United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MARTHA VAZQUEZ UNITED‰TES DISTRICT JUDGE
the Court is Plaintiff's Pro Se Tort Complaint
(Doc. 1-1), which was removed to this Court on July 30, 2018.
Plaintiff contends that prison officials were deliberately
indifferent to his medical needs in violation of the Eighth
Amendment. Defendants argue that Plaintiff's complaint
fails to state a cognizable claim for relief. Having reviewed
the matter under Rule 12(b)(6) of the Federal Rules of Civil
Procedure and 28 U.S.C. Section 1915A, the Court will allow
some of the claims to proceed and will dismiss some of the
claims, but with regard to certain of the claims that will be
dismissed, will grant leave to amend.
was previously incarcerated at the Northwest New Mexico
Correctional Center (NNMCC). (Doc. 1-1 at 3). On April 26,
2018 at about 9:30 a.m., he began losing a large amount of
blood from his rectum. Id. After cleaning the blood,
Plaintiff went to the medical unit. Id. He described
the bleeding to an intake nurse, who then spoke with Nurse
Practitioner (NP) Bailly. Id.
was still bleeding as he waited outside of NP Bailly's
office. Id. He could overhear her talking to another
inmate and showing him pictures of her dogs. Id.
Plaintiff returned to his unit to shower, as he was bleeding
described the aforementioned events to Officer Aragon during
the “11:00 a.m. Count.” (Doc. 1-1 at 3-4). Aragon
directed Plaintiff to submit an informal complaint.
Id. at 4. Plaintiff explained that he did not have
time to prepare a complaint because he was losing large
amounts of blood, but he ultimately returned to his dorm and
complied with Aragon's instruction. Id. When the
11:00 a.m. Count was complete, Plaintiff informed Officer
Valles that he had a medical emergency and needed to go to
the medical unit. Id. Valles directed Plaintiff to
“hold on until chow is called for the unit.”
Id. Plaintiff waited but continued to lose blood.
Id. He eventually left the pod as the door opened
for another inmate. Id. He encountered a captain in
the hallway, who called medical officials and directed them
to see Plaintiff as soon as possible. Id.
arrived at the medical unit some time after 11:00 a.m. (Doc.
1-1 at 4-5). He described his symptoms to NP Bailly, and she
stated that she could only order laboratory tests and
schedule a colonoscopy. Id. at 4. The intake nurse
pricked Plaintiff with a needle three times before
successfully drawing his blood. Id. A few minutes
later, NP Bailly said she could not schedule a colonoscopy
and that Plaintiff must go to the emergency room.
Id. at 5. Plaintiff was transported to Cibola
General Hospital (Hospital), where he was admitted.
Id. On the following morning (April 27, 2018),
doctors performed surgery and successfully stopped the
Hospital discharged Plaintiff on April 28, 2018. (Doc. 1-1 at
5). When he returned to NNMCC's medical unit for a
clearance, a nurse stated that NP Bailly was changing some of
Plaintiff's medications. Id. Plaintiff
protested, but the nurse directed him to take the medications
that appeared on the med-cart that evening. Id.
Plaintiff slept through the med-cart delivery, and prison
officials would not dispense his medication later that
evening. Id. at 6. The next morning (April 29,
2018), a nurse informed Plaintiff that NP Bailly planned to
dispense his blood-thinner in the morning rather than the
evenings. Id. Plaintiff informed the nurse that his
heart went into “fib-mood” at night, which
increases the risk of heart failure or stroke. Id.
The nurse immediately dispensed the blood thinner, but there
were no other medications for Plaintiff on the med-cart that
day. Id. Plaintiff alleges that he still has not
received a new order for Toprol (a beta blocker);
Cyclobenzaprine (a muscle relaxant); or Tylenol. Id.
6, 2018, Plaintiff filed the complaint in New Mexico's
Thirteenth Judicial District Court, No. D-1333-CV-2018-0178.
(Doc. 1-1). The Complaint names seven Defendants: (1) the
Department of Corrections; (2) Warden Betty Judd; (3) Officer
Valles; (4) Officer Aragon; (5) Health Services Medical
Director Dyanne Leyba; (6) NP Bailly; and (7) Centurion
Health Care. (Doc. 1-1 at 1). Plaintiff seeks unspecified
money damages under 42 U.S.C. Section 1983, the Eighth
Amendment, and state tort law based on the following claims:
(Count 1): Medical Malpractice - NP Bailly inappropriately
refused to respond to Plaintiff's medical emergency;
(Count 2(a)): Cruel and Unusual Punishment/Deliberate
Indifference to Medical Care -Defendants intentionally denied
emergency medical care; and
(Count 2(b)): Failure to Carry out Medical Orders - NP Bailly
refused to dispense medication and interfered with treatment
in violation of the Eighth Amendment. (Doc. 1-1 at 6-7).
CoreCivic, Judd, Valles, and Aragon removed the Complaint to
this Court on July 30, 2018. (Doc. 1). Those same Defendants
also filed a Motion to Dismiss under Rule 12(b)(6) (Doc. 3).
II.Preliminary Motion for ...