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Tavasci v. Cambron

United States District Court, D. New Mexico

May 31, 2017

SOPHIE TAVASCI, as Personal Representative of the Wrongful Death Claim of DANIEL TAVASCI, Deceased, Plaintiff,
v.
BRADFORD CAMBRON; ROB KAMERMANS; RANDAL BROWN; NEW MEXICARE, Inc. d/b/a/ GUADALUPE COUNTY HOSPITAL; THE GEO GROUP, INC. d/b/a GUADALUPE COUNTY CORRECTIONAL FACILITY; CORIZON HEALTH, INC.; VINCENT HORTON, Warden; CHRISTOPHER AGUILAR, Behavioral Health Manager; DR. SISNEROS; ANTOINETTE LUCERO; M. MIRELES and MARIO Z. OVIEDO, Defendants.

          Frances Crockett Carpenter Law Office of Frances Crockett Albuquerque, New Mexico Attorney for the Plaintiff.

          Lorri Krehbiel Chance A. Barnett Krehbiel & Barnett, P.C. Albuquerque, New Mexico Attorneys for Defendants Bradford Cambron and Randal Brown.

          Remo E. Gay, Jr. Brendan Patrick O'Reilly Remo E. Gay & Associates, P.C. Albuquerque, New Mexico Attorneys for Defendant Rob Kamermans.

          Neil R. Blake Quiana Aurelia Salazar-King Scott F. Stromberg Butt Thornton & Baehr, P.C. Albuquerque, New Mexico Attorneys for Defendants New Mexicare, Inc. and Antoinette Lucero.

          Michael S. Jahner April D. White Yenson, Allen & Wosick, P.C. Albuquerque, New Mexico Attorneys for Defendants The GEO Group, Inc., Vincent Horton, Christopher Aguilar, M. Mireles, and Mario Z. Oviedo.

          Nicole M. Charlebois Jessica Singer M. Clea Gutterson Joseph A. Turner Chapman and Charlebois, P.C. Albuquerque, New Mexico -- and -- Charles P. List Sharp Law Firm Albuquerque, New Mexico Attorneys for Defendants Corizon Health, Inc. and Dr. Sisneros.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's Opposed Motion for Leave of Court to Amend Complaint and File Plaintiff's Fourth Amended Complaint, filed November 15, 2016 (Doc. 98)(“Motion”). The Court held a hearing on January 18, 2017. The primary issue is whether the Court should allow Plaintiff Sophie Tavasci to file a Fourth Amended Complaint for Wrongful Death and Civil Rights Violations, filed November 15, 2016 (Doc. 98-1)(“Fourth Amended Complaint”), removing Vincent Horton as a named Defendant and adding Erasmo Bravo in his place, because Horton was not personally involved in the events giving rise to this litigation. In her proposed Fourth Amended Complaint, S. Tavasci purports to assert against Bravo: (i) a claim for constitutional deprivations under 42 U.S.C. § 1983, in his individual and official capacity; and (ii) a state-law negligence claim. The Court concludes, first, that S. Tavasci fails to state a plausible individual-capacity claim based on either a personal liability or supervisory liability theory, because the Fourth Amended Complaint does not allege that Bravo directly participated in any deprivation of constitutional rights and because it does not allege an “affirmative link” between Bravo's conduct and the alleged deprivation. As to the official-capacity claim, the Court concludes that the claim does not state a plausible right to relief, because it is redundant with S. Tavasci's official-capacity claim against Defendant The Geo Group d/b/a Guadalupe County Correctional Facility (“The Geo Group”), and because S. Tavasci can recover damages from The Geo Group alone. Last, the Court concludes that the proposed Fourth Amended Complaint, as pled, does not adduce sufficient factual allegations to state a negligence claim against Bravo, because it does not specifically allege that he breached any duty. Accordingly, because amendment is not warranted with respect to either claim, the Court will deny the Motion.

         FACTUAL BACKGROUND

         Since commencing this action, S. Tavasci has filed three amended complaints, including two in the Thirteenth Judicial District Court in Valencia County, New Mexico, see Tavasci v. Cambron, D-1314-CV-201600108, First Amended Complaint, filed March 31, 2016 (text-only-entry); Tavasci v. Cambron, D-1314-CV-201600108, Second Amended Complaint for Wrongful Death and Civil Rights Violations, filed April 28, 2016 (text-only-entry), filed May 20, 2016 (D.N.M. Doc. 1-A)(“Second Amended Complaint”), and one in federal district court after the Defendants removed the case, see Third Amended Complaint for Wrongful Death and Civil Rights Violations, filed October 11, 2016 (Doc. 57)(“Third Amended Complaint”). Because the Court denies S. Tavasci's request to file the Fourth Amended Complaint, the Third Amended Complaint remains the operative pleading. Accordingly, the Court takes it recitation of the facts from the Third Amended Complaint.

