United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Joshua Saiz (Plaintiff) alleges that while he was an inmate
at the Penitentiary of New Mexico (PNM), he was wrongfully
incarcerated for several months in disciplinary segregation
(solitary confinement) and lost his good-time credit, which
resulted in his confinement for 248 days beyond his release
date. See PLAINTIFF'S FIRST AMENDED COMPLAINT TO
RECOVER DAMAGES FOR DEPRIVATION OF CIVIL RIGHTS AND STATE LAW
(Doc. No. 18) (Amended Complaint). (See Am. Compl.
¶ 3.) Plaintiff contends that Defendant German Franco
(Warden Franco or Franco), Warden of the PNM, failed to
notify him and other prison officials that the decision
placing Plaintiff in disciplinary segregation was reversed on
appeal and that Warden Franco's failure caused
Plaintiff's wrongful incarceration beyond his release
date. (Id. ¶ 58.) Warden Franco moves for
summary judgment on Counts I, II, and IV, the remaining
counts of the Amended Complaint, arguing qualified
immunity. Plaintiff brought his claims under 42
U.S.C. § 1983 for violations of Plaintiff's
constitutional rights under the Fourteenth Amendment's
due process clause (Count I), the Eighth Amendment (Count
II), and the First Amendment (Count IV).
STANDARD OF REVIEW
judgment may 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). When applying this standard, the Court
examines the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing
summary judgment. Applied Genetics Intl, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). The party seeking summary judgment bears the initial
burden of “show[ing] that there is an absence of
evidence to support the nonmoving party's case.”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (internal quotation marks omitted).
Once the movant meets this burden, Rule 56 requires the
opposing party to designate specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). In considering a motion
for summary judgment, the Court must “determine whether
the evidence proffered by plaintiff would be sufficient, if
believed by the ultimate factfinder, to sustain her
claim.” Foster v. Alliedsignal, Inc., 293 F.3d
1187, 1195 (10th Cir. 2002).
individual defendant asserts qualified immunity from a claim
brought under 42 U.S.C. § 1983, the court analyzes the
defendant's motion for summary judgment differently.
“The doctrine of qualified immunity protects public or
government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.'” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a
defendant asserts qualified immunity, the plaintiff bears the
burden of satisfying a “strict two-part test.”
McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010)
(citation omitted). The plaintiff must establish 1) that the
defendant violated a constitutional and 2) that the right was
clearly established at the time of the defendant's
conduct. Courtney v. Oklahoma ex rel., Dep't of Pub.
Safety, 722 F.3d 1216, 1222 (10th Cir. 2013). “If
the plaintiff fails to satisfy either part of this two-part
inquiry, the court must grant the defendant qualified
immunity.” Hesse v. Town of Jackson, Wyo., 541
F.3d 1240, 1244 (10th Cir. 2008) (quotations omitted). But,
if the plaintiff succeeds in carrying his two-part burden,
the burden shifts to the defendant to show there are no
remaining material issues of fact that would defeat qualified
immunity. Estate of Booker v. Gomez, 745 F.3d 405,
412 (10th Cir. 2014).
Disciplinary Decision and Internal Appeal.
27, 2013, Plaintiff was an inmate at the PNM housed in the
L-Pod, Level V. (Am. Compl. ¶ 10.) On that date,
Corrections Officer J. Barger (CO Barger) accused Plaintiff
and all of the other inmates in the L-Pod of brutally
assaulting another inmate. (Id. ¶ 11.) On June
13, 2013, an evidentiary hearing was held before Hearing
Officer Andrew Wagner (Wagner). (Orig. Mot. UMF 6.) Hearing
Officer Wagner found Plaintiff guilty of three misconduct
charges and recommended the forfeiture of Plaintiff's
good-time credits and reassignment to a disciplinary
segregation unit for 240 days. (Id. ¶ 15; Orig.
Mot. UMF 6.) On June 17, 2013, Franco, then the Acting Warden
of the PNM,  approved Hearing Officer Wagner's
recommendation. (Supp. Resp. UMF W.) Plaintiff appealed that
decision. On July 1, 2013, Franco, as Warden of the PNM,
issued a Report of Disciplinary Appeal upholding the
disciplinary decision. (Am. Compl. ¶ 16; Supp. Resp. UMF
X.) Plaintiff's credit for five months and seventeen days
of good-time was forfeited, he was moved to the disciplinary
segregation unit, and he was denied additional good-time
credit while he was in disciplinary segregation. (Am. Compl.
Appeal to the Secretary of the NMCD.
appealed Warden Franco's Report of Disciplinary Appeal to
the Secretary of the New Mexico Corrections Department
(NMCD). (Id. ¶ 19.) In 2013, Larry Phillips,
the Statewide Grievance-Appeals Coordinator for the NMCD,
handled discretionary appeals for all eleven of New
Mexico's adult prisons. (Orig. Mot. UMF 13; Supp. Resp.
