Alarcon v. Marcantel et al
Filing
20
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Steven C. Yarbrough on 17 Martinez Report and Defendant's Motion for Summary Judgment. Objections to PFRD due by 3/16/2018. Add 3 days to the deadline if servi ce is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (hm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MATTHEW ALBIAN ALARCON,
Plaintiff,
v.
Civ. No. 15-380 RB/SCY
MIKE HEREDIA,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendant Mike Heredia’s Martinez Report and
Motion for Summary Judgment (Doc. 17), both filed February 15, 2017. Plaintiff, who is
incarcerated and proceeding pro se, did not respond to the Martinez Report or Defendant
Heredia’s summary judgment motion.1 For the reasons that follow, I recommend that summary
judgment be entered in favor of Defendant Heredia, and that this action be dismissed with
prejudice.
I.
Procedural Background
Plaintiff is an inmate in the custody of the New Mexico Corrections Department
(“NMCD”) and, at the times relevant to this case, was housed at Lea County Correctional
Facility (“LCCF”), a designated Level III facility in Hobbs, New Mexico. Doc. 17 at 1. In 2014,
Plaintiff was placed in Interim Level VI status at LCCF. Id. at 2. He was subsequently classified
as a Level VI inmate and transferred to the Penitentiary of New Mexico (“PNM”). Id. In this
lawsuit, Plaintiff alleges constitutional violations arising from the proceedings that resulted in his
placement in Interim Level VI status at LCCF. Doc. 1. In Counts I and II of his complaint,
1
In fact, Plaintiff has taken no action in this lawsuit since filing a financial certificate on
December 10, 2015. Doc. 9.
1
Plaintiff specifically alleges due process violations arising from the procedures and hearings that
led to his Interim Level VI placement. In Count III of his complaint, Plaintiff raises claims under
the Eighth Amendment as well as for emotional distress and defamation of character.
Upon review of Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2) and Fed. R. Civ.
P. 12(b)(6), the Court dismissed Plaintiff’s claims for equitable relief without prejudice to his
rights under the habeas corpus statutes. Doc. 4. The Court also dismissed three defendants as
parties, leaving Defendant Heredia as the sole remaining defendant in this action. Id. On
September 16, 2016, the Court dismissed Plaintiff’s claim for monetary damages and declaratory
relief arising from the wrongful deprivation of good-time credits. See Doc. 13.
On December 21, 2016, I directed Defendant Heredia to submit a Martinez Report
addressing Plaintiff’s remaining claims. See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.
1978). The parties were notified that the Martinez Report may be used in deciding whether to
grant summary judgment on Plaintiff’s remaining claims, whether by motion or sua sponte, and
that the parties should submit whatever materials they consider to be relevant to Plaintiff’s
claims. See Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
In addition to submitting the Martinez Report, Defendant Heredia has moved for
summary judgment on all of Plaintiff’s remaining claims. Doc. 17. As stated earlier, Plaintiff did
not respond to Defendant Heredia’s motion for summary judgment, nor did he request an
extension of time to do so.2
2
Although this Court’s local rules provide that a party’s failure to file and serve a response in
opposition to a motion constitutes consent to grant the motion, see D.N.M.LR-7.1(b), the Court
nonetheless considers the merits of Defendant’s summary judgment motion. See Reed v. Bennett,
312 F.3d 1190, 1194-95 (10th Cir. 2002) (holding that “a party’s failure to file a response to a
summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against
the party.”).
2
II.
Standard of Review
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). There is no genuine dispute as to any material fact unless the evidence is such that
a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if there is sufficient evidence on each side
so that a rational trier of fact could resolve the issue either way,” and it is material “if under the
substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709
F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for
summary judgment, the Court views the evidence and all reasonable inferences therefrom in the
light most favorable to the non-moving party, here, Plaintiff. S.E.C. v. Thompson, 732 F.3d 1151,
1156-57 (10th Cir. 2013) (quotation omitted). Initially, the party seeking summary judgment has
the burden of showing that there is no genuine dispute as to any material fact. See Shapolia v.
Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its
burden, the non-moving party must show that genuine issues remain for trial. Id.
I liberally construe Plaintiff’s filings because he is appearing pro se. Still, a pro se nonmovant must “identify specific facts that show the existence of a genuine issue of material fact.”
Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (internal quotation
marks omitted). Conclusory allegations are insufficient to establish an issue of fact that would
defeat the motion. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1180 (10th Cir. 2013).
For purposes of summary judgment, a Martinez Report is treated like an affidavit and a
prisoner’s complaint may also be treated as an affidavit if it alleges specific facts based on the
3
prisoner’s personal knowledge and has been sworn under penalty of perjury. Hall, 935 F.2d at
1111.
Due to his failure to respond to Defendant Heredia’s summary judgment motion or the
Martinez Report, Plaintiff has not identified any facts proffered by Defendant Heredia which he
disputes nor has he pointed to evidence in the record to support his claims. See Fed. R. Civ. P.
56; see also D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Memorandum will be
deemed undisputed unless specifically controverted”). Thus, I will “accept as true all material
facts asserted and properly identified in the summary judgment motion.” Reed v. Bennett, 312
F.3d 1190, 1195 (10th Cir. 2002).
III.
Factual Background
The New Mexico Corrections Department (“NMCD”) houses inmates at Lea County
Correctional Facility (“LCCF”) pursuant to a contract with Lea County. Doc. 17-3, Ex. R, at 106.
LCCF is operated by the GEO Group, Inc., (“GEO”). Id. GEO is obligated to apply and enforce
NMCD’s policies and procedures, including those governing inmate classifications. Id. NMCD
prison facilities and/or units are designated to house inmates at certain security levels ranging
from Level I to Level VI. Doc. 17-1, Ex. M, at 24, 30. Of the six security levels established by
the NMCD, “Security Levels V and VI” are “the most restrictive custody statuses for inmates
posing the greatest risk to institutional security and the safety of others.” Doc. 17-1, Ex. M, at 24.
NMCD Policy CD-143002 provides the criteria and procedures for placing an inmate in
Level VI status. Doc. 17-2, Ex. O. According to that policy, security officials are permitted to
place an inmate in Level VI status for various reasons, including if he poses a threat to the
security of the institution. Doc. 17-2, Ex. O, at 47. A “Threat to the Security of the Institution” is
defined as “[a]ny behavior or situation which involves, causes or is reasonably likely to cause
4
acts of violence, a substantial risk of death or serious injury to any person, substantial destruction
of property, escape or risk of escape, and it also includes introduction of contraband or
conspiracy or attempt to introduce contraband.” Doc. 17-1, Ex. M, at 24.
LCCF is designated as a Level III facility. Doc. 17-3, Ex. R, at 107. Pursuant to NMCD
Policy CD-143000, LCCF is permitted to place inmates in Level VI on an interim basis only. Id.;
see also Doc. 17-1, Ex. M, at 30. Interim Level VI is defined as “[t]emporary placement of the
inmate in the segregation unit by the shift supervisor or unit manager based on inmate meeting
the Level VI placement criteria including threat to the security of the institution and/or protection
needs.” Doc. 17-1, Ex. M, at 23. NMCD Policy CD-143001 provides the criteria and procedures
for placing an inmate in Interim Level VI status. Doc. 17-2, Ex. N. Pursuant to this policy, an
inmate may be placed involuntarily into Interim Level VI status on the basis of “recent overt acts
or reliable information, which reasonably leads the shift supervisor to believe in good faith that
an inmate presents a threat to the security of the institution, may be a sexual predator, or
otherwise meets the eligibility criteria for involuntary placement in Level VI.” Id. at 33. When an
inmate is involuntarily placed in Interim Level VI status, the shift supervisor/unit manager must
document the reasons for the involuntary placement and give a copy of the document to the
inmate within one working day, excluding weekends and holidays. Id. at 34. Placement in
Interim Level VI can be based on information received from confidential informants. Doc. 17-3,
Ex. R, at 108.
After the initial placement of an inmate into Interim Level VI status, officials must
review the placement within 72 hours to determine whether the inmate should remain in Interim
Level VI status. Doc. 17-2, Ex. N, at 32. Then, within five working days of an inmate’s
placement in Interim Level VI, the inmate must receive an Interim Level VI Classification
5
Committee hearing with notice of the hearing at least 48 hours before it occurs. Id. at 35-36. The
inmate shall be provided the right to appear before the Committee to provide input. Id. at 36. The
Committee determines whether the inmate meets eligibility criteria for Level VI status and
whether the inmate should be referred to the Central Office Classification Bureau for transfer to
a designated Level VI unit. Id. at 36.
