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Alarcon v. Heredia

United States District Court, D. New Mexico

March 2, 2018

MATTHEW ALBIAN ALARCON, Plaintiff,
v.
MIKE HEREDIA, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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.[1] For the reasons that follow, I recommend that summary judgment be entered in favor of Defendant Heredia, and that this action be dismissed with prejudice.

         I. Procedural Background

         Plaintiff 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 character.

         Upon 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.

         On 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).

         In 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.[2]

         II. Standard of Review

         A court “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. Id.

         I 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.

         Due to 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. 2002).

         III. Factual Background

         The New 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.

         NMCD 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.

         LCCF is 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 108.

         After 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.

         When an 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 ...


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