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Gonzales v. Marcantel

United States District Court, D. New Mexico

March 30, 2018

JACOB GONZALES, Plaintiff,
v.
GREGG MARCANTEL, [1] JERRY ROARK, JEFFREY WRIGLEY, JOHN BEAIRD, Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          Laura Fashing, United States Magistrate Judge.

         THIS 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, [2] Martinez[3] 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.[4] 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.

         The 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.

         I. Background and Procedural Posture

         Gonzales 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.

         Gonzales commenced this civil rights lawsuit pursuant to 28 U.S.C. § 1343[5] 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.[6] 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.

         In a 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.

         The 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.

         II. Defendants' Motion for Summary Judgment

         A. Standard for Summary Judgement

         Summary 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).

         For 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. 2006).

         The 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).

         In a 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 evidence).

         B. Standard for Evaluating the Constitutionality of Prison Regulations

         Prisoners 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).

         In 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 marks omitted).

         A 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).

         Courts 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.

         C. Exhaustion of Prison Grievance Procedures

         The 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).

         The “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).

         “What 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 *4.

         According 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, [7] 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.[8] Doc. 36 at 25.

         D. 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 ...

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