When an inmate is referred to the Classification Bureau for transfer, the Classification
Bureau Chief decides whether the inmate should be classified to Level VI within two working
days of receipt of the referral. Doc. 17-2, Ex. O, at 51. If the Classification Bureau determines
that an inmate should be placed at a Level V or Level VI facility, the inmate is transferred once
space is available. Id. Upon arrival at a Level VI facility, the inmate is given an Initial Level VI
Hearing, during which the inmate will be given the opportunity to appeal the decision placing
him in Level VI. Id. at 54. When the Level VI placement is based on confidential information,
the inmate is “given a written summary of the facts upon which this custody status is being
requested, sufficient to allow the inmate to challenge the truthfulness of the facts and/or the need
for this custody status, in a manner that would not inherently identify the confidential
informant(s) or pose a threat to the security of the institution.” Id. at 48. Certain criteria must be
documented in order to determine the credibility of the confidential information. Id. at 48-49.
The inmate also has the opportunity to appeal to the Director of Adult Prisons. Id. at 54.
1. Plaintiff’s Placement in Interim Level VI Status
On March 12, 2013, Plaintiff was transferred to LCCF, where Defendant Heredia served
as the Administrative Captain during the relevant time period. Doc. 17-1, Ex. L; Doc. 17-3, Ex.
R, at 106. Between March 2013 and January 2014, security staff at LCCF received confidential
information from multiple sources indicating that Plaintiff had threatened their safety. Doc. 17-3,
6
Ex. R, at 109. The sources requested that they be placed in protective custody because of
concerns that Plaintiff would harm them. Id. Based upon this information, Plaintiff was placed in
Interim Level VI status on March 6, 2014. Id.; see also Doc. 17-1, Ex. A. That same day, a Level
VI/Interim Level VI/PHD/Disciplinary Placement form was completed and delivered to Plaintiff.
Id. The form stated:
As of March 6, 2014, Inmate Alarcon, Matthew Albian, NMCD # 63235 was
placed into Involuntary Interim Level VI status specific to predatory, intimidating,
and extortion of other inmates forcing them to seek protective custody. Three (3)
inmates have positively identified Inmate Alarcon, Matthew Albian, NMCD #
63235 as the primary suspected inmate.
Doc. 17-1, Ex. A, at 1. On March 10, 2014, Plaintiff was given notice of an Interim Level VI
Classification Committee Hearing.3 Doc. 17-1, Ex. B, at 2. Plaintiff waived the 48 hour notice
requirement for the hearing, see id., and the Classification Committee at LCCF held a hearing
later that same day.3 Doc. 17-1, Ex. C, at 3. The Committee determined that Plaintiff was “to
remain in involuntary Interim Level VI status pending further investigation by Capt. Heredia.”
Id. On March 14, 2014, the Classification Committee conducted a 7-day review of the Interim
Level VI placement and decided to refer Plaintiff to the NMCD Classification Bureau for
transfer to a Level VI facility. Doc. 17-1, Ex. D, at 4. The Committee recommended that Plaintiff
remain in Interim Level VI status pending approval by the Classification Bureau for transfer to a
Level VI facility. Id. Associate Warden John Beaird administratively approved the Classification
Committee’s recommendation on March 17, 2014. Id.
3
According to Defendant Heredia, the notice and hearing forms were mistakenly marked
“Initial” rather than “Interim” Level VI placement. See Doc. 17 at 5. This undisputed assertion is
supported by the content of the forms, which dealt with Plaintiff’s interim placement, and the
fact that Initial Level VI hearings take place after transfer to a Level VI facility. See Doc. 17-1,
Ex. M, at 22 (defining Initial Level VI hearing as “a hearing which takes place following the
inmate’s transfer to a Special Control Unit after the inmate has been approved . . . for Level V or
Level VI classification); id. at 24 (defining special control unit as the “locations designated for
the housing of inmates who are classified as Level V or Level VI”).
7
On March 24, 2014, Associate Warden Beaird sent a memorandum to the Acting
Classification Bureau Chief at NMCD, referring Plaintiff for placement in a Level VI facility.
