KAREN B. MOLZEN, Chief Magistrate Judge.
THIS MATTER came before the Court on Defendants' Supplemental Martinez Report (Doc. 69), filed December 30, 2016. Also before the Court are Plaintiff's most recent Motions to supplement and amend the Complaint. See Docs. 83, 85, 87. The Honorable Judith C. Herrera referred this matter to me on September 29, 2015, "to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case." Doc. 6 at 1. In my Order requiring the filing of the Supplemental Martinez Report, I informed the parties that the Report "may be used in a variety of contexts, including motion for summary judgment or sua sponte entry of summary judgment." Doc. 62 at 2. For the reasons that follow, the Court recommends that Plaintiff's most recent motions to amend and supplement the Complaint be denied, summary judgment be entered in Defendants' favor, and that this action be dismissed with prejudice.
Plaintiff is a convicted sex offender who was sentenced to 43 years in the custody of the New Mexico Corrections Department on or about June 20, 2013.
Throughout his stay at PNM, Plaintiff asserted that he was not safe because of his status as a sex offender. Doc. 69-78 at 3. Plaintiff further claimed that he had enemies at PNM. Doc. 69-78 at 3. Due to these concerns, Plaintiff was re-assigned to several different pods
Plaintiff filed his Civil Rights Complaint pursuant to 42 U.S.C. § 1983 on September 23, 2015. See Doc. 1. Plaintiff has since amended and supplemented his Complaint. See Docs. 11, 16, 17, 20, 21. Plaintiff's amended and supplemented Complaint alleges that PNM Warden German Franco, Deputy Warden Alisha Tafoya-Lucero, Security Captain Hector Cardenas, Unit Manager Vince Vigil, and New Mexico Corrections Department Classification Bureau Chief Colleen McCarney failed to protect him against violence by other inmates in violation of his Eighth Amendment rights by refusing to transfer him out of PNM's general population. See Doc. 11 at 2-14; see also Doc. 25 at 6.
Plaintiff further alleges that Unit Manager Vigil retaliated against him in violation of the First Amendment after he filed the present lawsuit. See Docs. 16, 17; see also Doc. 25 at 4, 6. Specifically, Plaintiff alleges that Defendant Vigil refused to transfer him into a different pod for his own protection after Plaintiff filed this action. See Doc. 69-71 at 1. Plaintiff further alleges that Defendant Vigil ignored his concern that there was a piece of metal in his cell, later raided Plaintiff's cell to recover the item, and subjected Plaintiff to disciplinary segregation as a result of the find. See Doc. 11 at 11; Doc. 69-78 at 4-5. Plaintiff also cursorily alleges that Defendant Vigil told other corrections officers that Plaintiff "is writing notes to unit manager Vince Vigil about other inmates. This is seen by other prisoners as being a `snitch.'" Doc. 11 at 8.
Plaintiff's allegations were investigated by Defendants. Pertinent here, Defendants' investigation revealed that Plaintiff was openly telling other inmates in the pod what his charges are in an effort to be transferred out of PNM and to another facility. See Doc. 69-114 at 15. Plaintiff sought such a transfer to facilitate being closer to his biological brother (who is also incarcerated in the New Mexico Corrections Department) and for his own safety. Id. As summarized by one investigative report,
Doc. 69-114 at 15.
Defendants now move for summary judgment on Plaintiff's claims, asserting that he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, and, alternatively, that Plaintiff's claims fail on their merits. See Doc. 69 at 27-33. Plaintiff counters that he indeed exhausted his available administrative remedies, and that summary judgment should be denied because "the simple fact remains that Defendants failed to protect Plaintiff from abuse at the hands of other inmates." Doc. 89 at 1. For the reasons that follow, the Court agrees with Defendants that Plaintiff's claims are meritless.
Summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the outcome of the suit under the applicable law will preclude summary judgment. See Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 34 (10th Cir. 2013).
"The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust `such administrative remedies as are available' before bringing suit to challenge prison conditions." Ross v. Blake, 136 S.Ct. 1850, 1854-55 (2016) (citing 42 U.S.C. § 1997e(a)). Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S. 199 (2007). "When raising an affirmative defense in a motion for summary judgment, the defendant must demonstrate that no disputed material fact exists regarding the affirmative defense asserted." Sparks v. Foster, 241 F. App'x 467, 472 (10th Cir. 2007) (quoting Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (internal quotation marks and ellipsis omitted). "If the defendant meets this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact[;] [i]f the plaintiff fails to make such a showing, the affirmative defense bars his claim, and the defendant is entitled to judgment as a matter of law." Id.; see Fed. R. Civ. P. 56(a); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones, 549 U.S. at 212 ("Failure to exhaust under the PLRA is an affirmative defense. . . . Defendants thus bear the burden of asserting and proving that the plaintiff did not utilize administrative remedies. . . .")).
