United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon “Defendants'
Motion for Summary Judgment” (Motion for Summary
Judgment) and “Defendants' Notice of Errata Re:
Exhibits 2 and 3 to Defendants' Motion for Summary
Judgment, ” both filed by Defendants CoreCivic,
formerly Corrections Corporation of America (CCA), and G.
Guzman (collectively, Defendants) on June 18, 2018. (Doc. 40
and 41). Pro se Plaintiff did not respond to the
Motion for Summary Judgment. Having reviewed the Motion for
Summary Judgment and the accompanying exhibits, the Court
grants the Motion for Summary Judgment.
Fed.R.Civ.P. 12(h)(3), the Court has a duty to raise and
determine sua sponte whether subject matter
jurisdiction exists in a particular case. See McAlester
v. United Air Lines, 851 F.2d 1249, 1252 (10th Cir.
1988) (“The general rule is that subject matter
jurisdiction may be challenged by a party or raised sua
sponte by the court at any point in the
proceeding.”). In this case, Plaintiff alleges federal
diversity jurisdiction in bringing his state negligence and
intentional tort claims against the individual Defendants and
his state respondeat superior claim against CoreCivic. (Doc.
18) at ¶ 1. Plaintiff bases these claims on the alleged
use of excessive or unreasonable force on him.
federal court has diversity jurisdiction in suits between
citizens of a state and citizens or subjects of a foreign
state where the amount in controversy exceeds $75, 000. 28
U.S.C. § 1332(a)(2). The Court is satisfied that
diversity of citizenship exists in this case: Plaintiff is a
Mexican national, the individual Defendants are New Mexico
citizens, and CCA (now CoreCivic) is a citizen of Maryland
with a principal place of business in Tennessee. (Doc. 18) at
¶¶ 5, 6, 7, and 9.
respect to the amount in controversy, “[a]lthough
allegations in the complaint need not be specific or
technical in nature, sufficient facts must be alleged to
convince the district court that recoverable damages will
bear a reasonable relation to the minimum jurisdictional
floor.” State Farm Mut. Auto. Ins. Co. v.
Narvaez, 149 F.3d 1269, 1272 (10th Cir. 1998).
“Multiple claims by the same plaintiff against the same
defendant may be aggregated, even if the claims are entirely
unrelated.” Swiech v. Fred Loya Ins. Co., 264
F.Supp.3d 1113, 1130 (D.N.M. 2017). Also, “[p]unitive
damages may be considered in determining the requisite
jurisdictional amount.” Woodmen of the World Life
Ins. Soc'y v. Manganaro, 342 F.3d 1213, 1218 (10th
Cir. 2003). Considering the multiple claims against the
individual Defendants as well the claim against CoreCivic,
the nature of Plaintiff's claims (alleged excessive or
unreasonable force), and Plaintiff's request for punitive
damages, the Court concludes that Plaintiff meets the $75,
000 amount in controversy necessary to satisfy federal
diversity jurisdiction. The Court, therefore, has subject
matter jurisdiction over this case to decide Defendants'
Motion for Summary Judgment.
Undisputed Material Facts
failing to respond to the Motion for Summary Judgment,
Plaintiff does not dispute either Defendants' Statement
of Undisputed Material Facts or Defendants' accompanying
exhibits supporting those facts. See (Doc. 40) at
2-10. Under the Local Rules, “[a]ll material facts set
forth in the Memorandum [in support of a motion for summary
judgment] will be deemed undisputed unless specifically
controverted.” D.N.M. LR-Cv 56.1(b). Moreover,
Fed.R.Civ.P. 56(e)(2) provides that if a party fails to
properly address an assertion of fact in a motion for summary
judgment, the Court may “consider the fact undisputed
for purposes of the motion” for summary judgment. In
accordance with these rules, the Tenth Circuit has held that
[b]y failing to file a response within the time specified by
the local rule, the nonmoving party waives the right to
respond or to controvert the facts asserted in the summary
judgment motion. The court should accept as true all material
facts asserted and properly supported in the summary judgment
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
Court finds that Defendants' written declarations,
incident reports, and medical report support the Statement of
Undisputed Material Facts. Also, Gifford Exhibits B and C,
videos of the incident at issue and of the actions following
the incident, do not contradict the Statement of Undisputed
Material Facts and substantially support the Statement of
Undisputed Material Facts. The Court accepts the Statement of
Undisputed Material Facts as true, because the evidence
properly supports the Statement of Undisputed Material Facts
and Plaintiff failed to controvert the Statement of
Undisputed Material Facts, .
