M. CHRISTINA ARMIJO, District Judge.
THIS MATTER is before the Court on Plaintiff's Opposed Motion for Leave of Court to Amend Complaint Pursuant to the Court's Order [Doc. 43] and Defendant Correctional Healthcare Companies, Inc.'s (CHC) Partial Motion to Dismiss. [Doc. 34] Having considered the parties' submissions, the relevant law, and otherwise being fully advised in the premises, the Court
Plaintiff originally filed her Complaint in the Second Judicial District Court, County of Bernalillo, New Mexico. [Doc. 1; Doc. 1-2] McKinley County Adult Detention Center and Mabel Henderson removed the case to this Court. [Doc. 1] After removal and before either an answer or a motion to dismiss was filed by any Defendant, she amended her Complaint on November 13, 2012, substituting "Bernalillo County" for "Bernalillo County Metropolitan Detention Center" as a named Defendant. [Doc. 8, p. 1] Then, the next day, without seeking leave of the Court, she filed another Amended Complaint.
The McKinley County Defendants and Mabel Henderson filed a Motion to Dismiss [Doc. 17] and a Motion to Stay Proceedings pending the outcome of their Motion to Dismiss. [Doc. 19] The Magistrate Judge stayed discovery pending the outcome of the McKinley County Defendants' Motion to Dismiss as it raised the defense of qualified immunity. [Doc. 24] Plaintiff subsequently filed an opposed Motion to Amend or Correct her Complaint to add McKinley County Sheriff's Deputies Eric Jim and Eric Chee. [Doc. 28]
On March 31, 2014 the Court entered a Memorandum Opinion and Order Granting the McKinley County Defendants' Motion to Dismiss. [Doc. 42 p. 35] In the same Memorandum Opinion and Order the Court denied Plaintiff's Motion to Amend her Complaint because it failed to correct the deficiencies found by the Court in the Memorandum Opinion and Order. [Doc. 42, p. 35] Nonetheless, the Court granted Plaintiff leave to file a Motion to Amend her Complaint with a complaint that corrected the deficiencies discussed in the Memorandum Opinion and Order. [Doc. 42, p. 35] Plaintiff thereafter filed another opposed Motion to Amend. [Doc. 43] All Defendants have now filed Responses in Opposition to the Motion to Amend. [Docs. 44, 45, 46] In the meantime, prior to the Court's Memorandum Opinion and Order, Defendant CHC filed a Partial Motion to Dismiss Plaintiff's November 14, 2012 Complaint (as Plaintiff had not yet submitted her Proposed Third Amended Complaint). [Doc. 34]
Given this procedural posture, the Court considers CHC's Partial Motion to Dismiss and Plaintiff's Motion to Amend Complaint. The Court sets out the facts stated in Plaintiff's Proposed Third Amended Complaint.
On October 14, 2010, Plaintiff Samantha Lee broke her right humerus and was taken by EMS and McKinley County Sheriff's Deputies to Indian Health Services (IHS) in Gallup, New Mexico.
After Plaintiff was transferred to BCMDC, Pam Cigarroa, a registered nurse employed by "Correctional Healthcare Management" took away her pain medications.
A party may amend her complaint "once as a matter of course" within 21 days of being served with a responsive pleading or a motion to dismiss for failure to state a claim. Fed. R. Civ. P. 15(a)(1)(B). Thereafter, amendment requires leave of the Court or written consent of the opposing parties. Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). Nonetheless, the Court may deny leave to amend a pleading under Fed. R. Civ. P. 15(a) based upon a justifying reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Id.; accord Hom v. Squire, 81 F.3d 969, 973 (10th Cir. 1996). A motion to amend a complaint should be denied as futile if, notwithstanding the amendment, the complaint would be subject to dismissal under Rule 12(b)(6), see Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999), or when, even as amended, the complaint could not survive a motion for summary judgment. Bauchman ex rel. Bauchman v. West High Sch., 132 F.3d 542, 562 (10th Cir. 1997). When the district court denies a motion to amend on the grounds of futility, the appellate court reviews "de novo whether it is patently obvious that the plaintiff could not prevail on the facts alleged." Cohen v. Longshore, 621 F.3d 1311, 1314-15 (10th Cir. 2010) (internal quotation marks and citation omitted).
