United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Defendant GEO Group,
Inc.'s Martinez Report (Doc. 52) and
Defendant Corizon's Martinez Report and Motion
for Summary Judgment (Doc. 54)
(“Defendants' Motions for Summary Judgment”),
both filed April 11, 2017. The Honorable Martha Vazquez
referred these motions to me on June 13, 2017. Doc.
60 at 1. Pursuant to this Court's Order of January
12, 2017, Plaintiff's responses to these motions were due
by May 11, 2017. Doc. 49. Also before the Court is
Plaintiff's letter of June 21, 2017 (Doc. 61),
which the Court construes as a request for a Settlement
Conference and which Defendants oppose (Docs. 63 &
reasons that follow, the Court recommends that
Plaintiff's request for a settlement conference be
denied, summary judgment be entered in favor of Defendants,
and that this action be dismissed with prejudice.
Plaintiff alleges that on or about May 3, 2014, correctional
officers entered his cell, conducted a strip search, and
handcuffed him behind his back, despite his request that he
be handcuffed in the front or double-handcuffed because of
shoulder injuries. Doc. 1, Ex. A, at ¶ 20, 22,
23-28. According to Plaintiff, he was required to sit,
handcuffed, in a plastic chair for over two and a half hours,
while experiencing “severe pain and additional injuries
to his shoulders, ” until Corrections Officer Baca
handcuffed him in front. Id. at ¶ 37-38.
Following this handcuffing incident, Plaintiff alleges that
he continued to experience severe pain and weakened shoulders
with popping and swelling but received only “minimal
medical care.” Id. at ¶ 40-41.
Thereafter, on November 15, 2014, as he was attempting to
exit the top bunk in his cell, Plaintiff contends that his
“shoulder strength gave out and he fell and broke his
lower hip socket and thigh bone.” Id. at
¶ 42. Attributing his November 15, 2014 fall to his
earlier handcuffing incident, Plaintiff asserts that he
“fell because of his weakened and injured shoulders
which resulted from the handcuffing incident.”
Id. at ¶ 42.
Plaintiff appears to assert the same claims against both
Defendant Geo Group, Inc. (“Defendant GEO”) and
Defendant Corizon, Inc. (“Defendant Corizon”).
These include alleged violations of his right to substantive
due process under the Fourteenth Amendment (Count Two),
violations of his Eighth Amendment rights (Counts One and
Four), negligence per se (Count Five), and negligent
medical care and treatment (Count Six). Id. at 7-11.
Additionally, Plaintiff makes a general allegation that
Defendants' “acts and omissions were pursuant to
policy and custom causing the violation of [his]
constitutional rights” (Count Three). Id. at
Jesse Clements (“Plaintiff”) has failed to
respond to Defendants' Motions for Summary Judgment, nor
has he requested an extension of time to do so. As such, he
has not identified any facts proffered by Defendants which he
disputes or pointed to evidence in the record to support his
claims. See Fed. R. Civ. P. 56; see also
D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in
the Memorandum will be deemed undisputed unless specifically
controverted”). Thus, the undersigned will
“accept as true all material facts asserted and
properly identified in the summary judgment motion[s].”
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
is an inmate in the custody of the New Mexico Corrections
Department (“NMCD”) and, at times relevant to the
Amended Complaint, was housed at Guadalupe County
Correctional Facility (“GCCF”) in Santa Rosa New
Mexico. Doc. 1, Ex. A, at ¶ 4. NMCD has
contracted with Guadalupe County to house its state prisoners
at GCCF. Doc. 52, Exs. B & C. GCCF, in turn, has
contracted with Defendant GEO to operate GCCF. Doc.
52, Exs. A, B & C.
GEO employs only security and non-medical staff at GCCF.
Doc. 52, Ex. C. It has adopted policies and
procedures designed to protect inmate safety and inmate
rights. Doc. 52, Exs. C, D, & E. Additionally,
it has agreed to abide by NMCD's policies and procedures
governing inmate safety and inmate rights. Doc. 52,
Exs. C, F, & G. Defendant GEO's employees receive
refreshers in these policies and procedures on an annual
basis. Doc. 52, Ex. C, at ¶ 9.
