United States District Court, D. New Mexico
FRANK L. LATHAM, Plaintiff,
CORIZON, LLC, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendants Mark Ewell, Mike
Heredia, Ken Smith, and Pete Perez's Limited
Martinez Report Submitted on Behalf of Defendants Mark
Ewell, FNU Heredia, Ken Smith, and Pete Perez (the
“Report”), (Doc. 127), filed December 12, 2016;
and Plaintiff Frank Latham's letter to the Court, which
the Court construes as a response to the Report (the
“Response”), (Doc. 143), filed December 27, 2016.
Also before the Court are Defendant Randolph Baca's
Motion for Summary Judgment (the
“Motion”), (Doc. 132), filed December 12, 2016;
and Defendant Baca's Reply in Support of Motion for
Summary Judgment, (Doc. 145), filed January 13, 2017.
Chief United States District Judge M. Christina Armijo
referred this case to Magistrate Judge Carmen E. Garza to
perform legal analysis and recommend an ultimate disposition
of this case. (Doc. 3).
additional motions are currently pending and ripe for review,
including Defendant Perez's Motion to Dismiss Claims
against Defendant Pete Perez Pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, (Doc. 94), filed July
1, 2016; Defendants Smith and Heredia's Motion
Pursuant to Rule 12(b)(6) to Dismiss Claims against
Defendants FNU Heredia and Ken Smith, (Doc. 129), filed
December 12, 2016; and Defendants Corizon, LLC, and
Birdsong's Motion to Dismiss for Failure to Follow
Court Order, (Doc. 133), filed December 13, 2016.
following reasons, the Court RECOMMENDS that: (1) Defendant
Baca's Motion be GRANTED; (2) all of Plaintiff's
remaining claims be DISMISSED WITHOUT PREJUDICE for
Plaintiff's failure to exhaust available administrative
remedies; and (3) all other pending motions be DISMISSED AS
is currently an inmate in the New Mexico state correctional
system. (Doc. 147). Plaintiff has filed two lawsuits pursuant
to 42 U.S.C. § 1983 against numerous defendants over the
conditions of his confinement. (See Docs. 1, 2, 5,
8, 52, 64). On December 7, 2015, the two cases were
consolidated, given their similar legal and factual
questions. (Doc. 64). Following consolidation and various
motions, Plaintiff's surviving claims were: (1)
violations of the Americans with Disabilities Act
(“ADA”) and Eighth Amendment to the United States
Constitution by Defendants Warden Mike Heredia, Warden Ken
Smith, and Deputy Warden Pete Perez for failure to provide
Plaintiff with handicap accommodations at two correctional
facilities; (2) violation of the Eighth Amendment by
Defendant Lieutenant Mark Ewell for causing Plaintiff to be
assaulted and otherwise putting Plaintiff in danger; and (3)
violations of the Eighth Amendment by Defendants Randolph
Baca, M.D., Mary Birdsong, M.D., and Corizon, LLC, for
repeatedly failing to provide Plaintiff with proper catheters
and pain medications. (See Doc. 111 at 5-6).
October 28, 2016, the Court ordered Defendants to produce a
Limited Martinez Report. (Doc. 113). The Court
directed Defendants to develop a report on the particular
issue of whether Plaintiff exhausted available administrative
remedies before filing suit. (Doc. 113 at 6). As explained in
the Order, prisoners must exhaust all available
administrative remedies before filing any lawsuit challenging
prison conditions. (Doc. 113 at 4) (citing 42 U.S.C. §
1997e(a)). Further, “courts are obligated to ensure
that any defects in exhaustion were not procured from the
action or inaction of prison officials.”
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1226
(10th Cir. 2007). Finally, the Court informed the parties
that it may use the Report in recommending whether to grant
or deny summary judgment. (Doc. 113 at 5).
December 12, 2016, Defendants filed the Report. (Doc. 127).
