                                                                        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      This order and judgment is not binding precedent, except under the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




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