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Delgado v. New Mexico Department of Corrections

United States District Court, D. New Mexico

August 29, 2018

ANDREW JOEY DELGADO, Plaintiff,
v.
NEW MEXICO DEPARTMENT OF CORRECTIONS, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Andrew Joey Delgado's Prisoner's 1st Amended Civil Rights Complaint, (Doc. 19), filed May 9, 2016; Defendants Bixenman, Calvillo, and Douglas' Martinez Report and Motion for Summary Judgment (the “Martinez Report, ” “Report, ” or “Motion for Summary Judgment”), (Doc. 65), filed November 15, 2017; Plaintiff's Motion in Opposition to Defendants' Bixenman, Calvillo and Douglas' Martinez Report/Summary Judgment, (Doc. 85), Statement of Disputed Facts, (Doc. 86), and Affidavit of Andrew Joey Delgado (collectively, the “Response” or “Plaintiff's Response”), (Doc. 87), all filed March 5, 2018; and Defendants' Reply in Support of Martinez Report (the “Reply”), (Doc. 88), filed March 19, 2018. Also before the Court are Defendant's Supplement to Martinez Report, (Doc. 90), filed July 6, 2018; Plaintiff's Response to Defendants Bixenman, Calvillo, and Douglas' Supplement to Martinez Report, (Doc. 94), filed August 13, 2018; and Defendants' Bixenman, Calvillo, and Douglas' Reply in Support of Supplemental Martinez Report, (Doc. 97), filed August 27, 2018. Finally, Plaintiff's Motion to Suspend Summary Judgment (the “Rule 56(d) Motion”), (Doc. 79), filed February 12, 2018; and Defendants' Response to Plaintiff's Motion to Suspend Summary Judgment (the “Rule 56(d) Response”), (Doc. 82), filed February 13, 2018, are also before the Court.

         Chief United States District Judge William P. Johnson referred this case to Chief United States Magistrate Judge Carmen E. Garza for proposed findings and a recommended disposition. (Doc. 3). Having reviewed the record, the briefing, and the relevant law, the Court RECOMMENDS that Plaintiff's Rule 56(d) Motion be DENIED; that Defendants' Motion for Summary Judgment be GRANTED; and that this case be DISMISSED WITH PREJUDICE.

         I. Background

         On May 3, 2014, Plaintiff was cleaning his cell at the Lea County Correctional Facility (“LCCF”) with his cell door propped open and his right hand in the door jamb, when the door suddenly slammed shut on his hand and wrist. (Doc. 19 at 4). Plaintiff says he showed his hand to guards and nurses, who recognized he needed treatment, but he did not actually receive treatment until ten days after the incident. (Doc. 65-8 at 3; Bates number (“BN”) 123). On May 13, 2014, Plaintiff denied hearing or feeling a popping sensation when he was injured, and Defendant Bixenman, a physician's assistant, noted Plaintiff had bruising, a full range of motion, and strong bilateral grip strength. Id. Defendant Bixenman diagnosed Plaintiff with a hand/thumb sprain with a risk of fracture, wrapped Plaintiff's wrist in a bandage, prescribed ibuprofen, and ordered x-rays. Id. X-rays taken another ten days later, on March 23, 2014, revealed Plaintiff had indeed suffered fractures in his hand and wrist. (Doc. 65-11 at 13-14). Plaintiff's hand and wrist were not treated again until June 18, 2014, when Defendant Bixenman splinted his wrist and prescribed more pain medication. (Doc. 65-7 at 15). Over the next year, Plaintiff experienced several more delays in receiving medical attention, which he says did little to resolve his injuries.

         Ultimately, Plaintiff filed civil rights complaints against LCCF, the New Mexico Department of Corrections, the medical provider at LCCF, and several individuals. See (Doc. 1), (Doc. 12), (Doc. 19). Following initial review of Plaintiff's complaints, all but three defendants were dismissed. (Doc. 24). The three remaining defendants are Defendant Bixenman; Defendant Calvillo, the Director of Nursing at LCCF; and Defendant Douglas, LCCF's Health Services Administrator. Plaintiff alleges these individuals violated his Eighth Amendment rights by being deliberately indifferent to his serious medical needs. (Doc. 19 at 14). Plaintiff argues these Defendants were personally responsible for inadequate medical treatment and delays Plaintiff experienced in receiving that treatment. Id. at 6, 14. As a result, Plaintiff states he experiences constant discomfort in his hand and wrist and that he will be unable to return to his career as an automotive technician. Id. at 14.