A court will dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). For decades, Rule 12(b)(6) motions were governed by a test taken from Conley v. Gibson, 355 U.S. 41, 45-46 (1957): a complaint was subject to dismissal pursuant to Rule 12(b)(6) only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley, 355 U.S. at 45-46) (internal quotation marks omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007), the Court retired Conley's test, replacing it with a new standard: "to withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, `to state a claim to relief that is plausible on its face.'" Collins, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 570)). In applying this standard, a court accepts as true all "plausible, non-conclusory, and non-speculative" facts alleged in the plaintiff's complaint. Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011) (internal quotation marks and citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, "`a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim" that "`raise a right to relief above the speculative level.'" Collins, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555). In short, in ruling on a 12(b)(6) motion, "a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Collins, 656 F.3d at 1214.
Plaintiff brings her Section 1983 claims against McKinley County Defendants, Bernalillo County Defendants, and CHC, a private contractor and its employees. Under Section 1983, a private entity acting "under compulsion of state law" may be liable for a deprivation of constitutional rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 171 (1970).
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (internal footnotes and quotation marks omitted) (citing Monnell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)).
A plaintiff suing pursuant to Section 1983 for the acts of one or more of the employees of a governmental entity, or a private entity acting under color of state law, must prove: (1) that the municipal or private employee committed a constitutional violation, and (2) that the employer's policy or custom was the moving force behind the constitutional deprivation. Myers v. Oklahoma County Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998); see also Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) ("Plaintiffs who seek to impose liability on local governments under § 1983 must prove that action pursuant to official municipal policy caused their injury." (internal quotation marks and citation omitted)); Smedley v. Corr. Corp. of Am., 175 Fed.Appx. 943, 946 (10th Cir. 2005) (unpublished decision). "A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision." Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013). Employer or "municipal liability under § 1983 attaches whereCand only whereCa deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
"In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983." Id. In the context of a claim for failure to train, proof is required that the municipality was deliberately indifferent to its inhabitants. Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).
Connick, 131 S.Ct. at 1360 (internal quotation marks and citation omitted). Generally, notice to the Section 1983 defendant must be shown by "[a] pattern of similar constitutional violations by untrained employees." Id. "Policymakers' continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their actionCthe deliberate indifferenceCnecessary to trigger municipal liability." Id. (internal quotation marks and citation omitted).
"Under the Fourteenth Amendment due process clause, pretrial detainees are entitled to the degree of protection against denial of medical attention which applies to convicted inmates under the Eighth Amendment." (internal quotation marks, citation and ellipses are omitted). Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (internal quotation marks, citations, footnotes and alterations omitted).
Negligence alone is insufficient to establish liability against the Section 1983 defendant for inadequate medical care. Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992). "A claim for inadequate medical attention will be successful if the plaintiff shows deliberate indifference to serious medical needs. The Supreme Court cautioned that an inadvertent failure to provide adequate medical care does not rise to a constitutional violation." Martinez, 563 F.3d at 1088 (internal quotation marks and citations omitted). However, the Eighth Amendment forbids intentionally or by deliberate indifference denying or delaying access to medical care or interfering with a treatment once it is prescribed. Estelle, 429 U.S. at 104-05. Further, while "not every twinge of pain suffered as the result of delay in medical care is actionable," the "Eighth Amendment forbids unnecessary and wanton infliction of pain." Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (internal quotation marks, citations and emphasis omitted) (holding that delay of treatment for 36 hours while plaintiff was suffering "severe chest pain" from heart attack was actionable under the Eighth Amendment) (citing Jones v. Johnson, 781 F.2d 769, 771-72 (9th Cir. 1986) (holding that pain and suffering and inability to work resulting from untreated hernia, for which surgery had been scheduled prior to the plaintiff's incarceration, established a serious medical need under the Fourteenth Amendment), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1077, 1083 (9th Cir. 2014)).
