F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 26 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
URSULA E. HEALEY,
Plaintiff-Appellant,
STATE OF NEW MEXICO, RISK No. 98-2285 MANAGEMENT DIVISION, (D.C. No. CIV-96-854-HB) (D. N.M.) Plaintiff-Intervenor- Appellee,
v.
CHARLES SCOVONE, also known as Charles Scavone,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Ursula E. Healey appeals from an order of the district court
granting defendant Scovone’s motion to dismiss and dismissing defendant Risk
Management Division’s action in intervention. We affirm.
Ms. Healy commenced this action pursuant to 42 U.S.C. §§ 1983, 13981
against defendant Scovone in his individual capacity. 1 Ms. Healy alleged that
Scovone, acting within the scope of his duties with the New Mexico Children,
Youth and Families Department , demanded sexual favors from her in exchange
for providing her with the assistance she was entitled to from the department.
She alleged that as long as she complied with his demands, Scovone procured a
live-in child care worker to assist her with her six minor children. When she
refused to allow him to continue to sexually assault her, Scovone had her children
1 The district court liberally construed Ms. Healy’s complaint to include a claim against Scovone in his official capacity. As Ms. Healy was represented by counsel, we may not liberally construe her complaint. See Shah v. County of Los Angeles , 797 F.2d 743, 745 n.1 (9th Cir. 1986) (declining to broaden complaint of plaintiff represented by counsel); cf. Boag v. MacDougall , 454 U.S. 364, 365 (1982) (federal courts are to liberally construe “inartful pleading” of pro se litigants) .
-2- removed from her home. Ms. Healy alleged that by these acts Scovone deprived
her of (1) life, liberty or property without due process as well as her right to
privacy ; (2) her right to be free from sexual discrimination and harassment by the
government; and (3) her right to associate with her children.
Scovone asserted he was entitled to qualified immunity. He also filed a
counterclaim alleging that Ms. Healy had made false and misleading statements of
material fact regarding her relationship with him and had published those reports
to third parties including his supervisors and law enforcement officers. He also
claimed intentional infliction of emotional distress.
The New Mexico Risk Management Division (RMD) 2 filed a complaint in
intervention seeking a declaration that it had no obligation to provide Scovone
with a defense and had no duty to indemnify him. RMD contended that if
Scovone had engaged in the conduct described by plaintiff, his actions would
neither have been taken under color of state law nor would they have been within
his scope of duties as a state employee. RMD concluded it had no obligation to
defend Scovone in this action.
2 RMD is authorized to settle and pay claims asserted against government agencies and their employees for injuries or damages resulting from acts covered under the New Mexico Tort Claims Act. See N.M. Stat. Ann. § 15-7-3A(4); Board of County Comm’rs v. Risk Management Div. , 899 P.2d 1132, 1136 (N.M. 1995).
-3- After this action was commenced, Scovone filed for bankruptcy. He
included Ms. Healy’s unliquidated unsecured claims as dischargeable debts. 3
Scovone was discharged in bankruptcy and then filed a motion to dismiss this
action in federal district court .
The district court granted Scovone’s motion . The court held that, due to
his discharge in bankruptcy, Scovone could not be held personally liable for any
damages were Ms. Healy to prevail. The court also held that Ms. Healy could not
proceed solely against RMD as Scovone’s acts of assault and battery would not be
covered under the scope of duties as defined by N.M. Stat. Ann. § 41-4-3G and,
thus, RMD was not obligated to indemnify Scovone.
On appeal, Ms. Healy contends that Scovone’s acts fell within the scope of
his duties and he was indemnified by RMD. Therefore, she argues she can sue
him in his individual capacity, regardless of the discharge in bankruptcy, pursuant
to 11 U.S.C. § 524(e).
We review the district court’s dismissal of an action for lack of jurisdiction
de novo. See Bryan v. Office of Personnel Management , 165 F.3d 1315 , 1318
(10th Cir. 19 99).