Doc. 17-1, Ex. E, at 5-6. The Acting Classification Bureau Chief approved Plaintiff for Level VI
placement on May 21, 2014. Doc. 17-1, Ex. E, at 7. On May 23, 2014, Plaintiff was transferred
to PNM, which is a Level VI facility operated directly by NMCD. Doc. 17-3, Ex. R, at 110.
After his transfer to PNM, Plaintiff was served notice on June 10, 2014 of an Initial Level
VI Hearing. Doc. 17-1, Ex. G, at 9. The notice stated:
On March 6, 2014, Inmate Matthew Alarcon #63235 was placed on Interim Level
VI. The basis for this placement is due to his predatory and intimidating behavior
at Lea County Correctional Facility. Inmate Alarcon exhibited predatory and
intimidating behavior and extorted other inmates within GP-1 population, forcing
some of them to seek Protective Custody placement. Three (3) inmates claimed
Inmate Alarcon as an enemy. On January 17, 2014, MAH 003 claimed that
Inmate Alarcon and others have fought with him due to their belief that he is an
informant. On January 15, 2014 MAH 003 claimed he overhead Inmate Alarcon
and others talking about the debt he owed, but that “he was too big to fight one on
one, so they needed to roll in on him and take him out with more backup.” Source
MAH 002 fears bodily harm or acts of violence against his person. On May 24,
2013, MAH 001 claimed that Inmate Alarcon insisted he join the disruptive group
“Cruces Boyz” and do “work” for them. Source MAH 001 was threatened with
bodily harm and fears for his safety.
Id. The Initial Level VI Hearing was held on June 12, 2014. Doc. 17-1, Ex. H. The Classification
Committee at PNM recommended placement in Level VI status based upon its finding that
Plaintiff posed a threat to the security of the institution. Id. The Committee’s recommendation
was affirmed by the administration. Id. Plaintiff appealed his Level VI placement on June 12,
2014. Doc. 17-1, Ex. I. On July 7, 2014, the Director of Adult Prisons Division, Jerry Roark,
affirmed the decisions of the NMCD administrators to place Plaintiff in Level VI. Doc. 17-1, Ex.
K.
Following Plaintiff’s transfer to PNM, Defendant Heredia did not have any authority to
alter or amend Plaintiff’s classification level. Doc. 17-3, Ex. R, at 110. Instead, changes to his
8
classification could only be made by classification officials at the facility where Plaintiff is
incarcerated. Id. According to NMCD’s “offender search” website, Plaintiff is no longer
incarcerated at PNM.4
IV.
Analysis
As an initial matter, I address Plaintiff’s use of the terms “disciplinary segregation” and
“administrative segregation” interchangeably in his complaint. See Doc. 1 at 5 (“Petitioner
requests immediate release from long term Disciplinary segregation and reclassified in the most
appropriate level of custody”); see also id. at 7 (“Petitioner has been placed in Administrative
segregation on March 6 . . .”). Defendant Heredia asserts that this case does not involve the
disciplinary procedures in effect at LCCF but, rather, administrative classifications and securitylevel determinations. See Doc. 17 at 13. Defendant Heredia’s position is supported by the
undisputed facts set forth in the Martinez Report, which confirm that Plaintiff’s placement in
Interim Level VI status was an administrative decision rather than the result of a disciplinary
proceeding. See, e.g., Doc. 17-1, Ex. A (NMCD form showing Plaintiff was administratively
placed in Interim Level VI status because he posed a threat to the security of the institution).
Because it is clear and undisputed that Plaintiff is challenging his administrative placement in
Interim Level VI status rather than a disciplinary proceeding at LCCF, I apply the law governing
administrative classifications and security-level determinations to this case. See Bailey v.
Shillinger, 828 F.2d 651, 652-53 (10th Cir. 1987) (concluding that administrative segregation -that is, segregation for administrative reasons involving the safety of prison employees and other
inmates -- did not invoke the same due process protections as disciplinary proceedings).
4
Plaintiff is currently incarcerated at the Northeast New Mexico Detention Facility. See
http://search.cd.nm.gov (last visited on March 1, 2018); See United States v. Klein, 589 F. App’x
909, 910 n.1 (10th Cir. 2014) (unpublished) (“tak[ing] judicial notice of information on ‘prisoner
locator’ website[]”).