"The test for deliberate indifference is both objective and subjective. The objective component of the test is met if the harm suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause." Martinez, 563 F.3d at 1088 (internal quotation marks and citation omitted). A medical need is "sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotation marks and citation omitted). Delay in medical care is only violative of the Eighth Amendment where the plaintiff suffered substantial harm, which can "be satisfied by lifelong handicap, permanent loss, or considerable pain." Id. (internal quotation marks and citations omitted). "Delays that courts have found to violate the Eighth Amendment have frequently involved life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner's medical problems." Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (internal quotation marks and citation omitted). Pain alone, however, can also satisfy the objective component of the test, when the pain is "significant, as opposed to trivial, suffering." Al-Turki v. Robinson, ___ P.3d ___, 2014 WL 3906851, *3 (10th Cir. 2014) (internal quotation marks and citation omitted).
"To prevail on the subjective component, the prisoner must show that the defendants knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it." Martinez, 563 F.3d at 1089 (internal quotation marks and citation omitted). "The question is: were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?" Id. (internal quotation marks and citation omitted).
Plaintiff brings two claims (Counts I and II) under 42 U.S.C. § 1983 against CHC
The Court concludes that this allegation is a bare and conclusory "formulaic recitation of the elements" of Section 1983 liability. Iqbal, 556 U.S. at 681 (internal quotation marks and citation omitted). The Complaint neither identifies or describes CHC's official policy nor identifies or describes other instances (i.e. facts establishing a custom or practice) in which CHC has violated inmates' constitutional rights to adequate medical care. Compare Wilson v. Montano, 715 F.3d 847, 851 n. 3 ¶ 857-58 (10th Cir. 2013) (holding the plaintiff had met Iqbal's pleading standard where the plaintiff alleged that supervisory defendants established a policy or custom of detaining citizens without filing charges and where six plaintiff's cases based on the same allegations were consolidated). Plaintiff has not alleged facts which state a claim under Section 1983 for inadequate medical care against CHC, and thus, this claim must be dismissed.
Further, even considering the evidence which Plaintiff has submitted in opposition to CHC's motion to dismiss,
Plaintiff submits another document in order to establish a custom or practice of constitutionally inadequate care. She attached a list of 119 tort claim notices to Bernalillo County for inadequate medical care from 2006 to 2011. [Doc. 35-9] This list does not create a genuine issue of material fact as to a custom or policy of inadequate medical care by CHC for at least two reasons. First, CHC's contract with Bernalillo County began in July of 2010, and there are only 19 tort notices on the list during the two year period in which CHC provided medical care at BCMDC. [Doc. 35-9; Doc. 35-5, p. 1] Second and moreover, a notice of a tort claim is not evidence of inadequate care or deliberate indifference. Compare Wilson, 715 F.3d at 851 n. 3 & 857-58 (holding the plaintiff had met Iqbal's pleading standard where the plaintiff alleged that supervisory defendants established a policy or custom of detaining citizens without filing charges and where six plaintiff's cases based on the same allegations were consolidated and the allegations in all of the consolidated cases were taken as true for purposes of the motion to dismiss). Thus, even considering Plaintiff's evidence, it would be insufficient to survive a motion for summary judgment by showing that CHC had a custom or practice of providing inadequate medical care. Plaintiff's claim against CHC under Count I are thus dismissed with prejudice.
Plaintiff's Count I claim against Pam Cigarroa, a nurse employed by CHC, however, is made with sufficient specificity to meet the requirements of Iqbal. Plaintiff alleges that, upon her arrival at BCMDC, Ms. Cigarroa took away her pain medications and refused to give her pain medication despite Plaintiff's "obvious" need for them. [Doc. 43-1, ¶ 43] Ms. Cigarroa was given Plaintiff's paperwork from IHS, which showed that she had a surgery scheduled to repair her broken arm. [Doc. 43-1, ¶ 43] Plaintiff informed Ms. Cigarroa of her broken arm and that she was in "extreme pain." [Doc. 43-1, ¶ 42] Plaintiff's arm was extremely swollen. [Doc. 43-1, ¶ 42] Ms. Cigarroa knew that Plaintiff had seen a doctor who diagnosed her with an "angulated comminuted displaced fracture of the mid-shaft of the humerus" and she knew Plaintiff had been given pain medication. [Doc. 43-1, ¶¶ 43-44] Ms. Cigarroa took away Plaintiff's pain medication and noted only that Plaintiff needed "wound care." [Doc. 43-1, ¶ 45] Most significantly, though Ms. Cigarroa knew that Plaintiff had been scheduled for surgery within three days of her injury, Ms. Cigarroa did not ensure treatment — or even evaluation by a medical doctor, until six days after Plaintiff's arrival at BCMDC, or nine days after her injury. [Doc. 43-1, ¶ 49]
These allegations state a claim for inadequate medical care under the Fourteenth Amendment. With respect to pain, Plaintiff has made out a claim that, because of Ms. Cigarroa's actions in depriving her of pain medication for "several days," Plaintiff suffered significant pain which served no legitimate penological purpose and was, potentially, "inconsistent with contemporary standards of decency." Estelle, 429 U.S. at 103-04; see also Al-Turki, 2013 WL 3906851, *3-4 (holding that plaintiff who suffered from severe pain for five to six hours, vomited, collapsed, and thought he was going to die from what turned out to be kidney stones satisfied objective component of test for deliberate indifference to his pain). Further, when granted all reasonable and favorable inferences, Plaintiff's allegations state a claim as to long term loss: Ms. Cigarroa determined when Plaintiff would receive X-Rays and see a medical doctor, and that the delay of six days before seeing a medical doctor resulted in an exacerbation of her medical problems, as Plaintiff had developed complete nerve palsy by her visit to the orthopedic clinic and ultimately has suffered permanent impairment of the use of her arm.
