Additionally, "New Mexico district attorneys' constitutional and statutory duties include duties incidental and necessary to the discharge of duties prescribed by the Constitution or statutes." Candelaria v. Robinson, 93 N.M. 786, 791 (Ct. App. 1980). E. Conclusion

The first case involved a suit for libel by a sheriff's office employee against an assistant district attorney and the district attorney. Candelaria v. Robinson, 606 P.2d 196, 199 (N.M.App. 1980). The assistant district attorney prepared a report about the employee's actions in a murder investigation, which the district attorney then quoted in a letter to the sheriff, recommending termination of the employee, and accusing the employee of "highly improper gestapo-type tactics."

These provisions, however, have been construed broadly by the state judiciary. In Candelaria v. Robinson , 93 N.M. 786, 606 P.2d 196 (Ct. App. 1980), a district attorney wrote a letter to the sheriff's department recommending that the plaintiff be fired for his use of "highly improper gestapo-type tactics" that led to the prosecution and conviction of four innocent men for a capital crime. Id . at 199.

By definition, then, these defendants are not law enforcement officers within the context of the facts of the present case. Plaintiff argues that Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App. 1980), is overly broad in holding that "[n]either Robinson [the district attorney] nor Singer [assistant district attorney] was a `law enforcement officer' as that term is defined in § 41-4-3(D), supra." Id. at 790, 606 P.2d at 200.

(Doc. 78 ¶¶ 8-9.) The Court agrees with the import of Dr. Hare's concession, see Salazar v. City of Albuquerque, 776 F. Supp. 2d 1217, 1243-44 (D.N.M. 2011) (citing Candelaria v. Robinson, 606 P.2d 196, 200 (N.M. Ct. App. 1980) ("stating that unless a plaintiff alleges defamation by a law enforcement officer, immunity is not waived under the [NM]TCA")), and will dismiss the claims under §§ 41-4-1-30 and 41-4-1-6 against Defendants Birmingham, Walker, and Haley. As it is unclear from his Complaint whether Dr. Hare intends to bring claims under the NMTCA against Defendants Baur or LOPD, the Court will not dismiss those claims in their entirety.

It is only when a public employee is acting within the scope of his employment and in furtherance of the business of a public entity that immunity and the Tort Claims Act have any relevance. See Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 622 P.2d 699 (Ct. App. 1980)(Sutin, J., specially concurring), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981); cf. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct. App. 1980). Therefore, it is only when the public entity is itself acting through its employee with the right to control the manner in which the details of work are to be done, SCRA 1986, 13-403, that the Tort Claims Act comes into play.

In this case, [Gerald] does not argue that immunity is waived for his [tort] claims under the express waiver provisions in Sections 41-4-5 to -12 or under Section 28-22-4. See Candelaria v. Robinson, 93 N.M. 786, 790, 606 P.2d 196, 200 (Ct. App. 1980) (stating that unless a plaintiff alleges defamation by a law enforcement officer, immunity is not waived under the TCA).Vigil v. State Auditor's Office, 138 N.M. at 66, 116 P.2d at 857.

In this case, [Gerald] does not argue that immunity is waived for his [tort] claims under the express waiver provisions in Sections 41–4–5 to –12 or under Section 28–22–4. See Candelaria v. Robinson, 93 N.M. 786, 790, 606 P.2d 196, 200 (Ct.App.1980) (stating that unless a plaintiff alleges defamation by a law enforcement officer, immunity is not waived under the TCA). Vigil v. State Auditor's Office, 138 N.M. at 66, 116 P.3d at 857.

In this case, [Salazar] does not argue that immunity is waived for his defamation claims under the express waiver provisions in Sections 41-4-5 to -12 or under Section 28-22-4. See Candelaria v. Robinson, 93 N.M. 786, 790, 606 P.2d 196, 200 (Court. App. 1980) (stating that unless a plaintiff alleges defamation by a law enforcement officer, immunity is not waived under the TCA).Vigil v. State Auditor's Office, 138 N.M. at 66, 116 P.2d at 857.

Because UNM Hospital is immune from suit in federal court and is not a "person" under 42 U.S.C. § 1983, Trujillo must amend her complaint to delete UNM Hospital as a Defendant. And because Scot Key is a state employee or official, see Candelaria v. Robinson, 93 N.M. 786, 791, 606 P.2d 196, 201 (Ct. App. 1980) (noting that district attorneys are public employees with immunity under the state Tort Claims Act); N.M. Const., art. VI, § 24 (providing that the district attorney "shall be the law officer of the state and of the counties within his district. . . ."), he may not be sued in his official capacity under § 1983. Trujillo, therefore, must make clear in her Amended Complaint that she is suing Key only in his individual capacity and must provide to the Court address information so that he may be individually served.