, M.S. informed Jeff Kerby, a teacher at Belen High School, of Esquibel s sexual abuse. Mr. Kerby reported the information to Assistant Principal Jamie Jones, who in turn notified Principal Wright. 36. Principal Wright left a voicemail for Belen Police Department s Chief of Police, Dan Robb. 37. Principal Wright convened and participated in a meeting with M.S., Lieutenant Robert Miller of Belen Police Department, Mr. Kerby, and a school counselor, Castillo, concerning the report made by M.S. 38. Esquibel approached the meeting, but was told to leave. Esquibel returned to the Police Department and met with Chief Robb. 5
39. Lt. Miller interviewed M.S. at that meeting in an inappropriate and intimidating manner; clearly with the intent to discredit M.S. reports of misconduct by Esquibel. 40. After the meeting, Lt. Miller informed Mr. Kerby that M.S. allegations had been inconsistent and contrary to fact. Mr. Kerby asked Lt. Miller whether the photograph of the shirtless man on M.S. phone was Esquibel. Lt. Miller said that he did know whether it was Defendant Esquibel because he had never seen him shirtless. 41. M.S. mother became frustrated at the manner in which the investigation was being conducted and at the lack of action by the Belen Police Department, accordingly she reported Esquibel s sexual abuse of her daughter to the New Mexico State Police (hereinafter NMSP. ) 42. Agent Vincent Montez of NMSP began an investigation of the allegations. 43. In the course of investigating Plaintiff s allegations, Agent Montez contacted Lt. Miller and requested information about Defendant Esquibel, including his date of birth, social security number, contact number, and physical address. 44. Lt. Miller first said he did not have that information, and then explicitly refused to provide it to Agent Montez. Agent Montez was shocked and appalled at BPD s hostility toward him and Lt. Miller s obvious refusal to provide essential information for NMSP s investigation. 45. On September 12, 2014, M.S. underwent a Safe House interview. 46. On September 15, 2014, NMSP Agents Cox and White met with Chief Robb and discussed the investigation of Esquibel. During that meeting, the NMSP agents promised to keep Chief Robb updated as a matter of courtesy on the status of the criminal investigation of Esquibel. 6
47. Despite actual notice of the conduct of Esquibel, the Belen Police Department turned a blind eye to his misfeasance by neglecting to investigate it, thereby ratifying that misfeasance. 48. After meeting with Chief Robb, Agents Cox and White interviewed Lieutenant Miller. 49. During the interview with NMSP, Lt. Miller attempted to discredit M.S. allegations by saying she had been all over the place and was unable to stay on topic during his interview of her; that he had seen text messages from Esquibel on M.S. phone but that the messages were not sexual; and that the time when M.S. alleged Esquibel abused her at his apartment did not coincide with the time when Esquibel lived there. 50. Lt. Miller admitted that he had recognized the shirtless photo on M.S. phone as Esquibel, on the basis of tattoos visible in the photo. Lt. Miller said he had seen Esquibel shirtless when they played basketball. 51. Agents Cox and White then interviewed Esquibel. 52. Esquibel explained that he gave some students his non-work-issued cell phone number because his work-issued phone was on a plan with limited text messages. 53. Esquibel admitted that he sent M.S. a picture of himself with his shirt off, and regularly sent her messages such as hey beautiful and good morning, beautiful. 54. Esquibel also admitted that he sent photos of himself without a shirt to other students. 55. On September 21, 2014, Esquibel committed suicide while the criminal investigation against him was on-going. 7
56. Following the suicide of Esquibel, Belen Police Department and Chief Robb celebrated and publically honored Esquibel as a model officer as an officer whose integrity was never questioned despite actual knowledge of and involvement in the pending criminal investigation against Esquibel. 57. Despite honoring Esquibel and announcing that his death was a loss to the Belen community, no one from the City of Belen or BCSD reached out to acknowledge what M.S. was going through and how she was being treated. 58. By celebrating Esquibel and failing to acknowledge the pending criminal investigation for criminal sexual contact and criminal sexual penetration of a minor, M.S. was made to feel isolated from her entire school and community. M.S. was made to feel as though it was her fault that Esquibel killed himself. COUNT I New Mexico Tort Claims Act Section 41-4-6 Negligent Operation and Maintenance of the Premises 59. All previous allegations are incorporated by reference as if fully set forth herein. 60. At all times material to the allegations set forth in this Complaint, M.S. was a student of Belen Middle School and/or Belen High School and was permitted to be on the respective schools premises. 61. At all material times, Esquibel was an employee of the City of Belen and was permitted on the schools premises as a school resource officer. in the BCSD. 62. At all material times, Esquibel was authorized to interact with students. 63. At all material times, Esquibel was put in a position of authority over the students 8