Plaintiff brings her second Section 1983 claim against CHC and Doe II for failing to train and supervise Doe II and Pam Cigarroa.
Plaintiff alleges, inter alia:
[Doc. 43-1] Plaintiff also alleges that "Defendants" were deliberately indifferent to the medical needs of plaintiff; "Defendants" could have and should have pursued reasonable training methods; that "Defendant's" (sic) customs, policies or usages in failing to train and supervise their employees were the moving forces behind Plaintiff's injuries; and that "Defendants" intentionally deprived Plaintiff of her constitutional rights. [Doc. 43-1, ¶¶ 96-99]
Again, bound by Iqbal, the Court must conclude that Plaintiff's failure to train and supervise allegations against Defendants CHC and Doe II are a bare, speculative and conclusory "formulaic recitation of the elements" of Section 1983 liability. Iqbal, 556 U.S. at 681 (internal quotation marks and citation omitted); 633 F.3d at 1239. She fails to allege facts showing a pattern of similar constitutional violations by Cigarroa, Doe II or other CHC employees which would have put CHC on notice that its policies and practices were depriving inmates of their constitutional rights. See Connick, 131 S.Ct. at 1360. She has not alleged facts which state a claim under Section 1983 for the failure to supervise and train against CHC (and likewise against CHC employee John/Jane Doe II), and thus, these claims must be dismissed. Id. (holding that a "single instance" does not establish a pattern of similar constitutional violations by untrained employees); see also Glaser v. City and Cnty. of Denver, Colo., 557 Fed.Appx. 689, 702 (10th Cir. 2013) (unpublished decision) (holding that the plaintiff's conclusory, non-specific allegation failed to state a claim for failure to properly train employees).
Nor does the evidence submitted by Plaintiff demonstrate that she could survive a motion for summary judgment. Plaintiff submits several policies, which she identifies as BCMDC policies, regarding training. For example, Policy 12.08, which requires training for correctional officers on "[r]ecognizing the signs/symptoms of the need for emergency care[,]" and "[p]rocedures for appropriate referral for health complaints[,]" among others. [Doc. 35-6, p. 1] Compliance with this policy would not cause the violation of Plaintiff's constitutional rights, and thus this proof does not meet the causation requirement of Monell. Monell, 436 U.S. at 694. For the same reasons discussed above, the Court also concludes that the list of tort claim notices submitted by Plaintiff did not put CHC on notice of constitutionally inadequate training or supervision. [Doc. 35-9]
As such, Plaintiff's claim against Defendants CHC and Doe II for the unconstitutional failure to train and supervise are dismissed with prejudice.
