United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendants The Geo Group,
Inc. and Warden Timothy B. Hatch's (collectively,
Defendants) omnibus Motion for Summary Judgment and
Memorandum of Law in Support (Motion for Summary Judgment),
filed October 31, 2017. (Doc. 106). Plaintiff filed a
response on November 21, 2017, and Defendants filed a reply
on January 15, 2018. (Docs. 108 and 112). Having reviewed the
Motion for Summary Judgment, the accompanying briefs, and
attached exhibits, the Court grants the Motion for Summary
Judgment and denies Plaintiff's request to file a third
initial matter, the Court notes that Defendants object to
some of Plaintiff's responses to Defendants'
statement of undisputed facts and to Plaintiff's
statement of undisputed facts as not relevant or consisting
of inadmissible attorney argument or hearsay. The Court will
consider all of the proffered evidence and simply disregard
evidence which is substantively inadmissible. See Bd. Of
Trustees of Cal. Winery Workers' Pension Tr. Fund. v.
Giumarra Vineyards, 2018 WL 1155988 at *3 (E.D. Cal.)
(holding that party opposing summary judgment “should
argue the sufficiency of the evidence rather than make”
objections based on relevancy because such objections are
“duplicative of the summary judgment standard;”
and that court should disregard “evidence [that] is
irrelevant, immaterial, speculative, or
argumentative”); Prudential Ins. Co. of Am. v.
Textron Aviation, Inc., 2018 WL 1992423 *2 (D. Kan.)
(holding that, instead of striking inadmissible evidence
proffered in summary judgment context, court should
“consider each [piece of proffered evidence] and, to
the extent it may assert a fact which is not admissible
evidence, simply exclude the requested fact from the
court's ultimate findings”).
Summary of Material Facts Viewed in the Light Most
Favorable to Plaintiff
material times, Plaintiff was a prisoner housed at the
Northeast New Mexico Detention Facility (NENMDF), a facility
operated by The GEO Group, Inc. and where Timothy Hatch
served as Warden. This lawsuit arises from Plaintiff's
claim that in 2012 Dr. Mark Walden, a NENMDF physician and
former Defendant in this lawsuit, sexually assaulted
him.(Doc. 98) at ¶¶ 17-18.
16, 2013, NENMDF Lieutenant D. Willard charged Plaintiff in a
Misconduct Report with, among other things, sexual misconduct
for allegedly exposing his genitalia to a female
classification manager, Angela Lucero, when Plaintiff was
ordered out of the shower to view a mandatory Prison Rape
Elimination Act (PREA) video. (Doc. 106-1) at 19. Aside from
Lucero and Lt. Willard, several other staff members were
present during this incident. Id. On July 18, 2013,
Lucero stated in an email to the disciplinary hearing officer
that she noticed Plaintiff “in the shower area dressed
in his boxers.” (Doc. 106-1) at 34.
on July 18, 2013, Plaintiff was placed in segregation as a
result of the shower incident, where he remained until
January 11, 2014. (Doc. 106-3) at 2, ¶ 5. After a July
30, 2013, hearing on the Misconduct Report, on August 7,
2013, the disciplinary hearing officer found Plaintiff guilty
of sexual misconduct, among other things, and recommended
segregation as discipline. (Doc. 106-1) at 23. On August 23,
2013, Plaintiff appealed the disciplinary hearing
officer's decision. Id. at 24-29. On August 27,
2013, Warden Hatch upheld the disciplinary hearing
officer's decision. Id. at 30-31. Then, in May
2015, Plaintiff filed a state habeas corpus petition to
challenge Warden Hatch's decision. (Doc. 106-1). On July
16, 2015, the state district judge dismissed the petition
noting there was no clearly apparent violation of policy or
law, and that “Petitioner's disagreement with
disciplinary outcome is insufficient grounds for
relief.” (Doc. 106-2) at 1-2. “Plaintiff agrees
he exhausted administrative and judicial efforts to reverse
the charges and the sanction of 285 days of disciplinary
segregation….” (Doc. 108) at 5, ¶ C.
Plaintiff began his term of segregation, on July 18, 2013,
Plaintiff completed a written Inmate Informal Complaint
accusing Dr. Walden of sexually abusing him. (Doc. 106-4).
The Inmate Informal Complaint was forwarded to the New Mexico
State Police in August 2013. Id. On August 2, 2013,
Plaintiff, also, submitted a written Inmate Grievance against
Dr. Walden. (Doc. 106-6) at 1. On August 26, 2013, the Inmate
Grievance was referred to the New Mexico State Police and the
New Mexico Corrections Department PREA coordinator.
Id. at 6. The referral notes that Plaintiff did not
request relief for the grievance. Id. Plaintiff
acknowledges that he was advised of this referral “on
August 26 and 27, 2013.” (Doc. 108) at 6, ¶ H.
point, Plaintiff gave a statement to Mrs. Hatch, Warden
Hatch's wife and a PREA coordinator, about Dr.
Walden's conduct. (Doc. 106-5) at 3, depo. at 38; (Doc.
108-4) at 3, depo. at 66. Plaintiff, however, never received
a determination from either the New Mexico State Police or a
PREA coordinator on his complaints against Dr. Walden. (Doc.
106-5) at 3, depo. at 39; (Doc. 108-4) at 3, depo. at 67.
When Plaintiff asked the New Mexico State Police about the
referral of his complaints against Dr. Walden, he was
informed that these investigations take time and to be
patient. (Doc. 106-5) at 3, depo. at 39.
the early part of his segregation, Plaintiff also wrote an
undated letter to Warden Hatch. (Doc. 106-7); (Doc. 106-5) at
5, depo. at 47. In the letter, Plaintiff explained to Warden
Hatch that he was in segregation as retaliation for reporting
“sexual harassment” by Dr. Walden and others.
(Doc. 106-7) at 1. Plaintiff, further, alleges that Lt.
Willard made “false accusations” about Plaintiff
exposing himself to Lucero, which resulted in the
admits that his placement in segregation did not interfere
with his ability to challenge the disciplinary charges and
sanctions, including the sanction of disciplinary segregation
… nor did it interfere with his ability to utilize the
inmate grievance system.” (Doc. 108) at 7, ¶ K.
Nonetheless, while in segregation, Plaintiff did not have
phone access or commissary access for the first 60 days, and
Plaintiff could not meet other inmates, work, or engage in
regular outdoor recreation. (Doc. 106-5) at 6-7, depo. at 50,
Plaintiff's Second Amended Complaint for Civil Rights
Violations (Second Amended Complaint) (Doc. 98)
brings the Second Amended Complaint pursuant to 42 U.S.C.
§ 1983 for violations of his First Amendment rights
under the United States Constitution. (Doc. 98) at 1.
Plaintiff contends that Defendants retaliated against him for
exercising his First Amendment right to free speech.
Id. at ¶¶ 27-44. Plaintiff alleges that
after he filed formal and informal grievances against Dr.
Walden, “he was denied access to his full medical
records by medical and prison staff, ” he was placed in
segregation “upon fabricated charges of sexual
misconduct, ” and his grievances against Dr. Walden
were not investigated or responded to by Defendants.
Id. at ¶¶ 28, 29, and 32.
Summary Judgment Standard
judgment is appropriate if the moving party shows
“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). Once the moving party meets
its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden shifts to the nonmoving
party to set forth specific facts showing that there is a
genuine issue for trial. See Schneider v. City of Grand
Junction Police Dep't, 717 F.3d 760, 767 (10th Cir.
2013). A dispute over a material fact is
“genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 248 (1986). The Court ...