subject of this lawsuit is an incident that occurred on
January 16, 2015, while Plaintiff was a post-conviction
inmate at Cibola County Correctional Center, a facility owned
and operated by CoreCivic. (Doc. 18) at ¶ 3; (Doc. 40-1)
at 2-3, ¶¶ 2 and 3. On January 16, 2015,
Correctional Officer Delgarito informed Defendant G. Guzman,
an Assistant Shift Supervisor, that he observed (1) Plaintiff
“with an unknown object in his hand” when he came
from recreation to his cell in the segregation unit; (2)
Plaintiff “trying to sharpen the object;” and (3)
Plaintiff would not give up the object. (Doc. 40-1) at 3,
¶¶ 3 and 5. Captain Dominguez, the Shift
Supervisor, asked Guzman to go to Plaintiff's cell
“to attempt confrontation avoidance” with
Plaintiff, which included talking to Plaintiff and
“attempting to convince him to voluntarily surrender
the object and submit to hand restraints.” Id.
at ¶ 6. Plaintiff “repeatedly refused to do
the same time, Assistant Warden Russell informed Special
Operations and Response Team (SORT) Commander R. Gifford that
Plaintiff “was sharpening an unidentified object in the
corner of his cell with his back to the cell door, ”
and that Plaintiff refused the Correctional Officer's
“directives to give up the object.” (Doc. 41-1)
at 3, ¶ 5. Commander Gifford immediately notified SORT
team members Guzman, M. Devargas, Allender, Heredia, and
Wauneka to prepare to extract Plaintiff from his cell.
Id. at ¶ 6. The SORT team was informed that
Plaintiff “was sharpening an unidentified metallic
object in his cell.” (Doc. 41-2) at 3, ¶ 4. The
purpose of the cell extraction was to remove Plaintiff from
his cell to perform a strip search of Plaintiff and a search
of his cell to ensure Plaintiff had no items that could be
used as a weapon. (Doc. 40-1) at 4, ¶ 7.
SORT team member was assigned a different task in securing
[Plaintiff] to gain compliance with the minimum amount of
force necessary.” (Doc. 41-1) at 3-4, ¶ 6.
Devargas was assigned to enter Plaintiff's cell first and
to “pin [Plaintiff] with the shield, and secure his
head.” (Doc. 41-2) at 3, ¶ 4. Guzman was the third
member of the SORT team and was assigned to secure
Plaintiff's left arm. (Doc. 40-1) at 4, ¶ 11.
Gifford notified the SORT team of the situation. He then
obtained a clearance from Warden Pryor and the medical staff
to use OC (pepper) spray on Plaintiff if necessary. (Doc.
41-1) at 4, ¶ 6. Medical staff confirmed Plaintiff had
no documented respiratory issues that OC spray could
SORT team assembled in the segregation unit corridor at
approximately 1422 hours and made staff introductions”
before a handheld video camera. Id. at ¶ 7.
Meanwhile, “mental health staff attempted confrontation
avoidance techniques to get [Plaintiff] to submit to hand
restraints, but he refused to do so.” Id. at
SORT team completed video camera introductions, then lined up
outside of Plaintiff's cell in preparation to enter the
cell. (Doc. 40-1) at 4, ¶ 8. Assistant Shift Supervisor
Marquez told Plaintiff to come to the cell door and
“cuff up, ” i.e., submit to hand restraints, but
Plaintiff refused, stating they would have to come in and get
him. Id. at ¶ 9; (Doc. 41-1) at 4, ¶ 9.
Plaintiff “had what appeared to be a shirt wrapped
around his face, which is common when inmates anticipate a
cell extraction and the use of OC spray.” (Doc. 41-1)
at 4, ¶ 9. Commander Gifford also gave Plaintiff a
verbal directive to cuff up, but he refused. (Doc. 40-1), at
4, ¶ 9.
Gifford then “attempted to deploy a short burst of OC
spray under the cell door, but the deployment was ineffective
due to a crack in the hose.” (Doc. 41-1) at 5, ¶
10. He also gave Plaintiff another verbal directive to cuff
up. Id. at ¶ 11. Plaintiff did not obey the
directive so Commander Gifford “deployed a short,
one-second burst of OC spray into the cell through the food
port in the cell door using the fogger without the
hose.” Id. Commander ...