United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
a pro se, in forma pauperis civil rights action
brought under 42 U.S.C. § 1983 by Plaintiff Victor
Andrew Apodaca, Sr. (Mr. Apodaca). Mr. Apodaca is currently an
inmate at the Northeast New Mexico Detention Facility in
Clayton, New Mexico. When he initiated this lawsuit, Mr.
Apodaca was an inmate at the Penitentiary of New Mexico (PNM)
in Santa Fe, New Mexico. Complaint (Doc. No. 1).
Apodaca attempts to allege various constitutional claims
against Defendants German Franco (Mr. Franco), who was the
warden of PNM, Michelle Boyer (Ms. Boyer), who was a
grievance officer at PNM, and/or Vincent Vigil (Mr. Vigil),
who was a unit manager at PNM (collectively, Defendants) that
purportedly occurred in about 2014.
January 21, 2015, Mr. Apodaca filed a federal civil rights
Complaint against these three Defendants, as well as two
other Defendants, who were subsequently dismissed.
See MEMORANDUM OPINION AND ORDER (Doc. No. 9)
(dismissing Defendant Gregg Marcantel) and MEMORANDUM OPINION
AND ORDER (Doc. No. 81) (dismissing Defendant Tisha Romero).
Defendants filed Answers to Mr. Apodaca's Complaint. Doc.
Nos. 14, 42.
November 17, 2015, the Court ordered Defendants to file a
Martinez report concerning Mr. Apodaca's claims
against Mr. Franco, Ms. Boyer, and Mr. Vigil. Order (Doc. No.
44). On February 18, 2016, Defendants filed their
Martinez report, observing that Mr. Apodaca's
claims often were unclear. Defendants noted certain themes in
the Complaint, e.g., allegations about denial of medical
treatment, lost mail, lost property, failure to handle
grievances, retaliation, a blocked telephone PIN, and a lack
of a kosher diet and a Torah. Martinez Report at 3.
Defendants produced copies of relevant records, policies, and
regulations, along with affidavits. See Id. at 4-5.
their Martinez report, Defendants moved for summary
judgment and/or dismissal of the Complaint for failure to
state a claim. Defendants raised a number of arguments in
support of dismissal, including failure to exhaust
administrative remedies, qualified immunity of Defendants,
and res judicata and collateral estoppel. See
Id. at 1-3 (Table of Contents).
March 31, 2016, Mr. Apodaca filed a response to the
Martinez report that he identified as OPPOSITION TO
THE DEFENDANTS MOTION TO DISMISS ANSWER TO DEFENDANTS DENIAL
OF FACTUAL OR LEGAL BASIS ON MARTINEZ REPORT FOR MERITORIOUS
CLAIM (Response) (Doc. No. 69). Mr. Apodaca's Response
includes arguments about the importance of his claims against
Defendants, along with exhibits.
29, 2016, Mr. Apodaca filed PLAINTIFF'S REQUEST FOR THE
ADMISSION OF DOCUMENTS (Document Request) (Doc. No. 83),
including a copy of a decision by the Ninth Circuit Court of
Appeals, Parsons v. Ryan, 754 F.3d 657 (9th Cir.
2014). The Ninth Circuit opinion has no bearing or
precedential value in this proceeding. Mr. Apodaca also
attached a 64-page contract between the State of New Mexico
and Corizon, Inc., along with a Gulf War Newsletter. These
documents are not relevant to the Court's analysis of Mr.
Apodaca's claims. Nor is Mr. Apodaca's copy of a
“LCCF Inmate Request Form” pertinent to the
Court's discussion. The LCCF Inmate Request Form
concerning Mr. Apodaca's legal mail at another
correctional facility in 2016 does not pertain to the claims
against these Defendants. Thus, while the Court examined
these documents, see Order on Motions (Doc. No. 92)
(granting Mr. Apodaca's request that the attached
documents be considered), the attached materials are not
relevant to the claims.
August 24, 2016, Mr. Apodaca filed PAINTIFF'S (sic)
MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 87) and a
supporting brief (Doc. No. 88) (Mr. Apodaca's Summary
Judgment Motion). In addition, he filed his own Declaration
(Doc. No. 89) and a separate Statement of Undisputed Facts
with about 40 pages of exhibits (Doc. No. 90). The Court has
reviewed all of these filings in deciding Mr. Apodaca's
claims. See Order on Motions (Doc. No. 92).
April 6, 2017, Mr. Apodaca wrote a three-page letter (Doc.
