United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant James Mulheron's
Motion to Dismiss for Failure to State a Claim and Qualified
Immunity (doc. 18) and the attendant briefing
(docs. 23, 28). For the following reasons,
the Court hereby DENIES the Motion.
motion to dismiss, the Court takes as true all well-pleaded
facts alleged by the non-moving party. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The applicable version
of events is that asserted by Plaintiff, and the following
recitation is therefore drawn directly from the Complaint.
See Peterson v. Jensen, 371 F.3d 1199, 1201 (10th
Cir. 2004) (on a motion to dismiss, “we adopt the facts
as stated in the complaint”).
filed the Complaint in this action on August 3, 2018.
Doc. 1. At all relevant times, Plaintiff was
incarcerated in Doña Ana County, New Mexico, at the
Southern New Mexico Correctional Facility
(“SNMCF”). Id. at 1-2. During the same
period, Defendant Mulheron served as warden of the SNMCF.
31, 2016, another inmate attacked Plaintiff, punching him in
the face. Id. at 6-7. Plaintiff received medical
attention at the SNMCF infirmary, where it was determined
that he had “severe injuries to his face, including a
deformity noted as an ‘indented' cheek bone.”
Id. at 7. On June 1, 2016, Plaintiff was transported
to Memorial Medical Center (“MMC”) and had x-rays
taken. The radiologist's report included a finding of
separated facial bones and recommended a CT scan to look for
facial fractures. Id. Defendant Klinger, a Certified
Nurse Practitioner at SNMCF (id. at 3), requested
approval for a CT scan on June 7, 2016. Id. at
8. The request was marked “routine” rather than
“urgent.” Id. Importantly for purposes
of Defendant Mulheron's liability, Plaintiff also alleges
The CT scan of Mr. Jager's injuries was also delayed due
to custom and/or policy at the SNMCF that prisoners cannot be
transported for medical appointments during lockdown, and the
SNMCF was in lockdown starting on June 8, 2016.
Id. Defendant Mulheron, as warden,
“promulgated, implemented, enforced and/or
maintained” this policy. Id. at 15. Plaintiff
does not, however, specify the duration of the June 8, 2016
24, 2016, more than three weeks after the initial attack,
Plaintiff was again transported to MMC for a CT scan.
Id. at 8. The radiologist diagnosed a
“[q]uadripod fracture of the left orbit with severe
associated deformity, ” as well as
“significant” fractures of the sinus and zygoma
(cheekbone) and a displaced cheekbone. Id. at 9.
Though Defendant Andrade was aware of the need for surgery as
of July 2, 2016,  he did not request a surgical consult
until July 11, 2016, six weeks after the initial injury.
Id. at 9-10. Plaintiff was finally taken to see an
otolaryngologist on September 29, 2016, but new CT scans were
required before proceeding. Id. at 12. Defendant
Klinger additionally requested a non-urgent ophthalmology
consult on July 26, 2016. Id. at 10. On August 1,
2016, an ophthalmology appointment was approved for October
10, 2016. Id. At the appointment, the
ophthalmologist indicated that a new CT scan would be needed
before discussing surgery. Id. at 12.
Andrade requested a new CT scan on October 8, 2016, and it
was performed on October 20, 2016. Id.
Plaintiff's “left facial fractures” were
reidentified on the updated scan, and on December 1, 2016-26
weeks after the initial injury-Plaintiff was seen by a
surgical specialist. Id. at 13. Bones fuse within
four to six weeks after fracture (id. at 10), and
the specialist explained that Plaintiff's bones had
“healed incorrectly, causing permanent injuries,
including a visible facial deformity” (id. at
13). The only possible courses of treatment were either to
insert a facial implant or to rebreak the facial bones and
reset them. Id. Both options carried significant
potential complications including “blindness, drastic
head and facial scarring, pain, and a long healing
period.” Id. From the time of the initial
attack to the December 1 surgical consult, Plaintiff made
numerous complaints of pain and other significant symptoms
via Health Service Request Forms and in conversations with
Defendants Klinger and Andrade. See id. at 8, 11,
filed the instant action on August 23, 2018, asserting claims
against several defendants. Doc. 1. Defendant
Mulheron is named only in Count II, which alleges violation
of civil rights guaranteed by the Eight Amendment and
enforceable through § 1983 of the Civil Rights Act of
1871. Id. at 14, 15. Defendant Mulheron moves to
dismiss all claims against him based on qualified immunity
and failure to state a claim. Doc. 18. Plaintiff
claims that Defendant Mulheron “promulgated,
implemented, enforced and/or maintained” a policy that
prisoners could not be transported for medical appointments
during lockdown. Doc. 1 at 15. Plaintiff further
alleges that this policy was a cause of the delay in
receiving medical treatment for his injuries, and that it
deprived him of reasonable medical care. Id.
Standard of Review
Motion to Dismiss Under 12(b)(6)
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint “must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Leverington v. City of Colorado Springs, 643 F.3d
719, 723 (10th Cir. 2011) (quoting Iqbal, 556 U.S.
at 678). This standard does not require “detailed
factual allegations, ” but it does require more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). When ruling on a 12(b)(6) motion, the court must
“assume the truth of all well-pleaded facts in the
complaint, and draw all reasonable inferences therefrom in
the light most favorable to the plaintiffs.”
Leverington, 643 F.3d at 723 (quoting Dias v.
City and Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009)). However, the court need not accept the truth of any
legal conclusions. Iqbal, 556 U.S. at 678.
plausibility standard “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Rather, “a well-pleaded complaint may proceed even if
it appears ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). The complaint must only be “enough to raise a
right to relief above the speculative level…on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555. In
other words, the well-pleaded facts must “permit the
court to infer more than the mere possibility of
misconduct”; otherwise, the plaintiff has not shown
entitlement to relief. Iqbal, 556 U.S. at 679.