64. In the operation of Belen Middle School, Defendant BCSD owed a duty to use ordinary care to keep all students, including M.S., safe. 65. In the operation of Belen High School, Defendant BCSD owed a duty to use ordinary care to keep all students, including M.S., safe. 66. Defendant BCSD breached those duties by creating or failing to remedy, at each school, an unsafe condition, which put the general population of students (including M.S.) at risk of harm. 67. Defendant BCSD breached those duties in failing to implement or enforce school policies, training, or procedures for prevention of sexual abuse. 68. As a direct result of Defendant BCSD s breaches of duty, M.S. suffered physical, psychological and emotional injury and damages. 69. At all times material to the allegations set forth herein, Esquibel acted with the authority granted to him by the BCSD and by virtue of his position as a school resource officer. 70. At all times material to the allegations set forth herein, Esquibel would not have been in a position to harm M.S. and inflict injury upon her, but for his position as a school resource officer and the authority conferred upon him by the BCSD. COUNT II New Mexico Tort Claims Act Section 41-4-12 Personal Injuries Resulting from Assault, Battery, and Deprivation of Rights 71. All previous allegations are incorporated by reference as if fully set forth herein. 72. At all times material hereto, the City of Belen and Esquibel owed M.S. a duty to act reasonably so as not to inflict assault, battery or deprivation of her constitutional rights. 73. Esquibel s conduct inflicted assaults and batteries upon M.S. as well as deprived her of her rights secured by the Constitution of the United State and New Mexico. 9
74. As a direct and proximate result of conduct by Esquibel in the scope of his duties, M.S. suffered personal injuries and damages including physical, emotional and psychological harm. 75. At all times material to the allegations set forth herein, Esquibel acted with the authority granted to him by the Belen Police Department/City of Belen and by virtue of his position as a school resource officer. 76. At all times material to the allegations set forth herein, Esquibel would not have been in a position to harm M.S. and inflict injury upon her, but for his position as a school resource officer and the authority conferred upon him by the City of Belen. COUNT III 42 U.S.C. 1983 Substantive Due Process Estate of Michael Esquibel 77. All previous allegations are incorporated by reference as if fully set forth herein. 78. At all material times, Esquibel was acting under color of state law as a school resource officer. 79. At all material times, M.S. had a fundamental interest and right, protected by the Fourteenth Amendment of the United States Constitution, to bodily integrity, personal safety, privacy, and freedom from unlawful invasion and violation of her person, and not to be subjected to an unsafe environment in which she was vulnerable to physical and emotional injury. 80. Esquibel violated M.S. constitutional rights when he perpetrated sexual abuse against her from the time that she was a middle school student through her senior year in high school. 10
81. In the commission of the acts alleged herein, Esquibel acted knowingly, recklessly or with deliberate indifference and callous disregard of the rights of M.S. and his conduct shocked the conscience. 82. As a direct and proximate result of violations of M.S. constitutional rights by Esquibel, M.S. suffered physical, psychological and emotional injuries and damages. COUNT IV 42 U.S.C. 1983 Equal Protection Estate of Michael Esquibel 83. All previous allegations are incorporated by reference as if fully set forth herein. 84. At all times material, Esquibel was a state actor and acted under color of law as a school resource officer. 85. At all times material, M.S. had a constitutional right to be free from sexual harassment and sexual abuse by a school resource officer pursuant to the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. 86. In commission of the acts alleged herein, Esquibel acted knowingly, recklessly, or with deliberate indifference and callous disregard of the rights of M.S. and his conduct shocked the conscience. 87. As a direct and proximate result of violations of M.S. constitutional rights by Esquibel, M.S. suffered physical, psychological and emotional injuries and damages. COUNT V 42 U.S.C. 1983 Failure to Train and Supervise City of Belen 88. All previous allegations are incorporated by reference as if fully set forth herein. 89. At all times material, the City of Belen operated the Belen Police Department. 11
90. At all times material, the City of Belen had a duty to provide appropriate and adequate supervision for its police officers, including those who were assigned to the schools as school resource officers. 91. At all times material the City of Belen had a duty to provide appropriate and adequate training for its police officers, including those who were assigned to the schools as school resource officers. 92. The City of Belen knew that Esquibel was assigned as the school resource officer and the majority of his interactions would be with children. 93. The City of Belen knew that school resource officers are in a position of authority over students in the schools they oversee and that there is a risk of crossing boundaries and of abuse of that authority. 94. The City of Belen knew that there was a patently obvious need to train its school resource officers in boundary issues with students and potential abuses of their authority as without such training, it was likely to result in the violation of constitutional rights. 95. At all times material, M.S. had a fundamental interest and right, protected by the Fourteenth Amendment of the United States Constitution, to bodily integrity, personal safety, privacy, and freedom from unlawful invasion and violation of her person, and not to be subjected to an unsafe environment in which she was vulnerable to physical and emotional injury. 96. The City of Belen violated M.S. substantive due process rights when it failed to provide adequate training for its school resource officers, including Esquibel, in proper interaction with students, the results of crossing boundaries, and the effect of being in a position of authority over children. 12
