GREGORY B. WORMUTH, Magistrate Judge.
This matter is before the Court on Defendants' Motion for Summary Judgment (doc. 16). Being fully advised, I recommend that the Court grant summary judgment in favor of the Defendants.
Plaintiff's Complaint alleges three causes of action (1) harassment (unauthorized opening of mail) in January 2014; (2) assault on June 16, 2014; and (3) delay in receipt of a phone call to the Sheriff's Department to report the alleged June 16, 2014 assault. See generally doc. 1.
Upon order of the Court, Defendants have filed a report pursuant Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). See docs. 13, 14. Despite being provided an opportunity to do so, Plaintiff has filed no conflicting evidence to controvert the facts set out in the report. Relying on the facts in the Martinez report, Defendants have also filed a motion for summary judgment identifying with particularity the facts upon which they rely. See doc. 16. Despite being provided an opportunity to do so, Plaintiff has filed no response to the motion. Consequently, he has not identified the facts proffered by Defendants which he disputes, let alone pointing to the record to support the dispute. See Fed. R. Civ. P. 56; see also D.N.M.LR-Civ. 56.1. Under these circumstances, Plaintiff has waived the right to respond or to controvert the facts asserted in the summary judgment motion. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Thus, I will "accept as true all material facts asserted and properly supported in the summary judgment motion." Id.
1. Plaintiff is an inmate at the Chaves County Adult Detention Center ("CCDC"). See Plaintiff's Complaint, filed herein.
2. On January 14, 2014, Plaintiff filed a Grievance Form alleging that on January 13, 2014, Corporal Annera Sanchez ("Cpl. Sanchez"), between 1:30 p.m. and 2:00 p.m. opened in front of him discovery from his murder case in order to ascertain whether or not it contained staples. See doc. 14, Ex. 1.
3. On January 16, 2014, Plaintiff filed a Grievance reporting that his girlfriend claimed that mail she received from Plaintiff had been opened and taped shut. See id., Ex. 2.
4. Plaintiff's contention is that "it is against the law to open the mail." See id.
5. On January 24, 2014, Lieutenant Easy Sanchez ("Lt. Sanchez") identified the following action taken in regard to the January 14, 2014 and January 16, 2014 grievances:
See id., Exs. 1, 2.
6. Cpl. Sanchez did not read Plaintiff's legal mail, but, instead, pursuant to CCDC policy and procedure, simply opened the mail in Plaintiff's presence to search for contraband. See id., Ex. 3.
7. With regard to policies concerning mail, the CCDC Inmate Handbook states:
See id., Ex. 4A.
8. The CCDC's Policy and Procedure regarding incoming inmate mail states in relevant part:
9. There is no allegation in Plaintiff's grievance form that either Defendant Escobedo or Morales had any involvement with the alleged January 14, 2014 and January 16, 2014 incidents. See id., Exs. 1, 2.
10. Defendant Morales describes the incident that occurred with Plaintiff on June 16, 2014, as follows:
See id., Ex. 5; see also id., Ex. 6.
11. Defendant Escobedo described the incident that occurred with Plaintiff on June 16, 2014, as follows:
See id., Ex. 5; see also id., Ex. 7.
12. Lt. Nicole Rogers described the incident that occurred with Plaintiff on June 16, 2014, as follows:
See id., Ex. 5; see also id., Ex. 8.
13. As a result of the incident, Defendant Morales requested sanctions against Plaintiff. See id., Ex. 5; see also id., Ex. 9A.
14. CCDC has promulgated policies and procedures concerning inmate discipline which were in effect in June, 2014. These procedures were followed. See id., Exs. 4C, 4D.
15. The video and audio recordings of the alleged incident corroborate the officers' accounts. See id., Ex. 4E.
16. On June 16, 2014, Plaintiff went to medical alleging that he twisted his wrist, but no observable injuries were noted. See id., Ex. 10.
