JAMES A. PARKER, Senior District Judge.
On September 21, 2017, Plaintiff Carlos Aragon, pro se, filed a three-count amended complaint
On March 29, 2018, the Court sua sponte entered an order
On September 6, 2018, the Court held a hearing on the Order to Show Cause. At the hearing, Paula Ganz appeared on behalf of Defendant Captain Deberry, who was present, and on behalf of Defendant Officer Chavira, who was not present. Plaintiff Carlos Aragon did not appear. The Court did not hear oral argument.
After considering the pleadings, the briefing and all arguments in Plaintiff's Amended Complaint, Defendants' Answer, Plaintiff's Response, and Defendants' Response and after finding that Plaintiff had adequate notice of the Order to Show Cause and of the time and place of the September 6, 2018 hearing, the Court will grant summary judgment on all claims as to Defendants Officer Chavira and Captain Deberry.
For the purposes of this Order, the Court assumes the truth of the following facts taken from Plaintiff's pleadings and briefing:
From September 22, 2009 through December 30, 2013, Plaintiff was at Central New Mexico Correctional Facility (CNMCF). Amended Complaint (Doc. 19), Exhibit D, p. 17.
Subsequently, Plaintiff was taken to the infirmary. Amended Complaint (Doc. 19), p. 21. After medical staff treated Plaintiff, CNMCF put Plaintiff into protective segregation until December 30, 201 when Plaintiff was transferred to Western New Mexico Correctional Facility (WNMCF). Id.
On February 4, 2014, Plaintiff filed an Informal Grievance with WNMCF based on the December 20, 2013 events at CNMCF (Informal Grievance). Plaintiff's Response (Doc. 37), Informal Grievance, p. 10. The Informal Grievance is stamped received on February 10, 2014, and given tracking number 14-029. Id. at 10.
The Informal Grievance alleges that on December 20, 2013 Plaintiff learned CNMCF would protectively segregate him. Id at 10-11. That information coupled with the stress Plaintiff felt because of fear for his personal safety at CNMCF caused him to faint and fall. Id. The Informal Grievance further contends that: 1) Plaintiff did not received adequate medical care for his head injury; and 2) Plaintiff's injury was the result of emotional infliction of pain as prison correction officials were intentionally discriminating and retaliating against him because of his sex-offender conviction. Id. at 10. The Informal Grievance requests that the department of corrections "meet their obligation to provide a medical care system that meets the minimal standards of adequacy." Id. at 11.
The Informal Grievance names only CNMCF, Corizon Inc., and case manager Christine Salazar. Id. at 10. The Informal Grievance does not allege that Captain Deberry or Officer Chavira bore any responsibility for the fall, the head injuries, mental or physical pain or for discrimination and retaliation. The Informal Grievance states that the fall occurred "because [Plaintiff] did physically lose [sic] consciencous [sic]." Id. p. 11.
When Plaintiff did not receive an official response to his Informal Grievance, he spoke with WNMCF unit manager Mrs. Barela. Id. at 3. She told him WNMCF would not act on his Informal Grievance and would not forward it to CNMCF. Id. at p. 11, Plaintiff's Affidavit, at 12.
On February 18, 2014, Plaintiff filed a Formal Grievance and mailed it to the grievance officer at CNMCF (Formal Grievance). Plaintiff's Response (Doc. 37), Formal Grievance, pp. 4, 13.
Plaintiff begins the handwritten part of the Formal Grievance with a statement that he has had two parole plans denied." Id. at 18. Plaintiff attributes to Christine Salazar the denial of his parole plans. Id. In the Formal Grievance, Plaintiff makes no claims against Officer Chavira. The Formal Grievance mentions Captain Deberry in two ways: 1) it states that Captain Deberry informed Plaintiff that Captain Deberry would be putting Plaintiff in protective segregation; and 2) that Captain Deberry was talking to Plaintiff when Plaintiff lost consciousness. Id. at 20. Nowhere in the Formal Grievance does Plaintiff claim that either Officer Chavira or Captain Deberry harmed him.
After the return of the Formal Grievance, Plaintiff believed the Formal Grievance to be a "closed matter in the grievance department." Id. at 5. Subsequently, on March 5, 2014, Plaintiff indicates that he mailed an appeal letter to Secretary of Corrections Greg Mercantel, as well as letters to Gary King, the Attorney General, and WNMCF Warden Joe Garcia. Id. at 8. Plaintiff did not provide the Court with copies of these letters.
