LAURA FASHING, Magistrate Judge.
THIS MATTER comes before the Court on plaintiff Victor Andrew Apodaca's motion for a temporary restraining order and preliminary injunction (Doc. 3), filed February 8, 2016; his (second) motion for a temporary restraining order and preliminary injunction (Doc. 13), filed March 14, 2016; his motion for leave to file an amended complaint (Doc. 28), filed on April 24, 2017; and his (second) motion for leave to file amended complaint (Doc. 42), filed on January 4, 2018. Defendant Dr. David Birnbaum filed a response to Apodaca's second motion for leave to amend on February 2, 2018. Doc. 46. Also before the Court is defendant Dr. David Birnbaum's Martinez
Having reviewed the submissions of the parties, and being fully advised, I find that Apodaca's motions for a temporary restraining order and preliminary injunction are moot and recommend that they be denied. I further find that Apodaca's motions for leave to file an amended complaint are not timely and, therefore, recommend that they be denied without prejudice. Finally, I find that there are no genuine issues of material fact, and that Dr. Birnbaum is entitled to judgment as a matter of law on Apodaca's Eighth Amendment claim for failure to provide adequate medical care. Accordingly, I recommend that Apodaca's complaint be dismissed with prejudice.
Apodaca suffers from a variety of medical conditions, including Gulf War Illness,
On April 28, 2016, the Court dismissed several defendants and many of Apodaca's claims. Doc. 15. Apodaca's only remaining claim is that Dr. Birnbaum and his staff were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Doc. 15 at 11. The Court held Apodaca's motions for injunctive relief (Docs. 3 and 13) in abeyance to the extent that the motions raised Eighth Amendment concerns related to Apodaca's medical care. Doc. 16. The Court ordered Dr. Birnbaum to prepare a Martinez report regarding Apodaca's medical care and the issues raised in Apodaca's motions for a temporary restraining order and preliminary injunction. Id. Dr. Birnbaum filed his Martinez report on May 14, 2016. Doc. 18. In his Martinez report, Dr. Birnbaum asks for summary judgment on Apodaca's claim under the Eighth Amendment. Doc. 18. In addition to responding to the Martinez report, Doc. 19, Apodaca filed two motions for leave to file an amended complaint. Docs. 28, 42. This report and recommendation addresses all of the outstanding issues.
"The mootness doctrine provides that although there may be an actual and justiciable controversy at the time the litigation is commenced, once that controversy ceases to exist, the federal court must dismiss the action for want of jurisdiction." Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011). The Court will find mootness "when events outside the litigation make relief impossible." Id. There are two kinds of mootness: constitutional mootness and prudential mootness. Id. "[T]he constitutional mootness doctrine focuses upon whether a definite controversy exists throughout the litigation and whether conclusive relief may still be conferred by the court despite the lapse of time and any change of circumstance that may have occurred since the commencement of the action." Id. at 1024 (internal citation and quotations omitted).
Prudential mootness may apply even where a case is not constitutionally moot if the case "is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand and to withhold relief it has the power to grant." Id. (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.2010)). In general, prudential mootness applies to cases where, like the instant case, a plaintiff seeks injunctive or declaratory relief. Id. When a plaintiff requests equitable relief, he or she must demonstrate an adequate basis for that relief. In other words, a plaintiff must demonstrate "[a] likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law." Id. (quoting O'Shea v. Littleton, 414 U.S. 488, 499 (1974)).
Id. at 1027 (internal citations and quotations omitted).
Apodaca's motions for injunctive relief relate solely to the conditions of his confinement at the LCCF. In his first motion, Apodaca alleges that Dr. Birnbaum had taken him off of necessary medications and advised Apodaca that he would only be seen every 90 days regardless of the number of requests for medical care. Doc. 3 at 1. Apodaca seeks a temporary restraining order requiring the defendants to have him examined and treated by a "qualified specialist" and a preliminary injunction requiring them to carry out the specialist's treatment plan. Id. at 2. In his second motion, Apodaca alleges that he is being retaliated against for using the court system and asks for a restraining order and preliminary injunction requiring the defendants to abide by the law, give him full access to the courts, and to stop retaliating against him. Doc. 13 at 2-3.
