Urioste v. Corizon and Centurion Health Care Providers et al

Filing 26

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera dismissing certain claims and parties and ordering issuance of notice and waiver of service forms directed to the remaining Defendants. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JOSHUA URIOSTE,
Plaintiff,
vs.

No. CV 16-00755 JCH/KRS

CORIZON AND CENTURION HEALTH CARE PROVIDERS,
JOSE MARTINEZ, M.D., BEN MARTINEZ, P.A.,
GERMAN FRANKO, WARDEN, C. OLIVAS, DEPUTY
WARDEN, MICHELLE BOYER, GRIEFANCE OFFICER,
GREGG MERCANTELL, SECRETARY OF CORRECTIONS,
C.O. TRUJILLO, C.O. PEREZ, C.O. PALOMINO, UNIT
MANAGER OSCAR TRVISO, C.O. CORDOVA,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court under 28 U.S.C. § 1915A on the Amended Complaint
filed by Plaintiff, Joshua Urioste, on March 15, 2019. (Doc. 24). As is set out, below, the Court
will dismiss certain claims and parties and will order issuance of notice and waiver of service
forms directed to the remaining Defendants.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Joshua Urioste filed his prisoner civil rights Complaint against all Defendants
under 42 U.S.C. § 1983. (Doc. 1). Urioste also sought leave to proceed “without paying filing fees
or costs.” (Doc. 2). After being ordered to cure deficiencies in his motion to proceed, Urioste
filed an amended application to proceed without prepayment of fees or costs under 28 U.S.C. §
1915. (Doc. 4, 6). The Court then granted Plaintiff Urioste leave to proceed in forma pauperis
under § 1915. (Doc. 9).

Plaintiff Urioste is proceeding under 42 U.S.C. § 1983. (Doc. 1 at 6). In his Complaint,
he described the nature of his case as “[d]enial of medical attention and care for Plaintiff’s medical
issues.” (Doc. 1 at 2). Urioste claimed Defendants subjected the Plaintiff “to needless pain and
suffering and thus denying the Plaintiff his right to seek and obtain medical care for his issues, and
thus denying the plaintiff equal protection under the law and due process.” (Doc. 1 at 4). He
sought declaratory and injunctive relief, compensatory damages in the amount of $75,000 against
each Defendant, and punitive damages up to $250,000 to deter future practices. (Doc. 1 at 8-9).
On January 18, 2019, the Court entered its Memorandum Opinion and Order dismissing
Urioste’s claims with leave to file an amended complaint. (Doc. 22). The Court concluded
Urioste’s Complaint made only generalized allegations against several defendants and against
unspecified groups such as “facility medical staff.” (Doc. 1 at 4). As a result, the Complaint failed
to state a sufficient claim for relief under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B).
The Court granted Urioste an opportunity to amend to remedy the defects in his pleading within
30 days. Hall v. Bellmon, 935 F.2d at 1109. (Doc. 22 at 12-13).
Urioste filed his Amended Complaint on March 15, 2019. (Doc. 24). The Amended
Complaint was not received by the Court within the 30-day time period ordered by the Court.
However, Urioste provided evidence to the Court showing that he mailed his Amended Complaint
to the Court within the 30-day deadline, but the mailing was returned to him for unknown reasons,
requiring him to re-submit it. (Doc. 23, 24). The Court will accept Urioste’s Amended Complaint
as timely filed.
In his Amended Complaint, Urioste names the same Defendants as his original Complaint
and adds claims against additional correctional officers. (Doc. 24 at 1, 2). The Amended
Complaint contains sufficient factual allegations against some Defendants, but still fails to state a

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claim for relief against other Defendants. Therefore, the Court will dismiss some of the Defendants
as parties to this proceeding and will order issuance of notice and waiver of service forms for the
remaining Defendants.
THE LAW REGARDING FAILURE TO STATE A CLAIM
Plaintiff Urioste is proceeding pro se and in forma pauperis. The Court has the discretion
to dismiss an in forma pauperis complaint, in whole or in part, sua sponte for failure to state a
claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B). The court may dismiss
a complaint for failure to state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail
on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney
v. Oklahoma Dep’t of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A claim should be
dismissed where it is legally or factually insufficient to state a plausible claim for relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Under § 1915(e)(2)(B) the court may dismiss the complaint at any time if the court
determines the action fails to state a claim for relief or is frivolous or malicious. 28 U.S.C. §
1915(e)(2)(B)(ii). The authority granted by § 1915 permits the court the unusual power to pierce
the veil of the complaint's factual allegations and dismiss those claims whose factual contentions
are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also Hall v. Bellmon, 935
F.2d at 1109. The authority to “pierce the veil of the complaint's factual allegations” means that a
court is not bound, as it usually is when making a determination based solely on the pleadings, to
accept without question the truth of the plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25,
32-33 (1992). The court is not required to accept the truth of the plaintiff's allegations but, instead,