         The Court is mindful that S. Tavasci now maintains that the Third Amended Complaint's allegations against Horton are inaccurate, because Horton “was not the facility warden at the time of the events alleged . . . and was not personally involved in any of the events alleged [].” Motion at 2 (citation omitted). Horton remains a named Defendant, however, and S. Tavasci has not moved to dismiss her claims against him separate from her request to amend her complaint and replace Horton with Bravo. Accordingly, for clarity's sake and to ensure a comprehensive record, the Court recites the facts as the Third Amended Complaint articulates them, including the allegations against Horton.

         1. Overview of the Parties.

         S. Tavasci is the personal representative for the wrongful death claim of Daniel Tavasci, who died of hyperkalemia at age fifty-four on February 20, 2014. See Third Amended Complaint ¶ 1, at 1. Up until his death, D. Tavasci was incarcerated at the Guadalupe County Correctional Facility (“Guadalupe Correctional”) in Santa Rosa, New Mexico. See Third Amended Complaint ¶¶ 39-41, at 7. S. Tavasci brings eight claims against several individuals and entities involved in Guadalupe Correctional's operation, as well as in the provision of medical care to Guadalupe Correctional inmates, for their alleged negligent actions leading to D. Tavasci's death and for their mishandling of evidence after D. Tavasci's death. See Complaint ¶¶ 78-142, at 12-21.

         At all times material to this action, The Geo Group, a foreign corporation, privately operated and managed Guadalupe Correctional. See Third Amended Complaint ¶ 9, at 2. Defendant Corizon Health, Inc., also a foreign corporation, managed the medical facility at Guadalupe Correctional. See Third Amended Complaint ¶10, at 2. Horton was the warden in charge of facilities and operations at Guadalupe Correctional. See Third Amended Complaint ¶¶ 11-12, at 3. Either The Geo Group or Corizon Health employed Defendant Christopher Aguilar as a Behavioral Health Manager at Guadalupe Correctional. See Third Amended Complaint ¶¶ 13-14, at 3. Either The Geo Group or Corizon Health employed Defendant Dr. Sisneros as a doctor at Guadalupe Correctional. See Third Amended Complaint ¶¶ 15-16, at 3.

         Defendant New Mexicare, Inc. d/b/a Guadalupe County Hospital (“New Mexicare”), a domestic non-profit corporation, operates Guadalupe County Hospital (“Guadalupe Hospital”). See Third Amended Complaint ¶ 8, at 2. In February 2014, Guadalupe Hospital contracted with The Geo Group to provide healthcare to Guadalupe Correctional inmates. See Third Amended Complaint ¶ 17, at 3. Defendants Bradford Cambron, Rob Kamermans, and Randal Brown were employed as physicians at Guadalupe Hospital. See Third Amended Complaint ¶¶ 2-7, at 1-2. Defendant Antoinette Lucero worked as a nurse at Guadalupe Hospital. See Third Amended Complaint ¶¶ 18-19, at 3. The Geo Group employed Defendants M. Mireles and Mario Oviedo as officers at Guadalupe Correctional. See Complaint ¶¶ 20-23, at 4.

         2. Factual Allegations.

         During his incarceration at Guadalupe Correctional, D. Tavasci “suffered from a variety of medical conditions and was being treated with a variety of medications.” Third Amended Complaint ¶ 27, at 4. As recently as September 2012, despite his known “history of misconduct for medical drug abuse, ” D. Tavasci was “diagnosed with major depressive disorder and treated with Prozac.” Third Amended Complaint ¶ 28, at 4. D. Tavasci was also prescribed, and was permitted to keep in his cell, “a large number of medications, ” Third Amended Complaint ¶ 36, at 7, which could be used “to commit suicide or cause himself serious bodily harm, ” Third Amended Complaint ¶ 37, at 7. These included: (i) Potassium; (ii) Metformin; (iii) Zantac; (iv) Losartan; (v) Nitrogycerin; (vi) Neurontin; (vii) Clonidine; (viii) Docusate; (ix) Forosemide; (x) Furosemide; (xi) Glipizide; (xii) Ibuprofen; (xiii) Liprinosil; (xiv) an albuterol inhaler; (xv) Fiber Lax; (xvi) Lactulose; (xvii) Allopurinol; (xviii) Amlodipine; (xix) Ecotrin; (xx) Tenormin; (xxi) calcium; (xxii) Zantac; (xxiii) Zocor; and (xxiv) nasal spray. See Third Amended Complaint ¶¶ 29.a-x, at 4-5.

         On February 19, 2014, during a routine clinic visit, D. Tavasci was accused of “assaulting Dr. Sisneros by rising from his chair and ‘[swinging] his right hand . . . while holding a reading book.'” Third Amended Complaint ¶ 31, at 6 (alteration in original). Guadalupe Correctional behavioral staff member J. Yearley later evaluated D. Tavasci and determined that D. Tavasci was “agitated and depressed.” Third Amended Complaint ¶ 32, at 6. Dr. Sisneros signed the evaluation, and D. Tavasci was relocated from his cell in general population to a cell in segregation. See Third Amended Complaint ¶¶ 32-33, at 6. Because D. Tavasci had been in the hospital, a “Segregation Inmate Mental Health Examination” was not completed before his transfer, which is “contrary to policy.” Third Amended Complaint ¶ 34, at 6. Dr. Sisneros was aware, however, of D. Tavasci's “history of and treatment for major depression and medication drug abuse at the time Tavasci was placed into segregation.” Third Amended Complaint ¶ 35, at 6. Dr. Sisneros knew, moreover, that D. Tavasci kept in his cell numerous medications, mentioned above, which could be abused to inflict self-harm. See Third Amended Complaint ¶¶ 36-38, at 7. Despite Dr. Sisneros' knowledge of all this, D. Tavasci was permitted to keep his medications on his person while in segregation. See Third Amended Complaint ¶ 38, at 7.