1, 2014, GCCF was placed on institutional lockdown at the
behest of then-Warden Erasmo Bravo. Doc. 52, Exs. H
& I. While the lockdown was initially related to
incidents of inmate aggression at GCCF, it continued by the
direction of NMCD as part of a statewide operation called
“Operation Contraband Free.” Id. During
this operation, NMCD and GEO worked jointly in an effort to
locate and eradicate drugs and drug-related contraband from
NMCD facilities. Doc. 50, Ex. H.
the first statewide operation, NMCD directed that GCCF remain
on full lockdown, and on May 3, 2014, NMCD initiated a second
operation at the facility. Id. This second operation
targeted inmates in Housing Unit II, where Plaintiff was
housed, and was designed to address inmate aggression toward
prison staff, gang tensions, and narcotics in the facility.
Id. This operation was conducted entirely by
officials from NMCD. Id. No employees of Defendant
GEO were involved in searching inmates, developing protocols
for the operation, monitoring inmates, or supervising the
officers conducting the operation. Id.
to its contract with Guadalupe County, NMCD retained the
responsibility for providing, through a health care services
contractor, health care services to inmates, including the
provision of unimpeded access to sick call, 24-hour per day
emergency medical care, regular physician visits, health care
administration, and sufficient on-site medical staff.
Doc. 52, Ex. B at 5, Ex. C at ¶ 10. At all
times relevant to this lawsuit, NMCD contracted directly with
Defendant Corizon, a private health care services company, to
provide these medical services to NMCD prisoners at GCCF.
Doc. 52, Ex. C, at ¶ 11-12. Defendant GEO, on
the other hand, had no contractual relationship with
Defendant Corizon. Id. at ¶ 19.
GEO's only duty with respect to inmate medical care was
to “provide adequate space and security support.”
Id. at ¶ 13. It did not pay for any medical
care provided to NMCD inmates. Id. at ¶ 20.
Similarly, it did not employ any health care providers at
GCCF; nor did any of its employees provide non-emergent
medical services or advice to GCCF inmates. Id. at
¶ 16-17. No employee of Defendant GEO had any personal
involvement in diagnosing or treating Plaintiff's medical
conditions or in hiring, retaining, training, or supervising
any medical provider who was involved in diagnosing or
treating Plaintiff's medical conditions. Id. at
¶ 18. Indeed, no GEO employees supervise Corizon
employees. Id. at ¶ 21.
when a GCCF inmate requests medical care in a non-emergent
situation, he must submit a health service request form.
Id. at ¶ 14. Following the submission of such a
form, employees of the health care services company schedule
the inmate for an appointment. Id. Security
personnel employed by Defendant GEO escort the inmate to and
from the medical unit to been seen by medical providers at
the scheduled time. Id. Defendant GEO's
corrections staff are verbally instructed to refer any
requests for medical attention to medical providers.
Id. at ¶ 15.
time of the May 3, 2014 operation at GCCF, Plaintiff did not
have a medical slip that exempted him from behind-the-back
handcuffing. Doc. 52, Ex. H, at ¶ 17. In
operations conducted by Defendant GEO, inmates are generally
only exempted from behind-the-back handcuffing if they have a
medical slip requiring as much. Id. It is not
uncommon for inmates to complain about being handcuffed
during security operations; they sometimes ask officers to
remove their handcuffs or even fabricate medical conditions
in an attempt to convince officers to remove them. Doc.
50, Ex. H.
Plaintiff alleges that he received injuries to his shoulders
as a result of being handcuffed behind his back for over two
and a half hours during the May 3, 2014 operation. Doc.
1, Ex. A, at ¶ 20-27, 37-42. Prior to that date, he
had a long history of orthopedic problems with his right
shoulder, dating back to at least the mid-1980s, when he had
an open reduction and internal fixation with pinning at
Eastern New Mexico Medical Center. Doc. 54, Ex. A,
at ¶ 10. Before and after the May 3, 2014 handcuffing
incident, Plaintiff's medical records demonstrate a
consistent pattern of complaints related to his shoulders,
with similar care required to address his complaints.
Id. at ¶ 12. According to Robert D. Jones,
M.D., a Certified Correctional Health Professional who serves
as a Clinical Assistant Professor with the University of
Arizona School of Medicine, the medical care provided by
Defendant Corizon to Plaintiff for shoulder pain Plaintiff
associated with the May 3, 2014 handcuffing incident met or
exceeded the applicable standard of care, not only in a
correctional setting, but also in any outside medical
setting. Id. at ¶ 19.