Plaintiff's Amended Complaint lists the following three causes of action under § 1983:
Amended Complaint (Doc. 19), at pp. 2-4, Attachment D-Claim I, pp. 1-5, Attachment D-Claim III, pp. 1-5. Claims I and II name only Defendant Christine Salazar, alleging that Defendant Salazar sabotaged and prevented Plaintiff's physical release from prison after Plaintiff received parole. Id. at pp. 1-3, 12-16. Claim III argues that Plaintiff's Eighth Amendment rights were violated when Defendant Christine Salazar initiated events that led to Plaintiff's head injury, and subsequently, Defendants Captain Deberry and Officer Chavira either caused the head injury or failed to protect Plaintiff from the fall that caused the injury. Id. at pp. 4, 17-21; Declarations I, II, III, pp. 37-44.
Defendants' Answer asks for dismissal on all claims under Fed. R. Civ. P. 12(b)(6), while Defendants' Response asks for summary judgment on all claims.
In Defendants' Answer, Defendants ask the Court to dismiss all claims under 12(b)(6) whereas Defendants' Response asks for summary judgment on all claims. "A 12(b)(6) motion must be converted to a motion for summary judgment if `matters outside the pleading are presented to and not excluded by the court' and `all parties ... [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.'" GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Fed. R. Civ. P. 12(b)). Both Plaintiff's Response and Defendants' Response attach materials, including Affidavits, Declarations, Policy Manuals, Records detailing Complaints and actual Complaints. In making its findings, the Court considered the pleadings, the briefing and all materials attached to the briefing. The Court will therefore, consider all Defendants' requests for relief as motions for summary judgment.
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if a "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). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party on the issue," and "[a]n issue of fact is material if under the substantive law it is essential to the proper disposition of the claim." Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citations and internal quotations omitted). In reviewing a motion for summary judgment, the Court views "the evidence and its reasonable inferences in the light most favorable to the non-movant." Id. Before a court entertains a summary judgment motion, the opposing party must have an adequate time to respond. Fed. R. Civ. P. 56(f).
Here, Defendants ask for summary judgment on Claims I and II because neither claim makes factual or legal allegations against them. Defendants argue that the Court should grant summary judgment on Claim III because Plaintiff failed to exhaust his administrative remedies as required under the PLRA.
The PLRA provides that "a prisoner confined in any jail, prison, or other correctional facility" may not bring a claim under § 1983 "until such administrative remedies as are available are exhausted." 42 U.S.C. §1997e(a). An inmate need not exhaust unavailable remedies. Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). The PLRA exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). Whether a claim has been exhausted is determined by the prison's requirements. Jones v. Bock, 549 U.S. 199, 218 (2007). A prisoner may not satisfy the PLRA exhaustion requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, 548 U.S. 81, 83 (2006). Failure to exhaust available administrative remedies is fatal to individual claims as long as the administrative remedies were adequate. Ross, 136 S.Ct. at 1859-60.
New Mexico Corrections Department has a formal written grievance procedure (Policy). Defendants' Response, Exhibit A (Doc. 42-1). Each inmate receives a written copy and an oral summary of the Policy during orientation and upon written request. Id. p. A-0007 ¶ 2. The Policy provides that grievable issues include: disputes about interpretation of the policy, individual employee actions, perceived reprisal for use of or participation in the grievance process, and any other matter related to conditions of care or supervision within the authority of the New Mexico Corrections Department or its contractors. Id. at p. A-0009, ¶ E(1)(a)-(f). Nongrievable issues include "[a]ny matter over which the Corrections Department has no control, for example: parole decision, sentences, and claims regarding inmate compensation which is regulated by statute." Id. at ¶ E(2)(a)-(g).
The Policy requires an inmate to file informal complaints within five (5) calendar days from the date of the incident provoking the complaint. Id. at A-0014 ¶A (1). If the informal complaint does not resolve the complaint within seven (7) working days, the inmate may file a formal grievance, which also must be submitted within five (5) working days
Claims I and II allege that Defendant Christine Salazar violated Plaintiff's Eighth and Fourteenth Amendment rights when she interfered with Plaintiff's parole rights. Defendants argue that Court should grant summary judgment as to them on Claims I and II because neither claim implicates them. To plead a cognizable § 1983 claim, a plaintiff must include the following two elements: "(1) deprivation of a federally protected right by (2) an actor acting under color of state law." Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016) (citing D.T. ex rel. M. T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176, 1186 (10th Cir. 1990)). Claims I and II do not name, state, or imply that Officer Chavira or Captain Deberry hampered or interfered with Plaintiff's parole plan; Claims I and II name only Defendant Christine Salazar. Because Claims I and II make no factual or legal allegations against Defendants, there is no genuine issue of material fact as to them and summary judgment is appropriate.