Defendants Ramon Rustin and Bernalillo County Board of Commissioners oppose leave for Plaintiff to file her proposed Third Amended Complaint on the grounds of futility given the Court's previous Memorandum Opinion and Order. [Doc. 42; Doc. 44, pp. 1-3] Plaintiff disagrees and raises a preliminary issue, arguing that the Bernalillo County Defendants missed their opportunity to file a motion to dismiss and should be precluded from using their Response in Opposition to Plaintiff's Motion to Amend as a platform for a motion to dismiss. [Doc. 47, pp. 2-3] Plaintiff's argument is not persuasive because this Court must consider whether Plaintiff's proposed amendment is futile. See Jefferson Cnty. Sch. Dist. No. 1, 175 F.3d at 859. If Plaintiff were allowed to amend with futile claims, Defendants would have the opportunity to file a motion to dismiss after it was filed. By considering the futility of the claims in the Proposed Amended Complaint now, rather than later, the Court will reduce delay for Plaintiff based on further motion practice. Thus, the Court reaches the merits of the Bernalillo County's arguments.
Plaintiff's Proposed Third Amended Complaint asserts a claim for constitutionally inadequate medical care against Defendant Ramon Rustin, Warden of the Bernalillo County Detention Center. [Doc. 43-1, ¶¶ 68-78] As the Bernalillo County Defendants point out, Plaintiff does not specify whether this claim is against Ramon Rustin in his individual or official capacity. [Doc. 44, p. 9] See Hafer v. Melo, 502 U.S. 21, 25 (1991) (distinguishing between claims brought against officials in their official and personal capacities). Nonetheless, the lack of specific, non-speculative factual allegations against Mr. Rustin defeats Plaintiff's claims against Mr. Rustin in either his official or individual capacity.
The Complaint does not allege facts which establish that Mr. Rustin, in his individual capacity, "acting under color of state law, caused the deprivation of a federal right." Hafer, 502 U.S. at 25 (internal quotation marks and citation omitted); see also Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (requiring the plaintiff to show that the official "by virtue of his own conduct and state of mind[,]" violated the plaintiff's rights). The Complaint makes no allegations that Mr. Rustin had any contact with Plaintiff or made any decisions regarding her medical care, but instead relies on his status as warden to establish liability. [See Doc. 47, p. 5] Nor has Plaintiff identified any policy enacted by Mr. Rustin which caused a violation of her right to adequate medical care. Again, under Iqbal, Plaintiff's conclusory allegations are not entitled to be presumed to be true. See Iqbal, 556 U.S. at 680-81 (holding that allegations that cabinet level governmental employees were the "principal architect" and instrumental in the adoption of a policy to subject Muslims to harsh conditions of confinement were conclusory and a "formulaic recitation of the elements" of the plaintiff's claim). Further, Plaintiff has not alleged facts sufficient to establish an official capacity claim, i.e., that "the entity's policy or custom . . . played a part in the violation of federal law." Hafer, 502 U.S. at 25 (internal quotation marks and citation omitted). Thus, Plaintiff has failed to state a claim for constitutionally inadequate medical care against Defendant Rustin. Finally, to the extent Plaintiff intended to state a claim against the Bernalillo County Board of Commissioners, her claim fails for the same lack of factual allegations.
In Count II, Plaintiff attempts to state a claim against the Bernalillo County Board of Commissioners and Ramon Rustin (among others) for constitutionally inadequate training and supervision. Plaintiff alleges that Defendant Rustin was "at all times material responsible for the maintenance, operation, and control of BCMDC." [Doc. 43-1, ¶¶ 88-99] All other allegations against the Bernalillo County Defendants are made in paragraphs 90 through 99, excerpted or paraphrased in the Court's analysis of Plaintiff's Count II claim against CHC, above. And, for the same reasons as set forth with regard to CHC, the Court must conclude that Plaintiff has set forth only conclusory allegations of the failure to train and supervise against the Bernalillo County Defendants. See Iqbal, 556 U.S. at 680-81. Thus, Count II as against the Bernalillo County Defendants is futile.
