United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on Defendant Mike
Heredia's Martinez Report and Motion for Summary
Judgment (Doc. 17), both filed February 15, 2017. Plaintiff,
who is incarcerated and proceeding pro se, did not respond to
the Martinez Report or Defendant Heredia's
summary judgment motion. For the reasons that follow, I
recommend that summary judgment be entered in favor of
Defendant Heredia, and that this action be dismissed with
is an inmate in the custody of the New Mexico Corrections
Department (“NMCD”) and, at the times relevant to
this case, was housed at Lea County Correctional Facility
(“LCCF”), a designated Level III facility in
Hobbs, New Mexico. Doc. 17 at 1. In 2014, Plaintiff was
placed in Interim Level VI status at LCCF. Id. at 2.
He was subsequently classified as a Level VI inmate and
transferred to the Penitentiary of New Mexico
(“PNM”). Id. In this lawsuit, Plaintiff
alleges constitutional violations arising from the
proceedings that resulted in his placement in Interim Level
VI status at LCCF. Doc. 1. In Counts I and II of his
complaint, Plaintiff specifically alleges due process
violations arising from the procedures and hearings that led
to his Interim Level VI placement. In Count III of his
complaint, Plaintiff raises claims under the Eighth Amendment
as well as for emotional distress and defamation of
review of Plaintiff's complaint pursuant to 28 U.S.C.
§ 1915(e)(2) and Fed.R.Civ.P. 12(b)(6), the Court
dismissed Plaintiff's claims for equitable relief without
prejudice to his rights under the habeas corpus statutes.
Doc. 4. The Court also dismissed three defendants as parties,
leaving Defendant Heredia as the sole remaining defendant in
this action. Id. On September 16, 2016, the Court
dismissed Plaintiff's claim for monetary damages and
declaratory relief arising from the wrongful deprivation of
good-time credits. See Doc. 13.
December 21, 2016, I directed Defendant Heredia to submit a
Martinez Report addressing Plaintiff's remaining
claims. See Martinez v. Aaron, 570 F.2d 317, 319-20
(10th Cir. 1978). The parties were notified that the
Martinez Report may be used in deciding whether to
grant summary judgment on Plaintiff's remaining claims,
whether by motion or sua sponte, and that the
parties should submit whatever materials they consider to be
relevant to Plaintiff's claims. See Hall v.
Bellmon, 935 F.2d 1106 (10th Cir. 1991).
addition to submitting the Martinez Report,
Defendant Heredia has moved for summary judgment on all of
Plaintiff's remaining claims. Doc. 17. As stated earlier,
Plaintiff did not respond to Defendant Heredia's motion
for summary judgment, nor did he request an extension of time
to do so.
Standard of Review
“shall grant summary judgment 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). There is no genuine dispute as to any
material fact unless the evidence is such that a reasonable
jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine “if there is sufficient
evidence on each side so that a rational trier of fact could
resolve the issue either way, ” and it is material
“if under the substantive law it is essential to the
proper disposition of the claim.” Becker v.
Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal
quotation marks omitted). In reviewing a motion for summary
judgment, the Court views the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party, here, Plaintiff. S.E.C. v.
Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013)
(quotation omitted). Initially, the party seeking summary
judgment has the burden of showing that there is no genuine
dispute as to any material fact. See Shapolia v. Los
Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir.
1993). Once the moving party meets its burden, the non-moving
party must show that genuine issues remain for trial.
liberally construe Plaintiff's filings because he is
appearing pro se. Still, a pro se non-movant must
“identify specific facts that show the existence of a
genuine issue of material fact.” Munoz v. St.
Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000)
(internal quotation marks omitted). Conclusory allegations
are insufficient to establish an issue of fact that would
defeat the motion. Llewellyn v. Allstate Home Loans,
Inc., 711 F.3d 1173, 1180 (10th Cir. 2013). For purposes
of summary judgment, a Martinez Report is treated
like an affidavit and a prisoner's complaint may also be
treated as an affidavit if it alleges specific facts based on
the prisoner's personal knowledge and has been sworn
under penalty of perjury. Hall, 935 F.2d at 1111.
his failure to respond to Defendant Heredia's summary
judgment motion or the Martinez Report, Plaintiff
has not identified any facts proffered by Defendant Heredia
which he disputes nor has he pointed to evidence in the
record to support his claims. See Fed. R. Civ. P.