         Early in the morning on February 20, 2014, after being placed in segregation, D. Tavasci “took a large number of medications that had been prescribed to him and that he had been allowed to keep on his person.” Third Amended Complaint ¶ 39, at 7. During an inmate count at around 5:00 a.m., Guadalupe Correctional officers discovered D. Tavasci's “motionless” body lying “face-down on his bunk.” Third Amended Complaint ¶ 40, at 7. The officers called for medical assistance, moved D. Tavasci to the infirmary unit, and arranged for medical transport to Guadalupe Hospital. See Third Amended Complaint ¶¶ 40-43, at 7. A subsequent inspection of D. Tavasci's cell revealed that “nearly all” of the blister packs[1] of medications kept therein were empty. Third Amended Complaint ¶¶ 44-46, at 8. Although the prison and infirmary staff knew of D. Tavasci's medical condition, and of the medications stored in his cell, they did not inform the emergency responders of a possible medication overdose. See Third Amended Complaint ¶¶ 47-48, at 8.

         An ambulance rushed D. Tavasci to Guadalupe Hospital at around 5:32 a.m. See Third Amended Complaint ¶ 43, at 7. On the way to the hospital, emergency responders administered oral glucose and glucagon IM. See Third Amended Complaint ¶ 49, at 8. At 6:30 a.m., nurse Lucero requested D. Tavasci's medical history from Guadalupe Correctional, and at 6:43 a.m., Dr. Cambron assumed care of D. Tavasci. See Third Amended Complaint ¶¶ 51-52, at 8. By 7:00 a.m., D. Tavasci had “regained consciousness and was combative” with Guadalupe Hospital and Guadalupe Correctional personnel. Third Amended Complaint ¶ 53, at 8. At around 7:13 a.m., The Geo Group or Corizon Health employees faxed D. Tavasci's medical records, including a list of prescriptions, to Guadalupe Hospital. See Third Amended Complaint ¶ 54, at 9. Dr. Brown, Dr. Cambron, and Dr. Kamermans promptly ordered laboratory tests. See Third Amended Complaint ¶ 54, at 9. Blood tests were performed at 7:13 a.m., and at 7:20 a.m., D. Tavasci was administered an EKG. See Third Amended Complaint ¶¶ 55-56, at 10. D. Tavasci was also given saline, glucagon, sodium chloride, and a catheter. See Third Amended Complaint ¶ 60, at 9.

         D. Tavasci's EKG returned “abnormal results.” Third Amended Complaint ¶ 56, at 9. His laboratory work was likewise atypical, revealing high potassium, sodium, blood urea nitrogen, and creatinine levels, as well as a wide anion gap and elevated white blood cell count. See Third Amended Complaint ¶¶ 57-58, at 9. In light of these results, notes in D. Tavasci's medical records indicate that Guadalupe Hospital “staff suspected or were aware of a possible overdose on medications that included metformin, potassium supplements, Zantac, and simvastatin . . . .” Third Amended Complaint ¶ 59, at 9. It was also apparent from D. Tavasci's laboratory work that “he was exhibiting signs of hyperkalemia (high potassium levels).” Third Amended Complaint ¶ 61, at 9. Nevertheless, Dr. Brown, Dr. Cambron, and Dr. Kamermans “did not change his treatment after receipt of the [] medical records, or after receipt of the lab test results showing high potassium, but continued to administer sodium chloride by IV, give saline and dextrose injection, and monitor his blood sugar closely.” Third Amended Complaint ¶ 62, at 10.

         At 8:47 a.m., Guadalupe Correctional officers informed Guadalupe Hospital staff that D. Tavasci “had admitted to taking a lot of pills.” Third Amended Complaint ¶ 63, at 10. Around the same time, officers Oviedo and Mireles began making arrangements to transport D. Tavasci from Guadalupe Hospital to a prison in Los Lunas. See Third Amended Complaint ¶ 64, at 10. As they assembled D. Tavasci's property from his cell, they “discovered a roll of toilet paper that had what appeared to be a written schedule of the officers' times for Unit checks as they were being performed.” Third Amended Complaint ¶ 65, at 10. In addition, they discovered a deodorant cap containing a small pill and some powder residue. See Third Amended Complaint ¶ 65, at 10. At Oviedo's instruction, Mireles discarded these items by flushing them down the toilet. See Third Amended Complaint ¶ 66, at 10.