On May 18, 2017, Apodaca filed a notice of change of address informing the Court that he was moved from LCCF in Hobbs, New Mexico, to the NENMDF in Clayton, New Mexico. Doc. 32. Since May of 2017, therefore, Apodaca has not been subject to medical decisions made by Dr. Birnbaum, nor has he been denied access to the courts or subjected to any alleged retaliation by LCCF staff because he no longer resides at that facility. Accordingly, an entry of equitable relief in his favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him.
In contrast, Apodaca's claims for damages remain viable "because a judgment for damages would alter the defendants' behavior by forcing them to pay an amount of money they otherwise would not have paid." Green, 108 F.3d at 1300. Accordingly, the merits of Apodaca's Eighth Amendment claim are analyzed in section IV below, pursuant to Dr. Birnbaum's motion for summary judgment.
Rule 15(a) of the Federal Rules of Civil Procedure, which governs the amendment of pleadings, provides in relevant part that "[a] party may amend its pleading once as a matter of course within . . . 21 days after serving it." FED. R. CIV. P. 15(a)(1)(A). Any additional amendments require the opposing party's written consent or the Court's leave. See FED. R. CIV. P. 15(a)(1)(B). Local Rule 15.1 requires a proposed amended complaint to accompany a motion to amend. See D.N.M.LR-Civ. 15.1 ("A proposed amendment to a pleading must accompany the motion to amend.").
Apodaca filed two motions to amend, Doc. 28, filed April 24, 2017, and Doc. 42, filed January 4, 2018. In his motions to amend, Apodaca contends that his original complaint "name[s] a John or Jane Doe defendant by et. al," Doc. 28 at 1; Doc. 42 at 1, and that he is seeking amendments to name these additional parties. This attempt to add parties by amendment is without merit. First, Apodaca is incorrect. His original complaint named specific parties and did not name any type of "Doe" defendant or state "et al." in the caption. Doc. 1 at 1. Indeed, the form he filled out to instigate this lawsuit instructs, "Do not use et al." Id.
Second, the motions to amend are untimely and unduly prejudicial to Dr. Birnbaum. In Dr. Birnbaum's response to Apodaca's second motion for leave to file an amended complaint, he argues that the proposed amendment is based on separate facts and circumstances than those in the original complaint and do not have any relationship to the facts in the original complaint. Doc. 46 at 4-5. Further, a Martinez report has already been completed, and any amendment at this point would unfairly prejudice Dr. Birnbaum. Id. at 5-6. I agree with Dr. Birnbaum.
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir.1993) (internal citations and quotation marks omitted). To the extent Apodaca is attempting to add allegations and claims against Dr. Birnbaum, that amendment should not be allowed because Apodaca had the opportunity to amend his complaint within a month after Judge Vazquez filed her Memorandum Opinion and Order on April 28, 2016. Apodaca did not timely file an amended complaint or a motion seeking leave to amend. Instead, Apodaca filed his first motion to amend almost a year after the expiration of the Court's deadline, on April 24, 2017, and his second motion to amend a year and nine months after the Court's deadline, on January 4, 2018. As Dr. Birnbaum points out:
Doc. 46 at 6. Apodaca's motions to amend are untimely, and he has not provided any explanation for the delay.
Third, Apodaca is not seeking to simply amend his complaint; he is attempting to supplement his complaint. The allegations in his proposed complaints, although still discussing the alleged lack of medical care, discuss new events and actions of newly named defendants not alleged in the original complaint. See Doc. 28 at 2-7; Doc. 42 at 2-7. The new defendants would include medical providers Lewis Ortega, Charlet Bradshaw, Emily Collopy, as well as Centurion, Centurion CEO Steve Wheeler, GEO Executive V.P., Ernesto Alvarez, GEO Risk Management V.P. Philip Dugger, and GEO Western Region V.P., James Black. Id. New events include an untreated molar abscess in October of 2016, removal of his "depression medication" in November of 2016, a broken foot, and lack of insulin. Docs. 28 at 2-3, 6; 42 at 3-4, 6.
Rule 15(d) governs the supplementation of pleadings and it provides as follows:
FED. R. CIV. P. 15(d). "Rule 15(d) gives trial courts broad discretion to permit a party to serve a supplemental pleading setting forth post-complaint transactions, occurrences or events." Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). Rule 15(d) motions "are addressed to the sound discretion of the trial court," but such motions "should be liberally granted unless good reason exists for denying leave, such as prejudice to the defendants." Id.