Ex. 2, Phillips Dep. 6:17-19.) Mr. Phillips reviewed the
written record associated with each appeal and made
recommendations to the Secretary's designee.
(Id. 9:3-7.) On August 20, 2013, Mr. Phillips
received Plaintiff's appeal and docketed it as
Disciplinary Appeal S-13-05-36A. (Id. UMF 14.) After
reviewing the disciplinary report and all exhibits, Mr.
Phillips drafted a written recommendation to grant the appeal
for procedural error. (Id.; Orig. Mot. Ex. E-2.) Mr.
Phillips submitted his recommendation to Ms. Joni Brown, the
designee for Jerry Roark, the Director of Adult Prisons.
(Id.; Supp. Resp. Ex. 2 Phillips Dep. 30:3-11.) The
appeal decision was addressed to Plaintiff and stated
“it is my decision to grant this appeal and dismiss
your report. Your issue is considered resolved and the
disciplinary officer/records coordinator at PNM will be
instructed to clear the report out of your file and update
the good-time along with readjusting your PRD date [projected
release date].” (Orig. Mot. Ex. E-2.) On August 27,
2013, Ms. Brown signed Mr. Phillip's appeal decision and
gave it back to Mr. Phillips for “further
handling.” (Id.; Orig. Mot. Exs. D, D-1, D-2;
Phillips testified that after receiving approval of
Plaintiff's appeal decision from Ms. Brown, his practice
at that time “would have been to send a copy of the
decision to one of the Hearing Officers at the penitentiary,
and keep the original document in my file, which I currently
have. I would have transmitted the copy of the decision
through our intra-agency mail.” (Orig. Mot. Ex. D,
Phillips Aff. ¶ 9; Supp. Resp. Ex. 2, Phillips Dep.
32:1-8.) Neither of the hearing officers at the PNM received
Plaintiff's appeal decision. (Id.; Orig. Mot.
Ex. E, Wagner Aff. ¶ 5; Orig. Mot. Ex. F, Boyer Aff.
¶¶ 4-5.) Mr. Phillips did not make contemporaneous
notes regarding transmittals of appeal decisions, and Mr.
Phillips did not maintain a tracking system for the appeal
decisions he sent out. (Phillips Aff. ¶ 9.) Mr. Phillips
testified that he had no “independent
recollection” of sending out this particular appeal
decision. (Id.) Mr. Phillips relied on the
recipients at each penitentiary to implement the decisions he
sent them. (Id.) Mr. Phillips did not typically send
copies of appeal decisions to wardens or to the individual
inmates, and Mr. Phillips never discussed any aspect of
Plaintiff's appeal with Warden Franco or personnel at the
PNM. (Id. ¶ 10.) Mr. Phillips, to the best of
his recollection, “had no further dealings with this
matter until after the lawsuit was filed by [Plaintiff]
… in late 2015.” (Id. ¶ 11.)
this lawsuit was filed in 2015, Warden Franco was not
informed that Plaintiff had appealed the disciplinary
decision or that Plaintiff's appeal was granted by the
Secretary of NMCD. (Supp. Resp. UMF Z, UMF AA; Ex. 1 Franco
Dep. 19:20-20:11; 51:8-15.) NMCD Policy CD-090101 governs
inmate appeals of disciplinary actions. (Supp. Resp. Ex. 3.)
NMCD Policy CD-090101 was promulgated and signed by the
Cabinet Secretary of the Corrections Department. (Orig. Reply
Ex. G ¶ 5.) Policy CD-090101 states in relevant part:
There is no absolute right of appeal to the Secretary.
However, the Secretary or designee shall have final authority
in reviewing the Warden's summary, findings and
conclusions. The Secretary may order any appropriate
remedy.… After the Secretary has rendered a final
decision on the appeal, the Warden shall notify the appellant
in writing of the Secretary's decision within five
working days after the decision and shall forward the inmate
a copy of the written summary, the findings of fact and
conclusions. That disposition is final.
(Supp. Resp. UMF LL; Ex. 3, Policy CD-090101 § K.)
Although this policy assumes that the Warden is notified of
all NMCD appeal decisions, the policy did not specify how the
Warden was to be informed about each appeal decision. (Supp.
Resp. UMF NN.) Mr. Phillips testified that he had “free
latitude” to devise his own procedure for informing
prison personnel of appeal decisions. (Id. UMF PP;
Ex. 2, Phillips Dep. 32:1-8.)
