Latham v. Corizon Health Services
ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS and denying as moot 94 129 132 133 Motion to Dismiss by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FRANK L. LATHAM,
No. CV 15-00242-MCA-CG
CORIZON, LLC, et al.,
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on United States Magistrate Judge Carmen E.
Garza’s Proposed Findings and Recommended Disposition (“PFRD”), (Doc. 151), filed
February 2, 2017; Defendants Mark Ewell, Ken Smith, FNU Heredia, and Pete Perez’s
(collectively the “NMCD Defendants”) NMCD Defendants’ Objections to Magistrate
Judges Proposed Findings and Recommended Disposition (Doc. 151), (Doc. 153), filed
February 16, 2017. In the PFRD, the Magistrate Judge concluded that Plaintiff Frank
Latham did not exhaust available administrative remedies and his complaints should
therefore be dismissed without prejudice. (Doc. 151 at 2, 9).
The parties were notified that written objections to the PFRD were due within 14
days, (Doc. 151 at 9), though three more days are allowed if service is by mailing to the
party’s last known address. FED. R. CIV. P. 6(d). The NMCD Defendants filed one
objection. (Doc. 153). Plaintiff has not filed objections or responded to the NMCD
Defendants’ objection, and the time for doing so has passed. D.N.M.LR-Civ 7.4(a). After
a de novo review of the record and the PFRD, the Court adopts the Magistrate Judge’s
PFRD in part, grants the NMCD Defendants’ objection, and dismisses Plaintiff’s
remaining claims with prejudice.
Plaintiff is a wheelchair-bound inmate in the New Mexico state correctional
system. Plaintiff has filed two lawsuits under 42 U.S.C. § 1983 against numerous
defendants alleging violations of his federal constitutional and statutory rights. (See
Docs. 1, 2, 5, 8, 52, 64). The Court consolidated Plaintiff’s suits on December 7, 2015.
(Doc. 64). After various orders adding or dismissing parties and claims, Plaintiff’s
surviving claims were: (1) violations of the Americans with Disabilities Act (“ADA”) and
the Eighth Amendment to the United States Constitution by Warden Mike Heredia (FNU
Heredia in the caption), Warden Ken Smith, and Deputy Warden Pete Perez for their
alleged failure to provide Plaintiff adequate handicap accommodations; (2) violation of
the Eighth Amendment by Lieutenant Mark Ewell, a corrections officer, for allegedly
assaulting and placing Plaintiff in danger of being assaulted by other inmates; and (3)
violations of the Eighth Amendment by Defendants Corizon, LLC, Randolph Baca, M.D.,
and Mary Birdsong, M.D., for repeatedly failing to provide Plaintiff with pain medication
or proper catheters. (See Docs. 5, 8, 19, 32, 77). All Defendants have filed motions to
dismiss or motions for summary judgment in their favor. (Docs. 94, 129, 132, 133).
On October 28, 2016, the Magistrate Judge ordered Defendants to produce a
Limited Martinez Report (the “Report”). (Doc. 113 at 6); see Martinez v. Aaron, 570 F.2d
317 (10th Cir. 1978) (permitting courts to order prison officials to investigate and report
on the facts underlying a prisoner’s complaint). The Martinez Report was limited to the
issue of whether or not Plaintiff exhausted available administrative remedies before
filing his lawsuits as required by the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a). (Doc. 113 at 6). The Magistrate Judge explained the exhaustion
requirement, (Doc. 113 at 4-5), noted the Court may consider the Martinez Report in
deciding whether or not to grant summary judgment, (Doc. 113 at 5), and eventually
gave Plaintiff until January 23, 2017, to respond to the Report, (Doc. 135).
Defendants filed the Report on December 12, 2016. (Doc. 127). The Report
contains numerous affidavits detailing Plaintiff’s frequent verbal complaints and all
Defendants’ efforts to accommodate those complaints. (Doc. 127-4 at 13 through Doc.
127-8 at 22). The Report also contains the New Mexico Department of Corrections
(NMCD) Grievance Procedures in effect at all times relevant to Plaintiff’s complaints.
(Doc. 127-1 at 5 through Doc. 127-4 at 8). According to the NMCD Grievance Appeals
Coordinator, Plaintiff has not initiated or exhausted any grievance related to his claims
in this case. (Doc. 127-4 at 13-14). Consequently, the NMCD Defendants argued
Plaintiff’s claims should be dismissed with prejudice for his failure to exhaust the
Grievance Procedures. (Doc. 127 at 16).
The Magistrate Judge construed a letter from Plaintiff as a response to the
Report. (Doc. 151 at 4-5). In the letter, Plaintiff objects to dismissing Defendants
Birdsong, Ewell, and Perez, but consents to dismissing Defendants Baca and Heredia.
(Doc. 143 at 1-2, 5, 7). On January 25, 2017, Plaintiff sent a letter informing the Court
he had been transferred to another facility and requested help with getting an attorney.
(Doc. 147). Plaintiff has not otherwise responded to the Report.
