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Saiz v. Franco

United States District Court, D. New Mexico

February 27, 2018

JOSHUA SAIZ, Plaintiff,
GERMAN FRANCO, individually and in his official capacity, JOHN DOE, Corrections Officers 1-4, in their individual capacities, STATE OF NEW MEXICO, Defendants.


         Plaintiff 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.[1] 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).[2]


         A. Summary Judgment

         Summary 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).

         B. Qualified Immunity

         When an 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).


         A. Disciplinary Decision and Internal Appeal.

         On May 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, [3] 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. ¶ 17.)[4]

         B. Appeal to the Secretary of the NMCD.

         Plaintiff 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.[5] (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; E-2.)

         Mr. 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.)[6] 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.)

         Until 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.)

         Warden 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.)

         Warden 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 subordinate.[7]

         C. Petition for Writ of Habeas Corpus

         On 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. (Id.)

         Each 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.)

         On 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.)[8] 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.)

         As 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.)

         D. Officials Notified of August 27, 2013 Appeal Decision.

         Cathleen 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. (Id.)

         Within 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.)

         Hearing 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. (Id.)

         On June 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.)

         E. Plaintiff's Claims.

         In 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. ΒΆΒΆ 43-58.) In Count IV, Plaintiff asserts ...

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