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1. Due Process
In Counts I and II of his complaint, Plaintiff alleges due process violations arising from
the proceedings that led to his Interim Level VI placement. He specifically claims that he was
not given a misconduct report or a summary of the charges and evidence against him, that he was
not allowed to submit evidence or counter the charges against him at the hearings, that a proper
investigation was not conducted, and that he was not given an opportunity to investigate the
charges against him and “prove his innocence.” Doc. 1 at 3.
In his summary judgment motion, Defendant Heredia contends that Plaintiff’s due
process claims are subject to dismissal because Plaintiff has no due process right to a particular
inmate classification while in prison. See Doc. 17 at 12-13. Defendant argues in the alternative
that even if Plaintiff had a constitutionally-protected liberty interest in remaining at Level III
status, he was afforded all of the process necessary to protect his constitutional rights. Id. at 13.
“The Due Process Clause guarantees due process only when a person is to be deprived of
life, liberty, or property. Changing an inmate’s prison classification ordinarily does not deprive
him of liberty, because he is not entitled to a particular degree of liberty in prison.” See
Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). The change in Plaintiff’s classification
from Level III to Interim Level VI therefore does not automatically trigger due process
safeguards. See, e.g., Bailey, 828 F.2d at 652 (10th Cir. 1987) (“Classification of the plaintiff
into administrative segregation does not involve deprivation of a liberty interest independently
protected by the Due Process Clause.”); Sparks v. Foster, 241 F. App’x 467, 471 (10th Cir.
2007) (unpublished)5 (“Changing a prisoner’s classification generally does not deprive him of
5
The Court may cite to an unpublished decision to the extent its reasoned analysis has persuasive
value with respect to a material issue. See 10th Cir. R. 32.1(A) (“Unpublished opinions are not
precedential, but may be cited for their persuasive value.”).
10
liberty under the due process clause alone.”); Muniz v. Moore, 375 F. App’x 841, 844 (10th Cir.
2010) (unpublished) (holding that the plaintiff’s “incorrect classification claim fails because due
process generally does not give prisoners rights to particular classifications”).
However, a due process violation may occur if the change in classification “imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); see Muniz, 375 F. App’x at 844 (noting that
the Supreme Court has “recognized a due process liberty interest at stake when a prisoner’s
reclassification imposed an ‘atypical and significant hardship’” (citing Wilkinson v. Austin, 545
U.S. 209, 223 (2005)). “When determining whether administrative segregation involves an
atypical and significant hardship, we consider four factors: (1) whether the segregation furthers a
legitimate penological interest; (2) whether the conditions of the placement are extreme; (3)
whether the placement increases the duration of confinement; and (4) whether the placement is
indeterminate.” See Amin v. Voigtsberger, 560 F. App’x 780, 785 (10th Cir. 2014) (unpublished)
(citing Estate of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1334, 1342 (10th Cir.2007). Here,
there is no indication that Plaintiff’s placement in Interim Level VI status increased the duration
of his confinement or that the conditions of the placement were extreme. The restrictions
Plaintiff alleges he suffered as a result of this placement – i.e., the “lack of communication with
family members and friends”, the “loss of his relationship with his wife”, and limitations on
phone calls – were not atypical in relation to the ordinary incidents of prison life nor did they
pose a greater hardship on him than on other inmates. See Bey v. Simmons, 69 F. App’x 931, 932
(10th Cir. 2003) (unpublished) (finding that an inmate’s allegations of mental anguish he
suffered as a result of a classification error did not impose an atypical and significant hardship or
threaten to lengthen his term of confinement); Marshall v. Morton, 421 F. App’x 832, 838 (10th
11
Cir. 2011) (unpublished) (stating that “restrictions on an inmate’s telephone use, property
possession, visitation and recreation privileges are not different in such degree and duration as
compared with the ordinary incidents of prison life to constitute protected liberty interests under
the Due Process Clause.”).
Plaintiff’s conclusory allegations in his complaint are insufficient to establish a violation
of his rights under the due process clause. Allen v. Figuera, 416 F. App’x 771, 775 (10th Cir.
2011) (unpublished) (“conclusory allegations will not defeat a motion for summary judgment”).
Because Plaintiff has not identified a legal basis to challenge his Interim Level VI placement
under the due process clause, I recommend granting Defendant Heredia’s motion and dismissing
Counts I and II of Plaintiff’s complaint with prejudice.