No. 93), along with a three-page Declaration and exhibits
(Doc. No. 94), and on June 8, 2017, he wrote a two-page
letter (Doc. No. 95). The Court has considered all of these
materials in evaluating Mr. Apodaca's claims and
Defendants' request for summary judgment or dismissal of
thorough review of the pertinent law, and all of the
arguments and evidence presented by Mr. Apodaca and
Defendants, the Court finds that Mr. Apodaca has failed to
exhaust administrative remedies, failed to state a claim,
and/or failed to raise a genuine dispute of material fact to
defeat summary judgment. Therefore, the Court will dismiss
all of Mr. Apodaca's claims against Defendants and will
dismiss his Complaint in its entirety.
as the Court can decipher Mr. Apodaca's Complaint and
filings, he is pursuing the following claims against these
three Defendants: 1) retaliation and violations of grievance
procedures against Ms. Boyer; 2) deprivation of property without due
process in violation of the Fourteenth Amendment against Mr.
Vigil and possibly against Mr. Franco; and 3) failure to
protect Mr. Apodaca's well-being in violation of the
Eighth Amendment against Mr. Franco, Ms. Boyer, and Mr.
Vigil. The claims asserted against each of the
three Defendants are difficult to understand because most of
Mr. Apodaca's rambling complaints and allegations usually
do not identify a specific defendant.
purposes of clarity, the Court notes that Mr. Apodaca's
claims regarding alleged denial of adequate medical treatment
and alleged violations of the Americans with Disabilities Act
(ADA) were asserted against Defendant Tisha Romero and not
against Mr. Franco, Ms. Boyer, or Mr. Vigil. See
Memorandum Opinion and Order at 1-2 (Doc. No. 81) (discussing
medical care claims against Ms. Romero). The Court already
dismissed all of the claims against Ms. Romero alleging
failure to provide adequate medical treatment and ADA
violations. Doc. No. 81. Because there are no allegations
that these three Defendants failed to provide appropriate
medical care to Mr. Apodaca, the Court does not address
medical care claims against Mr. Franco, Ms. Boyer, or Mr.
addition, although Mr. Apodaca sets out allegations
concerning religious programs, religious property, and
religious diets, see Complaint at 17 (Claim V), he
has not specifically alleged that any of these three
Defendants violated his constitutional rights regarding his
religious practices. Thus, the Court does not address any
religious practices claims against these Defendants.
Court also notes the allegation that “Security Officer
Ben[a]videz” took or disposed of Mr. Apodaca's
grievances without processing the grievances in accordance
with prison procedures.” Complaint at 3, 6. Mr. Apodaca
has not named Officer Benavidez as a defendant in this
lawsuit, and the Court does not address any claim against Mr.
the Court dismisses a complaint for failure to state a claim,
the pertinent standard is Fed.R.Civ.P. 12(b)(6). Under that
standard, the complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
Court dismisses a complaint because there are no genuine
disputes of material fact and a party is entitled to judgment
as a matter of law, the pertinent standard is Fed.R.Civ.P.
56. Fed.R.Civ.P. 56(a). “A party asserting that a fact
... is genuinely disputed must support the assertion by ...
citing to particular parts of materials in the
record....” Fed.R.Civ.P. 56(c)(1)(A). The Court must
view the record and all reasonable inferences in the light
most favorable to the non-movant. Pinney v. City of Tulsa
Okla., No. 16-5171, 2017 WL 5643119, at *2 (10th Cir.
Nov. 24, 2017) (citations omitted). Even so, “summary
judgment still may be appropriate if the non-moving party
cannot identify any specific evidence showing a genuine
factual dispute on an essential element of his claim.”
Id. This means that to defeat summary judgment, Mr.
Apodaca was obliged “to go beyond the pleadings and set
forth specific facts that would be admissible in evidence ...
from which a rational trier of fact could find” in his
favor. Mitchell v. Kansas City Kansas Sch. Dist.,
No. 17-3090, 2017 WL 5151688, at *1 (10th Cir. Nov. 7, 2017)
Court liberally views Mr. Apodaca's pro se filings.
See Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005). However, the Court does not
“take on the responsibility of serving as the
litigant's attorney in constructing arguments and
searching the record.” Id. Pro se parties must
follow the same rules of procedure that govern other
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Prison Litigation Reform Act (PLRA) requires exhaustion of
administrative remedies. Forbes v. Garcia, 696 F.
App'x 381, 382 (10th Cir. 2017) (citation omitted).