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may go beyond the pleadings and consider any other materials filed by the parties, as well as court
proceedings subject to judicial notice. Denton, 504 U.S. at 32-33.
In reviewing a pro se complaint, the Court liberally construes the factual allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff’s
pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.
1994). The court is not obligated to craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiff’s claims. Nor may the court assume the role of advocate for the
pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.
ANALYSIS OF PLAINTIFF URIOSTE’S AMENDED CLAIMS
A. Claims Against Gregg Marcantell, Secretary of Corrections:
Plaintiff Urioste again names Gregg Marcantell, Secretary of Corrections for the State of
New Mexico, as a Defendant.1 (Doc. 1 at 1, 2). In his Amended Complaint, Urioste alleges:
“Defendant Gregg Marcantell, Secretary of Corrections for the State of
New Mexico. He is legally responsible for the overall operation of the
Department and each institution under its jurisdiction, including the
Penitentary of New Mexico which is where the incidents giving rise to
this complaint occured.” (Doc. 24 at 2).
“On March 28, 2016, the Plaintiff wrote Secretary of Corrections Gregg
Marcantell describing the need for surgery for gallstones and symptoms of this
illness, pleading with the Secretary to send him for treatment if medical would
not treat the symptoms. This letter was not answered. On May 24, 2016, the
Plaintiff again appealed to the Secretary of Corrections for medical treatment,
telling him the pain was getting worse, and describing all the Plaintiff efforts
to recieve medical treatment through Sick Call and institution grievance process
that were being ignored. The Plaintiff received no response to this appeal. The
Secretary of Corrections Gregg Marcantell’s failed to respond to the Plaintiff
letters and appeals thus acting deliberately indifferent and contributing to the

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 The correct spelling of the Secretary’s last name is “Marcantel.” For purposes of this
Memorandum Opinion and Order, the Court uses the incorrect spelling employed by Plaintiff in
his Amended Complaint.

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Plaintiffs extreme pain and suffering and placeing the Plaintiff at risk of further
injury.” (Doc. 24 at 19) (errors in the original).
At the time of the alleged events, Gregg Marcantell was the Secretary of the New Mexico
Department of Corrections, an agency of the State of New Mexico. As the Court previously ruled,
the State is not a “person” within the meaning of 42 U.S.C. § 1983 and, therefore, there is no
remedy against the State under § 1983. Section 1983 does not abrogate the states’ sovereign
immunity and neither the states nor their agencies qualify as “persons” under § 1983. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 67, 71 (1989); Brown v. Buhman, 822 F.3d 1151,
1161 n.9 (10th Cir. 2016); Wood v. Milyard, 414 F. App’x 103, 105 (10th Cir. 2011) (unpublished).
The rule that state agencies cannot be sued under § 1983 also applies to claims against state
officials in their official capacities. Will v. Michigan Dep’t of State Police, 491 U.S. at 67, 71.
Urioste’s Amended Complaint still does not specify whether he is suing Defendant Marcantell in
his official or individual capacity. However, to the extent he sues Secretary Marcantell in his
official capacity, Marcantell is not a “person” and cannot be sued under § 1983.
Further, to the extent Plaintiff Urioste sues Secretary Marcantell in his individual capacity,
the Complaint does not state a claim for individual § 1983 liability. Urioste’s generalized
allegations that “He is legally responsible for the overall operation of the Department ” and “failed
to respond to the Plaintiff letters and appeals” does not specify individualized, culpable, conduct
by Secretary Marcantell nor does it identify how any conduct by Marcantell constituting
participation in or a deliberate refusal by Marcantell to provide medical care in a violation of
Urioste’s constitutional right. Ashcroft v. Iqbal, 556 U.S. at 676. Urioste’s Amended Complaint
fails to state a § 1983 claim for relief against Defendant Gregg Marcantell and the claims against
Secretary Marcantell will be dismissed with prejudice. Ashcroft v. Iqbal, 556 U.S. at 676.

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Claims Against Corizon and Centurion:
Urioste’s Amended Complaint also continues to name Corizon and Centurion Health Care
Providers as Defendants. (Doc. 24 at 1). The Amended Complaint indicates that Defendant Jose
Martinez, M.D., is a Centurion health care provider. (Doc. 24 at 7-8). The Amended Complaint is
devoid of any other allegations against Defendants Corizon and Centurion.
Urioste seeks to hold private corporations Corizon and Centurion vicariously liable for the
actions of their employee under 42 U.S.C. § 1983. Where, as in this case, a corporate entity is
performing the actions typically performed by a state or municipality, like operating a prison, that
corporate entity can be sued under § 1983. Richardson v. McKnight, 521 U.S. 399, 413 (1997)
(citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982) ) (leaving the determination of
whether the employees of a private corporation acted under color of state law in violation of §
1983 to the district court); Smith v. Cochran, 339 F.3d 1205, 1215-16 (10th Cir. 2003) (citations
omitted) (“[P]ersons to whom the state delegates its penological functions, which include the
custody and supervision of prisoners, can be held liable for violations of the Eighth Amendment.”).
However, to succeed in a § 1983 action against a corporate entity, the plaintiff must prove that the
corporate employee or agent committed a constitutional violation and that the violation was a
direct result of some policy or custom of the corporation. Myers v. Oklahoma Cnty Bd. of Cnty.
Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998); Monell v. Dept. of Social Services of the City of
New York, 436 U.S. 658, 690-95 (1978); City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985);
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (citations omitted) (“[C]aselaw
from this and other circuits has extended the Monell doctrine to private § 1983 defendants.”).
In this case, Plaintiff Urioste does not contend that any policy or custom of Corizon or
Centurion was a direct cause or a moving force behind any violation of Urioste’s civil rights.