Exhaustion is mandatory and "is required for any suit challenging prison conditions[.]" Woodford v. Ngo, 548 U.S. 81, 85 (2006). As the Tenth Circuit has explained, "Section 1997e(a) says nothing about a prisoner's subjective beliefs, logical or otherwise, about the administrative remedies that might be available to him. The statute's requirements are clear: If administrative remedies are available, the prisoner must exhaust them." Griffin v. Romero, 399 F. App'x 349, 351 (10th Cir. 2010) (unpublished) (quoting Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000)). Put simply, if an inmate does not exhaust his available administrative remedies, the Court has no choice but to dismiss his claims. See Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001).
Inmates need not exhaust administrative remedies that are unavailable, however. Ross, 136 S. Ct. at 1859. "Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are `capable of use' to obtain `some relief for the action complained of.'" Id. (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
"Identifying the exact steps a prisoner must take to exhaust administrative remedies presents a `choice-of-law issue,' derived from the requirements of the `prison grievance systems themselves.'" Howard v. Waide, 534 F.3d 1227, 1243 (10th Cir. 2008) (quoting Kikumura v. Osagie, 461 F.3d 1269, 1282 (10th Cir. 2006); citing Jones, 549 U.S. at 199). "[I]t is the prison's requirements . . . that define the boundaries of proper exhaustion." Howard, 534 F.3d at 1243-44. In this case, the availability and requirements of the grievance process is governed by the policies attached to Defendants' Supplemental Martinez Report. See Doc. 69, Exhibit A.
In New Mexico, most inmate grievances are governed by New Mexico Corrections Department Policy CD-150500. See Doc. 69-1 at 1. Policy CD-150500 applies to "[a]ll inmates incarcerated in the New Mexico Corrections Department. . . ." Doc. 69-1 at 1. Policy CD-150500 sets forth matters that subject to the grievance procedures and those that are not. "Grievable" matters include:
Doc. 69-1 at 10; Doc. 69-2 at 1.
On the other hand, some matters cannot be addressed by the grievance procedure. The regulations set forth the following list of "exclusions" to grievable issues:
Doc. 69-2 at 1 (emphasis added). Thus, the DOC applicable regulations expressly exclude disciplinary and classification decisions from grievable matters and provide independent appellate processes. Doc. 69-2 at 1; see also Doc. 69-1 at 2-3.
An inmate who disagrees with a disciplinary decision
As to classification issues,
Plaintiff was (and remains) incarcerated, and his claims arise out of prison life. Therefore, the exhaustion requirements of the PLRA apply. See Norton v. City of Marietta, Okla., 432 F.3d 1145, 1150 (10th Cir. 2005). The question presented is whether Plaintiff properly exhausted his administrative remedies before bringing his First and Eighth Amendment claims in this Court.
Defendants maintain that Plaintiff failed to exhaust his administrative remedies before filing this lawsuit. See Doc. 69 at 27. As to Plaintiff's First Amendment claim, Defendants concede that this claim was exhausted, but they assert that it was only done so
The Court must therefore examine the Eight Amendment claim raised in the original Complaint and whether it was "fully exhausted." As Plaintiff points out and Defendants admit, "[i]nmates may not grieve their placement according to the general grievance policy[.]" Doc. 69 at 13; Doc. 89 at 6. Rather, as discussed above, inmates may only appeal their classification and, therefore, placement. While Defendants' Martinez Report inexplicitly omits documents related to Plaintiff's appeal of the classification decision, Defendants admit that he "can and did appeal the classification decision as provided in the Classification policy, and the decision was affirmed." Doc. 69 at 17; see also Doc. 69 at 15. If Plaintiff's only avenue for relief lies in an appeal of the classification decision (of which he took advantage), then it would appear Plaintiff has complied with his obligation to exhausted the issue of his classification as a Level IV inmate, which led to his transfer to PNM. As Defendants acknowledge, "Plaintiff's claims primarily concern his housing placements while he was housed at PNM[,]" Doc. 69 at 6, and they identify no further exhaustion requirement Plaintiff was to complete. Accordingly, the Court finds that Plaintiff properly exhausted the issue of his placement at PNM.
Because the Court finds that his original Complaint arguably contained an exhausted Eighth Amendment claim, the Court will not dismiss Plaintiff's First Amendment claim based upon Plaintiff's failure to exhaust prior to initiating this suit. To do so would fly in the face of judicial economy and the mandates of the Federal Rules, which are to "be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.
