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Diab v. Doe

United States District Court, D. New Mexico

June 6, 2017

RICHARD DIAB, Plaintiff,
v.
JOHN DOE, NEW MEXICO DEPARTMENT OF CORRECTIONS, FNU BACA, KEN SMITH, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court, sua sponte under 28 U.S.C. §§ 1915(e)(2) and 1915A, on Plaintiff Richard Diab's Prisoner's Civil Rights Complaint and Amended Complaint. [Docs. 1, 7] Also before the Court are the following motions filed by Plaintiff: (1) two motions to amend the complaint to substitute Sergeant Westerfield for the John Doe defendant [Docs. 6, 14]; (2) six motions to enter evidence [Docs. 17, 18, 19, 32, 38, 45], (3) a motion for summary judgment [Doc. 44]; and (4) a motion for a status hearing [Doc. 46]. Plaintiff was incarcerated at the time of filing, appears pro se, and is proceeding in forma pauperis. For the reasons explained below, Plaintiff's motions to amend the complaint [Docs. 6, 14] will be denied as moot, Plaintiff's motions to enter evidence [Docs. 17, 18, 19, 32, 38, 45] will be denied, Plaintiff's motion for summary judgment [Doc. 44] will be denied, and Plaintiff's motion for a status hearing [Doc. 46] will be denied. Furthermore, Plaintiff's § 1983 claims against Defendants New Mexico Department of Corrections and Central New Mexico Correctional Facility (CNMCF) will be dismissed with prejudice and the Court will direct notice and waiver of service forms to be sent to Defendants Westerfield, Baca, and Smith.

         I. BACKGROUND

         On September 7, 2016, Plaintiff filed a Prisoner Civil Rights Complaint against Defendants John Doe, New Mexico Department of Corrections, and Correctional Officer Baca. Plaintiff's complaint alleges that the housing conditions at CNMCF are unsanitary and inhumane, in violation of Plaintiff's right to be free from cruel and unusual punishment. [Doc. 1] Specifically, Plaintiff alleges that on the night of August 18, 2016 into the morning of August 19, 2016, he was forced to sleep on a bug-infested mattress, causing him to sustain swelling, pain, itching, and redness in his lower stomach and genital area due to bug bites. When Plaintiff complained about his bug-infested mattress, John Doe, a correctional officer at CNMCF, brought him a different mattress and threw his bug-infested mattress outside in a pile of pigeon droppings. Plaintiff was upset because he had just covered his bug-infested mattress with clean sheets and a clean blanket. Defendant Doe then removed the other mattress and told Plaintiff to sleep on the metal plank without a mattress. Approximately three hours later, Defendant Baca instructed Plaintiff to retrieve his bug-infested mattress from outside. Plaintiff was not provided with cleaning supplies or clean sheets, but instead was forced to sleep on the bug-infested-pigeon-dropping-covered mattress for seven days, until he was able to send his sheets and blanket to the laundry. Additionally, Plaintiff was deprived of medical attention for his bug bites until August 23, 2016, despite multiple sick call requests. Finally, Plaintiff alleges that during his incarceration at CNMCF he was forced to share a toilet with twenty other inmates and that the toilet was programmed to flush only once every hour, thus exposing him to the liquid and solid waste of other inmates. Plaintiff's complaint seeks compensatory and punitive damages. [Doc. 1 at 14]

         On September 19, 2016, Plaintiff filed a motion to amend his complaint to substitute Sergeant Westerfield for the John Doe defendant. [Doc. 6] On that same date, Plaintiff filed an amended complaint against Defendants CNMCF and Ken Smith, Warden of CNMCF. [Doc. 7] Plaintiff's amended complaint, like his original complaint, alleges that the housing conditions at CNMCF are unsanitary and inhumane, in violation of Plaintiff's right to be free from cruel and unusual punishment. [Doc. 7] Plaintiff's amended complaint focuses on the unsanitary toilet that he was forced to share with twenty other inmates, but also mentions that “many inmates are exposed to mattress with bugs which have bitten them.” [Doc. 7 at 2] In his amended complaint Plaintiff requests compensatory and punitive damages. Attached to Plaintiff's amended complaint is a letter from the medical director of CNMCF regarding the risk of infection from an unsanitary toilet, Plaintiff's informal complaint and grievance, and the responses to his informal complaint and grievance.