         At 11:45 a.m., Guadalupe Hospital staff was notified that D. Tavasci was being relocated from Guadalupe Correctional to a different prison facility. See Third Amended Complaint ¶ 69, at 11. Shortly thereafter, at around 12:03 p.m., nurse Lucero observed that D. Tavasci was “irritable.” Third Amended Complaint ¶ 67, at 10. Upon discovering that D. Tavasci's blood pressure was very low, nurse Lucero placed him in the “Trendelenburg” position and under Dr. Kamermans' care. Third Amended Complaint ¶¶ 68-69, at 10-11. At 12:15 p.m., D. Tavasci's “breathing became agonal and he lost consciousness . . . .” Third Amended Complaint ¶ 70, at 11. Guadalupe Hospital staff promptly “intubated Tavasci, administered epinephrine, and performed CPR.” Complaint ¶ 71, at 11. These efforts were unsuccessful, however, and at 12:43 p.m., Dr. Kamermans declared D. Tavasci dead. See Third Amended Complaint ¶ 72, at 11. An autopsy later confirmed that D. Tavasci died from hyperkalemia, and that he “had twenty-one potassium pills in his stomach and two potassium pills in his esophagus, for a total of twenty-three undissolved potassium pills.” Third Amended Complaint ¶ 75, at 12.

         PROCEDURAL BACKGROUND

         S. Tavasci commenced this action in the Thirteenth Judicial District Court, Valencia County, New Mexico, on February 17, 2016. See Tavasci v. Cambron, D-1314-CV-201600108, Complaint for Personal Injury and Civil Rights Violations, filed February 17, 2016 (text-only-entry). While in New Mexico state court, S. Tavasci filed two amended complaints on March 31, 2016, and April 28, 2016, respectively. S. Tavasci's Second Amended Complaint asserted nine causes of action, including: (i) five negligence claims, one each against, individually, Dr. Kamermans, Dr. Cambron, Dr. Brown, Lucero, and Guadalupe Hospital (Counts I-V), see Second Amended Complaint ¶¶ 80-115, at 13-18; (ii) a 42 U.S.C. § 1983 claim for failure to provide medical care and treatment in violation of the Eighth Amendment to the Constitution of the United States of America against The Geo Group, Corizon Health, Horton, Aguilar, and Dr. Sisneros (Count VI), see Second Amended Complaint ¶¶ 116-127, at 18-19; (iii) a state law claim for negligent care and treatment against the same Defendants (Count VII), see Second Amended Complaint ¶¶ 128-135, at 19-20; (iv) a spoliation of evidence claim against Oviedo and Mireles (Count VIII), see Second Amended Complaint ¶¶ 136-142, at 20-21; and (v) a discriminatory treatment claim under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), against The Geo Group and Corizon Health (Count IX), see Second Amended Complaint ¶¶ 143-153, at 21-23. S. Tavasci sought damages for D. Tavasci's death and for the “physical and mental injuries he sustained prior to his death as the result of the medical negligence and inadequate medical treatment he received from named Defendants.” Second Amended Complaint ¶ 78, at 12.

         On May 20, 2016, Corizon Health and Dr. Sisneros removed the case to federal district court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. See Notice of Removal at 1, filed May 20, 2016 (Doc. 1). Shortly thereafter, on July 19, 2016, Corizon Health and Dr. Sisneros moved to dismiss Count IX under rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cognizable claim under the ADA. See Defendant Corizon and Dr. Sisneros' Motion to Dismiss ADA Claims for Failure to State a Claim Upon Which Relief Can be Granted at 1, filed July 19, 2016 (Doc. 38)(“MTD”). Corizon Health and Dr. Sisneros principally argued that the ADA does not apply to private corporations that operate prisons or to their contractors, because private companies are not “public entities” and because contractor-employees are not “employers” as the ADA defines those terms. MTD at 3 (relying on Phillips v. Tiona, 508 F. App'x 737, 748 (10th Cir. 2013)). The Court agreed with this reasoning and dismissed S. Tavasci's ADA Title II claim on October 25, 2016. See Memorandum Opinion and Order at 41, filed October 25, 2016 (Doc. 77).

         On September 30, 2016, anticipating that the Court would dismiss her ADA Title II claim, S. Tavasci filed an unopposed motion to file a Third Amended Complaint “removing her ADA claims in their entirety as well as adding additional factual support for her Counts Six and Seven . . . .” Unopposed Motion for Leave of Court to Amend Complaint and File Plaintiff's Third Amended Complaint at 2, filed September 30, 2016 (Doc. 53). With these alterations, the Third Amended Complaint asserts the following eight causes of action: (i) five negligence claims, one each against, individually, Dr. Kamermans, Dr. Cambron, Dr. Brown, Lucero, and Guadalupe Hospital (Counts I-V), see Third Amended Complaint ¶¶ 78-113, at 12-17; (ii) a 42 U.S.C. § 1983 claim for Eight Amendment violations against The Geo Group, Corizon Health, Horton, Aguilar, and Dr. Sisneros (Count VI), see Third Amended Complaint ¶¶ 114-126, at 17-18; (iii) a state law claim for negligent care and treatment against the same Defendants (Count VII), see Third Amended Complaint ¶¶ 127-135, at 19-20; and (iv) a spoliation of evidence claim against Oviedo and Mireles (Count VIII), see Third Amended Complaint ¶¶ 136-142, at 20-21. The Court granted S. Tavasci's request to file the Third Amended Complaint on October 11, 2016. See Order at 1, filed October 11, 2016 (Doc. 56).

