United States District Court, D. New Mexico
SOPHIE TAVASCI, as Personal Representative of the Wrongful Death Claim of DANIEL TAVASCI, Deceased, Plaintiff,
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.
Krehbiel Chance A. Barnett Krehbiel & Barnett, P.C.
Albuquerque, New Mexico Attorneys for Defendants Bradford
Cambron and Randal Brown.
E. Gay, Jr. Brendan Patrick O'Reilly Remo E. Gay &
Associates, P.C. Albuquerque, New Mexico Attorneys for
Defendant Rob Kamermans.
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.
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.
MEMORANDUM OPINION AND ORDER
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.
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.
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.
Overview of the Parties.
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.
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.
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.
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.
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.
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 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.
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
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.
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.
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.
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.
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).
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).
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.
The Motion to Amend.
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 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.
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.
The Motion to Amend Response.
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.
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
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”)).
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.
The Motion to Amend Reply.
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.
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.”).
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, 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).
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.
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
Court held a hearing on January 18, 2017. See Draft
Transcript of Motion Hearing (taken January 18,
2017)(“Tr.”). 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
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).
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).
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).
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
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 ...