United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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.
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. 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
Plaintiff remained at PNM until January 27, 2016, when he was
transferred to the Southern New Mexico Correctional Facility.
Doc. 69-69 at 2.
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 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.
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.
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.
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
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.
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.
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).
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. . .
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).
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)).
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,
Available Administrative Remedies
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