Allowing Apodaca to initiate what is essentially a new lawsuit at this point in the proceedings also would run afoul of the screening process in 28 U.S.C. § 1915. In 1996, Congress significantly amended § 1915, which establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding IFP and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). "Under §§ 1915(e)(2)(B)(i) and (ii), a court
Further, the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, requires the court "on its own motion or on the motion of a party" to dismiss any action brought by a prisoner with respect to prison conditions under 42 U.S.C. § 1983 if the action is "frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." See 42 U.S.C. § 1997e(c)(1), unconst'l on other grounds, Siggers-El v. Barlow, 433 F.Supp.2d 811, 813 (E.D. Mich. 2006) (unconstitutional to the extent that it precludes mental or emotional damages as a result of defendant's violation of plaintiff's First Amendment rights). Apodaca is considered a "prisoner" as that term is defined under the Prisoner Litigation Reform Act, see 28 U.S.C. §§ 1915(h), 1915A(c), and he has been granted leave to proceed IFP in this action, Doc. 10. The defendants named in the proposed amended complaints are employees of a governmental entity. See West v. Atkins, 487 U.S. 42, 54-55 (1988) (a physician under contract with the state to provide medical services to state prison inmates, acted under color of state law for purposes of § 1983 when undertaking his duties in treating prisoner's injury). Additionally, Apodaca is complaining about the conditions of his confinement. Thus, his amended complaint must be reviewed under the authority set forth above.
If the Court were to simply allow Apodaca to amend or supplement his complaint with entirely new parties and allegations, it would bypass the screening process required under 28 U.S.C. § 1915. The newly named parties would be responsible for answering the amended complaint without the benefit of the Court first determining whether Apodaca's claims are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief.
Although I find that Apodaca should not be able to bring new parties, allegations, and claims into the instant lawsuit, that is not to say that he fails to state a claim. As discussed above, the merits of the claims raised in the proposed amended complaints have not been screened or analyzed by this Court. Accordingly, I recommend that Apodaca's motions to amend his complaint (Docs. 28 and 42) be denied without prejudice.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled as a matter of law." FED. R. CIV. P. 56(a). The party moving for summary judgment has the initial burden of establishing, through admissible evidence in the form of depositions, answers to interrogatories, admissions, affidavits or documentary evidence, that there is an absence of evidence to support the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is met, the party opposing summary judgment must come forward with specific facts, supported by admissible evidence, which demonstrate the presence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Although all facts are construed in favor of the nonmoving party, it still is the nonmoving party's responsibility to "go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [his] case in order to survive summary judgment." Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005) (alteration in original) (internal quotation marks omitted).
For purposes of summary judgment, a prisoner's complaint is treated as an affidavit if it alleges facts based on his personal knowledge and has been sworn under penalty of perjury. Hall, 935 F.2d at 1111. A Martinez report is also treated as an affidavit. Id. A court cannot resolve material disputed factual issues by accepting a Martinez report's factual findings when they are in conflict with pleadings or affidavits. Id. at 1109. Conclusory allegations, however, without specific supporting facts, have no probative value and cannot create a genuine issue of fact. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1143 (10th Cir. 2005); Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004); Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992). As is true with all affidavits, statements of mere belief must be disregarded. Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006).
The Court liberally construes Apodaca's filings because he is appearing pro se. Hall, 935 F.2d at 1110. Nevertheless, a non-moving party still must "identify specific facts that show the existence of a genuine issue of material fact." Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (internal quotation marks omitted). Conclusory allegations are insufficient to establish an issue of fact that would defeat the motion. Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 557 (10th Cir. 2001).
"A prison official violates an inmate's clearly established Eighth Amendment rights if he acts with deliberate indifference to an inmate's serious medical needs—if he knows of and disregards an excessive risk to inmate health or safety." Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001) (internal quotation marks omitted). Stated differently, prison officials violate the Eighth Amendment's ban on cruel and unusual punishment if their deliberate indifference to serious medical needs of a prisoner constitutes unnecessary and wanton infliction of pain. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
An Eighth Amendment claim of deliberate indifference to serious medical needs requires the plaintiff to demonstrate "both an objective and a subjective component." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Under the objective inquiry, the "alleged deprivation must be `sufficiently serious' to constitute a deprivation of constitutional dimension." Self, 439 F.3d at 1230 (citing Farmer v. Brennan, 511 U.S. 825, 834, (1994)). Where an Eighth Amendment claim is premised on an alleged delay in medical care, the prisoner "must `show that the delay resulted in substantial harm' in order to satisfy the objective prong of the deliberate indifference test." Al-Turki v. Robinson, 762 F.3d 1188, 1192-93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)).
