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Apodaca v. Franco

United States District Court, D. New Mexico

December 29, 2017



         This is a pro se, in forma pauperis civil rights action brought under 42 U.S.C. § 1983 by Plaintiff Victor Andrew Apodaca, Sr. (Mr. Apodaca).[1] 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).

         Mr. 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.

         Procedural Background

         On 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.

         On 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.

         In 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).

         On 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.

         On July 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.[2]

         On 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).

         On 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 this proceeding.[3]

         After a 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.

         Mr. Apodaca's Claims

         As best 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;[4][5] 2) deprivation of property without due process in violation of the Fourteenth Amendment against Mr. Vigil and possibly against Mr. Franco;[6] and 3) failure to protect Mr. Apodaca's well-being in violation of the Eighth Amendment against Mr. Franco, Ms. Boyer, and Mr. Vigil.[7] 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.

         For 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.[8] 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. Vigil.[9]

         In 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.

         The 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. Benavidez.

         Legal Standards

         Where 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 marks omitted).

         Where a 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) (citations omitted).

         The 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 litigants. Id.



         A. Legal Standard

         The 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 are exhausted.

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 omitted).

         Defendants 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.

         B. PNM's Grievance Procedures

         Mr. 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 Reprisals).

         Policy 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 formal grievance.

         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 Procedures).

         The 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).

         Policy 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).

         With respect to complaints about classification and disciplinary decisions, an inmate must use a separate appeal process. See CD-150500, ΒΆΒΆ 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) (appeal ...

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