In Count III, Plaintiff sets out a state law claim for negligent medical care and treatment against all Defendants. However, the Bernalillo County Defendants argue that the New Mexico Legislature has not waived immunity for torts committed by the employees of CHC, a private health care contractor for the County jail. [Doc. 44, pp. 12-13] New Mexico law waives immunity for the "negligence of public employees . . . in the operation of any hospital, infirmary, mental institution, clinic, dispensary, medical care home or like facilities." N.M.S.A. 1978, § 41-4-9 (1977). Defendants argue that CHC's employees do not meet the statutory definition of a public employee. [Doc. 44, pp. 12-13] The Court agrees. Under New Mexico law a "`public employee' means an officer, employee or servant of a governmental entity, excluding independent contractors except for individuals defined in Paragraphs (7), (8), (10), (14) and (17) of this subsection[.]" N.M.S.A. 1978, § 41-4-3(F) (2013). Of the listed exceptions, none are applicable to CHC, including the exception for "licensed medical, psychological or dental arts practitioners providing services to the corrections department pursuant to contract[.]" Section 41-4-3(F)(7). The Bernalillo County Metropolitan Detention Center does not fall under the corrections department, and thus New Mexico has not waived immunity for the actions of CHC's employees. N.M.S.A. 1978, § 33-3-1(A) (1984) ("The common jails shall be under the control of the respective sheriffs, independent contractors or jail administrators hired by the board of county commissioners or other local public body or combination thereof[.]"); see also N.M.S.A. 1978, § 33-3-27(E) (2007) (requiring contractors "for the operation or provision and operation of jails" to assume all liability from the provision and operation of the jail); C.f. Saiz v. Belen School Dist., 827 P.2d 102, 117 n.14 (N.M. 1992) (determining that independent contractors who were employed by school district to install lighting fell within the statutory exclusion for independent contractors and thus the school district was not liable for their tort). Accordingly, Count III as against the Bernalillo County Board of Commissioners and Ramon Rustin is futile.
In Count IV, Plaintiff brings a claim for negligent hiring, training and supervision against Defendants Bernalillo County and Ramon Rustin, among others. [Doc. 43-1, p. 17] The New Mexico Court of Appeals has held that New Mexico waived immunity for negligent hiring, training and supervision where the supervisory officer could be said to have caused an underlying tort for which immunity had been waived. Ortiz v. New Mexico State Police, 814 P.2d 117, 118-19 (N.M. Ct. App. 1991). As described in detail above, Plaintiff's allegations fail to establish that BCMDC policies caused CHC or its employees to provide constitutionally inadequate or negligent medical care to Plaintiff. Thus, it would be futile to allow Plaintiff to bring her negligent hiring, training and supervision claims against Bernalillo County and Ramon Rustin.
Finally, In Count V, Plaintiff brings a claim for outrageous conduct against all Defendants. This Court has determined that Plaintiff's outrageous conduct claim is a claim for punitive damages. [Doc. 42, pp. 30-31] New Mexico has not waived immunity for awards of exemplary or punitive damages. N.M.S.A. 1978, § 41-4-19(D) (2008). [Id.] Accordingly, Plaintiff's outrageous conduct claim against the Bernalillo County Defendants is futile.
In sum, all of Plaintiff's claims against the Bernalillo County Board of Commissioners and Ramon Rustin are futile, and Plaintiff is denied leave to state claims against these parties in her final amended complaint.
Plaintiff seeks to add the McKinley County Board of Commissioners; Bernella Knodle, a booking officer at the McKinley County Adult Detention Center; L. Daniel Yu, a screening officer at the McKinley County Adult Detention Center; Eric Jim, a deputy sheriff of the McKinley County Sheriff's Department; and Eric Chee, a deputy sheriff of the McKinley County Sheriff's Department. [Doc. 43-1, ¶¶ 3, 8-13] The Court will take each Defendant in turn.
Plaintiff alleges that Defendant Yu interviewed Plaintiff and completed a screening report which indicated that she had a fractured right arm, was unable to sign the screening form because of her broken arm, and was on hydrocodone for pain. [Doc. 43-1, ¶ 39] Plaintiff alleges that Defendant Yu "allowed the release [of] Ms. Lee despite knowing that Ms. Lee had sustained serious injuries which required surgery[.]" [Doc. 43-1, ¶13] She further alleges that Defendant Yu failed "to provide reasonable medical care and treatment to Plaintiff." [Doc. 43-1, ¶ 116] Finally, Plaintiff makes many allegations that suggest that Defendant Yu was charged with administering medical care. [Doc. 43-1, ¶¶ 82-87] Nonetheless, the Court must conclude that Plaintiff does not state a claim for either negligence or a violation of her constitutional rights against Defendant Yu. Though it may have been clear to Defendant Yu that Plaintiff would not receive her scheduled surgery if transferred to BCMDC, none of the allegations state or allow the inference that Defendant Yu knew or had reason to know that Plaintiff would not get timely medical treatment if transferred to the Bernalillo County Metropolitan Detention Center. Thus, Plaintiff fails to state a claim against Defendant Yu in Counts I, III, V and VII, and she will not be granted leave to add Defendant Yu as a party.