In order to avoid summary judgment, Plaintiff must come forward with evidence in support of his First and Eighth Amendment claims. For the reasons that follow, the Court finds Defendants are entitled to judgment as a matter of law.
Plaintiff alleges that Defendants' deliberate indifference to his safety violated his rights under the Eighth Amendment. See Doc. 11 at 13. "[P]rison officials have a duty to protect prisoners from violence at the hands of other prisoners" such that "[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Benefield v. McDowall, 241 F.3d 1267, 1270-71 (10th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)).
"[I]n order to establish a cognizable Eighth Amendment claim for failure to protect, a plaintiff `must show that he is incarcerated under conditions posing a substantial risk of serious harm,' the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component." Id. at 1271. Plaintiff asserts that he meets this burden based upon the "simple fact . . . that Defendants failed to protect Plaintiff from abuse at the hands of other inmates." Doc. 89 at 1. The Court agrees with Defendants, however, that Plaintiff has failed to establish either of the required components to establish a viable claim.
First and foremost, "[p]rison officials cannot be held liable . . . where they know of a risk to inmate safety and respond reasonably to it." Allen v. Zavaras, 430 F. App'x 709, 711 (10th Cir. 2011) (citing Farmer, 511 U.S. at 844). Allen demonstrates why. There, the plaintiff (also a sex offender) alleged that certain staff members were deliberately indifferent to various threats and assaults he sustained. Allen, 430 F. App'x at 711. The Tenth Circuit disagreed, finding that all but one defendant had reasonably responded to the risks of harm facing the inmate by moving the plaintiff to different units or by removing his assailants. Id. at 712. The court granted the remaining defendant qualified immunity, finding that the plaintiff failed to demonstrate that he had actual knowledge of the risk of the plaintiff's safety. Id. at 713.
In this case, Defendant Vigil has averred that Plaintiff was moved to different pods every time he complained that he was unsafe. Doc. 69-78 at 3. Moreover, Plaintiff was never housed in a pod with inmates that he identified as his enemies. Id. Finally, Plaintiff fails to demonstrate how any of the Defendants were actually aware of a substantially serious risk to his safety. Thus, Plaintiff has failed to demonstrate that Defendants were subjectively deliberately indifferent to his plight.
Plaintiff also fails to produce evidence sufficient to preclude summary judgments as to the objective component — that he is "incarcerated under conditions posing a substantial risk of serious harm." Plaintiff's Complaint and Response to the Supplemental Martinez Report consistently assert that he is at risk of harm due to the nature of his conviction — i.e., because he is a sex offender. However, in Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), the Tenth Circuit held that similar conclusory "allegations fail to state an Eighth Amendment claim for alleged failure to protect the plaintiffs' safety." 83 F.3d at 1205. Importantly, the Court recognized that "one does not have to await the consummation of threatened injury to obtain preventative relief." Id. (citing Farmer, 114 S. Ct. at 1983). Yet the Riddle court's import is clear — one's mere status as a sex offender is insufficient to put prison officials on notice of an objective risk of serious harm Id. Here, Plaintiff provides no other evidence that showing of a substantial risk of serious harm throughout his stay at PNM. Id.; see also Casanova v. Ulibarri, 622 F. App'x 724, 729 (10th Cir. 2015) (citing Riddle for the proposition that "the plaintiff must show more than a conclusory claim of being afraid"); Allen v. Figuera, 416 F. App'x 771, 775 (10th Cir. 2011) ("conclusory allegations will not defeat a motion for summary judgment").
Accordingly, for the reasons stated, the Court recommends that summary judgment be entered for Defendants on Plaintiff's Eighth Amendment claim.
"It is well-settled that `[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts.'" Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)). "This principle applies even where the action taken in retaliation would be otherwise permissible." Smith, 899 F.2d at 948. In order to prove Defendant Vigil's liability for retaliation, Plaintiff must show that
Turner v. Falk, 632 F. App'x 457, 460 (10th Cir. 2015).
Clearly, Plaintiff has shown that he was engaged in a constitutionally protected activity — filing and litigating a Section 1983 lawsuit. The Court also assumes arguendo that Plaintiff's allegations meet the second prong of the test; that is, an inmate of ordinary firmness would be chilled from litigating in the face of the alleged retaliatory acts. However, because Plaintiff fails to meet the final prong, Defendants are entitled to summary judgment on the First Amendment claim.