97. The City of Belen was deliberately indifferent to the rights of M.S. when it failed to provide adequate training to its school resource officers, including Esquibel. 98. The City of Belen also violated M.S. substantive due process rights when it failed to provide supervision for Esquibel as a school resource officer in the Belen Middle School and Belen High School. 99. The City of Belen set in motion a series of events that the City of Belen knew or reasonably should have known would cause others to deprive students, including M.S., of their constitutional rights by failing to provide adequate supervision of its school resource officers. 100. Esquibel was placed in Belen Middle School and Belen High School as the only school resource officer through the contract with the City of Belen and BCSD. The favoritism and boundary violations that were open and obvious between Esquibel and M.S. would have caused Esquibel s supervisors concern and would have resulted in intervention. COUNT VI 42 U.S.C. 1983 Failure to Train and Supervise Belen Consolidated School District 101. All previous allegations are incorporated by reference as if fully set forth herein. 102. At all times material, BCSD had a duty to provide appropriate and adequate supervision for the adults on its premises, including those who were permitted to be there as school resource officers, like Esquibel. 103. At all times material the BCSD had a duty to provide appropriate and adequate training for its employees regarding the safety of students, adult interaction with students, adults in positions of authority over students, and recognizing and reporting abuse. 104. The BCSD knew that Esquibel was assigned as the school resource officer and the majority of his interactions would be with children. 13
105. The BCSD knew that school resource officers are in a position of authority over students in the schools they oversee and that there is a risk of crossing boundaries and of abuse of that authority. 106. The BCSD knew that there was a patently obvious need to train its school resource officers in boundary issues with students and potential abuses of their authority as without such training, it was likely to result in the violation of constitutional rights of students. 107. The BCSD knew that there was a patently obvious need to train its school employees in boundary issues with students and potential abuses of authority, as without such training it was likely to result in the violation of the constitutional rights of students. 108. At all times material, M.S. had a fundamental interest and right, protected by the Fourteenth Amendment of the United States Constitution, to bodily integrity, personal safety, privacy, and freedom from unlawful invasion and violation of her person, and not to be subjected to an unsafe environment in which she was vulnerable to physical and emotional injury. 109. The BCSD violated M.S. substantive due process rights when it failed to provide adequate training for its school resource officers, including Esquibel, and school employees in proper interaction with students, the results of crossing boundaries, and the effect of being in a position of authority over children. 110. The BCSD was deliberately indifferent to the rights of M.S. when it failed to provide adequate training to its school resource officers, including Esquibel, and school employees. 111. The BCSD also violated M.S. substantive due process rights when it failed to provide supervision for Defendant Esquibel as a school resource officer in the Belen Middle School and Belen High School. 14
112. The BCSD set in motion a series of events that the City of Belen knew or reasonably should have known would cause others to deprive students, including M.S., of their constitutional rights by failing to provide adequate supervision of its school resource officers. 113. Esquibel was placed in Belen Middle School and Belen High School as the only school resource officer through the contract with the City of Belen and BCSD. The favoritism and boundary violations that were open and obvious between Esquibel and M.S. should have caused teachers and school employees of BCSD to intervene and protect M.S. WHEREFORE, Plaintiff requests that the Court enter a judgment in her favor and against Defendants for the following: 1. Compensatory damages in an amount to be determined at trial; 2. Punitive damages in an amount sufficient to punish Defendants for their intentional and reckless violations of M.S. constitutional rights and to deter such violations in the future; 3. Reasonable attorneys fees and costs of suit under 42 U.S.C. 1988; and 4. Such other and further relief as the Court deems just and proper. Respectfully Submitted, MARTINEZ, HART & THOMPSON, P.C. Electronically filed F. Michael Hart Kelly Stout Sanchez 1801 Rio Grande Blvd. NW Albuquerque, NM 87104 (505) 343-1776 (505) 344-7709 facsimile mikeh@osolawfirm.com kellys@osolawfirm.com 15
Attorneys for Plaintiff 16