         On October 3, 2016, Plaintiff filed a document entitled “Notice of Effects, ” informing the Court that he has developed a rash on his buttocks due to the unsanitary toilet that he was forced to share with twenty other inmates. [Doc. 13 at 1] In his notice, Plaintiff alleges that he has been deprived of medical care for his rash, despite submitting multiple sick call requests. [Doc. 13] On October 3, 2016, Plaintiff also filed a document entitled “Request to the Court, ” again asking the Court to substitute Sergeant Westerfield for the John Doe defendant. [Doc. 14]

         On October 13, 2016, Plaintiff filed three motions to enter evidence. [Docs. 17, 18, 19] Plaintiff's first motion asks the Court to consider additional evidence of the unsanitary and inhumane living conditions at CNMCF. [Doc. 17] Specifically, Plaintiff alleges that he was transferred to a different facility for seven days and, upon his return to CNMCF, he was assigned to a “dirty smelly cell full of dirt, and the toilet was disgusting” because it had not been flushed or cleaned. [Doc. 17 at 2] Plaintiff further alleges that he had “to stay in that dirty cell, with a dirty toilet and a dirty floor” for three days, until he was provided with cleaning supplies. [Doc. 17 at 2] Lastly, Plaintiff alleges that the inmates' food sits outside for thirty to forty-five minutes, exposed to bird droppings, and that inmates are not provided with utensils for every meal, so they have to retrieve them from trash cans or reuse them. [Doc. 17 at 3]

         Plaintiff's second motion to enter evidence provides the Court with evidence that Plaintiff “tried to notify the defendant about the conditions before filing this complaint.” [Doc. 18] Attached to Plaintiff's motion is a letter from Plaintiff to Defendant Smith regarding the living conditions at CNMCF, Plaintiff's inmate grievance, and the response to Plaintiff's inmate grievance. [Doc. 18]

         Plaintiff's third motion to enter evidence, like his second motion, provides evidence that he notified “the staff of the housing conditions” at CNMCF and the “high risk of getting infections [and] life threatening diseases.” [Doc. 19] Attached to Plaintiff's motion is Plaintiff's informal complaint, Plaintiff's inmate grievance, the results of an investigation into Plaintiff's informal complaint, the denial of Plaintiff's inmate grievance, and Plaintiff's rebuttal to the denials of his informal complaint and grievance. [Doc. 19]

         In addition to these three motions to enter evidence, Plaintiff filed four other motions to enter evidence on October 17, 2016, November 7, 2016, November 28, 2016, and January 23, 2017. [Docs. 23, 32, 38, 46] Plaintiff's October 17, 2016 motion asks the Court to consider “ongoing abuse” of inmates caused by a flood that occurred at CNMCF on October 8, 2017 through October 9, 2017. [Doc. 23] Specifically, Plaintiff alleges that three pods in CNMCF were flooded with “a few inches of water” and the inmates were forced to mop up the water with their towels, blankets, and sheets. [Doc. 23]

         Plaintiff's November 7, 2016 motion asks the Court to consider two letters, one from Attorney Kelly K. Waterfall and one from Attorney Peter Cubra, regarding the housing conditions at CNMCF. [Doc. 32] Plaintiff's November 28, 2016 motion reiterates the facts set forth in his complaint and amended complaint and asks the Court to consider narratives signed by other inmates regarding the unsanitary housing conditions at CNMCF and letters from Plaintiff to Attorneys Waterfall and Cubra detailing the unsanitary housing conditions at CNMCF. Plaintiff's final motion to enter evidence, filed on January 23, 2017, asks the Court to consider photographs of a fungal infection on Plaintiff's toes, allegedly caused by the unsanitary housing conditions at CNMCF. [Doc. 45]

         In addition to his motions to enter evidence, Plaintiff has filed three Narratives, which reiterate, clarify, and expound upon the factual allegations in his complaint and amended complaint. [Docs. 26, 27, 43] Plaintiff also has filed multiple certificates of service, reflecting that he has mailed requests for admission and interrogatories to Defendants. [Docs. 22, 25, 29, 30] Plaintiff asks the Court to order Defendants to file responses to his requests for admission and interrogatories. [Docs. 22, 25, 29, 30]

         On January 10, 2017, Plaintiff filed a motion for summary judgment asking the court to enter judgment in his favor. [Doc. 44] Lastly, on March 17, 2017, Plaintiff filed a motion requesting a status hearing and an evidentiary hearing. [Doc. 46]

         II. DISCUSSION

         As a preliminary matter, the Court must identify the operative pleading and fulfill its statutory obligation to screen the operative pleading pursuant to 28 U.S.C. §§ 1915(e) and 1915A. The Court will also ...


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