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Diab v. Baca

United States District Court, D. New Mexico

May 3, 2018

RICHARD DIAB, Plaintiff,
v.
FNU BACA, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HON. GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court[1] on the “Martinez Report” filed by Defendant New Mexico Corrections Department (“NMCD”) on October 26, 2017. ECF No. 60. Plaintiff responded to the Martinez Report with multiple filings that the Court collectively construes as his Response. See ECF Nos. 66, 70, 71, 72, 76, 77, 78. NMCD filed its “Final reply in Support of Their Martinez Report” (“Final Reply”) on March 2, 2018. ECF No. 79. Several additional motions are currently pending and ripe for review, including NMCD's “Motion to Amend Order Granting Extension of Time to Remove ‘John Doe' Defendant from Case Caption” [ECF No. 64], Plaintiff's “Motion [R]equesting the [C]ourt to [R]e[-]enter a Defendant” [ECF No. 65], and Plaintiff's “Motion to Allow the Attached Statement as Addition to Plaintiff's Response to Martinez Report” [ECF No. 71].

         For the reasons that follow, the Court HEREBY RECOMMENDS that: (1) summary judgment be GRANTED to Defendants; (2) all of Plaintiff's remaining claims be DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to exhaust administrative remedies; and (3) all other pending motions be DENIED AS MOOT.

         I. BACKGROUND

         Plaintiff served a brief period of incarceration in the Central New Mexico Correctional Facility (“CNMCF”) beginning on August 18, 2016. Def.'s Final Reply 2, ECF No. 79. Plaintiff alleges that prison officials violated his civil rights in that short time by:

(1) issuing him one or more infested and/or unsanitary mattresses;
(2) providing an unsanitary toilet;
(3) failing to provide adequate cleaning supplies or a generally sanitary environment;
(4) failing to provide adequate medical care;
(5) failing to provide adequate means and methods to lodge his grievances; and
(6) by making inappropriate statements to him.

See Pl.'s Compl. 3-13, ECF No. 1; Def. NMCD's Martinez Report 3, ECF No. 60. Plaintiff demands $12, 500 in actual damages and $10, 000 in punitive damages. Pl.'s Compl. 14.

         On September 26, 2017, the Court ordered Defendants to produce a Martinez Report. ECF No. 56. Therein, the Court advised all parties that the Martinez Report could be used in several contexts, “including motions for summary judgment or a sua sponte entry of summary judgment.” Order, Sep. 26. 2017, at 1, ECF No. 56 (emphasis in original).

         On October 26, 2017, NMCD filed the Martinez Report (“Report”). ECF No. 60. The Report contains numerous affidavits, [2] as well as the NMCD's grievance procedures that were in effect at all times pertinent to Plaintiff's Complaint. See Def. NMCD's Report, Ex. A at Attachs. 1-4. The NMCD grievance procedure begins with an informal complaint, which an inmate must file within five working days from the date of the incident giving rise to the complaint. Id., Ex. A, Attach. 1 at 1. If the issue is not resolved to the inmate's satisfaction, the inmate may file a formal grievance with the prison's grievance officer within five working days of the conclusion of the informal complaint process. Id., Ex. A, Attach. 1 at 2-3. The grievance officer must then investigate the issue and draft a report and recommendation for the warden's review within fifteen working days from receipt of the inmate's grievance. Id., Ex. A, Attach. 1 at 4. The warden or a designee will review the grievance, along with any comments from inmates and staff, and make a decision within fifteen working days of receipt of the grievance. Id. Finally, if the inmate is not satisfied with the decision of the warden or the warden's designee, the inmate may appeal the warden's decision to the Office of the Secretary of Corrections within five (5) working days of receiving the decision. Id., Ex. A, Attach. 1 at 5.

         According to Steve Madrid, statewide Grievance Appeals Coordinator for NMCD, “an inmate exhausts his grievance only if and when the inmate pursues the last possible appeal in the grievance policy, to the NMCD Cabinet Secretary or his designee, the Director of Adult Prisons, in Santa Fe.” Id., Ex. E at 1. Madrid futher attests that he has searched NMCD's records for the “grievance history of Inmate Richard Diab #72348.” Id., Ex. F at 1. These records revealed that “Inmate Diab has not exhausted any grievance by pursuing an appeal to Central Office (the NMCD Cabinet Secretary/Director of Adult Prisons).” Id., Ex. F at 1-2.

         The Report also refutes the merits of Plaintiff's allegations and argues in the alternative that NMCD not only investigated Plaintiff's complaints, but responded to each appropriately. See Id. at 19-26.

         Plaintiff acknowledges that he did not exhaust his adminstrative remedies. Pl.'s Mot. to Allow Statements 1, ECF No. 71. He contends that “such remedies were not available [due] to the fact that Defendants denied [P]laintiff the correct forms to file his complaints with regards to the prison conditions he was subject [to].” Id.

         II. LEGAL STANDARDS

         A. Summary Judgment Standard

         Summary judgment will 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). The movant must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

         The movant has the initial burden of establishing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If this burden is met, the non-movant must come forward with specific facts, supported by admissible evidence, which demonstrate the presence of a genuine issue for trial. Id. at 324. Although all facts are construed in favor of the non-movant, the non-movant still has a 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) (citation and internal quotation marks omitted).

         The Court liberally construes 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) (citation and internal quotation marks omitted). Conclusory allegations are insufficient to establish an issue of ...


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