United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
the Court is Plaintiff's Pro Se Tort Complaint,
which was removed to Federal Court on June 29, 2018 (Doc.
1-1). Plaintiff contends prison officials exposed him to
crystalline silica dust; provided inadequate medical care;
and mishandled his administrative grievance. Plaintiff asks
the Court to remand this proceeding to state court, while
Defendant Ortega seeks a more definite statement describing
Plaintiff's claims (Docs. 3, 7). Having reviewed the
matter under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §
1915A, the Court will deny the motion to remand, dismiss the
Complaint, and grant leave to amend.
was previously incarcerated at the Lea County Correctional
Facility (LCCF). (Doc. 1-1 at 2). In 2016, LCCF Warden Smith
created a “Detail Cleaning Crew” to perform the
“dirty work” other maintenance crews refused to
do. Id. Smith created the Detail Cleaning Crew at
the urging of LCCF Maintenance Manager Eddie Solomon.
Id. at 3. Plaintiff alleges Solomon operated the
maintenance department in a “clannish manner, ”
giving preferential treatment and easier jobs to certain
inmates. Id. For example, Solomon reserved the best
materials - such as protective clothing, respirators, and
safety pamphlets - for his favorite maintenance crew.
Id. He also allegedly used prison labor and
materials for personal projects. Id.
joined, or was assigned to, the Detail Cleaning Crew in
August 2016. (Doc. 1-1 at 3). He scraped old paint off of
doors and shower walls using gloves, safety goggles, and
“inadequate dust masks.” Id. The
scraping produced crystalline silica dust, which migrated
into the prison pods and ventilation system. Id. On
more than one occasion, Solomon refused to open the ceiling
vents. Id. When Plaintiff removed his dust mask at
the end of the work day, he often noticed dust in his nose,
mucus, and eyes. Id. He alleges Solomon, Warden
Smith, Safety Manager Vazquez, Health Service Administrator
Ortega, and Grievance Coordinator Valeriano
“witnesse[d] this daily and did nothing to provide
adequate protection, clothing[, ] … equipment[,
]” or “safety classes.” Id.
2017, Plaintiff experienced nosebleeds, shortness of breath,
coughing fits, and fatigue. (Doc. 1-1 at 4-5). He visited the
doctor, who accused Plaintiff of trying to file a class
action lawsuit. Id. at 5. The doctor also stated
that Plaintiff's lungs were clear, when a month earlier
he advised Plaintiff: “Your chest is congested and you
need to start exercising.” Id. at 4. After
filing an informal complaint, Solomon provided Plaintiff with
a respirator and goggles. Id. at 4. Plaintiff
alleges the filters in the respirator were dirty.
Id. He further alleges Solomon knew there were some
safety risks because he hid Plaintiff's work cart in the
electrical room when GEO Corp. executives visited LCCF.
Id. Solomon instructed Plaintiff to “lay low
and take a few days off with pay” during the GEO
point, Plaintiff filed a formal grievance. (Doc. 1-1 at 5).
Grievance Coordinator Valeriano allegedly failed to
investigate, disregarded Plaintiff's statements, and
denied relief. Id. Plaintiff appealed, but Prison
Director German Franco affirmed the decision. Id.
Plaintiff continued to scrape old paint from surfaces around
LCCF between September 2017 and February 2018. Id.
On one occasion, Solomon made him scrape paint from the
showers and repaint the surfaces to “look good for [an]
upcoming audit.” Id. When Plaintiff visited
the maintenance shop for supplies, he often discovered
Solomon's favorite inmate crew “kicking back,
playing cards, sleeping, and/or feeding feral rabbits.”
Id. Plaintiff complained, but Solomon banned him
from the shop and directed him to recruit more inmates to
help with the Detail Cleaning Crew. Id. In March
2018, Solomon disbanded the Detail Cleaning Crew because they
were “making the maintenance department look
17, 2018, Plaintiff filed the complaint in New Mexico's
Fifth Judicial District Court, No. D-506-CV-2018-1047. (Doc.
1-1). The Complaint lists six LCCF Defendants:
(1) Warden Raymond Smith;
(2) Safety Manager Vazquez;
(3) Maintenance Supervisor Solomon;
(4) Health Service Administrator Ortega;
(5) Grievance Coordinator Valeriano; and
(6) Director of Adult Prisons German Franco.
(Doc. 1-1 at 2). Construed liberally, the Complaint raises
claims for deliberate indifference to health, safety, and
medical needs and due process violations in connection with
the grievance process. Plaintiff seeks at least $900, 000 in
damages under 42 U.S.C. § 1983 and/or the New Mexico
Tort Claims Act (NMTCA). Id. at 1, 6. s Defendant
Ortega removed the Complaint to Federal Court on June 29,
2018. (Doc. 1). She also filed a motion for a more definite
statement (Doc. 3). On August 9, 2018, Plaintiff filed a