Franco had the authority to review and make suggested
revisions to NMCD policies. (Supp. Resp. UMF DD; Ex. 1,
Franco Dep. 10:15-11:19.) When asked whether he knew which
employees were responsible for disseminating information
related to inmate appeals, Franco testified, “Not
necessarily.” (Supp. Resp. Ex. 1, Franco Dep. 22:7-12.)
He stated, “there are policies that are set in place,
there are procedures there are protocols that staff follow in
regard to when appeals are done, how they are supposed to be
handled, who they are supposed to be handled by. It
doesn't necessarily mean that paperwork couldn't have
gotten lost or something, miscommunicated from one individual
to another.” (Id. 25:18-25.)
Franco testified that Mr. Phillips “was not a
subordinate employee …, and I did not supervise him.
Instead, Mr. Phillips in his capacity as Grievance-Appeals
Coordinator answered to the NMCD Division Director of Adult
Prisons and the Deputy Director of Adult Prisons, who in turn
answered to the Cabinet Secretary of the New Mexico
Corrections Department, as do I as Warden.” (Orig.
Reply Ex. G, Franco Second Aff. ¶ 3.) Warden Franco
testified that Mr. Phillips worked in the NMCD Administration
Building “which is physically separate from, and not
physically attached to or a part of, the penitentiary
facilities of which I am the warden.” (Id.)
Warden Franco attached an NMCD organizational chart to his
second affidavit. (Orig. Reply Ex. G-1.) Although Warden
Franco and Mr. Phillips are part of the NMCD, the
organizational chart shows that the NMCD is made up of five
departments. One of the five departments is the Correctional
Operations department. (Id.) One of the divisions
under Correctional Operations is the Adult Prison Division.
(Id.) The chart setting forth the structure of the
Adult Prison Division shows that the Grievance Coordinator is
under the Deputy Director Adult Prisons Administration.
(Id.) However, Public Wardens are classified under
the Deputy Director Adult Prison Operations. (Id.)
The chart supports Warden Franco's testimony that Larry
Phillips was not Warden Franco's
Petition for Writ of Habeas Corpus
December 6, 2013, Plaintiff, pro se, filed a Petition for
Writ of Habeas Corpus (Habeas Petition) in the First Judicial
District Court, Santa Fe County, New Mexico naming Warden
Franco as respondent. Saiz v. Franco, No.
D-101-CV-2013-03100 (Orig. Mot. Ex. C-1.) The Habeas Petition
was filled out by hand on a form provided for pro se parties.
(Id.) In the Habeas Petition, Plaintiff alleged that
the discipline imposed on him was excessive, was not based on
a preponderance of the evidence, and was not in accordance
with the disciplinary policies of the PNM. (Id.)
Plaintiff asked for the restoration of his good-time credits.
(Id.) Importantly, Plaintiff stated that he appealed
the disciplinary decision to Warden Franco, which was denied,
and that he then appealed to the Secretary of the NMCD, who
“never responded.” (Id.) The petition
form that Plaintiff used contained instructions to filers
that they must complete the Certificate of Service and mail
or otherwise serve copies of the petition on the respondent
and on the district attorney in the county in which the
petition is filed. (Id.) The Certificate of Service
on Plaintiff's Habeas Petition was left blank.
year, for many years, numerous habeas petitions have been
filed against Warden Franco, as respondent. (Supp. Mot. Ex.
I, Franco Dep. 18:10-16; Ex. 2, Shannon Dep. 78:9-22.) Warden
Franco did not personally review those petitions. (Supp.
Resp. Ex. 1, Franco Dep. 18:3- 9.) After receiving each
petition, usually by mail, Warden Franco required his
administrative assistant to copy and file each petition.
(Id.) Warden Franco's administrative assistant
then sent copies of all habeas petitions to the Legal
Department of the NMCD. (Id. 17:24-18:9.) Warden
Franco did not have his assistant maintain a list of the
petitions filed against him for monitoring. (Id.
19:10-14.) In short, Warden Franco did not know about
Plaintiff's Habeas Petition until this case was filed.
(Orig. Mot. Ex. A, Franco Aff. ¶ 7; Supp. Resp. Ex. 1,
Franco Dep. 19-1-5.)
February 14, 2014 and on June 6, 2014, the Santa Fe County
District Court entered an ORDER OF JOINDER combining
Plaintiff's Habeas Petition with petitions from several
other prisoners who were accused of the same assault. (Orig.
Mot. Exs. C-2; C-3.) On March 3, 2014, the Santa Fe County
District Court appointed Public Defender Amanda Stephenson to
represent Plaintiff. (Orig. Mot. Ex. C-4.) On March 17, 2014,
the District Court ordered Ms. Stephenson to file an amended
petition. (Id. Ex. C-5.) On May 29, 2014, Ms.
