United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing, United States Magistrate Judge.
MATTER comes before the Court on defendants former Secretary
of the New Mexico Corrections Department (“NMCD”)
Gregg Marcantel, and former NMCD Director of Adult Prisons
Jerry Roark's,  Martinez report, including their
motion for summary judgment (Doc. 36), filed on June 2, 2017.
Plaintiff Jacob Gonzalez filed a variety of documents in
response to the Martinez report, including a letter
on July 6, 2017 (Doc 39), which the Court construed as a
motion for an extension of time (Doc. 42), a letter on July
12, 2017 (Doc. 41), a letter on July 25, 2017 (Doc. 43), a
motion on August 3, 2017 (Doc. 44), and a letter on August
17, 2017 (Doc. 45). The Court construes these documents
collectively as Gonzales' response to the
Martinez report. Gonzales also filed a letter on
November 30, 2017. Doc. 47. Although Gonzales does not style
his letter as a motion or ask the Court for leave to amend
his complaint, along with advising the Court of his address
change, Gonzales makes new allegations with respect to the
facility in which he currently is being housed. Id.
The Court will construe this letter as a motion to amend.
Honorable Martha Vazquez referred this case to me to conduct
hearings, if warranted, including evidentiary hearings, and
to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case. Doc. 11. Having
reviewed the submissions of the parties, and being fully
advised, I find that there are no genuine issues of material
fact, and that defendants are entitled to judgment as a
matter of law because Gonzales fails to establish that
defendants violated his constitutional rights. I therefore
recommend that the Court deny Gonzales' motion to amend,
and dismiss his complaint with prejudice.
Background and Procedural Posture
in an inmate housed by the NMCD. When he initiated this
lawsuit, Gonzales was housed at the Lea County Correctional
Facility in Hobbs, New Mexico (“LCCF”).
See Doc. 1 at 1. During the pendency of this
lawsuit, Gonzales was moved from LCCF to the Guadalupe County
Correctional Facility in Santa Rosa, New Mexico
(“GCCF”). See Doc. 35 at 7. He currently
is housed at Northeast New Mexico Detention Facility in
Clayton, New Mexico (“NENMDF”). See Doc.
47; Doc. 48 at 3.
commenced this civil rights lawsuit pursuant to 28 U.S.C.
§ 1343 and 42 U.S.C. § 1983 against NMCD,
Secretary of Corrections Gregg Marcantel, Director of Adult
Prisons Jerry Roark, Governor Susana Martinez, former LCCF
Warden Jeff Wrigley, and Security Warden John
Beaird. Doc. 1 at 1. Gonzales alleges that
defendants perpetuated policies that violated his First
Amendment right to freedom of expression and freedom of
speech by not allowing him to order unedited music, to
receive pictures of his girlfriend or wife in lingerie, or to
order magazines like “Curves, ”
“Show” or “Maxim.” Id. at 2.
Gonzales also alleges that NMCD used policies “to
manipulate and burn us on our visits by using the vague and
contradictory policy to suspend our visits without proof of
guilt.” Id. at 3. Gonzales seeks injunctive
and declaratory relief as well as monetary compensation for
the alleged violations of his constitutional rights.
Id. at 4-5.
previous memorandum opinion and order, Judge Vazquez
dismissed Gonzales' claims against the New Mexico
Department of Corrections, Susana Martinez, and his
Fourteenth Amendment equal protection claim. Doc. 12. She
further construed his Fifth Amendment due process and
Fourteenth Amendment due process claims as one in the same,
and dismissed any claims Gonzales purported to bring on
behalf of other inmates. Id. Defendants Marcantel
and Roark answered the complaint. Doc. 17. Defendants Beaird
and Wrigley each filed a motion to dismiss Gonzales'
claims against them (Docs. 16, 23) and, adopting the
magistrate judge's recommendation, the Court granted
their motions and gave Gonzales 21 days to seek leave to
amend his complaint as to his claims against Beaird and
Wrigley. Doc. 29 at 3. Gonzales sought an extension of time
to seek leave to amend (Doc. 30), which the Court granted
(Doc. 31). Gonzales did not move to amend his complaint
within the time allowed by the Court. Consequently, the Court
dismissed Gonzales' claims against Defendants Beaird and
Wrigley. Doc. 33.