2. Eighth Amendment Claim
In Count III of his complaint, Plaintiff alleges that Defendant Heredia violated his right to
be free from cruel and unusual punishment. Doc. 1 at 4. Liberally construing his unsworn
complaint, Plaintiff alleges that Defendant Heredia violated his Eighth Amendment right to be
free from cruel and unusual punishment when he allegedly threatened “to have harm inflicted
upon [Plaintiff]” during the March 10, 2014 hearing that resulted in the Interim Level VI
placement. Doc. 1 at 4. Plaintiff also appears to challenge the conditions of his confinement by
claiming that the Interim Level VI placement resulted in a loss of communication with his family
members, loss of his spousal relationship, and restrictions on phone calls. Id. at 7. Viewing the
facts in the light most favorable to Plaintiff, I nonetheless find that his claims do not come within
the purview of the Eighth Amendment’s prohibition against cruel and unusual punishment.
Plaintiff’s placement in Interim Level VI status out of a concern for the safety of other
inmates does not automatically result in an Eighth Amendment violation. See Bailey, 828 F.2d at
12
653 (indicating that “placing an inmate in segregation as a preventative measure does not
necessarily violate the Eighth Amendment.”). This is because “[s]uch a decision falls within a
prison official’s broad administrative and discretionary authority to manage and control the
prison institution.” Id. Moreover, a prison official “can impose restrictive conditions of
confinement upon [a prisoner] without violating the Eighth Amendment, as long as those
conditions do not involve the wanton and unnecessary infliction of pain or are not grossly
disproportionate to the severity of the crime warranting imprisonment.” Id. (internal quotations
omitted). Here, Plaintiff alleges that his Interim Level VI placement harmed him by denying him
interaction with his family and friends and access to a telephone. However, this type of harm is
not generally proscribed by the Eighth Amendment. See Clemmons v. Bohannon, 956 F.2d 1523,
1526 (10th Cir. 1992) (stating that “the core areas of any [viable] Eighth Amendment claim are
shelter, sanitation, food, personal safety, medical care, and adequate clothing” (citation
omitted)); see also Speed v. Stotts, 941 F. Supp. 1051, 1056 (D. Kan. 1996) (“The denial of
privileges which normally accompanies confinement in administrative segregation does not
amount to a denial of life’s necessities or present a sufficiently serious potential for harm[.]”). In
sum, Plaintiff’s allegations in the complaint do not suggest a deprivation of his Eighth
Amendment right to humane conditions of confinement. See, e.g., Hudson v. McMillian, 503
U.S. 1, 9 (1992) (requiring “extreme deprivations” for viable conditions of confinement claim
under the Eighth Amendment).
Plaintiff’s allegation that Defendant Heredia verbally threatened him with harm also does
not give rise to a constitutional violation. See Northington v. Jackson, 973 F.2d 1518, 1524 (10th
Cir. 1992) (noting that “[d]e minimus applications of force are necessarily excluded from the
cruel and unusual punishment inquiry . . . . So are verbal threats and harassment.” (internal
13
citations omitted)); Jenner v. McDaniel, 123 F. App’x 900, 904 (10th Cir. 2005) (“An ‘idle
threat’ of impending physical harm that is not carried out will not suffice to state an Eighth
Amendment claim.”); McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001) (“[A]cts or
omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts
do not violate the Eighth Amendment.”); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)
(holding that sheriff’s threat to hang prisoner following prisoner’s request to mail some legal
correspondence was insufficient to state a constitutional deprivation under § 1983); Rivera v.
Hassler, 79 F. App’x 392, 394 (10th Cir. 2003) (holding that prison official’s verbal harassment,
teasing, singling out, and falsely reporting inmate for stalking her did not amount to cruel and
unusual punishment) (unpublished); Hyre v. Curry Cty. Det. Ctr., 2014 WL 12785116, at *1
(D.N.M. Nov. 17, 2014) (Armijo, J.) (dismissing inmate’s § 1983 claim based on prison
officials’ threats to paralyze inmate from the waist up and break his arm because “mere words,
without more, do not invade a federally protected right.”).
The Court recognizes that inmates “have a constitutional right to be free from the terror
of instant and unexpected death.” See Northington, 973 F.2d at 1524. In this case, however,
Defendant Heredia’s purported threats do not suggest a show of deadly force. Nor has Plaintiff
alleged that Defendant Heredia’s threats caused him terror of instant and unexpected death.