No action shall be brought with respect to prison conditions
under [42 U.S.C. § 1983], or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
42 U.S.C. § 1997e(a). The PLRA's exhaustion
requirement applies to all inmate suits about prison life,
irrespective of the type of wrong the prisoner alleges.
Porter v. Nussle, 534 U.S. 516, 532 (2001). In order
to demonstrate exhaustion of administrative remedies, a
prisoner must comply with all of the prison's procedures.
Forbes, 696 F. App'x at 382. (citation
have raised exhaustion of administrative remedies as an
affirmative defense to Mr. Apodaca's claims. Defendants
thus bear the burden of proving that Mr. Apodaca did not use
the required administrative remedies. Tuckel v.
Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).
“Once a defendant proves that a plaintiff failed to
exhaust, however, the onus falls on the plaintiff to show
that remedies were unavailable to him as a result of
intimidation by prison officials.” Id.
PNM's Grievance Procedures
Orion Stradford submitted his affidavit, stating that he
attached the pertinent grievance policies in effect during
2014 and 2015. See, e.g., NMCD Policy CD
150500-150501. Doc. No. 54-1, Doc. No. 54-2 (Bates
000030-000056). Policy CD 150500 states, in part, that an
inmate exhausts administrative remedies by completing the
grievance process through the “Department-level
appeal.” Doc. No. 54-1 (Bates 000004, ¶ C of
Definitions). The grievance policy prohibits any sort of
retaliation for the legitimate use of the grievance
procedure. Id. (Bates 000012, ¶ A of
CD 150501 explains that an inmate is expected to first
attempt to resolve a grievance informally through discussion
with the person responsible for the incident. If the problem
is not resolved, the inmate must file an informal complaint
using the “Inmate Informal Complaint form” within
five days of the incident. Id. (Bates 000013, ¶
1a of Procedures). The informal complaint should be addressed
to the Unit Manager or to other individuals as specified in
the policy. Id. The Unit Manager or other designated
employee must address the issue and return the informal
complaint form to the inmate within five working days of
receipt of the complaint. Id. (¶ 1b of
Procedures). The Unit Manager or other designated employee
logs and tracks all informal complaints. All non-resolved
complaints are returned to the inmate to be attached to a
written formal grievance must be filed using the
“Inmate Grievance form.” Id. (Bates
000014, ¶ 3 of Procedures).The main responsibility of
the Grievance Officer is to resolve formal grievances.
Id. (¶ 3 of Procedures). The Grievance Officer
must notify the grievant of receipt of a formal grievance
“on an Inmate 5-Day Notice of Receipt of Formal
Grievance From.” Id. (¶ 4 of Procedures).
If a grievance relates directly to the actions of a Grievance
Officer, the inmate is to send the completed grievance form
to the Warden who will appoint a person to address the
grievance. Id. (Bates 000015, ¶ 9 of
Grievance Officer notes the date of receipt of a grievance,
assigns a “CMIS” number to the grievance,
including the institution, year, and number of the grievance.
Id. (Bates 000016, ¶ 1 of Grievance
Officer's Review). The Grievance Officer determines if a
grievance is untimely, incomplete, or otherwise improperly
submitted, in which event, the grievance is returned to the
inmate with an explanation of why it is returned.
Id. (¶ 2 of Grievance Officer's Review).
The Grievance Officer investigates a grievance, interviews
the inmate, and completes the grievance form. The Grievance
Officer must complete the investigation and deliver the
document to the Warden for review within 15 working days of
receipt of the grievance. Id. (Bates 000017, ¶
4 of Grievance Officer's Review). The Warden or designee
has 15 working days to make a decision as to the Grievance
Officer's recommendation. Id. (¶ 4 of
Warden's Decision). The inmate must be informed in
writing of the Warden's decision within five working
days. Id. (¶ 6 of Warden's Decision).
CD 150501 also sets out detailed requirements for appealing a
Warden's decision on a grievance. Id. (Bates
000018, Appeal Process). As already indicated, an inmate must
complete the appellate process in order to have fully
exhausted the inmate's administrative remedies. In
addition, the pertinent grievance policies require thorough
record keeping of grievances. See, e.g., CD-150501
(Bates 000013 ¶ 2); CD-150501 (Bates 000019, ¶F of
Record Keeping and Periodic Evaluation).
respect to complaints about classification and disciplinary
decisions, an inmate must use a separate appeal process.
See CD-150500, ¶¶ c and d (listing matters
that are not grievable and that are subject to a separate
appeal process); CD-090100(BB) (required steps to challenge
disciplinary decisions of hearing officers); CD-143001(G)