Court ordered defendants Marcantel and Roark to submit a
Martinez report. Doc. 34. Specifically, the Court
ordered defendants to address Gonzales' allegations that
the New Mexico Department of Corrections (“NMCD”)
. . . perpetuated a policy that violated his First Amendment
right to freedom of expression and freedom of speech by not
allowing him to order unedited music, to receive pictures of
his girlfriend or wife in lingerie, or to order magazines
like “Curves, ” “Show” or
“Maxim.” Doc. 1 at 2. Gonzales also alleges that
defendants' policies are vague with respect to time
limits and are used to manipulate and burn [him] on [his]
visits by using the vague and contradictory policy to suspend
[his] visits without proof of guilt, ” in violation of
his right to due process.
Id. at 1. Defendants' filed their
Martinez report on June 2, 2017. Doc. 36. In the
Martinez report, defendants argue that they are
entitled to summary judgment. Id. Gonzales responded
with several letters to the Court, as described above.
Defendants' Motion for Summary Judgment
Standard for Summary Judgement
judgment is appropriate when “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). The
party moving for summary judgment has the initial burden of
establishing, through admissible evidence in the form of
depositions, answers to interrogatories, admissions,
affidavits or documentary evidence, that there is an absence
of evidence to support the opposing party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If this burden is met, the party opposing summary judgment
must come forward with specific facts, supported by
admissible evidence, which demonstrate the presence of a
genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). Although all facts
are construed in favor of the nonmoving party, it still is
the nonmoving party's responsibility to “go beyond
the pleadings and designate specific facts so as to make a
showing sufficient to establish the existence of an element
essential to [his] case in order to survive summary
judgment.” Johnson v. Mullin, 422 F.3d 1184,
1187 (10th Cir. 2005) (alteration in original) (internal
quotation marks omitted).
purposes of summary judgment, a prisoner's complaint is
treated as an affidavit if it alleges facts based on the
prisoner's personal knowledge and has been sworn under
penalty of perjury. Hall v. Bellmon, 935 F.2d 1106,
1111 (10th Cir. 1991). A Martinez report also is
treated as an affidavit. Id. A court cannot resolve
material disputed factual issues by accepting a
Martinez report's factual findings when they are
in conflict with pleadings or affidavits. Id. at
1109. Conclusory allegations, however, without specific
supporting facts, have no probative value and cannot create a
genuine issue of fact. See Fitzgerald v. Corr. Corp. of
Am., 403 F.3d 1134, 1143 (10th Cir. 2005); Annett v.
Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004);
Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.
1992). As is true with all affidavits, statements of mere
belief must be disregarded. Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir.
Court liberally construes Gonzales' filings because he is
appearing pro se. Hall, 935 F.2d at 1110.
Nevertheless, as the non-moving party, Gonzales still 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. Harrison v. Wahatoyas, L.L.C.,
253 F.3d 552, 557 (10th Cir. 2001).
suit brought by a pro se prisoner, a court may order the
defendants to investigate the plaintiff's claims and
submit a report of that investigation, called a
Martinez Report. See Hall, 935 F.2d at
1109; Martinez v. Aaron, 570 F.2d 317, 319-20 (10th
Cir. 1978). A court may use the Martinez Report to
grant summary judgment upon motion of the defendants.
Hall, 935 F.2d at 1009-13; see also
Celotex, 477 U.S. at 326 (courts possess the authority
to enter summary judgment sua sponte, so long as the losing
party is on notice that she must come forward with all of her
Standard for Evaluating the Constitutionality of Prison
are entitled to the protections of the Constitution.