56; see also D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted”). Thus, I
will “accept as true all material facts asserted and
properly identified in the summary judgment motion.”
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
Mexico Corrections Department (“NMCD”) houses
inmates at Lea County Correctional Facility
(“LCCF”) pursuant to a contract with Lea County.
Doc. 17-3, Ex. R, at 106. LCCF is operated by the GEO Group,
Inc., (“GEO”). Id. GEO is obligated to
apply and enforce NMCD's policies and procedures,
including those governing inmate classifications.
Id. NMCD prison facilities and/or units are
designated to house inmates at certain security levels
ranging from Level I to Level VI. Doc. 17-1, Ex. M, at 24,
30. Of the six security levels established by the NMCD,
“Security Levels V and VI” are “the most
restrictive custody statuses for inmates posing the greatest
risk to institutional security and the safety of
others.” Doc. 17-1, Ex. M, at 24.
Policy CD-143002 provides the criteria and procedures for
placing an inmate in Level VI status. Doc. 17-2, Ex. O.
According to that policy, security officials are permitted to
place an inmate in Level VI status for various reasons,
including if he poses a threat to the security of the
institution. Doc. 17-2, Ex. O, at 47. A “Threat to the
Security of the Institution” is defined as “[a]ny
behavior or situation which involves, causes or is reasonably
likely to cause acts of violence, a substantial risk of death
or serious injury to any person, substantial destruction of
property, escape or risk of escape, and it also includes
introduction of contraband or conspiracy or attempt to
introduce contraband.” Doc. 17-1, Ex. M, at 24.
designated as a Level III facility. Doc. 17-3, Ex. R, at 107.
Pursuant to NMCD Policy CD-143000, LCCF is permitted to place
inmates in Level VI on an interim basis only. Id.;
see also Doc. 17-1, Ex. M, at 30. Interim Level VI
is defined as “[t]emporary placement of the inmate in
the segregation unit by the shift supervisor or unit manager
based on inmate meeting the Level VI placement criteria
including threat to the security of the institution and/or
protection needs.” Doc. 17-1, Ex. M, at 23. NMCD Policy
CD-143001 provides the criteria and procedures for placing an
inmate in Interim Level VI status. Doc. 17-2, Ex. N. Pursuant
to this policy, an inmate may be placed involuntarily into
Interim Level VI status on the basis of “recent overt
acts or reliable information, which reasonably leads the
shift supervisor to believe in good faith that an inmate
presents a threat to the security of the institution, may be
a sexual predator, or otherwise meets the eligibility
criteria for involuntary placement in Level VI.”
Id. at 33. When an inmate is involuntarily placed in
Interim Level VI status, the shift supervisor/unit manager
must document the reasons for the involuntary placement and
give a copy of the document to the inmate within one working
day, excluding weekends and holidays. Id. at 34.
Placement in Interim Level VI can be based on information
received from confidential informants. Doc. 17-3, Ex. R, at
the initial placement of an inmate into Interim Level VI
status, officials must review the placement within 72 hours
to determine whether the inmate should remain in Interim
Level VI status. Doc. 17-2, Ex. N, at 32. Then, within five
working days of an inmate's placement in Interim Level
VI, the inmate must receive an Interim Level VI
Classification Committee hearing with notice of the hearing
at least 48 hours before it occurs. Id. at 35-36.
The inmate shall be provided the right to appear before the
Committee to provide input. Id. at 36. The Committee
determines whether the inmate meets eligibility criteria for
Level VI status and whether the inmate should be referred to
the Central Office Classification Bureau for transfer to a
designated Level VI unit. Id. at 36.
inmate is referred to the Classification Bureau for transfer,
the Classification Bureau Chief decides whether the inmate
should be classified to Level VI within two working days of
receipt of the referral. Doc. 17-2, Ex. O, at 51. If the
Classification Bureau determines that an inmate should be
placed at a Level V or Level VI facility, the inmate is
transferred once space is available. Id. Upon
arrival at a Level VI facility, the inmate is given an
Initial Level VI Hearing, during which the inmate will be
given the opportunity to appeal the decision placing him in
Level VI. Id. at 54. When the Level VI placement is
based on confidential information, the inmate is “given
a written summary of the facts upon which this custody status
is being requested, sufficient to allow the inmate to
challenge the truthfulness of the facts and/or the need for
this custody status, in a manner that would not inherently
identify the confidential informant(s) or pose a threat to