United States District Court, D. New Mexico
FRANK L. LATHAM, Plaintiff,
CORIZON, LLC, et al., Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
HONORABLE M. CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT
MATTER is before the Court on United States Magistrate Judge
Carmen E. Garza's Proposed Findings and Recommended
Disposition (“PFRD”), (Doc. 151), filed
February 2, 2017; Defendants Mark Ewell, Ken Smith, FNU
Heredia, and Pete Perez's (collectively the “NMCD
Defendants”) NMCD Defendants' Objections to
Magistrate Judges Proposed Findings and Recommended
Disposition (Doc. 151), (Doc. 153), filed February 16,
2017. In the PFRD, the Magistrate Judge concluded that
Plaintiff Frank Latham did not exhaust available
administrative remedies and his complaints should therefore
be dismissed without prejudice. (Doc. 151 at 2, 9).
parties were notified that written objections to the PFRD
were due within 14 days, (Doc. 151 at 9), though three more
days are allowed if service is by mailing to the party's
last known address. Fed.R.Civ.P. 6(d). The NMCD Defendants
filed one objection. (Doc. 153). Plaintiff has not filed
objections or responded to the NMCD Defendants'
objection, and the time for doing so has passed. D.N.M.LR-Civ
7.4(a). After a de novo review of the record and the
PFRD, the Court adopts the Magistrate Judge's PFRD in
part, grants the NMCD Defendants' objection, and
dismisses Plaintiff's remaining claims with prejudice.
is a wheelchair-bound inmate in the New Mexico state
correctional system. Plaintiff has filed two lawsuits under
42 U.S.C. § 1983 against numerous defendants alleging
violations of his federal constitutional and statutory
rights. (See Docs. 1, 2, 5, 8, 52, 64). The Court
consolidated Plaintiff's suits on December 7, 2015. (Doc.
64). After various orders adding or dismissing parties and
claims, Plaintiff's surviving claims were: (1) violations
of the Americans with Disabilities Act (“ADA”)
and the Eighth Amendment to the United States Constitution by
Warden Mike Heredia (FNU Heredia in the caption), Warden Ken
Smith, and Deputy Warden Pete Perez for their alleged failure
to provide Plaintiff adequate handicap accommodations; (2)
violation of the Eighth Amendment by Lieutenant Mark Ewell, a
corrections officer, for allegedly assaulting and placing
Plaintiff in danger of being assaulted by other inmates; and
(3) violations of the Eighth Amendment by Defendants Corizon,
LLC, Randolph Baca, M.D., and Mary Birdsong, M.D., for
repeatedly failing to provide Plaintiff with pain medication
or proper catheters. (See Docs. 5, 8, 19, 32, 77).
All Defendants have filed motions to dismiss or motions for
summary judgment in their favor. (Docs. 94, 129, 132, 133).
October 28, 2016, the Magistrate Judge ordered Defendants to
produce a Limited Martinez Report (the
“Report”). (Doc. 113 at 6); see Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978) (permitting courts
to order prison officials to investigate and report on the
facts underlying a prisoner's complaint). The
Martinez Report was limited to the issue of whether
or not Plaintiff exhausted available administrative remedies
before filing his lawsuits as required by the Prisoner
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a). (Doc. 113 at 6). The Magistrate Judge explained the
exhaustion requirement, (Doc. 113 at 4-5), noted the Court
may consider the Martinez Report in deciding whether
or not to grant summary judgment, (Doc. 113 at 5), and
eventually gave Plaintiff until January 23, 2017, to respond
to the Report, (Doc. 135).
filed the Report on December 12, 2016. (Doc. 127). The Report
contains numerous affidavits detailing Plaintiff's
frequent verbal complaints and all Defendants' efforts to
accommodate those complaints. (Doc. 127-4 at 13 through Doc.
127-8 at 22). The Report also contains the New Mexico
Department of Corrections (NMCD) Grievance Procedures in
effect at all times relevant to Plaintiff's complaints.