Turner v. Safley, 482 U.S. 78, 84 (1987). Among
these protections is the First Amendment right of a prisoner
to correspond with others outside the prison. See
Id. (evaluating prison regulation restricting
correspondence between inmates at different prison
facilities); Gee v. Pacheco, 627 F.3d 1178, 1187
(10th Cir. 2010) (considering prisoner's claims under the
First Amendment, “in particular his right to
communicate with persons outside the prison”). Inmates
have a right “to receive information while in
prison.” Jacklovich v. Simmons, 392 F.3d 420,
426 (10th Cir. 2004). These rights, however, may be cabined
by corrections policies implemented in the interests of
safety and security. Thornburgh v. Abbott, 490 U.S.
401, 413-14 (1989). Indeed, “[p]risoners' rights
may be restricted in ways that ‘would raise grave First
Amendment concerns outside the prison context.'”
Gee, 627 F.3d at 1187 (quoting Thornburgh,
490 U.S. at 407). In evaluating the constitutionality of a
prison regulation that “‘impinges on inmates'
constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological
interests.'” Id. (quoting Turner,
482 U.S. at 89).
Turner, the Supreme Court set out four factors
courts should use to evaluate the reasonableness of a prison
regulation that infringes on constitutionally protected
rights. 482 U.S. at 89-90. First, “there must be a
‘valid, rational connection' between the prison
regulation and the legitimate governmental interest put
forward to justify it.” Id. at 89 (quoting
Block v. Rutherford, 468 U.S. 576, 586 (1984)). The
regulation at issue must not be “arbitrary” or
“irrational.” Id. at 90. Second, courts
must consider “whether there are alternative means of
exercising the right that remain open to prison
inmates.” Id. Third, courts must weigh
“the impact accommodation of the asserted
constitutional right will have on guards and other inmates,
and on the allocation of prison resources generally.”
Id. Where accommodating the asserted right will
strain the prison's resources or have some other
“significant ‘ripple effect, '” courts
should be particularly deferential to the discretion of
prison officials. Id. Finally, “the absence of
ready alternatives is evidence of the reasonableness of a
prison regulation.” Id. (citing
Block, 468 U.S. at 587). However, prison regulations
need not satisfy the stringent “least restrictive
alternative” test, and courts need not consider
“every conceivable alternative method”; rather,
the court should consider whether “obvious, easy
alternatives” exist that would accommodate the right
“at de minimis cost to valid penological
interests.” Id. at 90-91 (internal quotation
Turner analysis “requires close examination of
the facts.” Boles v. Neet, 486 F.3d 1177, 1181
(10th Cir. 2007). Courts must consider the facts “on a
case-by-case basis” to determine whether a prison
regulation's impingement on an inmate's First
Amendment rights is justified. Beerheide v. Suthers,
286 F.3d 1179, 1185 (10th Cir. 2002). While defendants must
set forth a legitimate penological interest reasonably
related to the regulation at issue, the plaintiff prisoner
bears the ultimate burden of disproving the validity of the
regulations. Overton v. Bazzetta, 539 U.S. 126, 132
(2003). The burden rests on the plaintiff “to set forth
‘specific facts' that, in light of the deference
that courts must show to the prison officials, could warrant
a determination” in the prisoner's favor. Beard
v. Banks, 548 U.S. 521, 525 (2006) (quoting Fed.R.Civ.P.
56(e); Overton, 539 U.S. at 132).
must be mindful of the “institutional objectives”
served by the regulations at issue and the “measure of
judicial deference owed” to prison officials in their
implementation of such objectives. Pell v.
Procunier, 417 U.S. 817, 827 (1974); see also
Beard, 548 U.S. at 528 (“[C]ourts owe
‘substantial deference to the professional judgment of
prison administrators.'” (quoting Overton,
539 U.S. at 132)). The Turner standard “is
necessary if ‘prison administrators . . ., and not the
courts, [are] to make the difficult judgments concerning
institutional operations.'” Turner, 482
U.S. at 89 (quoting Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119, 128
(1977)). On summary judgment, the plaintiff must do more than
just “disagree with the views expressed” by
prison officials in affidavits; rather, the prisoner
“must point to evidence creating genuine factual
disputes that undermine those views.” Wardell v.
