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Ellis v. Franco

United States District Court, D. New Mexico

July 12, 2017

GENE GILBERT ELLIS, Plaintiff,
v.
GERMAN FRANCO, VINCE VIGIL, ALISHA TAFOYA-LUCERO, COLLEEN MCCARNEY, and HECTOR CARDENAS, Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER came before the Court on Defendants' Supplemental Martinez Report (Doc. 69), filed December 30, 2016. Also before the Court are Plaintiff's most recent Motions to supplement and amend the Complaint. See Docs. 83, 85, 87. The Honorable Judith C. Herrera referred this matter to me on September 29, 2015, “to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case.” Doc. 6 at 1. In my Order requiring the filing of the Supplemental Martinez Report, I informed the parties that the Report “may be used in a variety of contexts, including motion for summary judgment or sua sponte entry of summary judgment.” Doc. 62 at 2. For the reasons that follow, the Court recommends that Plaintiff's most recent motions to amend and supplement the Complaint be denied, summary judgment be entered in Defendants' favor, and that this action be dismissed with prejudice.

         I. Background [1]

         Plaintiff is a convicted sex offender who was sentenced to 43 years in the custody of the New Mexico Corrections Department on or about June 20, 2013.[2] On January 6, 2015, Plaintiff was transferred into the Penitentiary of New Mexico (“PNM”) from the Guadalupe County Correctional Facility (“GCCF”). Doc. 69-69 at 2.[3] Plaintiff remained at PNM until January 27, 2016, when he was transferred to the Southern New Mexico Correctional Facility. Doc. 69-69 at 2.

         Throughout his stay at PNM, Plaintiff asserted that he was not safe because of his status as a sex offender. Doc. 69-78 at 3. Plaintiff further claimed that he had enemies at PNM. Doc. 69-78 at 3. Due to these concerns, Plaintiff was re-assigned to several different pods[4] within PNM. Doc. 69-78 at 3. Notwithstanding these moves, Plaintiff continued to allege that it was unsafe for him to leave his cell and interact with other inmates in the various pods to which he was assigned. Doc. 69-78 at 3. Plaintiff claims that he was forced to refuse showers and recreation “because attending these functions require being placed among the inmates who are threatening [him].” Doc. 1 at 2; see also Doc. 34 at 1 (alleging that a fellow inmate told Plaintiff that “if he did not stay in his cell he would be assaulted”). Plaintiff eventually threatened or attempted self-harm on several occasions. Doc. 69-78 at 4. Plaintiff asserts that he took these actions due to the “irreparable mental trauma” he endured “due to the stress of prolonged exposure to threats[.]” Doc. 11 at 12.

         Plaintiff filed his Civil Rights Complaint pursuant to 42 U.S.C. § 1983 on September 23, 2015. See Doc. 1. Plaintiff has since amended and supplemented his Complaint. See Docs. 11, 16, 17, 20, 21. Plaintiff's amended and supplemented Complaint alleges that PNM Warden German Franco, Deputy Warden Alisha Tafoya-Lucero, Security Captain Hector Cardenas, Unit Manager Vince Vigil, and New Mexico Corrections Department Classification Bureau Chief Colleen McCarney failed to protect him against violence by other inmates in violation of his Eighth Amendment rights by refusing to transfer him out of PNM's general population. See Doc. 11 at 2-14; see also Doc. 25 at 6.

         Plaintiff further alleges that Unit Manager Vigil retaliated against him in violation of the First Amendment after he filed the present lawsuit. See Docs. 16, 17; see also Doc. 25 at 4, 6. Specifically, Plaintiff alleges that Defendant Vigil refused to transfer him into a different pod for his own protection after Plaintiff filed this action. See Doc. 69-71 at 1. Plaintiff further alleges that Defendant Vigil ignored his concern that there was a piece of metal in his cell, later raided Plaintiff's cell to recover the item, and subjected Plaintiff to disciplinary segregation as a result of the find. See Doc. 11 at 11; Doc. 69-78 at 4-5. Plaintiff also cursorily alleges that Defendant Vigil told other corrections officers that Plaintiff “is writing notes to unit manager Vince Vigil about other inmates. This is seen by other prisoners as being a ‘snitch.'” Doc. 11 at 8.