In Claim III, Plaintiff asserts Defendants violated Plaintiff's Eighth Amendment rights when Defendants took actions resulting in Plaintiff's mental and physical injury. Defendants counter that Plaintiff has failed to exhaust his administrative remedies as required by the PLRA on Claim III and seek summary judgment on this claim. A claim that a prisoner has failed to exhaust administrative remedies is an affirmative defense and the burden is on the defendant to assert and prove the plaintiff did not use administrative remedies. Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). If a defendant establishes non-exhaustion, then the onus falls on the plaintiff to show that remedies were unavailable to him." Id.
Plaintiff's Amended Complaint alleges that while he was incarcerated at CNMCF, the actions of Officer Chavira and Captain Deberry on December 20, 2013 resulted in Plaintiff's mental and physical injury. On that date, Officer Chavira and Captain Deberry were correctional employees. The Policy states that claims arising from the actions of correctional employees are grievable issues covered by its guidelines. Claim III of Plaintiff's Amended Complaint is a grievable claim. Under the PLRA, the Court must dismiss Claim III unless Plaintiff exhausted all administrative remedies prior to filing his Amended Complaint.
Plaintiff argues that he did exhaust administrative remedies because he filed an Informal Grievance on February 4, 2014, and a Formal Grievance on February 18, 2014. Both grievances make claims based, in part, on the December 20, 2013 events. Notably, neither grievance accuses Officer Chavira or Captain Deberry of any wrongdoing. The Policy requires inmates to file grievances within five days of the event that gave rise to the complaint. To be timely, Plaintiff should have filed any assertions based on December 20, 2013 events within five days of the events, or by December 25, 2013. Plaintiff did not do so. An untimely grievance bars a future suit unless Plaintiff shows that administrative procedures were inadequate because they were unavailable. See Ross, 136 S.Ct. at 1858.
Under §1997e(a) a Plaintiff only must exhaust "available remedies." An assertion that administrative procedures were unavailable to a plaintiff is a defense to the exhaustion requirement. Ross, 136 S.Ct. at 1858. The Supreme Court has found three circumstances when an administrative remedy is not available. Id. at 1859. First, an administrative procedure is unavailable when "officers are unable or consistently unwilling to provide any relief to aggrieved inmates." Id. Second, if the rules governing the administrative procedures are so confusing no reasonable petitioner can use them, the procedures are unavailable. Id. Third, administrative procedures are unavailable when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. Plaintiff asserts all three circumstances support his argument that administrative procedures were unavailable to him.
Plaintiff alleges that the grievance officer and the unit manager at WNMCF, Ms. Barela, were unable or unwilling to help him with Plaintiff's Informal and the Formal Grievance. Assuming arguendo Plaintiff's allegations are true, they do not support his argument. Whether in February 2014 the grievance officer and Ms. Barela refused to help him file a grievance or whether they prevented him from filing a grievance is immaterial, because by February 2014, any grievance Plaintiff filed was untimely. Nowhere in the Amended Complaint or in Plaintiff's Response does Plaintiff allege or provide evidence he could not file a timely grievance because correctional employees were unable or unwilling to provide relief or because they prevented Plaintiff from doing so.
Next, Plaintiff claims this was his first attempt at using the grievance process, and he implies that this is the reason why he did not observe the Policy rules on timeliness. However, Plaintiff does not clarify why a first attempt at use of the procedures should excuse a late claim.
Although Plaintiff provides some evidence that he was confused following his head injury, Plaintiff does not argue that his confusion or mental state kept him from filing a timely grievance. Even if Plaintiff had made that argument, it would not support his claim that procedures were unavailable because Plaintiff does not explain why he did not file any grievance against either Defendant based on the December 20, 2013 events. Significantly, Plaintiff also does not declare in any of his briefing that he was unaware of facts that would have supported a timely grievance against Defendants.
The Court entered its Order to Show Cause on March 29, 2018. On April 5, 2018, the Court gave Plaintiff until July 2, 2018, or approximately three months, to respond to its Order to Show Cause. The Court finds that Plaintiff had adequate notice of the Order to Show Cause and adequate time to respond to it.
Defendants have shown there is no genuine issue of material fact as to them on Claims I and II and the Court will grant summary judgment to Officer Chavira and Captain Deberry on these claims. In Plaintiff's Response to the Court's Order to Show Cause, Plaintiff failed to show that on Claim III he complied with the PLRA requirement to exhaust administrative remedies prior to bringing an §1983 claim or that he meets an exception to the PLRA exhaustion requirement. The Court will grant summary judgment on Claim III as to Defendants Officer Chavira and Captain Deberry.
IT IS ORDERED that Defendants' request for summary judgment as to Officer Chavira and Captain Deberry on Claims I, II and III made in Defendants' Response to the Court's sua sponte Order to Show Cause (Doc. 34) is GRANTED.