17. On June 25, 2014, Lt. Easy Sanchez conducted a disciplinary hearing with Plaintiff, and found Mr. Lucero guilty of refusing to obey a direct order of a staff member, abusive language towards staff members, and conduct which disrupts or interferes with the security or orderly running of the CCDC. See id., Exs. 9A, 11, 12.
18. Under CCDC's Inmate Policy, an inmate may appeal the decision of the hearing officers by submitting a written report to the Administrator or designee within (5) working days of the hearing officers written report of the incident. See id., Ex. 4C.
19. Mr. Lucero did not timely appeal the Committee's Sanctions/Recommendations. See id., Exs. 9, 12.
20. Mr. Lucero's disciplinary conviction and resulting sanctions concerning the June 16, 2014 incident have not been overturned or invalidated. See id.
21. On July 1, 2014, Plaintiff filed a grievance alleging that he was assaulted by Officer Morales and Escobedo claiming that "they grab[bed] me while I was on the phone, slam[med] me two [sic] the ground, while on the ground officer: [E]scebeto jump[ed] on the back of my head slamming in into the ground `for no reason.'" See id., Ex. 13.
22. On July 7, 2014, Chief of Security Major David Garcia provided the following response to Plaintiff's grievance: "I have reviewed the video and it does not show the incident in the manner [as] you describe it . . . I also need to remind you that when incidents like this occur[,] things will go a lot smoother and easier if you follow the verbal directives given by staff members." See id., Ex. 13.
23. Plaintiff's July 1, 2014 description of the June 16, 2014 event does not comport with either the video or audio evidence. See id., Ex. 4E.
24. Mr. Lucero violated CCDC'S Policies and Procedures (refused to obey a direct order of a staff member, used abusive language towards staff members, and engaged in conduct which disrupted or interfered with the security or orderly running of the CCDC), and the use of physical force was in accordance with CCDC's policies on the use of physical force. See id., Exs. 4C, 4D, 4E, 6, 7, 8.
25. Within forty-eight (48) hours of the June 16, 2014 incident, Plaintiff was given a free phone call to contact the sheriff's department to report an alleged assault by Defendants. See id., Ex. 12.
26. On July 1, 2014, Plaintiff filed a grievance alleging that he had asked several times to talk to the sheriff's department to file an assault claim. See id., Ex. 13.
27. On July 7, 2014, Chief of Security Major David Garcia provided the following response to Plaintiff's grievance: "You have been given a phone call to contact the sheriff's department." See id.
28. There is no allegation that any of the named Defendants delayed Plaintiff's use of the phone to contact the Sherriff's Department. See id.
Summary judgment is appropriate where the moving party demonstrates 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). The movant bears the initial burden of "show[ing] `that there is an absence of evidence to support the nonmoving party's case.'" Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this burden, the non-moving party is required to designate specific facts showing that "there are . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.
The court's role is not to weigh the evidence or determine credibility, but rather merely to assess whether a genuine issue exists as to material facts requiring a trial. See Anderson, 477 U.S. at 249, 255. "[T]o survive the . . . motion, [the nonmovant] need only present evidence from which a jury might return a verdict in his favor." Id. at 257. Furthermore, the court must resolve reasonable inferences and doubts in favor of the non-moving party, and construe evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 551-54 (1999). However, "viewing the evidence in the light most favorable to the nonmovant, it is not enough that the evidence be merely colorable or anything short of significantly probative." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (internal quotations omitted); see also Anaya v. CBS Broad. Inc., 626 F.Supp.2d 1158, 1197 (D.N.M. 2009) ("The mere existence of a scintilla of evidence will not avoid summary judgment.").
Plaintiff's harassment claims stem from the allegation that Corporal Sanchez "illegally" opened his mail, in violation of his constitutional rights. This claim has no merit against the named Defendants. First, there is no allegation that either named Defendant, Officer Escobedo or Morales, "illegally" opened or tampered with his mail. Second, Plaintiff's claims should be dismissed because it is well established that "prison officials may open an inmate's incoming legal mail to search for contraband in the presence of the inmate." See Brown v. Williams, 36 Fed. App'x 361, 363 (10th Cir. 2002) (citing Wolff v. McDonnell, 418 U.S. 539, 577 (1974)). Thus, I recommend the Court grant summary judgment in favor of the Defendants on Plaintiff's claim of harassment.