         S. Tavasci now requests authorization to file a Fourth Amended Complaint. The Court thus turns its attention to S. Tavasci's Motion and its responsive briefings.

         1. The Motion to Amend.

         S. Tavasci moved to file a Fourth Amended Complaint on November 15, 2016. See Motion at 1. S. Tavasci notes that rule 1-015(A) NMRA[2] permits amendment “‘only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.'” Motion at 2 (quoting rule 1-015(A) NRMA). S. Tavasci avers that leave to amend “should be freely granted ‘[i]n the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive . . . [or] undue prejudice . . . .'” Motion at 2 (alterations in Motion)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Here, S. Tavasci notes, the Third Amended Complaint improperly names Horton as a Defendant, despite that Horton “was not the facility warden at the time of the events alleged . . . and was not personally involved in any of the events alleged [].” Motion at 2 (citing Amended Joint Status Report and Provisional Discovery Plan at 8, filed October 25, 2016 (Doc. 78)). S. Tavasci notes that, instead, “the Warden at the time of the incident was Erasmo Bravo.” Motion at 2. S. Tavasci therefore requests permission to file a Fourth Amended Complaint, “removing Vincent Horton and adding Erasmo Bravo . . . .” Motion at 2.

         S. Tavasci's proposed Fourth Amended Complaint, which she attaches to the Motion, makes three allegations specifically regarding Bravo. First, it alleges that, “[u]pon information and belief, Defendant Erasmo Bravo (hereinafter ‘Defendant Bravo') is a resident of Guadalupe County, New Mexico.” Fourth Amended Complaint ¶ 11, at 3. Second, it alleges that, “[a]t all times material here to [sic] Defendant Bravo was the warden in charge of GCCF's facilities and operations.” Fourth Amended Complaint ¶ 12, at 3. Third, it alleges that “[u]pon information and belief Defendants GEO/GCCF, Corizon, Bravo, Aguilar, Dr. Sisneros, Lucero, Mireles, and Oviedo failed to make reasonable accommodations to ensure the safe treatment, housing, discipline, and transportation of a physically and mentally disabled individual suffering from qualifying disabilities.” Fourth Amended Complaint ¶ 30, at 6. The Fourth Amended Complaint names Bravo as a Defendant in two Counts: (i) Count VI, i.e., S. Tavasci's § 1983 claim for failure to provide medical care and treatment, in violation of the Eighth Amendment, see Fourth Amended Complaint ¶¶ 114-126, at 17-19; and (ii) Count VII, i.e., S. Tavasci's state law claim for negligent care and treatment, see Fourth Amended Complaint ¶¶ 127-135, at 19-20.

         2. The Motion to Amend Response.

         The Geo Group, Horton, Aguilar, Mireles, and Oviedo (the “Geo Defendants”) responded on November 29, 2016. See Geo Defendants' Response in Opposition to Plaintiff's Motion for Leave to File a Fourth Amended Complaint at 1, filed November 29, 2016 (Doc. 111)(“Response”). The Geo Defendants contend that the Court should deny the Motion, because “the amendment would be futile.” Response at 2 (citing Foman v. Davis, 371 U.S. at 182). According to the Geo Defendants, “‘[a] proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason, including that the amendment would not survive a motion for summary judgment.'” Response at 2 (quoting Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001)). Here, the Geo Defendants argue, S. Tavasci's “Fourth Amended Complaint . . . does not state a plausible claim for relief against Bravo and would not survive a motion to dismiss under Rule 12(b)(6).” Response at 2.

         First, the Geo Defendants argue that the Fourth Amended Complaint asserts the same claims against Bravo in his official capacity as it asserts against The Geo Group, thus rendering the claims against Bravo “duplicative . . ., [] redundant and, ultimately, unnecessary.” Response at 2 (citing Vondrak v. City of Las Cruces, 2009 WL 1300945, at *2 n.1 (D.N.M. 2009)(Browning, J.)). The Geo Defendants contend that S. Tavasci's official-capacity claims against Bravo would not survive a motion to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure, because “a § 1983 claim ‘lies against either a municipality or the officers in their individual capacity -- not against both the municipality and the officers in their official capacity.'” Response at 2 (quoting Vondrak v. City of Las Cruces, 2009 WL 1300945, at *2 n.1).

         Second, the Geo Defendants assert that the Fourth Amended Complaint fails to state a claim against Bravo in his individual capacity. See Response at 3. The Geo Defendants note that § 1983 “does not authorize a court to impose liability against any state actor under a theory of respondeat superior” and contend that, consequently, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Response at 3 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)(“Iqbal”))(internal quotation marks omitted). Here, the Geo Defendants argue, the Fourth Amended Complaint “does not plead facts from which the Court may reasonably infer Bravo through his own individual actions, has violated the Constitution, ” because it “does not plausibly allege facts to suggest that Bravo had actual knowledge of Mr. Tavasci's individual risk of suicide.” Response at 4 (citing Iqbal, 556 U.S. at 676)(brackets and internal quotation marks omitted). Likewise, the Geo Defendants contend, the Fourth Amended Complaint “fails to plausibly allege Bravo was a policymaker” with respect to medical services at Guadalupe Correctional, because it does not allege that “Bravo promulgated, created, or possessed responsibility” for those policies. Response at 5 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)(“Twombly”)).