12, 2014, nine days after the handcuffing incident, Plaintiff
submitted a Health Services Request Form, asking “to
talk to someone about [his] shoulders.” Doc.
52, Ex. K, at 1. Plaintiff was seen by medical providers
at GCCF the next day, on May 13, 2014. Id. Dr. Jones
opines that the medical care, treatment and examination, and
work-up of Plaintiff by Corizon in response were appropriate,
did not cause any injury or damage to Plaintiff, and served
to relieve his symptoms. Doc. 54. Ex. A, at ¶
following month, on June 10, 2014, Plaintiff presented to the
medical department. This time he reported that he had
sustained an eye injury while using the bench press machine.
Doc. 52, Ex. K, at 2. Then, on June 18, 2014,
Plaintiff obtained a medical slip, which provided that he
should be “double cuff[ed] . . . for medical
purposes.” Id. at 3.
at GCCF may be assigned to either top or bottom bunks in the
housing units as security and space permit. Doc. 52,
Ex. H. If inmates have medical conditions that make it
improper for them to be assigned to top bunks, they may
obtain medical passes limiting them to lower bunk
assignments. Id. at ¶ 19. In November of 2014,
Plaintiff did not have a lower bunk pass. Id. at
¶ 20. He alleges that he was attempting to exit his top
bunk on November 15, 2014, when his “shoulder strength
gave out and he fell and broke his lower hip socket and thigh
bone.” Doc. 1, Ex. A, a ¶ 42. According
to Plaintiff, this November 2014 fall was a result of his
“weakened and injured shoulders, which resulted from
the handcuffing incident.” Id. at ¶ 43.
As with the medical care provided following the May 3, 2014
handcuffing incident, it is Dr. Jones' opinion that no
harm or damage of any kind was caused to Plaintiff as a
result of medical care provided to him by Corizon following
his November 15, 2014 fall. Doc. 54, Ex. A, at
relevant times, GCCF had a policy and procedure governing
inmate grievances. See, e.g., Doc. 52, Exs.
L & M. The grievance procedure consisted of three steps:
(1) an inmate was required to file an Inmate Informal
Complaint and attempt to resolve his complaint informally;
(2) if the informal effort was unsuccessful, the inmate was
required to file a formal Inmate Grievance; and (3) if the
inmate was not satisfied with the disposition of the formal
Inmate Grievance, he was required to appeal to the Office of
the Secretary of Corrections. Doc. 52, Ex. L, at
11-16, Ex. M, at ¶ 3.
about June 19, 2014, Plaintiff filed an Inmate Informal
Complaint regarding the May 3, 2014 handcuffing incident.
Doc. 52, Ex. M, at ¶ 5, Ex. N, at 4. Therein,
he explained that he was handcuffed behind his back by an
officer during a “shake-down, ” despite pleading
with the officer not to do so because of shoulder injuries.
Doc. 52, Ex. N, at 4. Sometime between July 2, 2014,
and July 7, 2014, Plaintiff filed a formal grievance,
asserting that he had been subject to “excessive
restraint behind [his] back.” Doc. 52, Ex. M,
at ¶ 5, Ex. N, at 1-3. In his formal grievance, he
sought “full medical examination and treatment to see
what internal damage [he had] suffered” as well as
compensation for pain and suffering. Doc. 52, Ex. N,
at 1. The grievance officer determined that Plaintiff's
formal grievance was untimely. Id. According to
Steve Madrid, the Statewide Grievance Administrator
Coordinator for NMCD, Plaintiff failed to file an Inmate
Informal Complaint within five days of the May 3, 2014
handcuffing incident, or by May 8, 2014, and he therefore
failed to comply with the applicable grievance process as to
injuries sustained during that incident. Doc. 54,
Ex. C, at ¶ 10. Although Plaintiff did file a grievance
related to the handcuffing incident on or about June 19,
2014, he did not specifically grieve the medical care that he
received. Id. at ¶ 11. Instead, he limited his
grievance to being “excessively restrain[e]d” and
suffering potential “internal damage” and pain
and suffering. See Doc. 52, Ex. N.
did not file any informal grievance, formal grievance, or a
grievance appeal regarding his November 2014 fall from the
top bunk. Doc. 52, Ex. M, at ¶ 6; Doc.
54, Ex. C, at ¶ 12. The Statewide Grievance
Administrator Coordinator for NMCD confirmed as much