3 Ms. Healy contends she did not receive notice of the bankruptcy action. The record refutes this argument.
-4- A discharge in bankruptcy voids any judgment against the debtor to the
extent that the judgment determines the debtor’s personal liability as to any
discharged debt. See 11 U.S.C. § 524(a). However, the “discharge of a debt of
the debtor does not affect the liability of any other entity on, or the property of
any other entity for, such debt.” See id. § 524(e); Walker v. Wilde (In re Walker) ,
927 F.2d 1138, 1142 (10th Cir. 1991) . Thus, a plaintiff may proceed against the
debtor when the plaintiff must establish the debtor’s liability before recovering
from an insurer . See id. The § 524(e) exception to the “post-discharge injunction
hinges ‘upon the condition that the debtor not be personally liable in a way that
would interfere with the debtor’s fresh start in economic life.’” Walker , 927 F.2d
at 1142 (quoting Owaski v. Jet Florida Sys., Inc. (In re Jet Florida Sys., Inc.), 883
F.2d 970, 975 (11th Cir. 1989) ).
This action can proceed against Scovone only if RMD is obligated to
indemnify him. Ms. Healy argues that RMD is so obligated.
RMD would be obligated to Scovone if he had been acting within the scope
of his duties at the time he performed the alleged acts. New Mexico defines
“scope of duties” as the performance of “any duties that a public employee is
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 26 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
URSULA E. HEALEY,
Plaintiff-Appellant,
STATE OF NEW MEXICO, RISK No. 98-2285 MANAGEMENT DIVISION, (D.C. No. CIV-96-854-HB) (D. N.M.) Plaintiff-Intervenor- Appellee,
v.
CHARLES SCOVONE, also known as Charles Scavone,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Ursula E. Healey appeals from an order of the district court
granting defendant Scovone’s motion to dismiss and dismissing defendant Risk
Management Division’s action in intervention. We affirm.
Ms. Healy commenced this action pursuant to 42 U.S.C. §§ 1983, 13981
against defendant Scovone in his individual capacity. 1 Ms. Healy alleged that
Scovone, acting within the scope of his duties with the New Mexico Children,
Youth and Families Department , demanded sexual favors from her in exchange
for providing her with the assistance she was entitled to from the department.
She alleged that as long as she complied with his demands, Scovone procured a
live-in child care worker to assist her with her six minor children. When she
refused to allow him to continue to sexually assault her, Scovone had her children
1 The district court liberally construed Ms. Healy’s complaint to include a claim against Scovone in his official capacity. As Ms. Healy was represented by counsel, we may not liberally construe her complaint. See Shah v. County of Los Angeles , 797 F.2d 743, 745 n.1 (9th Cir. 1986) (declining to broaden complaint of plaintiff represented by counsel); cf. Boag v. MacDougall , 454 U.S. 364, 365 (1982) (federal courts are to liberally construe “inartful pleading” of pro se litigants) .
-2- removed from her home. Ms. Healy alleged that by these acts Scovone deprived
her of (1) life, liberty or property without due process as well as her right to
privacy ; (2) her right to be free from sexual discrimination and harassment by the
government; and (3) her right to associate with her children.
Scovone asserted he was entitled to qualified immunity. He also filed a
counterclaim alleging that Ms. Healy had made false and misleading statements of
material fact regarding her relationship with him and had published those reports
to third parties including his supervisors and law enforcement officers. He also
claimed intentional infliction of emotional distress.
The New Mexico Risk Management Division (RMD) 2 filed a complaint in
intervention seeking a declaration that it had no obligation to provide Scovone
with a defense and had no duty to indemnify him. RMD contended that if
Scovone had engaged in the conduct described by plaintiff, his actions would
neither have been taken under color of state law nor would they have been within
his scope of duties as a state employee. RMD concluded it had no obligation to
defend Scovone in this action.
2 RMD is authorized to settle and pay claims asserted against government agencies and their employees for injuries or damages resulting from acts covered under the New Mexico Tort Claims Act. See N.M. Stat. Ann. § 15-7-3A(4); Board of County Comm’rs v. Risk Management Div. , 899 P.2d 1132, 1136 (N.M. 1995).