Stephenson received Plaintiff's “good-time figuring
sheet” or GTFS, and noticed that it did not
“reflect the instructions outlined in the appeal”
decision because Plaintiff's good-time credits had never
been restored. (Orig. Mot. Ex. B-2 Stephenson email chain.)
described in the next section, Ms. Stephenson contacted the
NMCD in late June 2014 about the failure to restore
Plaintiff's good-time credits, which the NMCD corrected.
On July 14, 2014, before the deadline for filing an amended
petition, Ms. Stephenson filed a notice of withdrawal of
Plaintiff's Habeas Petition stating that Plaintiff's
“good time credits ha[d] been fully restored and his
disciplinary appeal ha[d] been granted.” (Orig. Mot.
UMF 32; Orig. Mot. Ex. C, Claire Welch Aff. ¶ 10; Orig.
Mot. Ex. C-7.)
Officials Notified of August 27, 2013 Appeal Decision.
Catanach (Catanach) was the Bureau Chief of the NMCD's
Offender Management Bureau. She handled inmate records for
the approximately 6, 700 inmates in NMCD's eleven adult
prisons, including records related to intake, release, parole
and good-time credits. (Orig. Mot. Ex. B, Catanach Aff.
¶¶ 1-2.) On June 25, 2014, Ms. Catanach received an
email from Ms. Stephenson stating that after reviewing the
appeal decision in Case No. S-13-05-36, she noticed that
Plaintiff's good-time credits had not been restored and
that Plaintiff never received the appeal decision. (Orig.
Mot. Ex. B ¶ 6; Ex. B-2.) Ms. Stephenson attached a copy
of the August 27, 2013 appeal decision to the email and asked
Ms. Catanach to correct Plaintiff's records.
minutes of receiving the email, Ms. Catanach forwarded it to
one of her staff members, Claudia Rodriquez, with
instructions to review the document and make the necessary
adjustments to Plaintiff's good time credits, and, after
Plaintiff's records had been corrected, to provide Ms.
Catanach with a copy of the revised GTFS. (Orig. Mot. Ex.
B-2.) Ms. Rodriquez carried out Ms. Catanach's
instructions on the same day. (Id. Ex. B-3.)
Officer Wagner testified that he learned of Plaintiff's
appeal on June 25, 2014 when he was informed via email from
Ms. Rodriquez with the appeal decision attached. (Orig. Mot.
Ex. E, Wagner Aff. ¶ 5.) A copy of the email was also
sent to Scott Calhoun, an NMCD employee. (Id. Ex.
E-1.) Ms. Rodriquez asked Hearing Officer Wagner to correct
Plaintiff's records at the PNM, and she asked Mr. Calhoun
to award Plaintiff the forfeited good-time credits and to add
the good-time credits that Plaintiff would have accrued while
housed in disciplinary segregation. (Id. Ex. E.)
Hearing Officer Wagner took the appropriate documents to the
PNM records personnel and confirmed that Mr. Calhoun had
corrected Plaintiff's record of good-time credits.
25, 2014, Plaintiff was credited with a total of 423 days of
good-time credit. (Orig. Mot. Ex. B, Catanach Aff. ¶
10.) As a result, Plaintiff's release eligibility date
was also adjusted, and he “was started on a parole plan
to enable him to appear before the Parole Board to be
released from custody and thereafter serve his court-ordered
period of parole.” (Id. ¶ 11.) At the
same time, “NMCD staff also initiated the process to
reclassify [Plaintiff] from Level VI custody at the PNM north
facility, to general population in a Level IV facility
(Southern New Mexico Correctional Facility), which, by
policy, requires action by the Classifications
Committee.” (Id. ¶ 12.) The
Classification Committee's report stated that it was
“advised that Inmate Joshua Saiz #75078 has been
granted his appeal of Level VI Status and is to be released
from Level VI to General Population per DDAP Anthony
Romero.” (Orig. Mot. Ex. B-6.) Plaintiff was
transferred to the Level IV prison (Southern New Mexico
Correctional Facility) from which he was released to parole.
(Orig. Mot. Ex. B, Catanach Aff. ¶ 12.)
Count I, Plaintiff claims that Warden Franco violated his
right to procedural due process under the Fourteenth
Amendment of the Constitution of the United States because
Warden Franco failed to timely implement the August 27, 2013
appeal decision restoring Plaintiff's good-time credits.
(Am. Compl. ¶¶ 39-42.) In Count II, Plaintiff
contends that Warden Franco deprived Plaintiff of the right
to be free from cruel and unusual punishment under the Eighth
Amendment by confining Plaintiff in disciplinary segregation
several months beyond his release date. (Id.
¶¶ 43-58.) In Count IV, Plaintiff asserts ...