Plaintiff's allegations against Defendant Knodle suffer from the same defects. She alleges that "Defendant Knodle released Ms. Lee despite knowing that Ms. Lee had sustained serious injuries which required surgery[.]" [Doc. 43-1, ¶ 11] Again, however, Plaintiff alleges no facts from which an inference could be drawn that Defendant Knodle knew or had reason to know that Plaintiff would be denied timely medical care despite being released and transferred. Accordingly, the Court will not allow Plaintiff leave to amend her complaint to add Counts I, III, V and VII against Defendant Knodle.
In Count II, Plaintiff alleges that Defendant McKinley County failed to train and supervise its employees Yu and Knodle. Plaintiff alleges that "Defendant McKinley County hired Defendant Yu . . . knowing he/she had inadequate experience and training in the administration of the health services center, and knowing that Defendant Yu had inadequate experience and training in administering medical care to inmates." [Doc. 43-1, ¶ 82] Plaintiff does not make any non-conclusory, non-speculative allegations that establish that McKinley County had actual or constructive notice of an omission in its training program which would cause a deprivation of adequate medical care. Connick, 131 S.Ct. 1360. Thus, Count II as against McKinley County is futile.
With the benefit of Plaintiff's proposed amended complaint and the briefing of the parties, it is clear that the allegations against Sheriff's Deputies Jim and Chee also fail to state a claim upon which relief can be granted. Though Deputies Jim and Chee are alleged to have known that Plaintiff was scheduled for surgery [Doc. 43-1, ¶ 35], and that she would not get that scheduled surgery if transferred to BCMDC, no facts in the complaint allege that they knew or had reason to know that Plaintiff would not get timely medical care while at BCMDC. Thus, the Court will not allow Plaintiff to allege Counts III, V and VII against Defendants Jim and Chee.
In Count IV, Plaintiff alleges that Defendants Jim
Plaintiff alleges a state law claim that Defendants Jim
Finally, Plaintiff's request for discovery must be denied. The Magistrate Judge previously denied one request for discovery by Plaintiff, and the Court is persuaded by the Magistrate's reasoning. [Doc. 24] Further, in her brief, Plaintiff requests discovery with the expectation that the "nurses or corrections officer/staff that had dealings with Plaintiff . . . will testify that their actions and omissions were governed by the policy and procedure of their employer (Defendants)." [Doc. 35, pp. 12-13] Plaintiff has already produced relevant policies, however, so she has not persuaded the Court that she will obtain evidence that a policy or custom was the moving force behind the alleged constitutional deprivation, and thus discovery in this case is inappropriate. Lewis v. City of Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990) (requiring the party requesting discovery to establish a connection between the discovery sought and how the discovery will enable to the party to provide evidence of his or her claim); see also Myers, 151 F.3d at 1316 (stating that a party bringing a claim under Monell must show that the employer's policy was the moving force behind the constitutional deprivation).
In the Court's Memorandum Opinion and Order dated March 31, 2014, the Court pointed out that in the caption of her Proposed Amended Complaint, Plaintiff did not specifically name the defendants she was intending to sue. [Doc. 42, pp. 16-17] Though the Court cited case law discussing the difficulties posed by a complaint that fails to name a party in the caption, Plaintiff did not, in her revised Proposed Amended Complaint, take the opportunity to revise her caption to name the proper parties. Plaintiff is instructed to do so in her final amended complaint. Fed. R. Civ. P. 10(a) ("The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.").
"If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman, 371 U.S. at 182. Here, Defendants have now all voiced their arguments on the merits of Plaintiff's claims. Many of Plaintiff's claims have been dismissed or disallowed due to futility, but some of Plaintiff's claims survive. Accordingly, Plaintiff is granted leave to file one last Amended Complaint, alleging: Count I, under the Fourteenth Amendment only against Defendant Cigarroa; Count III, only against CHC Cigarroa and Doe II; Count IV only against CHC, and Doe II; and Count V only against CHC, Cigarroa and Doe II.