         Plaintiff's allegations were investigated by Defendants. Pertinent here, Defendants' investigation revealed that Plaintiff was openly telling other inmates in the pod what his charges are in an effort to be transferred out of PNM and to another facility. See Doc. 69-114 at 15. Plaintiff sought such a transfer to facilitate being closer to his biological brother (who is also incarcerated in the New Mexico Corrections Department) and for his own safety. Id. As summarized by one investigative report,

Based on all the testimony/evidence gathered in this case, it appears inmate ELLIS has been attempting to be transferred from the Penitentiary of New Mexico using every avenue he knows. Inmate ELLIS attempted to be moved through the Housing Unit Lieutenant and Unit Manager. Inmate ELLIS then began openly advising other inmates of his crimes committed. Inmate ELLIS then stated he was being harassed by Officer SCHLOTTERER in front of other inmates. Inmate ELLIS then is found in possession of dangerous contraband and removed from the unit.
Based on my years of experience working with in the New Mexico Corrections Department, it is apparent that inmate ELLIS is attempting every avenue he can to manipulate the department to move to either GPl-LCCF, or Otero County.

Doc. 69-114 at 15.

         Defendants now move for summary judgment on Plaintiff's claims, asserting that he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, and, alternatively, that Plaintiff's claims fail on their merits. See Doc. 69 at 27-33. Plaintiff counters that he indeed exhausted his available administrative remedies, and that summary judgment should be denied because “the simple fact remains that Defendants failed to protect Plaintiff from abuse at the hands of other inmates.” Doc. 89 at 1. For the reasons that follow, the Court agrees with Defendants that Plaintiff's claims are meritless.

         II. Legal Standards

         Summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only disputes over facts that might affect the outcome of the suit under the applicable law will preclude summary judgment. See Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 34 (10th Cir. 2013).

         III. Exhaustion

         “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust ‘such administrative remedies as are available' before bringing suit to challenge prison conditions.” Ross v. Blake, 136 S.Ct. 1850, 1854-55 (2016) (citing 42 U.S.C. § 1997e(a)). Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S. 199 (2007). “When raising an affirmative defense in a motion for summary judgment, the defendant must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Sparks v. Foster, 241 F. App'x 467, 472 (10th Cir. 2007) (quoting Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (internal quotation marks and ellipsis omitted). “If the defendant meets this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact[;] [i]f the plaintiff fails to make such a showing, the affirmative defense bars his claim, and the defendant is entitled to judgment as a matter of law.” Id.; see Fed. R. Civ. P. 56(a); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones, 549 U.S. at 212 (“Failure to exhaust under the PLRA is an affirmative defense. . . . Defendants thus bear the burden of asserting and proving that the plaintiff did not utilize administrative remedies. . . .”)).

         Exhaustion is mandatory and “is required for any suit challenging prison conditions[.]” Woodford v. Ngo, 548 U.S. 81, 85 (2006). As the Tenth Circuit has explained, “Section 1997e(a) says nothing about a prisoner's subjective beliefs, logical or otherwise, about the administrative remedies that might be available to him. The statute's requirements are clear: If administrative remedies are available, the prisoner must exhaust them.” Griffin v. Romero, 399 F. App'x 349, 351 (10th Cir. 2010) (unpublished) (quoting Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000)). Put simply, if an inmate does not exhaust his available administrative remedies, the Court has no choice but to dismiss his claims. See Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001).

         Inmates need not exhaust administrative remedies that are unavailable, however. Ross, 136 S.Ct. at 1859. “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).

         “Identifying the exact steps a prisoner must take to exhaust administrative remedies presents a ‘choice-of-law issue, ' derived from the requirements of the ‘prison grievance systems themselves.'” Howard v. Waide, 534 F.3d 1227, 1243 (10th Cir. 2008) (quoting Kikumura v. Osagie, 461 F.3d 1269, 1282 (10th Cir. 2006); citing Jones, 549 U.S. at 199). “[I]t is the prison's requirements . . . that define the boundaries of proper exhaustion.” Howard, 534 F.3d at 1243-44. In this case, the availability and requirements of the grievance process is governed by the policies attached to Defendants' Supplemental Martinez Report. See Doc. 69, Exhibit A.[5]

         A) Available Administrative Remedies

         In New Mexico, most inmate grievances are governed by New Mexico Corrections Department Policy CD-150500. See Doc. 69-1 at 1. Policy CD-150500 applies to “[a]ll inmates incarcerated in the New Mexico Corrections Department . . . .” Doc. 69-1 at 1. Policy CD-150500 sets forth matters that subject to the grievance procedures and those that are not. “Grievable” matters include:

a. The substance, interpretation and application of policies, rules and procedures of the institution or Department including, but not limited to, decisions regarding mail, visitation, staff treatment, negligence as to lost property or medical/mental health care excluding security issues. [4-4344] [4-4394] [4-4410]
b. Individual employee actions.
c. Perceived reprisal for use of, or participation in, the ...

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