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Aicher v. Keefe Commissary Network LLC

United States District Court, D. New Mexico

March 19, 2019

ERIC AICHER, Plaintiff,
v.
KEEFE COMMISSARY NETWORK, LLC, doing business as ACCESS CORRECTIONS, JAMES BEATTY, Lt. Grievance Officer, MIKE SILVA, Correctional Officer, and JOHN DOE No. 1-100, Defendants.

          MEMORANDUM OPINION AND ORDER

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff's Pro Se Tort Complaint (Doc. 1-1). Also before the Court are various miscellaneous motions filed by Plaintiff and Defendants (Docs. 3, 4, 6, 8, 9, 12, 14, and 20). Plaintiff contends prison officials scratched his MP4 music player and then failed to follow grievance procedures. Having reviewed the matter under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915A, the Court will dismiss the Complaint, grant leave to amend certain claims, and deny all further relief.

         BACKGROUND[1]

         Until recently, Plaintiff was incarcerated at the Northeast New Mexico Detention Facility (NNMDF). On or about November 29, 2017, he sent his MP4 music player to Keefe Commissary Network (Keefe Commissary) for repair. The MP4 player was less than a year old and did not have any superficial damage, but it would not download music. Keefe Commissary repaired the device and returned it to the wrong prison (Central New Mexico Correctional Facility, or “CNMCF”). CNMCF shipped the MP4 player to Plaintiff at NNMDF about nine days later. When Plaintiff received the MP4 player, he noticed the face was scratched and it “appeared to [have] been dragged across something.” Doc. 1-1 at 3. Plaintiff alleges Keefe Commissary deliberately sent his MP4 player to the wrong prison, and that CNMCF mailroom clerk Mike Silva caused the damage.

         On December 21, 2017, Plaintiff filed an informal grievance against CNMCF “for the damage done to [his] ¶ 4, as they were the last ones to have possession of it.” Doc. 1-1 at 3. The grievance was marked as “unresolved” with the notation: “will forward to RDC [CNMCF's Receiving and Diagnostic Center] to answer.” Id. Plaintiff believes it should have instead been sent to CNMCF's warden or grievance officer, since the Receiving and Diagnostic Center only handles incoming inmates. On February 13, 2018, Plaintiff filed a formal grievance with Lieutenant James Beatty. The grievance was denied. Plaintiff appealed, arguing that NNMDF failed to properly forward the grievance to CNMCF, as required by NMDOC Correctional Policy CD-150501. The appeal was also denied.

         On March 29, 2018, Plaintiff filed the complaint in New Mexico's Eighth Judicial District Court, No. D-818-CV-2018-00031. (Doc. 1-1). He alleges Lieutenant Beatty violated his due process and equal protection rights by denying the grievance. Plaintiff filed an amended complaint several days later, which appears to clarify that Beatty violated the Fourteenth Amendment and Keefe Commissary and Mike Silva “acted deliberately” and committed a tort. (Doc. 1-2). Plaintiff seeks $89 in compensatory damages, plus $1, 600 in punitive damages from each Defendant.

         Defendant Beatty removed the Complaint to Federal Court on June 12, 2018. Thereafter, the parties filed various dispositive and miscellaneous motions. Plaintiff moved to:

(a) Remand all claims against Keefe Commissary and Mike Silva (Doc. 20);
(b) Proceed to a scheduling conference and conduct discovery (Docs. 4, 8, and 9); and
(c) Obtain a default judgment (Doc. 14).

         Defendants moved for a protective order and to dismiss the Complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). (Docs. 3, 6, and 12).

         DISCUSSION

         I. Remand

         As an initial matter, Plaintiff asks the Court to remand this case to the Eighth Judicial District Court. (Doc. 20). Because the Complaint alleges state law claims against Keefe Commissary and Mike Silva, Plaintiff argues the removal “left [him] in limbo to collect damages from these two defendants.” Id. at 2. Plaintiff filed the motion to remand over four months after the case was removed. At this stage in the proceeding, remand is only available if the Federal Court lacks subject matter jurisdiction over the plaintiff's claims. See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal”). Subject-matter jurisdiction exists where: (1) the parties' citizenship is diverse and the amount in controversy exceeds $75, 000; or (2) the face of the ...


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