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Latham v. Corizon LLC

United States District Court, D. New Mexico

February 2, 2017

FRANK L. LATHAM, Plaintiff,
CORIZON, LLC, et al., Defendants.



         THIS 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).

         Several 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.

         For the 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 MOOT.

         I. Background

         Plaintiff 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;[1] (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).

         On 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).

         On 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, 11-15, 36-38).

         The 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.

         Defendant 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.

         In his 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.[2] 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).

         II. Analysis

         a. Standard for Summary Judgment

         The 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 ...

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