Plaintiff's assault claim stems from the allegation that on or about June 16, 2014, he was "assaulted" without provocation, presumably in violation of the Eighth Amendment. "The use of excessive force by jail officials violates a prisoner's rights under the Eighth Amendment's Cruel and Unusual Punishments Clause when the prisoner is subjected to an `unnecessary and wanton infliction of pain.'" Miller v. Glanz, 948 F.2d 1562, 1566 (10th Cir. 1991). "The `core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Cooper v. Ellsworth Correctional Work Facility, 817 F.Supp. 84, 86 (D. Kan. 1993), citing Hudson v. McMillian, 503 U.S. 1, 5 (1992). "De minimis uses of physical force are excluded from the cruel and unusual punishment inquiry unless `repugnant to the conscience of mankind.'" Rhoten v. Werholtz, 243 Fed. App'x 364, 366 (10th Cir. 2007) (citing Hudson, 503 U.S. at 9-10) (affirming district court's dismissal of inmate's civil rights case where plaintiff alleged that while conducting a pat down search, correctional officer "slammed [him] against the wall[,] squeezed [his] nipples real[ly] hard[,] squeezed [his] buttocks, and pulled on [his] testicles real[ly] hard" and stating that the use of force did not state an Eighth Amendment violation as the use of force was de minimis); see also Norton v. The City of Marietta, 432 F.3d 1145, 1156 (10th Cir.2005) (grabbing and twisting of inmate's neck was not sufficiently objectively harmful enough to establish an Eighth Amendment excessive force claim).
In this case, a disciplinary hearing was held regarding the June 16, 2014 incident, and Mr. Lucero was found guilty on the Class II offenses of refusing to obey a direct order of a staff member, abusive language towards staff members, and conduct which disrupts or interferes with the security or orderly running of the CCDC. See doc. 14 Exs. 9A, 11, 12. Plaintiff may not bring a §1983 claim challenging the findings of this disciplinary hearing unless he first demonstrates that his disciplinary conviction was previously invalidated. Edwards v. Balisok, 520 U.S. 641, 643 (1997). Otherwise, a judgment in Plaintiff's favor "`would necessarily imply the invalidity of the disciplinary hearing and the resulting sanctions.'" Id. at 644. As Plaintiff cannot show that the disciplinary conviction was invalidated, Plaintiff cannot contend that he was not guilty of refusing to obey a direct order of a staff member, abusive language towards staff members, and conduct which disrupts or interferes with the security or orderly running of the CCDC. Further, the statements of Defendants and Lt. Rogers, Plaintiff's medical records, and the video and audio evidence, establish that the use of force was not only justified for the offenses alleged and seen and heard on the video and audio, but also was de minimus and was not done "maliciously and sadistically to cause harm." Accordingly, I recommend that the Court grant summary judgment in favor of the Defendants on Plaintiff's claims of assault.
Plaintiff alleges that Lt. Sanchez (not a named Defendant) delayed providing him a phone call to report the alleged June 16, 2014, incident to the Sheriff's Department. There is no allegation that either Defendant Morales or Escobedo had any involvement in the alleged delay to receive a phone call. Thus, I recommend the Court grant Defendants' summary judgment motion on Plaintiff's allegation that an alleged delay in providing a phone call violated his constitutional rights.
Plaintiff's claims fail because his allegations, even if accepted as true, do not support a finding of a constitutional violation and therefore do not overcome qualified immunity. In addition, Count VI is barred by the PLRA's exhaustion requirement, and Plaintiff does not have standing to bring Counts VII and VIII on behalf of other inmates. Therefore, I recommend granting Defendant's Motion for Summary Judgment (doc. 31).