To satisfy the third prong, Plaintiff must show that "but for the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." Turner, 632 F. App'x at 460 (citing Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998)). An inmate claiming retaliation must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Peterson, 149 F.3d at 1144 (quoting Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.1990)). The Court concludes that Plaintiff's allegations of retaliation fail because he has presented no evidence that Defendant Vigil's alleged retaliatory motive was the "but for" cause of his actions towards Plaintiff. See Peterson, 149 F.3d at 1144 ("Peterson's remaining allegations of retaliation are based on mere speculation rather than evidence.").
As noted, Plaintiff alleges that Defendant Vigil undertook three retaliatory acts: (1) refusing to transfer Plaintiff to a different pod for his safety, (2) directing a search of Plaintiff's cell during which a piece of contraband (metal) was found, and (3) informing other guards that Plaintiff was "writing notes" on other inmates. However, Plaintiff has failed to rebut Defendant Vigil's testimony that Ellis was transferred to several different pods when he claimed he was unsafe. See Docs. 69-78 at ¶ 9. Plaintiff fails to produce evidence establishing a connection between the search of his cell that uncovered contraband and the filing of his lawsuit; indeed, there is no evidence that Defendant Vigil directed, ratified, reviewed or in any other way took any part in the search. See Doc. 69-102 at 1.
An inmate's mere speculation that actions taken by correctional officials were in retaliation for the exercise of his First Amendment rights cannot defeat summary judgment. Peterson, 149 F.3d at 1144; see also Banks v. Katzenmeyer, 645 F. App'x 770, 774 n.2 (10th Cir. 2016) ("`A plaintiff's subjective beliefs about why the government took action, without facts to back up those beliefs, are not sufficient to create a genuine issue of fact' concerning [a] First Amendment retaliation claim.") (quoting Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1165 (10th Cir. 2009)). Here, Plaintiff's claims against Defendant Vigil appear to be based on just that, speculation. Accordingly, the Court recommends that summary judgment be granted on this claim as well.
Finally, the Court recommends that Plaintiff's most recent motions to amend and supplement the Complaint be denied. See Docs. 83, 85, 87.
Plaintiff's Motion to Supplement (Doc. 83) sets forth no new transaction, occurrence, or event that happened after the date of the pleading to be supplemented, as required by Federal Rule of Civil Procedure 15(d). Rather, Plaintiff merely reargues the merits of his claims and takes issue with Defendants' attempts to "paint [him] in a negative light" by bringing to this Court's attention various incidents in which he has recently been involved. See generally Doc. 83.
Plaintiff's Motions to Amend the Complaint should be denied as futile. These Motions seek to add another inmate, Paul Cain, to the Complaint and to assert a retaliation claim on his behalf. See Docs. 85, 87. Plaintiff also seeks to name as Defendants disciplinary hearing officers from the Otero County facility. Doc. 87. However, in a filing entitled "Ex Parte Communication" filed by Mr. Cain, he admits that he has not exhausted his administrative remedies as to this purported cause of action. See Doc. 85. As this Court has previously recognized, "[d]enial of a prisoner's motion to amend as futile is warranted where the amended complaint `would be doomed for lack of exhaustion.'" Doc. 76 at 7 (quoting Hunsaker v. Alexander, 520 F. App'x 717, 719 (10th Cir. 2013)). If Mr. Cain wishes to pursue a retaliation claim in federal court, he must exhaust his administrative remedies or otherwise demonstrate why they are unavailable. Until he does so, the proposed amendment is futile.
Plaintiff admits that "[i]t appears possible the Plaintiff was trying to facilitate a transfer to LCCF to be closer to his brother but this still does not negate Defendants (sic) responsibility to protect him from a real threat to his safety." Doc. 89 at 9. The Court agrees with Plaintiff that if there was a "real threat to his safety," then Defendants would be required to address it. However, the record before the Court does not support a threat to Plaintiff's safety, nor any deliberate indifference of any Defendant to any threats against Plaintiff while he was housed at PNM. Additionally, Plaintiff has failed to produce evidence demonstrating that Defendant Vigil took any action in retaliation for the filing of the present lawsuit. Accordingly, the Court recommends that District Judge Herrera deny Plaintiff's pending motions to amend and supplement the complaint, grant summary judgment to Defendants on all claims, and dismiss this action with prejudice.