         Third, the Geo Defendants argue that the Fourth Amended Complaint “contains insufficient factual allegations to support a plausible negligence claim against Bravo.” Response at 5. The Geo Defendants note that the Fourth Amended Complaint's only “substantive allegations . . . are that Bravo was the warden of the GCCF at the time of Tavasci's death and that Bravo failed to make reasonable accommodations to ensure the safe treatment, housing, discipline, and transportation of a physically and mentally disabled individual suffering from qualifying disabilities.” Response at 5 (citing Fourth Amended Complaint ¶ 12, at 3; id. ¶ 30, at 6)(internal quotation marks omitted). The Geo Defendants conclude that these allegations would not survive a motion to dismiss, because they do “not identify with any degree of specificity how Bravo is alleged to have breached any duty that was owed to Mr. Tavasci.” Response at 5-6.

         3. The Motion to Amend Reply.

         S. Tavasci replied on December 16, 2016. See Reply to Defendants' Response to Plaintiff's Opposed Motion for Leave of Court to Amend Complaint and File Plaintiff's Fourth Amended Complaint at 1, filed December 16, 2016 (Doc. 123)(“Reply”). The Reply opens by adducing more comprehensive allegations regarding Bravo's involvement in the events giving rise to this litigation. See Reply at 1-4. S. Tavasci says that Guadalupe Correctional had a policy “to not allow any [keep-on-person (“KOP”)] medications if there has [sic] been any prior abuses of the KOP policy.” Reply at 1 (citing Management of Pharmacies/Pharmaceuticals at Adult Facilities Policy CD-171600, filed December 16, 2016 (Doc. 123-1A); New Mexico Corrections Department Disciplinary Decision, filed December 16, 2016 (Doc. 123-1B)). S. Tavasci asserts that, despite documented abuses of this policy, Bravo approved an inmate personal medications policy which allowed D. Tavasci “to keep the medications on his person.” Reply at 2 (citing General Health Services Policy & Procedure” at 1, filed December 16, 2016 (Doc. 123-1C)). S. Tavasci also says that, when Guadalupe Correctional medical staff tried to obtain information about D. Tavasci's KOP medications after he was found unresponsive, Bravo blocked their request and designated D. Tavasci's “cell and its contents [as] off limits until [he] and police arrived, as it was a crime scene.” Reply at 2 (citing Memorandum Regarding Inmate Danny Tavasci #73595 at 1, filed December 16, 2016 (Doc. 123-1E)). Moreover, S. Tavasci alleges that Mireles and Oviedo “took direct orders from Warden Bravo” when they discarded evidence that they discovered in D. Tavasci's cell. Reply at 2-3. Indeed, S. Tavasci argues, “Bravo was in contact with GCCF staff during the entire event, and in fact went to the hospital personally[.]” Reply at 4. S. Tavasci concludes that, in light of these allegations, her proposed amendments “assert claims that arose out of the conduct and occurrence which was set out or attempted to be set out in the original complaint . . . .” Reply at 3.[3]

         Turning to her legal argument, S. Tavasci contends that the Geo Defendants improperly seek to use the Response as a rule 12(b)(6) motion to dismiss, without ever filing such a motion. See Reply at 5. S. Tavasci stresses that the proper standard for evaluating a motion to amend is whether “the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief[.]” Reply at 5 (quoting Foman v. Davis, 371 U.S. at 182). S. Tavasci argues, moreover, that rule 15 of the Federal Rules of Civil Procedure permits amendment if such amendment (i) “asserts a claim or defense that arose of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading”; or (ii) “changes the party . . . against whom a claim is asserted . . . .” Reply at 5 (quoting Fed.R.Civ.P. 15(c)(1)(B) and (C)). The Fourth Amended Complaint satisfies these requirements, S. Tavasci avers, because it changes a party and “incorporates and adopts by reference all the facts and allegations” for each claim asserted against that party. Reply at 5. Thus, S. Tavasci asserts, “there is no lack of specific, non-speculative factual allegations against Erasmo Bravo.” Reply at 5 (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). To the contrary, S. Tavasci reasons, the Fourth Amended Complaint alleges “personal involvement” and “facts sufficient to establish an official capacity claim, i.e., that ‘the entity's policy or custom played a part in the violation of federal law.'” Reply at 5-6 (quoting Hafer v. Melo, 502 U.S. at 25)(internal quotation marks and citation omitted in Reply). See Reply at 5 (“[Bravo] is being sued in his individual and official capacity.”).

