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May v. Judd

United States District Court, D. New Mexico

September 24, 2019

JOSHUA MAY, Plaintiff,
v.
B. JUDD, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff’s Pro Se Prisoner Civil Rights Complaint (Doc. 1-3). Also before the Court is Defendant Judd’s Motion to Dismiss (Doc. 2) and several miscellaneous motions filed by Plaintiff (Docs. 3-4, 9-10). Plaintiff contends prison officials violated his due process rights and inflicted cruel and unusual punishment by placing him in the Predatory Behavior Management Program. Having reviewed the matter under 28 U.S.C. § 1915A, the Court will dismiss the Complaint; grant leave to amend; and deny Plaintiff’s pending motions.

         I. Background[1]

         Plaintiff was previously incarcerated at Northwest New Mexico Correctional Facility (NNMCF). In early 2018, prison officials became suspicious that a nurse was smuggling drugs to Plaintiff. On April 27, 2018, Plaintiff visited the medical unit following an alleged spider bite. Prison officials were monitoring a video recording of the visit and observed the nurse passing a box to Plaintiff. Officers Ray and Andrade asked to see the box as they escorted Plaintiff back to his housing unit. When Andrade tried to look inside the box, Plaintiff purportedly became angry and reached out to take it back. Officer Ray stepped in front of Andrade and directed Plaintiff to move away, but Plaintiff continued moving forward and made contact with Ray’s torso. When prison officials searched the box, they discovered suboxine, marijuana, a brown substance that looked like heroin, and a letter from the nurse. Plaintiff later surrendered another balloon containing heroin and tested positive for seven substances.

         Prison officials charged Plaintiff with assault and introduction of contraband. They placed him in the restrictive housing unit at NNMCF while the charges were pending. On June 11, 2018, Warden Judd referred Plaintiff to the Predatory Behavior Management Program (PBMP). The attachments to the Complaint reflect Plaintiff was served with the Notice of Contemplated Action (Notice) on June 13, 2018. See Doc. 1-3 at 10. The Notice directed Plaintiff to appear at a hearing on June 15, 2018. In the “Justification” section, the Notice contains a handwritten notation stating: “see attached.” A narrative summary describing the incident appears on the next page of Plaintiff’s exhibits. Id. at 11-12. Plaintiff alleges he never received a copy of the narrative summary. However, elsewhere in the Complaint, he states the narrative summary was changed after he signed the Notice on or about June 13, 2018. At the June 15 hearing, the contraband charge was dismissed, but prison officials determined he was responsible for assault.

         Plaintiff remained in NNMCF custody until about September 7, 2018, when a bed opened up at the Penitentiary of New Mexico (PNM). PNM administers the PBMP program. Plaintiff alleges a NNMCF official stated he would receive credit for the time he spent waiting for a bed. However, a different official stated such decisions are made on a case by case basis and denied the credit. Plaintiff also alleges he was not permitted to appeal the PBMP placement; however, the attachments to his Complaint reflect German Franco, Director of Adult Prisons, denied his appeal on October 1, 2018.

         Plaintiff remained in the PBMP for about 9 months. During that time, he was permitted three showers per week and one hour of yard-time (recreation) between Monday and Friday. He also ate his meals in his cell and was not allowed radio, television, or telephone priviledges for the first four months of the program. PBMP does not offer any work assignments, aside from keeping a journal. Plaintiff alleges these conditions caused him to suffer from mood swings, anxiety attacks, nervous breakdowns, and sleep deprivation. He also believes he will carry a lifelong stigma because the program title includes the word “predator, ” and people may think he is a sex offender.

         Plaintiff filed his Civil Rights Complaint (Doc. 1-3) on October 22, 2018 in New Mexico’s Thirteenth Judicial District Court. He seeks at least $347, 547 in damages under 42 U.S.C. § 1983, the Eighth Amendment, the Due Process Clause, and the New Mexico Torts Claims Act. The Complaint names Warden Judd; Deputy Warden Ortiz; Unit Manager Woodard; and Director Franco. Judd removed the Complaint to this Court on November 29, 2018, within thirty days of service. (Doc. 1). Judd also filed a Motion to Dismiss (Doc. 2) under Fed.R.Civ.P. 12(b)(6). Thereafter, Plaintiff filed a series of motions to appoint counsel and amend his complaint. (Docs. 3, 4, 9, and 10).

         II. Standard of Review

         The Court has discretion to dismiss an in forma pauperis complaint sua sponte under § 1915A “is frivolous or malicious; [or] fails to state a claim on which relief may be granted.” The Court may also dismiss a complaint under Rule 12(b)(6) if “it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing [plaintiff] an opportunity to amend [the] complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (quotations omitted). The plaintiff must frame a complaint that contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Because Plaintiff is pro se, his “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. If the court can “reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, … confusion of various legal theories, … poor syntax and sentence construction, or … unfamiliarity with pleading requirements.” Id. Further, if the initial pleading is defective, pro se plaintiffs should be given a reasonable opportunity to file an amended pleading, unless amendment would be futile. Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990); Hall, 935 F.2d at 1109.

         III. Screening the Complaint

         Plaintiff appears to raise three claims (due process; cruel and unusual punishment; and negligence) based on the PBMP placement. The Court will address each claim below.

         A. Due ...


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