-3- After this action was commenced, Scovone filed for bankruptcy. He
included Ms. Healy’s unliquidated unsecured claims as dischargeable debts. 3
Scovone was discharged in bankruptcy and then filed a motion to dismiss this
action in federal district court .
The district court granted Scovone’s motion . The court held that, due to
his discharge in bankruptcy, Scovone could not be held personally liable for any
damages were Ms. Healy to prevail. The court also held that Ms. Healy could not
proceed solely against RMD as Scovone’s acts of assault and battery would not be
covered under the scope of duties as defined by N.M. Stat. Ann. § 41-4-3G and,
thus, RMD was not obligated to indemnify Scovone.
On appeal, Ms. Healy contends that Scovone’s acts fell within the scope of
his duties and he was indemnified by RMD. Therefore, she argues she can sue
him in his individual capacity, regardless of the discharge in bankruptcy, pursuant
to 11 U.S.C. § 524(e).
We review the district court’s dismissal of an action for lack of jurisdiction
de novo. See Bryan v. Office of Personnel Management , 165 F.3d 1315 , 1318
(10th Cir. 19 99).
3 Ms. Healy contends she did not receive notice of the bankruptcy action. The record refutes this argument.
-4- A discharge in bankruptcy voids any judgment against the debtor to the
extent that the judgment determines the debtor’s personal liability as to any
discharged debt. See 11 U.S.C. § 524(a). However, the “discharge of a debt of
the debtor does not affect the liability of any other entity on, or the property of
any other entity for, such debt.” See id. § 524(e); Walker v. Wilde (In re Walker) ,
927 F.2d 1138, 1142 (10th Cir. 1991) . Thus, a plaintiff may proceed against the
debtor when the plaintiff must establish the debtor’s liability before recovering
from an insurer . See id. The § 524(e) exception to the “post-discharge injunction
hinges ‘upon the condition that the debtor not be personally liable in a way that
would interfere with the debtor’s fresh start in economic life.’” Walker , 927 F.2d
at 1142 (quoting Owaski v. Jet Florida Sys., Inc. (In re Jet Florida Sys., Inc.), 883
F.2d 970, 975 (11th Cir. 1989) ).
This action can proceed against Scovone only if RMD is obligated to
indemnify him. Ms. Healy argues that RMD is so obligated.
RMD would be obligated to Scovone if he had been acting within the scope
of his duties at the time he performed the alleged acts. New Mexico defines
“scope of duties” as the performance of “any duties that a public employee is
requested, required or authorized to perform by the governmental entity,
regardless of the time and place of performance.” N.M. Stat. Ann. § 41-4-3(G).
-5- The act must be “something fairly and naturally incidental to the
employer’s business assigned to the employee” and must have been done “while
the employee was engaged in the employer’s business with the view of furthering
the employer’s interest and did not arise entirely from some external, independent
and personal motive on the part of the employee. ” Narney v. Daniels , 846 P.2d
347, 355 (N.M. Ct. App. 1992) (emphasis added, citation omitted) . An
employee’s unauthorized act will be considered to be within
the scope of employment if the action (1) is the kind the employee is employed to perform; (2) occurs during a period reasonably connected to the authorized employment period; (3) occurs in an area reasonably close to the authorized area, and (4) is actuated, at least in part, by a purpose to serve the employer. Id.
Scovone met Ms. Healy in the course of his duties. He used the influence
of his official position to coerce Ms. Healy with the threat of the denial of state
assistance to which she was entitled should she not cooperate with him. His
employment duties gave him the opportunity to commit the alleged acts.
Therefore, Scovone’s actions arguably met factors two and three.
However, we cannot fathom any manner in which his alleged acts were the kind
he was authorized to perform or that he was motivated in any manner to further
his employer’s interests. Rather, the alleged acts appear to have arisen from
“some external, independent and personal motive.” Id. RMD is not required to
-6- provide Scovone with a defense or to indemnify him. Therefore, this action
cannot proceed in the district court.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Wesley E. Brown Senior District Judge
-7-