         Next, S. Tavasci contends that “the sweeping application of Iqbal urged by Defendants, that superiors and supervisors are essentially immune from suit for the activities of their subordinates, has been soundly rejected by [] many Circuits including the Tenth Circuit . . . and should be soundly rejected once more by this Court.” Reply at 6-7 (relying on Dodds v. Richardson, 614 F.3d 1185 S. Tavasci further notes that Bravo was involved in a 2012 action that the Environmental Protection Agency brought against Guadalupe Correctional for dumping raw sewage into the Pecos River. See Reply at 4. Again, the relevance of that action to the present Motion escapes the Court. (10th Cir. 2010)(footnote omitted). S. Tavasci reasons that “[n]ot only can Bravo be held personally liable despite not being on the scene when Mr. Tavasci died, but he can also be held liable for failure to discipline, train, and supervise.” Reply at 7 (citing, among others, Curry v. Scott, 249 F.3d 493, 507-08 (6th Cir. 2001), overruled in part by Jones v. Bock, 549 U.S. 199 (2007)). According to S. Tavasci, “[t]he federal circuits have reached a clear and unanimous agreement that under 42 USC § 1983 and Bivens[4], a supervisory government official could be held liable for his or her failure to train or supervise.” Reply at 10 (citing, among others, Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005)). Further, S. Tavasci posits that “Courts have held that the Supreme Court's decision in Rizzo v. Goode, 423 U.S. 362 (1976), authorized failure-to-act-type supervisory liability.” Reply at 10 (citing Haynesworth v. Miller, 820 F.2d 1245, 1260-62 (D.C. Cir. 1987), overruled in part by Hartman v. Moore, 547 U.S. 250 (2006)). S. Tavasci contends that the Court, “[a]pplying Rizzo as well as Dodds, . . . should hold . . . that, ‘[w]hen inaction in the face of a substantial threat of harm is shown, it can be said that the supervisor acquiesced in the resulting constitutional violation, thereby linking the non-feasance with the injury in the manner required by Rizzo.'” Reply at 10 (quoting Haynesworth v. Miller, 820 F.2d at 1261)(second alteration in Reply)(some internal quotation marks omitted).

         S. Tavasci asserts, moreover, that Iqbal “did not overturn this circuit's case law regarding supervisory liability under a failure-to-train theory.” Reply at 11. S. Tavasci explains that Iqbal rejected the argument that “supervisory defendants could be held liable based on the discriminatory purpose of their subordinates combined with their ‘mere knowledge of [the] subordinate's discriminatory purpose[.]'” Reply at 11 (quoting Iqbal, 556 U.S. at 677)(alterations in Reply). S. Tavasci posits that the Supreme Court rejected this argument, “because Bivens only imposes liability for one's own misconduct, and ‘purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination, '” meaning that “the same must hold true ‘for an official charged with violations arising from his or her superintendent responsibilities.'” Reply at 11 (quoting Iqbal, 556 U.S. at 677). S. Tavasci concludes that “Iqbal's claims failed because he did not demonstrate that the supervisory defendants had a discriminatory purpose.” Reply at 11.

         To illustrate her point, S. Tavasci argues that “[i]t is important to recognize what the Iqbal Court did not do.” Reply at 11. S. Tavasci asserts that Iqbal “did not purport to overturn Rizzo and did not claim that supervisors were immune from liability for their own unconstitutional conduct.” Reply at 11 (emphases in original). Rather, S. Tavasci contends, “[t]he majority simply observed that what has come to be known as supervisory liability is technically a ‘misnomer' because there is no vicarious liability in Bivens actions.” Reply at 11-12 (citing Iqbal, 556 U.S. at 677). As a result, S. Tavasci contends that, “where the underlying constitutional claim requires a plaintiff to plead that a defendant had a particular state of mind, the plaintiff must so plead, even if the defendant is a supervisor.” Reply at 12. S. Tavasci concludes that “[n]othing in Iqbal suggests [] that ‘knowledge and acquiescence' is insufficient where the underlying constitutional claim does not require a defendant to have an unconstitutional purpose or state of mind.” Reply at 12.

         4. The Hearing.

         The Court held a hearing on January 18, 2017. See Draft Transcript of Motion Hearing (taken January 18, 2017)(“Tr.”).[5] S. Tavasci began argument by asserting that “the law is clear in this Circuit” that a complaint can be dismissed only if it “does not meet [the] standards of rule 8(a) [of the Federal Rules of Civil Procedure].” Tr. at 3:7-12 (Carpenter). S. Tavasci explained that rule 8(a) “does not impose a probability requirement at the pleading stage”; rather, she argued, “it simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence to support the allegations . . . .” Tr. at 3:14-18 (Carpenter)(relying on Twombly, 550 U.S. at 556). S. Tavasci asserted that the proposed Fourth Amended Complaint satisfies this standard. See Tr. at 3:18-19 (Carpenter).