The Report contains numerous affidavits, (Docs. 121-1 at 2-3;
Doc. 127-4 at 13-14, 25-29; 127-6 at 7-9, 11-15, 17, 19-21,
31-34, 36-38, 40-42, 44; Doc. 127-7 at 1-2, 4-5; 127-8 at
20-22), as well as the New Mexico Corrections Department
(“NMCD”) Grievance Procedures effective at all
times pertinent to Plaintiff's Complaints, (Docs. 127-1
at 5 to 127-4 at 11). The NMCD Grievance Procedure begins
with an informal complaint, after which a complainant may
file a formal grievance with a Grievance Officer. (Doc. 127
at 10). If a complainant is dissatisfied with the Grievance
Officer's decision, he may appeal to the Warden of the
facility and then to the Secretary of the Department of
Corrections. (Doc. 127 at 10-11). According to Steve Madrid,
statewide Grievance Appeals Coordinator for NMCD, Plaintiff
has never exhausted NMCD's grievance procedures, nor has
Plaintiff initiated the grievance procedure for his various
claims in this lawsuit. (Docs. 127 at 12-16; 127-4 at 13-20).
Rather, according to affidavits attached to the Report,
Plaintiff frequently verbally complains about the conditions
of his confinement, Defendants respond in an attempt to
address Plaintiff's concerns, and Plaintiff does not
pursue formal grievances. (Docs. 127-4 at 25-26; 127-6 at 8,
Report includes the affidavit of Mark Delgado, who was a
Health Services Administrator at times relevant to this case.
(Doc. 127-4 at 25). Mr. Delgado states that NMCD defendants
have provided Plaintiff with his requested catheters and that
he ceased complaining about the catheters. (Doc. 127-4 at
28). Further, Mr. Delgado explains that although Plaintiff
states his wheelchair is broken and needs to be fixed, he
refused to allow it to be inspected and repaired. (Doc. 127-4
at 28-29). Mr. Delgado's statements were corroborated by
Defendant Smith's affidavit. (Doc. 127-6 at 12). Finally,
several affidavits detail Defendants' efforts to
accommodate Plaintiff's necessary handicap
accommodations. (Doc. 127-4 at 26-27; 127-6 at 12-14; 127-7
at 1-2; 127-8 at 21). In short, Plaintiff has gone through
several wheelchairs and cells, and Defendants attest they
have accommodated Plaintiff's requests.
Baca also filed a motion for summary judgment in his favor.
(Doc. 132). In the Motion, Defendant Baca states he is a
psychiatrist who rendered psychiatric services to Plaintiff.
(Doc. 132 at 2). Accordingly, he was not involved in
prescribing or providing Plaintiff with catheters or pain
medications of any kind, and Plaintiff has not shown any
facts indicating he violated any of Plaintiff's
constitutional rights. (Doc. 132 at 3). As such, Defendant
Baca argues he is entitled to judgment as a matter of law.
Response, Plaintiff does not address his failure to initiate
or exhaust the grievance procedure, nor does he argue that
the grievance procedure is somehow a sham or otherwise
unavailable to him. Rather, Plaintiff either consents or
opposes dismissing various defendants. Plaintiff objects to
dismissing Defendant Birdsong, (Doc. 143 at 1-2), Defendant
Perez, (Doc. 143 at 5), and Defendant Ewell, (Doc. 143 at 7),
and consents to dismissing Defendants Baca and Heredia,
though he asks the Court to keep Defendants Baca and Heredia
as “hostile witnesses.” (Doc. 143 at 7).
Plaintiff also requests the Court deem a Nurse Practitioner a
“hostile witness.” (Doc. 143 at 7).
Standard for Summary Judgment
Court must grant summary judgment if there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Parties may
show there is no genuine dispute as to material fact by
citing documents, affidavits, or other declarations.
Fed.R.Civ.P. 56(c)(1). If a party fails to address another
party's factual assertion, the Court may consider the
fact undisputed and grant summary judgment notwithstanding
the party's lack of a response. Fed.R.Civ.P. 56(e).
Finally, the Court may grant summary judgment ...