(Doc. 127-1 at 5 through Doc. 127-4 at 8). According to the
NMCD Grievance Appeals Coordinator, Plaintiff has not
initiated or exhausted any grievance related to his claims in
this case. (Doc. 127-4 at 13-14). Consequently, the NMCD
Defendants argued Plaintiff's claims should be dismissed
with prejudice for his failure to exhaust the Grievance
Procedures. (Doc. 127 at 16).
Magistrate Judge construed a letter from Plaintiff as a
response to the Report. (Doc. 151 at 4-5). In the letter,
Plaintiff objects to dismissing Defendants Birdsong, Ewell,
and Perez, but consents to dismissing Defendants Baca and
Heredia. (Doc. 143 at 1-2, 5, 7). On January 25, 2017,
Plaintiff sent a letter informing the Court he had been
transferred to another facility and requested help with
getting an attorney. (Doc. 147). Plaintiff has not otherwise
responded to the Report.
February 2, 2017, the Magistrate Judge entered her PFRD
reviewing the Report. The Magistrate Judge found Plaintiff
did not exhaust available administrative remedies as required
by the PLRA. (Doc. 151 at 7-8). As discussed, the Report
indicates Plaintiff never exhausted or even initiated the
Grievance Procedure. (Doc. 127 at 12-16; Doc. 127-4 at
13-20). Further, nothing in the Report suggests the Grievance
Procedure was in fact “unavailable” to Plaintiff.
See Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016).
The Magistrate Judge therefore recommended dismissing
Plaintiff's claims without prejudice so he may take
advantage of the Grievance Procedure. (Doc. 151 at 8);
see Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
1224-25 (10th Cir. 2007) (noting district court dismissed
without prejudice for failure to exhaust); Mehdipour v.
Swenson, No. 03-6054, Fed.Appx. 884 (10th Cir. Sept. 11,
2003) (unpublished) (affirming dismissal without prejudice).
The Magistrate Judge also recommended dismissing all other
pending motions as moot. (Doc. 151 at 8-9).
NMCD Defendants timely objected to the PFRD. (Doc. 153).
Plaintiff did not object to the PFRD, nor has he responded to
the NMCD Defendants' objections, and the time for doing
either has passed. D.N.M.LR-Civ 7.4(a).
to Rule 8 of the Rules Governing Section 2255 Proceedings for
the United States District Courts, a district judge may,
under 28 U.S.C. § 636(b), refer a pretrial dispositive
motion to a magistrate judge for proposed findings of fact
and recommendations for disposition. Within fourteen days of
being served, a party may file objections to this
recommendation. Rule 8(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A party
may respond to another party's objections within fourteen
days of being served with a copy; the rule does not provide
for a reply. Fed.R.Civ.P. 72(b).
resolving objections to a magistrate judge's
recommendation, the district judge must make a de
novo determination regarding any part of the
recommendation to which a party has properly objected. 28
U.S.C. § 636(b)(1)(C). Filing objections that address
the primary issues in the case “advances the interests
that underlie the Magistrate's Act, including judicial
efficiency.” U.S. v. One Parcel of Real Prop., With
Bldgs., Appurtenances, Improvements, & Contents, 73
F.3d 1057, 1059 (10th Cir. 1996). Objections must be timely
and specific to preserve an issue for de novo review
by the district court or for appellate review. Id.
at 1060. Additionally, issues “raised for the first
time in objections to the magistrate judge's
recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see
also U.S. v. Garfinkle, 261 F.3d 1030, 1030-31 (10th
Cir. 2001) (“In this circuit, theories raised for the
first time in objections to the magistrate judge's report
are deemed waived.”).
case, the NMCD Defendants object to the Magistrate
Judge's recommendation that Plaintiff's claims be
dismissed without prejudice. (Doc. 153 at 1-2). Rather, the
NMCD Defendants ask the Court to dismiss Plaintiff's
claims with prejudice due to Plaintiff's failure to
timely exhaust administrative remedies. (Doc. 153 at 5). The
NMCD Defendants note Plaintiff never initiated the Grievance
Procedure and that he was ...