         The Court inquired what S. Tavasci achieves by suing Bravo in his official capacity. See Tr. at 4:14-15 (Carpenter). In response, S. Tavasci likened the official-capacity claim to a Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)(“Monell”), claim, contending that Bravo, “in endorsing and authorizing policies and procedures, was deliberately indifferent in enforcing said policies and procedures.” Tr. at 4:16-20 (Carpenter). S. Tavasci reasoned, moreover, that Bravo “ratified the conduct of many of the [officers], who not only destroyed evidence in this case, but failed to provide adequate measures to ensure information was conveyed to the hospital and to others regarding Mr. Tavasci, and what was found in Mr. Tavasci's cell.” Tr. at 4:20-5:1 (Carpenter). The Court interposed and pressed S. Tavasci to identify what the official-capacity claim against Bravo achieves when she also asserts the same claim against The Geo Group. See Tr. at 5:3-11 (Court, Carpenter). S. Tavasci replied that Bravo likely will need to be deposed under rule 30(b)(6) of the Federal Rules of Civil Procedure regarding his knowledge of The Geo Group's policies and procedures, and argued that, accordingly, it is efficient to sue him in his official capacity. See Tr. at 5:21-6:12 (Carpenter). The Court expressed skepticism at this reasoning, noting that S. Tavasci can depose Bravo regardless whether she sues him in his official capacity. See Tr. at 6:13-17 (Court).

         In rejoinder, S. Tavasci argued that the Fourth Amended Complaint also asserts supervisory liability claims under § 1983 against Bravo in his personal capacity. See Tr. at 7:20-23 (Carpenter). S. Tavasci contended that such claims remain viable under § 1983 after Twombly and Iqbal, despite the Geo Defendants' arguments to the contrary. See Tr. at 7:23-8:5 (Carpenter). Section 1983, S. Tavasci reasoned, does not require personal involvement in the deprivation of a constitutional right for one to be held personally liable for such a deprivation. See Tr. at 8:12-9:18 (Carpenter)(relying on Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011); Dodds v. Richardson)). Here, S. Tavasci asserted, Guadalupe Correctional's warden is bound to “honor all policies and procedures of the New Mexico corrections department, to wit:[] the warden is responsible for . . . [a]ll activities within the facility.” Tr. at 9:20-10:2 (Carpenter). Thus, S. Tavasci argued, Bravo, as the warden in charge of operations at the time of D. Tavasci's death, is personally liable for constitutional deprivations that occurred at Guadalupe Correctional under his watch. See Tr. at 10:3-7 (Carpenter). S. Tavasci added, however, that her supervisory liability claim is not a vicarious liability claim; she conceded that vicarious liability claims are not viable under § 1983. See Tr. at 10:23-11:3 (Carpenter).

         The Court interjected and observed that Count VI, i.e., S. Tavasci's § 1983 claim, does not mention “supervisory liability in the caption or [in] any allegation in that count.” Tr. at 11:10-13 (Court). In response, S. Tavasci asserted that Count VI alleges supervisory liability by alleging that Guadalupe Correctional “had a custom policy or practice of act[ing] knowingly and with deliberate indifference in denying obviously necessary medications, medical services.” Tr. at 11:25-12:4 (Carpenter). The Court noted, however, that these allegations tend to support a Monell claim and not a supervisory liability claim, because they posit that “all the defendants . . . knowingly did what they did, rather than it being a failure to supervise.” Tr. at 12:5-13 (Court). S. Tavasci countered that, in her view, it is immaterial whether a claim “specifically state[s]” that it is asserted against a defendant in a supervisory capacity. Tr. at 12:14-21 (Carpenter).

         For clarity, S. Tavasci distinguished between the conduct giving rise to her official-capacity and personal-capacity claims against Bravo. See Tr. at 13:14-24 (Carpenter). S. Tavasci argued that Bravo has official-capacity liability for signing off on policies at Guadalupe Correctional and that he has personal-capacity liability for failing to properly implement those policies. See Tr. at 13:14-24 (Carpenter). As an example, S. Tavasci argued that Bravo is liable -- officially and personally -- for Guadalupe Correctional's keep-on-person medications policy, which, S. Tavasci asserted, was not properly implemented with respect to D. Tavasci. See Tr. at 14:2-15:13 (Carpenter). Likewise, S. Tavasci argued that Bravo is liable for preventing Guadalupe Correctional officers from transmitting information to Guadalupe Hospital regarding D. Tavasci's medications. See Tr. at 16:5-17:4 (Carpenter).

         S. Tavasci then turned to address the Geo Defendants' arguments regarding the sufficiency of the Fourth Amended Complaint's allegations against Bravo. See Tr. at 18:8 (Carpenter). S. Tavasci noted that the Fourth Amended Complaint purports to incorporate all factual allegations into each count, and argued that each count need not “recite every single fact against every single defendant.” Tr. at 18:8-21 (Carpenter, Court). The Court interjected and observed that paragraph 30 -- which alleges that Bravo failed to make reasonable accommodations -- contains the only allegation that specifically mentions Bravo. See Tr. at 19:16-19 (Court). S. Tavasci responded that, in her view, rule 8(a) does not require a plaintiff to specifically allege “who is responsible for each fact.” Tr. at 19:20-20:1 (Carpenter). S. Tavasci allowed, however, that a complaint cannot rely exclusively on generic allegations. See Tr. at 20:2-4 (Court, Tavasci). Nevertheless, when the Court pressed S. Tavasci to identify specific allegations about Bravo's failure to make reasonable ...


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