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Myers v. Oklahoma Cnty Bd. of Cnty. Comm'rs, 151 F.3d at 1316. As with the original Complaint,
Urioste’s Amended Complaint does not contain any factual allegations relating to Corizon and the
only allegation regarding Centurion is that Dr. Martinez is claimed to be a Centurion health care
provider. (Doc. 24 at 7-8). The Amended Complaint does not state a claim for § 1983 relief
against Defendant Corizon or Defendant Centurion and the Court will dismiss Corizon and
Centurion. Monell, 436 U.S. at 690-695.
The Court Will Dismiss Plaintiff’s Claims for Injunctive Relief:
Plaintiff Urioste’s Amended Complaint includes claims for preliminary and permanent
injunctive relief. His Amended Complaint seeks relief, including:
“preliminary and permanent injunction ordering defendant(s)
to stop their unwillingness to intervien and/or stop their
failure to provide medical care when issues are brought
before them. Also that defendants be ordered to change their
medical practices—as there are many others who go through
similar situations—to prevent further damage to the Plaintiff.
And defendant(s) be ordered to provide medical treatment and
competent medical care for the Plaintiffs medical issues. And
that the Plaintiff be examined and treated for possible liver damage
and Hep C.”
(Doc. 24 at 25) (errors in the original).
A prisoner plaintiff may not maintain § 1983 claims for temporary, preliminary, or
permanent injunctive relief based on conditions of incarceration if the plaintiff is no longer housed
at the facility. See Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997); White v. State, 82 F.3d
364, 366 (10th Cir.1996). Once a prisoner is released from the prison facility, injunctive relief
would have no effect on defendants’ behavior and, therefore, injunctive relief is moot. Green, 108
F.3d at 1300; Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010). The rule that
injunctive relief becomes moot applies both where the prisoner is released from prison and where

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the prisoner is transferred to a different prison facility. See Love v. Summit County, 776 F.2d 908,
910 n. 4, 912 (10th Cir.1985).
Plaintiff’s Amended Complaint establishes that Plaintiff has been transferred and is no
longer housed at PNM. (Doc. at 1-2). Therefore, he is no longer subject to the conditions he alleges
as the basis of his Amended Complaint, and any order for injunctive relief directed against the
PNM Defendants would have no effect. Green, 108 F.3d at 1300. Plaintiff’s claims for temporary,
preliminary, and permanent injunctive relief are moot and, under the § 1915(e)(2)(B) standard, no
longer state a claim for relief. Abdulhaseeb, 600 F.3d at 1311. The claims for injunctive relief in
Plaintiff’s Amended Complaint will be dismissed. However, the transfer to a different facility does
not moot Plaintiff’s claims for damages. Green, 108 F.3d at 1300. This dismissal of his claims for
injunctive relief is without prejudice to Plaintiff’s claims for damages.
The Court Will Order Issuance of Notice and Waiver Forms for the Remaining
Defendants.
Plaintiff Joshua Urioste filed his pro se civil rights Amended Complaint on March 15,
2019. (Doc. 24). The Court has granted Plaintiff leave to proceed in forma pauperis under 28
U.S.C. § 1915. (Doc. 9). The Court has screened the Complaint as required by 28 U.S.C. § 1915A
and determined that, other than the claims dismissed by this Memorandum Opinion and Order, the
remaining claims in Plaintiff’s Amended Complaint survive initial screening. Therefore, the Court
will order issuance of notice and waiver service forms for the remaining Defendants.
IT IS ORDERED:
(1) All claims against Secretary of Corrections, Gregg Marcantell, Defendant Corizon, and
Defendant Centurion Health Care Providers, are DISMISSED with prejudice and Secretary
Marcantell, Corizon, and Centurion, are DISMISSED as parties to this proceeding;

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(2) All claims for preliminary and permanent injunctive relief in Plaintiff Urioste’s
Amended Complaint are DISMISSED as moot and without prejudice to Plaintiff’s remaining
claims for damages; and
(3) the Clerk is DIRECTED to issue notice and waiver of service forms, with a copy of
the Amended Complaint (Doc. 24) and this Memorandum Opinion and Order, for Defendants Jose
Martinez, M.D., Ben Martinez, P.A., Warden German Franko, Deputy Warden C. Olivas,
Grievance Officer Michelle Boyer, C.O. Trujillo, C.O. Perez, C.O. Palomino, Unit Manager Oscar
Treviso, and C.O. Cordova, at Penitentiary of New Mexico, P.O. Box 1059, 4311 State H.W. 14,
Santa Fe, New Mexico 87504.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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