United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court 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].
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.
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
(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.
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).
October 26, 2017, NMCD filed the Martinez Report
(“Report”). ECF No. 60. The Report contains
numerous affidavits,  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.
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.
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.
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.
Summary Judgment Standard
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.”
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).
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 ...