The subjective component requires "evidence of the prison official's culpable state of mind." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The subjective component may be fulfilled by showing that the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. That is, the prisoner must show that the defendant knew "[that the prisoner] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it." Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal quotation marks omitted); see Martinez v. Garden, 430 F.3d 1302, 1304-05 (10th Cir. 2005). The pertinent question is whether the prisoner's symptoms were such that the defendant "knew the risk to the prisoner and chose (recklessly) to disregard it." Mata, 427 F.3d at 753.
Apodaca contends that the medical care was defective in several ways. First, he contends that the medical staff only saw him every 90 days "no matter how many sick calls I put in." Doc. 1 at 4; see also Doc. 3 at 2.
The evidence presented by both Dr. Birnbaum and Apodaca show that since his arrival at LCCF, Apodaca was treated frequently for a variety of ailments. For example, the day after Apodaca arrived at LCCF, on August 20, 2015, he was seen at intake for a medical and mental health review. Docs. 18-1 at 3-4; 18-3 at 2; 19-1 at 10. At that time Apodaca had diabetes, hypertension, high triglycerides, and low HDL, indicating that Apodaca is at high risk of heart attack or stroke. Docs. 18-1 at 1-3; 18-3 at 2; 19-1 at 10. Apodaca also has chronic hepatitis C. Docs. 1 at 10; 18-3 at 2. Apodaca was taking the following medications: Wellbutrin, Remeron, and Neurontin. Docs. 18-1 at 4-5; 18-3 at 2. The medical staff referred Apodaca to receive regular, chronic care treatment for his mental health, and it was noted that he had been diagnosed with a history of PTSD. Doc. 18-1 at 4. Consequently, the staff scheduled Apodaca for a mental health appointment on September 1, 2015. Id.
Following this initial assessment, it appears that Dr. Birnbaum and the medical staff were quite responsive to Apodaca's requests for medical care from August 19, 2015, through March 28, 2016.
Apodaca cannot establish either the objective or subjective component of his Eighth Amendment claim. First, he does not establish the objective prong because he fails to establish that he suffered any substantial harm that resulted in a lifelong handicap, permanent loss, or considerable pain. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) ("The substantial harm requirement "may be satisfied by lifelong handicap, permanent loss, or considerable pain."). Although Apodaca has medical conditions that require treatment, there is no indication that Dr. Birnbaum or his staff failed to provide treatment. As seen from the chart above, LCCF was responsive, usually within a few days, of Apodaca's request for medical services, and treated his chronic conditions. Apodaca's chronic conditions have remained stable and have not presented an urgent or emergent care situation, despite alleged delays in getting prescriptions filled or being seen by a medical care provider.
Even if Apodaca's complaints of pain could establish the objective component, he cannot establish the subjective component. That is, Apodaca cannot establish that he faced a substantial risk of harm that was known to Dr. Birnbaum and his staff, and that Dr. Birnbaum or his staff disregarded that risk or failed to take reasonable measure to abate it. Callahan, 471 F.3d at 1159. Neither Dr. Birnbaum nor his staff acted or failed to act despite their knowledge of a substantial risk of serious harm to Apodaca.
In appears Apodaca's primary complaint regarding his medical care is that he was taken off Neurontin (gabapentin). See Docs. 1 at 10; 1-2 at 18; 1-3 at 10; 1-5 at 1-2; 3 at 1; 18-2 at 14; 18-3 at 8; 19 at 2, 6; 19-2 at 13-14; 19-4 at 12; 19-5 at 9-10; but see 19-4 at 11 (Apodaca's inmate grievance form in which he insists that "it's not about the Neurontin itself, it's about violating my 8
The undisputed material facts establish that neither Dr. Birnbaum nor his staff was deliberately indifferent to Apodaca's serious medical needs. Dr. Birnbaum is entitled to judgment as a matter of law. Accordingly, I recommend that Apodaca's complaint be dismissed with prejudice.
For the reasons stated above, I recommend that:
