United States District Court, D. New Mexico
Carnell Hunicutt Southern New Mexico Correctional Facility
Las Cruces, New Mexico Plaintiff pro se
D. White Michael D. Russell Attorneys for Defendants the Geo
Group, Inc., M. Valeriano, Katherine Brodie, and P. Valdez.
L. Nault New Mexico Corrections Department Attorney for
Defendant German Franco
MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE
AND DENYING THE PLAINTIFF'S MOTION FOR RELIEF UNDER RULE
56(D) AS MOOT
MATTER comes before the Court on: (i) Defendants The
GEO Group, Inc., M.Valeriano, Katherine Brodie, and P.
Valdez's Motion for Summary Judgement, filed October 12,
2018 (Doc. 16)(“MSJ”); (ii) the Plaintiff's
motion for relief under rule 56(d) of the Federal Rules of
Civil Procedure, captioned “Plaintiff's Motion That
Defendants' Motion for Summary Judgement be Denied or
Stayed Until Plaintiff Ha[s] Sufficient Opportunity to Obtain
the Necessary Facts, and the Court's Initial Review is
Completed, ” filed November 11, 2018 (Doc.
20)(“Motion”); (iii) the Plaintiff's response
in opposition, captioned “Plaintiff's Motion In
Opposition To Geo Defendants' Motion For Summary
Judgment, ” filed December 1, 2018 (Doc. 25); and (iv)
GEO Defendants' Reply in Support of Motion for Summary
Judgment, filed December 13, 2018 (Doc. 22). The Court denies
the MSJ without prejudice and denies as moot Plaintiff
Carnell Hunnicutt's Motion.
Defendants moved for summary judgment, the Court screened
Hunnicutt's Complaint (Tort), which was filed in the
Fifth Judicial District Court, County of Lea, State of New
Mexico, on December 21, 2017 (Doc.
1-1)(“Complaint”), pursuant to the Prison
Litigation Reform Act, 42 U.S.C. § 1997(e), as part of
its Memorandum Opinion and Order Denying Motion to Remand,
filed March 28, 2019 (Doc. 33)(“MOO”).
See 28 U.S.C. § 1915A (“The court shall
review. . . as soon as is practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental entity.”). As part of the screening
process, the Court determined that Hunnicutt does not state
cognizable claims under the Copyright Act of 1976, 17 U.S.C.
§§ 101-810, and under 42 U.S.C. § 1983, for
violation of prison grievance procedures. See MOO at
21. Accordingly, the Court dismissed those claims.
See MOO at 21; 28 U.S.C. § 1915A(a) (“On
review [of a prisoner complaint], the court shall identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint . . . fails to state a claim
upon which relief may be granted”).
remains of Hunnicutt's Complaint after screening includes
federal claims for violation of the First Amendment of the
Constitution of the United States of America against some,
but not all, of the named Defendants. See MOO at 21.
The Magistrate Judge found that Hunnicutt's § 1938
claim “lies only against Raymond Smith, Stacey Beaird,
Katherine Brodie, and Destinee Moore in their individual
capacity” and so dismissed all federal claims against
the GEO Group or LCCF.” MOO at 21. Moreover, the Court
retained jurisdiction over the state law claims under the New
Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1
through 41-1-27. See MOO at 22.
consequence of the Court's screening of Hunnicutt's
Complaint, the MSJ, which GEO Group, Inc., M. Valeriano,
Katherine Brodie, and P. Valdez filed before screening, no
longer reflects this case's posture. The GEO Group, one
of the movants, has been dismissed from all federal claims.
The Court dismissed Hunnicutt's copyright claim,
rendering at least some portion of the GEO Defendants'
MSJ moot. Only Smith, Beaird, Brodie, and Moore are
implicated in surviving federal claims. Moore, Smith, and
Defendant LCCF do not appear to have entered this case or
been served with process. The MSJ does not address
Hunnicutt's state law claims, but purports to involve
“all of Plaintiff Carnell Hunnicutt's claims
against them.” MSJ at 1. It could be the GEO Defendants
construe the Complaint to include only federal law claims,
but the Complaint “cites New Mexico statutes and
regulations as his claims' bases.” MOO at 21
(citing Complaint ¶ 11(a)).
addition, the Magistrate Judge to whom the Court referred the
matter, and who will recommend a disposition to the Court on
the case's merits, filed an Order for a Report under
Martinez v. Aaron, 570 F.2d 317 (10th Cir.
1978). See Order for Martinez
Report, filed September 25, 2019 (Doc.
36)(“Order”). In the Order, the Magistrate Judge
identifies several categories of documents and information
that will assist in recommending a resolution of the MSJ and
more broadly the case itself. See Order at 5-9. Of
significance to the Magistrate Judge, among other items, is
the present record's lack of the actual cartoons and
correspondence Hunnicutt says were unconstitutionally
censored, and which the GEO Defendants maintain were
harassing and abusive. See Order at 5-6. Moreover,
as the Magistrate Judge highlights, the record does not
include the misconduct reports to which the parties refer in
their papers. See Order at 6-7. Separately, the
Magistrate Judge issued an order to obtain contact
information to have the Clerk of Court provide notice of this
lawsuit to Smith, Moore, and LCCF, and, if necessary, have
the United States Marshalls serve these Defendants.
See Order Directing Submission of Addresses, filed
September 25, 2019 (Doc. 37).
the case's posture at present, that some portions of the
MSJ are no longer at issue or otherwise involve parties who
are now no longer implicated in Hunnicutt's federal
claims, and the Magistrate Judge's Order for
Martinez Report, the Court concludes it should deny
the MSJ without prejudice. The Defendants may file for
summary judgment again with the proper movants, following all
parties' appearance, and after the record has been
developed as part of the Martinez-report process.
The denial of the MSJ without prejudice renders moot
Hunnicutt's Motions to deny or stay summary judgment
pending screening and discovery.
(i) the Defendants The GEO Group, Inc., M. Valeriano,
Katherine Brodie, and P. Valdez's Motion for Summary
Judgment, filed October 12, 2018 (Doc. 16), is denied without
prejudice; (ii) the Plaintiff's motion for relief under
rule 56(d) of the Federal Rules of Civil Procedure, captioned
“Plaintiff's Motion That Defendants' Motion for
Summary Judgement be Denied or Stayed Until Plaintiff Ha[s]
Sufficient Opportunity to Obtain the Necessary Facts, and the
Court's Initial Review is Completed, ” filed
November 11, 2018 (Doc. 20), is denied as moot; and (iii) the
Plaintiff's response in opposition, captioned
“Plaintiff's Motion In Opposition To Geo
Defendants' Motion For Summary Judgment, ” filed
December 1, 2018 (Doc. 25), is denied as moot.
 According to the Tenth Circuit,