On February 2, 2017, the Magistrate Judge entered her PFRD reviewing the
Report. The Magistrate Judge found Plaintiff did not exhaust available administrative
remedies as required by the PLRA. (Doc. 151 at 7-8). As discussed, the Report
indicates Plaintiff never exhausted or even initiated the Grievance Procedure. (Doc. 127
at 12-16; Doc. 127-4 at 13-20). Further, nothing in the Report suggests the Grievance
Procedure was in fact “unavailable” to Plaintiff. See Ross v. Blake, 136 S. Ct. 1850,
1859-60 (2016). The Magistrate Judge therefore recommended dismissing Plaintiff’s
claims without prejudice so he may take advantage of the Grievance Procedure. (Doc.
151 at 8); see Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1224-25 (10th Cir. 2007)
(noting district court dismissed without prejudice for failure to exhaust); Mehdipour v.
Swenson, No. 03-6054, Fed. Appx. 884 (10th Cir. Sept. 11, 2003) (unpublished)
(affirming dismissal without prejudice). The Magistrate Judge also recommended
dismissing all other pending motions as moot. (Doc. 151 at 8-9).
The NMCD Defendants timely objected to the PFRD. (Doc. 153). Plaintiff did not
object to the PFRD, nor has he responded to the NMCD Defendants’ objections, and
the time for doing either has passed. D.N.M.LR-Civ 7.4(a).
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the
United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a
pretrial dispositive motion to a magistrate judge for proposed findings of fact and
recommendations for disposition. Within fourteen days of being served, a party may file
objections to this recommendation. Rule 8(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A party may respond to another
party’s objections within fourteen days of being served with a copy; the rule does not
provide for a reply. FED. R. CIV. P. 72(b).1
When resolving objections to a magistrate judge’s recommendation, the district
judge must make a de novo determination regarding any part of the recommendation to
which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that
address the primary issues in the case “advances the interests that underlie the
Magistrate’s Act, including judicial efficiency.” U.S. v. One Parcel of Real Prop., With
Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir.
1996). Objections must be timely and specific to preserve an issue for de novo review
by the district court or for appellate review. Id. at 1060. Additionally, issues “raised for
the first time in objections to the magistrate judge’s recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also U.S. v.
Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for
the first time in objections to the magistrate judge’s report are deemed waived.”).
In this case, the NMCD Defendants object to the Magistrate Judge’s
recommendation that Plaintiff’s claims be dismissed without prejudice. (Doc. 153 at 12). Rather, the NMCD Defendants ask the Court to dismiss Plaintiff’s claims with
prejudice due to Plaintiff’s failure to timely exhaust administrative remedies. (Doc. 153
at 5). The NMCD Defendants note Plaintiff never initiated the Grievance Procedure and
that he was required to do so within five working days of any incident he complained of.
(Doc. 153 at 3) (citing Doc. 127-1 at 13).
The Federal Rules of Civil Procedure may be applied to the extent that they are not inconsistent with any
statutory provisions or the Rules Governing Section 2255 Proceedings. Rule 12 of the Rules Governing
Section 2255 Proceedings for the United States District Courts.
According to the NMCD Defendants, the Supreme Court of the United States
considered these exact circumstances in Woodford v. Ngo, 548 U.S. 81 (2006). In
Woodford, the issue before the court was whether the PLRA requires “timely”
exhaustion of administrative procedures. 548 U.S. at 88. The Supreme Court held that
the PLRA requires “proper” exhaustion of administrative remedies, including timely filing
grievances. Id. at 91, 93 (“Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules . . .”). Otherwise, a prisoner’s failure to
exhaust would “carr[y] no significant sanction.” Id. at 95. As the Supreme Court
a prisoner wishing to bypass available administrative remedies could simply file a
late grievance without providing any reason for failing to file on time. If the prison
then rejects the grievance as untimely, the prisoner could proceed directly to
federal court . . . We are confident that the PLRA did not create such a toothless
The NMCD Defendants’ objection is well-taken. If the Court dismissed Plaintiff’s
claims without prejudice, Plaintiff could untimely file his grievance now and return to
federal court after the grievance’s likely dismissal. Plaintiff would effectively be allowed
to bypass NMCD’s Grievance Procedures and would suffer “no significant sanction” for
his failure to comply with the PLRA. Woodford holds Plaintiff must timely exhaust
available administrative remedies as a predicate to pursuing his claims in federal court.
Id. Plaintiff did not do so; therefore he may not pursue his underlying claims in federal
court, now or in the future. Accordingly, the Court will dismiss Plaintiff’s claims with
For the foregoing reasons, the Court finds that the Magistrate Judge conducted
the proper analysis and correctly concluded that Plaintiff’s claims should be dismissed.
However, the Court will grant the NMCD Defendant’s objection to the PFRD. Regarding
the remaining motions, neither Plaintiff nor any Defendant objected to dismissing the
pending motions as moot.
IT IS THEREFORE ORDERED that the Magistrate Judge’s Proposed Findings
and Recommended Disposition, (CV Doc. 14), should be ADOPTED IN PART.
Plaintiff’s complaints, (Docs. 1, 8, 9; CV-15-1076 Doc. 1), are DISMISSED WITH
PREJUDICE. The pending motions to dismiss or for summary judgment, (Docs. 94,
129, 132, 133), are DENIED AS MOOT.
THE HONORABLE M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE
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