United States District Court, D. New Mexico
MATTHEW R. MORA, Plaintiff,
SERGEANT C. OWENS and SERGEANT C. GRIEGO, Defendants.
REPORT AND RECOMMENDATIONS
GREGORY B. WORMUTH, UNITED, STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion for
Summary Judgment (doc. 33). Being fully advised, I
recommend that the Court grant summary judgment in favor of
Amended Complaint asserts that he was subject to the
following alleged constitutional violations arising under the
Eighth Amendment: (1) Claim 1 -- sexual harassment; and (2)
Claim 2 -- deprivation of the minimal civilized measure of
life's necessities. See doc. 14. Plaintiff seeks
relief under 42 U.S.C. § 1983 against the named officers
in their individual capacities. See Id. Defendants
have moved for summary judgment on the basis of qualified
immunity and other grounds. See doc. 33. Because
Plaintiff has not overcome the qualified immunity defense by
establishing any constitutional violation committed by
Defendants, I recommend granting Defendants' motion.
order of the Court, Defendants filed a report pursuant
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) on
July 10, 2017. See docs. 29, 32. Despite being
provided an opportunity to do so (see doc. 31),
Plaintiff has filed no conflicting evidence to controvert the
facts set out in the report. In their motion for summary
judgment, filed concurrently with the Martinez
report, Defendants identify with particularity the facts from
the report on which they rely. See doc. 33. Despite
being provided an opportunity to do so, Plaintiff has filed
no response to the motion. Consequently, he has not
identified any facts proffered by Defendants which he
disputes, let alone pointed to the record to support the
dispute. See Fed. R. Civ. P. 56; see also
these circumstances, Plaintiff has waived the right to
respond or to controvert the facts asserted in the summary
judgment motion. See Reed v. Bennett, 312 F.3d 1190,
1195 (10th Cir. 2002). Thus, I will “accept as true all
material facts asserted and properly supported in the summary
judgment motion.” Id.
Plaintiff is a former detainee at the Bernalillo County
Metropolitan Detention Center (MDC) who was detained there
from April 7, 2013 until being released on bail on April 11,
2015. UMF 1.
February 28, 2014, Plaintiff was being readied for transfer
to Polk County, Texas along with other MDC detainees. UMF 2.
that time, some MDC detainees were being sent to other
detention facilities that contracted with Bernalillo County
to house detainees, including a prison facility in Polk
County, Texas (hereinafter “Polk County”). UMF 3.
Prior to being transported to Polk County on February 28,
2014, Plaintiff informed certain MDC officers, including
Defendants, that he was going to hurt himself and Plaintiff
subsequently missed the transport to Polk County. UMF 4.
After Plaintiff reported he was going to hurt himself, he was
taken to the Sheltered Housing Unit (SHU), where
“appropriate services to meet the serious medical
health care needs of inmates” are provided at MDC. UMF
MDC policy, “[a]ll inmates requiring Level I suicide
watch will be placed on an HSU or SHU until released or
advanced to level II or III status.” UMF 6.
policy provides that a detainee will remain on suicide watch
Level I “until a physician or licensed clinical
psychologist determines that the crisis has been resolved or
that the inmate can be placed in a less restrictive crisis
care status.” UMF 7.
Psychiatric Services Unit (PSU) of Correctional Healthcare
Companies (CHC) is a company which contracts with Bernalillo
County to provide medical/psychiatric services to MDC
detainees. UMF 8.
interviewed Plaintiff and determined that he lied about
wanting to hurt himself in order to avoid being transferred
to Polk County. UMF 9.
Level I suicide watch detainee is defined within MDC policy
as “an inmate with an immediate intent to harm
themselves, as expressed verbally (by identifying a specific
plan) or though physical actions, mental status or recent
serious suicide attempts.” UMF 10.
provided an MDC-42 standard referral form that PSU deemed
appropriate to share one-on-one with MDC officers, which
informed the officers that Plaintiff was on suicide watch
Level I. UMF 11.
MDC-42 form for Plaintiff stated that as a suicide watch
level I detainee, Plaintiff was to be provided with a smock,
and that if a smock was unavailable to allow him to use a
blanket, but that he was not allowed ordinary clothing. UMF
Policy HCA 12.49 (Suicide Prevention Program) provides that
upon being deemed on suicide watch Level I, all bedding,
clothing and personal property should be removed from the
detainee and the crisis cell, and the detainee should be
given a suicide smock or gown to wear. UMF 13.
Plaintiff complied with Defendant Sergeant Griego's
directive to remove his clothing in the crisis cell. UMF 14.
Sergeant Griego did not make physical contact with Plaintiff
related to the removal of Plaintiff's clothing. UMF 15.
Plaintiff was housed with “infirmary” or PAC Unit
from February 28 to March 5, 2014. UMF 16.
Plaintiff was housed for at least part of the time between
February 28 and March 5 with another ...