         After the initial screening of Plaintiff's complaints, the Court ordered Defendants to compile and file a Martinez Report in order to ascertain the legal and factual bases for Plaintiff's claims. (Doc. 51 at 2). The Court noted it may consider the Martinez Report in deciding summary judgment and provided specific instructions. For example, the Court ordered Defendants to file an index along with the Report and to describe any contracts, policies, procedures, protocols, laws, or regulations pertinent to Plaintiff's claims. Id. at 5. The Court also ordered Defendants to file any motions for summary judgment separate from the Report. Id.

         Contrary to the Court's Order, Defendants filed the Martinez Report and asked for summary judgment in the same pleading. (Doc. 65 at 1). The Report also did not contain an index or describe any contracts, policies, etc., pertaining to Plaintiff's claims. Accordingly, the Court ordered Defendants to supplement the Martinez Report with the contracts, policies, and grievances related to Plaintiff's claims. (Doc. 89). Defendants provided the additional information in a supplemental Martinez Report, filed on July 6, 2018. (Doc. 90). Plaintiff filed a response to the supplemental Martinez Report on August 13, 2018, (Doc. 94), and Defendants filed a reply in support of the supplemental Martinez Report on August 27, 2018.

         In their Motion for Summary Judgment, Defendants argue that Plaintiff's medical records show he received almost monthly treatment for his hand and wrist, including several x-rays, two CT scans, splints and braces, and consultations with specialists. (Doc. 65 at 1-14). Defendants claim Plaintiff received regular, attentive medical care, and there is no genuine dispute of material fact as to whether Defendants intentionally delayed, denied, or interfered with Plaintiff's care. Id. at 14-17. Although Plaintiff may disagree with his treatment, Defendants contend he cannot show they had the “culpable state of mind” necessary to establish an Eighth Amendment violation. Id. at 17.

         In response to the Motion for Summary Judgment, Plaintiff argues the delays he suffered in receiving treatment and the inadequacy of the treatment itself constitute Eighth Amendment violations. (Doc. 85 at 16-20). Plaintiff contends it was Defendant Bixenman's responsibility to treat Plaintiff and make regular appointments, Defendant Calvillo's responsibility to ensure those appointments were kept, and Defendant Douglas' responsibility to oversee Plaintiff's medical care. Id. at 10. Plaintiff highlights the ten-day delay between his injury and his initial treatment by Defendant Bixenman, the delay between having x-rays taken and being splinted, and the fact that his hand and wrist were never placed in a cast as particular instances of delayed or denied medical treatment. Id. at 16, 20.

         In reply to their Motion for Summary Judgment, Defendants again argue that Plaintiff cannot show Defendants were deliberately indifferent to Plaintiff's needs. (Doc. 88 at 1). Plaintiff emphasizes the pain he suffered as a result of allegedly inadequate and untimely treatment, but Defendants maintain that Plaintiff's allegations establish medical malpractice at best, which is insufficient to establish and Eighth Amendment violation. Id. at 3-4. Accordingly, Defendants request summary judgment in their favor as there are no genuine issues of material fact and Defendants are entitled to judgment as a matter of law.

         In addition, in response to the supplemental Martinez Report, Plaintiff states that Defendants failed to follow policies related to inmate care. (Doc. 94 at 1-3). In particular, Plaintiff contends that policies related to daily sick call, staffing ratios, and responding to health care requests were not followed. Id. Plaintiff argues Defendants intentionally failed to follow those policies, which shows deliberate indifference. Id. at 3. Plaintiff also argues Defendants failed to provide the job description for Defendant Douglas as Health Service Administrator, and failed to produce Defendants' annual peer reviews. Id. at 3-4.

         In their reply to the Supplemental Martinez Report, Defendants contend Plaintiff failed to support his allegations that Defendants failed to follow policies, and did not provide evidence linking Defendants to these alleged failures. (Doc. 97 at 1-2). Defendants state the job description of the Health Service Administrator was inadvertently left out of the supplemental Martinez Report, and they provide a copy of it as an exhibit to their reply. Id. However, they contend it does not support any of Plaintiff's claims. Id. at 2. Defendants argue their annual peer reviews are not discoverable and, even if they were, they are not relevant to Plaintiff's claims. Id. Defendants again state that Plaintiff's allegations amount to medical negligence claims, not Eighth Amendment violations. Id. at 2.