Inmates must attempt to informally resolve their issues before filing a formal grievance. Doc. 69-2 at 1. Before filing a formal grievance, "an inmate is expected to attempt to resolve the grievance or particular area of concern informally through discussion with the person or persons responsible for the incident, giving rise to the complaint." Doc. 69-2 at 4. After seeking informal resolution, "the inmate shall first file an informal complaint using the Inmate Informal Complaint form . . . within five (5) working days from the date of the incident giving rise to the complaint." Doc. 69-2 at 4. The Unit Manager, Chief of Security, or Institutions designees in charge of the informal resolution must address the issue and return the Complaint to the inmate, with a copy to the grievance officer, within five working days. Doc. 69-2 at 4.
Inmates must attempt to informally resolve their issues before filing a formal grievance. Doc. 69-2 at 1. Before filing a formal grievance, "an inmate is expected to attempt to resolve the grievance or particular area of concern informally through discussion with the person or persons responsible for the incident, giving rise to the complaint." Doc. 69-2 at 4. After seeking informal resolution, "the inmate shall first file an informal complaint using the Inmate Informal Complaint form . . . within five (5) working days from the date of the incident giving rise to the complaint." Doc. 69-2 at 4. The Unit Manager, Chief of Security, or Institutions designees in charge of the informal resolution must address the issue and return the Complaint to the inmate, with a copy to the grievance officer, within five working days. Doc. 69-2 at 4.
The inmate may then file an Inmate Grievance form "within five (5) working days of the receipt of Informal Complainant (sic) to the Institution Grievance Officer" by attaching the non-resolved Informal Complaint and delivering the forms to the Grievance Officer either by placing them into an institutional mailbox or delivering them in person. Doc. 69-2 at 4-5. This is Step 1 of the grievance process. See Doc. 69-2 at 12. "If the grievance relates directly to actions of the Grievance Officer, the inmate will send the complete Inmate Grievance Form directly to the Warden," who will appoint a third-party to serve as Grievance Officer for that particular grievance. Doc. 69-2 at 6. In Steps 2-3 of the grievance process, the Grievance Officer reviews the grievance for proper time limits and necessary information, conducts an investigation, and completes the Grievance Officer's report portion of the Inmate Grievance form. Doc. 69-2 at 7,12-13. The Grievance Officer's report and recommendation will be completed and delivered to the Warden for review within 15 working days from the receipt of the inmate's grievance. Doc. 69-2 at 7. "Any disposition recommended by the Grievance Officer may [then] be approved, disapproved or modified by the Warden" within 15 working days of receipt of the grievance by the Warden. Doc. 69-2 at 7. This is Step 4 of the grievance process. See Doc. 69-2 at 13. If an inmate is not satisfied with the Warden's decision, he may appeal that decision to the Office of the Secretary of Corrections within five working days. Doc. 69-2 at 8. "The Secretary, Director of Adult Prisons, or designee, will [then] render a final decision of the grievance[.]" Doc. 69-2 at 8. This is Step 5, the final step of the grievance process. See Doc. 69-2 at 13.
Inmates may file emergency grievances. "An emergency grievance shall be given priority." Doc. 69-2 at 2. If the Grievance Officer determines that the grievance is in fact an emergency grievance, it will immediately be forwarded to the Warden "to correct the situation." Doc. 69-2 at 2. Denial of an emergency grievance by the Warden "may be immediately appealed to the State wide Grievance/Disciplinary Appeals Manager." Doc. 69-2 at 2.
"Grievances shall be processed in a timely manner" and will be resolved no later than 90 working days from the filing of a grievance by an inmate to the appeal decision. Doc. 69-2 at 7. "In the event the grievance is not disposed of within the specified time limits, the inmate shall be deemed to have exhausted administrative remedies for that specific complaint." Doc. 69-2 at 2.
In Sparks v. Foster, 241 F. App'x 467 (10th Cir. 2007) (unpublished), the Tenth Circuit seemed to imply that even if a State's prison regulations prohibit grievances related to classification decisions, a plaintiff protesting a classification decision is still required to submit a grievance in order to satisfy the exhaustion requirement. A closer reading of Sparks, however, reveals that the plaintiff there had failed to exhaust an Eighth Amendment claim that indeed was covered by the Colorado grievance procedure. There, the plaintiff alleged that a correctional officer "forced him to cross a prisoner strike to work in the kitchen despite inmate threats to any prisoner who crossed the line." Id. at 468. He further alleged that he "was selected based upon his [Security Threat Group] classification" so that officials "could use his leadership role within the prison population to diffuse the volatile situation." Id. The Sparks plaintiff argued that
Id. at 473-74. Thus, the Tenth Circuit implicitly rejected the inmate's characterization of his Eighth Amendment claim as an ungrievable classification issue, and then dismissed his "futility" theory that grievance procedures were unavailable because Sparks' belated assertion that guards refused to provide him with a grievance form was unsupported.