Thus, although there may be situations where verbal abuse and threats might amount to the level
of cruel and unusual punishment, I do not find that this case presents such a situation. I therefore
recommend dismissing Plaintiff’s Eighth Amendment claim with prejudice.
3. Emotional Distress
In Count III of his complaint, Plaintiff alleges that he suffered emotional distress as a
result of the Interim Level VI placement. He specifically asserts a loss of communication with
14
his family members, loss of his spousal relationship, and increased restrictions on phone calls.
Doc. 1 at 14. This conduct does not rise to the level needed to establish intentional infliction of
emotional distress under New Mexico law. See Trujillo v. Northern Rio Arriba Elec. Co-op, Inc.,
2002-NMSC-004, ¶ 25, 41 P.3d 333 (requiring conduct that is “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”). Even if I were to assume, without
deciding, that Plaintiff’s placement in Interim Level VI status constituted extreme and
outrageous conduct that resulted in severe emotional distress to Plaintiff, Plaintiff does not allege
facts supporting the notion that Defendant Heredia intended to cause the severe emotional
distress. See id. (in order to prove an intentional infliction of emotional distress claim, a plaintiff
must prove: (i) the conduct in question was extreme and outrageous; (ii) the conduct of the
defendant was intentional or in reckless disregard of the plaintiff; (iii) the plaintiff’s mental
distress was extreme or severe; and (iv) there is a causal connection between the defendant’s
conduct and the plaintiff’s mental distress.). I recommend dismissal of this claim with prejudice.
4. Defamation of Character
Defendant Heredia lastly argues he is entitled to summary judgment on Plaintiff’s
defamation of character claim. With regard to this claim, Plaintiff alleges in his complaint that
unproven allegations that he was “gang active” and “a predatory inmate”, that he “extort[ed]
other inmates” or that he engaged in “assaultive behavior” resulted in a “defamation of [his]
character because they have belittled me in every way possible, making [Plaintiff] appear to be
something he is not.” Doc. 1 at 7.
As the Tenth Circuit has recognized, “[h]arm to reputation alone does not state a proper
federal claim, but rather is a matter for state tort law.” See Curiale v. Suitter, Axland & Hanson,
15
142 F. App’x 352, 353 (10th Cir. 2005) (unpublished) (citing Paul v. Davis, 424 U.S. 693, 712
(1976)); see also Siegert v. Gilley, 500 U.S. 226, 234 (1991) (stating that there is no
“constitutional protection for the interest in reputation”); see also Marner v. City of Aurora, 624
F. App’x 665, 667 (10th Cir. 2015) (unpublished) (affirming dismissal of § 1983 claim for
defamation of character because “injury to reputation is not a deprivation of a constitutionally
protected property or liberty right”). Construing Plaintiff’s defamation claim as a state tort claim
brought under New Mexico law, I find the allegations in Plaintiff’s complaint are not adequate to
survive summary judgment. As Defendant Heredia points out in his summary judgment motion,
Plaintiff has not alleged facts in his complaint establishing an actual injury to his reputation,
which is an essential element of a defamation claim under New Mexico law. See Smith v.
Durden, 2012-NMSC-010, ¶ 31, 276 P.3d 943, 951 (reiterating that “proof of actual injury to
reputation” is necessary to establish prima facie case of defamation). In other words, Plaintiff
cannot rely solely on conclusory assertions in his complaint that he felt “belittled” to establish a
defamation claim. See id. (holding that plaintiff must establish “proof of actual injury to
reputation—before a jury can award damages for mental anguish, humiliation, or any of the other
recoverable harms listed in UJI 13-1010.”). I therefore recommend granting summary judgment
in favor of Defendant Heredia and dismissing Plaintiff’s defamation claim with prejudice. See
Anderson, 477 U.S. at 251 (stating that, to avoid summary judgment, there must be sufficient
evidence on which the fact-finder could reasonably find for the nonmoving party).
16
V.
Conclusion
Based on the foregoing, I recommend granting Defendant Heredia’s Motion for Summary
Judgment (Doc. 17) and dismissing Plaintiff’s claims with prejudice.
____________________________________
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day period
if that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.
17
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