         Plaintiff also filed a Rule 56(d) Motion. Plaintiff asks the Court to defer considering the Motion for Summary Judgment until Plaintiff has an opportunity to obtain materials not included in the Martinez Report. (Doc. 79 at 1-2). In particular, Plaintiff is waiting to receive unspecified medical policies, a response from a correctional officer regarding a medical policy on inmate medical documents, and a response from journalists who work for the Santa Fe New Mexican regarding an investigative report they authored about lawsuits over medical care in New Mexico prisons. (Doc. 79 at 4-6). Defendants counter that Plaintiff has not described how those materials affect whether or not Defendants were deliberately indifferent to his serious medical needs, therefore the motion should be denied. (Doc. 82 at 2-3). Plaintiff did not file a reply in support of this motion.

         II. Analysis

         As discussed, Defendants have moved for summary judgment, while Plaintiff has moved to suspend summary judgment under Rule 56(d). Because Plaintiff's motion affects whether to consider Defendants' motion at this time, the Court will address Plaintiff's Rule 56(d) Motion before proceeding to the Motion for Summary Judgment.

         A. Plaintiff's Rule 56(d) Motion

         Plaintiff has moved to defer ruling on the Motion for Summary Judgment until he receives various documents in discovery. (Doc. 79). Plaintiff states he is waiting to receive a statement from a correctional officer regarding a medical policy pertaining to inmate medical documents, other unspecified policies, and a response from journalists regarding an investigative report they authored on medical care in New Mexico prisons. Id. at 4-5. Plaintiff claims this evidence supports his claims, but he does not identify how, or which claims they support. Defendants oppose deferring a ruling, arguing the information Plaintiff seeks is irrelevant. (Doc. 82 at 1-3). Defendants claim Plaintiff is pursuing a theory of the case based on alleged actions by non-defendants, rather than information related to care he received from Defendants. Id. at 3.

         Under Fed R. Civ. P. 56(d), the Court may defer considering a motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition” to the motion. Rule 56(d) requires the nonmovant to “identify the probable facts not available and what steps have been taken to obtain those facts.” Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). If the information sought is “irrelevant to the summary judgment motion or merely cumulative, ” deferral is inappropriate. Jensen v. Redev. Agency of Sandy City, 998 F.2d 1550, 1553-55 (10th Cir. 1993).

         In this case, Plaintiff has identified the information he seeks-unspecified medical policies and a response from journalists-but he has not explained how they are relevant to his claims that Defendants were deliberately indifferent to his serious medical needs. Although Plaintiff asserts this evidence would support his claim, he has not shown the “probable facts” in the materials that would support his claims. Under these circumstances, deferring a ruling on summary judgment is not warranted. Accordingly, the Court finds that Plaintiff has not provided sufficient support for his Rule 56(d) Motion and therefore recommends denying the Rule 56(d) Motion.

         1. Defendants' Martinez Report and Motion for Summary Judgment

         a. Standards for Summary Judgment

         The Court shall grant summary judgment only 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). A fact is material if it might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if evidence exists such that a reasonable jury could resolve the issue in favor of the nonmoving party. Id. The movant bears the burden of making a prima facie demonstration that there is no genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

         If the moving party has demonstrated an absence of material fact, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986) (internal quotations omitted). The mere existence of some evidence in support of the nonmoving party, however, is insufficient to deny a motion for summary judgment; rather, there must be enough evidence to enable a reasonable jury to find for the nonmoving party on that issue. See Anderson, 477 U.S. at 249. The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995).

         The purpose of a Martinez Report is to “develop a record sufficient to ascertain whether there are any factual or legal bases for the prisoner's claims.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). On summary judgment, a Martinez Report “is treated like an affidavit, and the court is not authorized to accept its fact findings if the prisoner has presented conflicting evidence.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992). A plaintiff's complaint may also be treated as an affidavit if it alleges facts based on the plaintiff's personal knowledge and is sworn under penalty of perjury. Hall, 935 F.2d at 1111. Thus, a court may not rely on a Martinez Report to resolve material disputed facts where the Report conflicts with pleadings or affidavits, nor can material disputed facts be resolved based on conflicting affidavits. Id. at 1109, 1111. A factual dispute exists even if the plaintiff's conflicting factual allegations are less specific or well-documented than the factual findings in the Martinez Report. Id. at 1109.

         Finally, the Court must liberally construe a pro se litigant's pleadings, including Plaintiff's, and hold them to a less stringent standard than those drafted by an attorney. See Id. at 1110. However, the Court may not act as a pro se litigant's advocate. Id. The Court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). In addition, Plaintiff, as a pro se litigant, must still follow the same procedural rules governing represented litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).

         2. Legal Standards Under ...


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