United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Plaintiff's Rule 56(d) Motion
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.
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).
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.
Defendants' Martinez Report and Motion for Summary
Standards for Summary Judgment
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)).
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).
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.
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).
Legal Standards Under ...