Ellis v. Franco et al

Filing 96

ORDER by District Judge Judith C. Herrera Adopting Report and Recommendations 94 ; denying 83 Motion for Supplement; denying 85 Motion to Amend/Correct; denying 87 Motion to Amend/Correct; Overruling Plaintiff's Objections 95 and dismissing case with prejudice. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GENE G. ELLIS,
Plaintiff,
v.

CIV 15-848 JCH/KBM

GERMAN FRANCO, VINCE VIGIL,
ALISHA TAFOYA-LUCERO,
COLLEEN MCCARNEY and
HECTOR CARDENAS,
Defendants.
ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Proposed Findings and Recommended
Disposition (PF&RD) by Chief Magistrate Judge Karen B. Molzen (Doc. 94), filed on July 12,
2017, and Plaintiff’s Objections to the Proposed Findings and Recommended Disposition (Doc.
95), filed on July 27, 2017. The Court, having conducted a de novo review, overrules Plaintiff’s
objections and adopts the recommendation of the Chief Magistrate Judge.
Pursuant to 28 U.S.C. § 636(b)(1)(B), a district judge may designate a magistrate judge
to submit proposed findings of facts and recommendations for the disposition of any case
pending before the Court. Where a party timely objects to the magistrate judge’s proposed
disposition, this Court conducts a de novo review of all portions of the recommendation which
have been objected to and “may accept, reject, or modify, in whole or in part, the findings or
recommendations.” See 28 U.S.C. § 636(b)(1)(C). De novo review requires the district judge to
consider relevant evidence of record and not merely to review the magistrate judge’s
recommendation. In re Griego, 64 F.3d 583-84 (10th Cir. 1995). “[A] party’s objections to the
magistrate judge’s [PF&RD] must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.,
With Buildings, Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir.

1996). Following a de novo review of the record, the Court finds that Plaintiff’s objections are
without merit.
Plaintiff’s objections are, for the most part, restatements of the arguments that he
previously made in his Response to Defendants’ Supplemental Martinez Report (Doc. 89). For
instance, Plaintiff argues that “FORCING THE PLAINTIFF TO REFUSE SHOWERS AND
RECREATION SO AS TO AVOID ASSAULT AT THE HANDS OF OTHER INMATES, MUCH
LESS FORCING HIM TO FACE THE THREAT OF SERIOUS HARM SUFFICIENTLY
FULFILLS THE OBJECTIVE COMPONENTS THAT THIS COURT HAS OUTLINED IN ITS
FINDINGS.” Doc. 95 at 2.
However, as Judge Molzen found, there is no evidence that any of the Defendants
“forced” Plaintiff to face a threat of serious harm, see Doc. 94 at 14, and Plaintiff’s status as a
sex offender is not, by itself, sufficient to meet the objective prong of the Eighth Amendment.
See id. at 14-15 (citing Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996)). As the Riddle
Court recognized, “plaintiff's allegations must furnish more than a conclusory claim of being
afraid and aggravated.” Riddle, 83 F.3d at 1205. To the extent that Plaintiff deems Riddle
wrongly decided, see Doc. 95 at 2 (“IF AN INMATE[’]S STATUS AS A SEX OFFENDER IS NOT
SUFFICIENT TO PUT PRISON OFFICIALS ON NOTICE OF AN OBJECTIVE RISK OF HARM,
WHY IS IT THAT SEX OFFENDERS ARE BEING SEPARATED FROM THE GENERAL
POPULATION OF INMATES. . . . INMATES HAVE LOST THEIR LIVES BECAUSE OF THE
‘SEX OFFENDER’ STIGMA!”), his recourse is to appeal this decision to the Tenth Circuit Court
of Appeals.
Plaintiff also objects to the PF&RD on the basis that that he could have fared better in
presenting his case with the assistance of counsel. See Doc. 95 at 1. However, there is no right
to counsel in a civil case, see Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir.
2003), and this Court has already ruled that Plaintiff is not entitled to counsel here. See Doc. 63;

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see also Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). Moreover, Plaintiff has received
the benefit of liberal construction that is afforded to all pro se litigants.
Finally, Plaintiff cursorily objects that he was not provided with the opportunity to
conduct discovery before the dismissal of his claims. Specifically, Plaintiff states that he “HAS
NO MEANS TO OBTAIN EVIDENCE WITHOUT THE INTERROGATORIES THAT COME
WITH THE DISCOVERY STAGE OF THE PROCEEDINGS. HE COULD ALSO REQUEST
THAT DEFENDANTS PARTAKE IN POLYGRAPH EXAMINATIONS.” Doc. 95 at 3. The Tenth
Circuit very recently cautioned that a prisoner should be permitted to pursue discovery where it
is reasonable and requested. Rachel, 820 F.3d at 394. To this end, Judge Molzen noted in her
Order requiring the Defendants to file a supplemental Martinez Report that “when a Martinez
Report is used for summary judgment purposes, the pro se plaintiff must be afforded an
opportunity to present conflicting evidence to controvert the facts set forth in the report.” Doc. 62
at 5 (citing Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)). Accordingly, she provided
Plaintiff with nearly two months to respond to the Supplemental Martinez Report. Id. Despite this
opportunity, Plaintiff’s Response to the Report did not identify any disputed issues of fact, assert
that the report was missing material information, or request discovery; instead, Plaintiff focused
on the legal merits of his claims. See generally Doc. 89. In this regard, Rachel is
distinguishable. See 820 F.3d at 395 (“Mr. Rachel argued that this report was missing material
medical records and policies addressing medical treatment, and the defendants conceded that
the report did not include all of the requested discovery.”). Moreover, the Court finds Plaintiff’s
newly requested discovery to be too vague to invoke Rule 56(d)(2) (formerly Rule 56(f)), which
permits extensions of time to complete discovery where facts are unavailable to the nonmovant,
and, in any event, too late to invoke its protections. See Abdulhaseeb v. Calbone, 600 F.3d
1301, 1310 (10th Cir. 2010) (“Mr. Abdulhaseeb failed to invoke Rule 56(f) before the magistrate
judge, instead filing his motion in the district court after the magistrate judge's report and
recommendation was filed. Thus, he waived his Rule 56(f) issues.”).

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Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
(1) Plaintiff’s Objections to the Proposed Findings and Recommended Disposition (Doc.
95) are OVERRULED;
(2) Chief Magistrate Judge Molzen’s Proposed Findings and Recommended Disposition
(Doc. 94) is ADOPTED;
(3) Plaintiff’s Motions to Supplement and Amend the Complaint (Docs. 83, 85, & 87) are
DENIED; and,
(4) this action is DISMISSED WITH PREJUDICE, and a final order will be entered
concurrently herewith.

_____________________________
UNITED STATES DISTRICT JUDGE

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