Duncan, 470 F.3d 954, 960 (10th Cir. 2006). Courts
“must distinguish between evidence of disputed facts
and disputed matters of professional judgment, ” the
latter of which requires judicial deference. Beard,
548 U.S. at 530.
Exhaustion of Prison Grievance Procedures
Prison Litigation Reform Act (PLRA) states that “[n]o
action shall be brought with respect to prison conditions
under section 1983 of this title, 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). This requirement applies “to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002). The purpose of the grievance
procedure is to permit prison administrators to investigate
and address the issue. “Proper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the
course of its proceedings.” Woodford v. Ngo,
548 U.S. 81, 90-91 (2006).
“failure to exhaust is an affirmative defense under the
PLRA.” Jones v. Bock, 549 U.S. 199, 216
(2007). Here, Gonzales is seeking injunctive relief as well
as compensatory and punitive damages. Doc. 1. “[T]he
PLRA requires a prisoner seeking only money damages through a
lawsuit brought under federal law to ‘complete a prison
administrative process that could provide some sort of relief
on the complaint stated, but no money, ' before filing
suit.” Sanders v. Williams, 2010 WL 1631767,
*9 (D.N.M. Mar. 20, 2010) (citing and quoting Booth v.
Churner, 532 U.S. 731, 734 (2001)). Where administrative
remedies are available with respect to a prisoner's claim
for injunctive relief, a claim may be properly dismissed
pursuant to § 1997e for failure to exhaust
administrative remedies. Florence v. Booker, 161
F.3d 17 (Table), 1998 WL 694521, *1 (10th Cir. 1998)
(unpublished). Section 1997e(a) “requires full
exhaustion of the available formal grievance procedure,
regardless of the nature of the relief being sought.”
Boulden v. Tafoya, 37 F. App'x 974, 975 (10th
Cir. 2002) (citing Booth v. Churner, 532 U.S. 731,
741 (2001)); 42 U.S.C. § 1997e(a).
constitutes proper exhaustion is governed by the requirements
of the applicable prison grievance system . . . .”
Lane v. Rozum, 2016 WL 1212782, *3 (W.D. Pa. Mar.
11, 2016) (unpublished) (citing Woodford, 548 U.S.
at 95); Saleh v. Wiley, 2012 WL 4356219, *4 (D.
Colo. Sept. 24, 2012) (unpublished) (informal statements to
prison administrators are not part of grievance procedure and
cannot constitute a basis for exhaustion). Once a plaintiff
has exhausted a grievance procedure, the next proper question
is, “What claims against what defendants does this
grievance exhaust?” Lane, 2016 WL 1212782, at
to Gonzales's grievance history, he has exhausted the
grievance procedure with respect to some, but not all of the
claims in his lawsuit. For example, on March 7, 2012,
Gonzales complained that he was unable to obtain mail that
included a perfumed item, a picture of his incarcerated
brother,  and a picture of his wife or girlfriend
partially or totally nude and posed in a sexually explicit
position. Doc. 36-2 at 31-42. Gonzales exhausted this
grievance. Id.; Doc. 36 at 19-20. On July 5, 2012,
Gonzales complained about not being allowed to order
magazines such as “Maxim” and “Show,
” and not being able to receive pictures of his brother
or sexy pictures of his girlfriend. Doc. 36-2 at 56-62.
Gonzales exhausted this grievance. Id.; Doc. 36 at
20. On the other hand, Gonzales did not exhaust any grievance
regarding unedited music. Doc. 36 at 25.
Undisputed Material Facts
1. NMCD policy allows inmates to receive correspondence and
access to publications. Doc. 36-1 at 55, 72, 89, 107
(correspondence); id. at 56, 61, 78, 90, 95, 107,
113, 125, 131, 147 (publications).
2. Access to correspondence and publications is limited if
the correspondence or publication threatens the safety and
security of the facility and other persons. Id. at
55, 72, 89, 107.
3. Inmate mail, both incoming and outgoing, is opened and
inspected. Id. at 56, 58, 90, 92, 127, 144.
4. Mail may be accepted or rejected “based on the
legitimate institutional interests of order and
security.” Id. at 56, 73, 90, 107, 125.
5. One of the ways NMCD maintains its institutional interests
of order and security is to “avoid creating a
sexualized atmosphere in ...