Urioste v. Corizon and Centurion Health Care Providers et al

Filing 73

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 44 Martinez Report, 62 Second Amended Complaint, and 63 Surreply. Objections to Report and Recommendations due by May 20, 2021. Add 3 days to the deadline if service 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).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSHUA URIOSTE,
Plaintiff,
vs.

No. 1:16-CV-00755-JCH-KRS

CORIZON AND CENTURION
HEALTH CARE PROVIDERS, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Joshua Urioste, a prisoner incarcerated at the Penitentiary of New Mexico (“PNM”) in
Santa Fe County, New Mexico, has filed a complaint against several correctional officers and
medical providers pursuant to 42 U.S.C. § 1983. (Doc. 1); (see also Doc. 24); (Doc. 62). Among
other claims, Urioste asserts violations of his First and Eighth Amendment rights stemming from
delays in the provision of medical care and related retaliation by various Defendants. On May
11, 2017, the Court referred this case to United States Magistrate Judge Kevin R. Sweazea to
conduct any necessary hearings and to recommend an ultimate disposition. (See Doc. 19).
This matter is before the undersigned on the Martinez report filed by Defendants German
Franco, Clarence Olivas, Michelle Boyer, Roger Trujillo, Kyle Perez, Augustine Palomino, and
Oscar Trevizo (collectively the “NMCD Defendants”), filed on May 5, 2020.1 (Doc. 44). Urioste
timely filed a response brief on June 16, 2020. (Doc. 55). With the Court’s permission (see Doc.
60), the NMCD Defendants filed a reply brief on July 21, 2020. (Doc. 61). Urioste filed a

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Another corrections officer Defendant, “Officer Cordova,” has not been served in this action. (See, e.g., Doc. 31).
Additionally, the Court has only recently ordered service on another corrections official, Gary Maciel, who was
added to this action by operation of Urioste’s most recent amended pleading (Doc. 62). Both matters are addressed
in separate orders (see Doc. 66); (Doc. 69), and the undersigned does not address allegations or claims against those
Defendants except as necessary to resolve the instant Martinez report.

surreply on August 7, 2020. (Doc. 63). With the Court’s permission (Doc. 60), Urioste also filed
his Second Amended Complaint on July 31, 2020. (Doc. 62).
Having considered the parties’ submissions to date along with the available record, the
undersigned RECOMMENDS, as described further herein, that the Court: (1) STRIKE certain
allegations in Urioste’s Second Amended Complaint; (2) GRANT Urioste permission to file his
surreply nunc pro tunc to August 7, 2020; (3) GRANT summary judgment to the NMCD
Defendants as to Urioste’s Eighth Amendment deliberate indifference claims; (4) DENY
summary judgment to Defendant Palomino as to certain retaliation claims against him; and
(5) GRANT summary judgment to the NMCD Defendants as to Urioste’s remaining retaliation
claims.
I. FACTUAL BACKGROUND
Unless otherwise noted, the facts described herein are not in genuine dispute for present
purposes. Because Urioste’s pleading allegations are limited to activity in 2016, all dates cited
herein are in 2016 unless otherwise stated.
During all relevant periods, Urioste was in the custody of the New Mexico Corrections
Department (“NMCD”) and was housed at PNM’s North Facility. (See, e.g., Doc. 44-2 at 11320); (see also Doc. 44-1 at 2).2 At all relevant times, Franco served as the warden at PNM,
Olivas was the deputy warden responsible for operations at the North Facility, Boyer served as
the facility’s grievance officer, and Trujillo, Perez, and Palomino were correctional officers
assigned to PNM. (See Doc. 62 at 2-3). Trevizo, though employed by NMCD at the time, did not
work at PNM. (See Doc. 44-5).

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Because the parties use different page-numbering schemes and sometimes incorrectly paginate filings, all citations
to the parties’ filings and exhibits are to the corresponding ECF page numbers unless otherwise specified.
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A. MEDICAL ALLEGATIONS
On February 14, Urioste began coughing up blood, fainting, and injuring himself. (Doc.
62 at 4). Although Urioste states that he “began seeking medical attention” on this date, he does
not elaborate as to how he did so (see id.), and nothing in the record shows that he notified any of
the NMCD Defendants of his issues at that time.
On the morning of February 17, after experiencing cramping and coughing up blood,
Urioste was seen at the PNM medical clinic. (Id.). Progress notes state that Urioste complained
of diarrhea and other problems but “ha[d] not told anyone [of his symptoms] until now.” (Doc.
44-3 at 5) (interdisciplinary progress notes). Urioste was given medication and placed on medical
observation for a brief period. (See id.); (Doc. 62 at 5).
On February 18, Urioste experienced more cramping and vomiting, and he “began to feel
extreme nausea and fatigue” while outside in recreational cages. (Doc. 62 at 5). He notified
Trujillo of his condition, and unnamed correctional officers carried him to his unit at the end of
his “rec” period, at which time he was seen by PNM medical providers. (See id. at 5-6). Urioste
remained on medical observation until February 20, when he was returned to his unit after stating
that he felt better. (Doc. 44-3 at 5-7); (see also Doc. 62 at 10).
Urioste experienced more pain and nausea on February 21, and he informed unidentified
“security” officials that he needed medical attention. (Doc. 62 at 10). On February 22, PNM
medical staff examined Urioste and sent him to the emergency department at St. Vincent’s
Hospital in Santa Fe. (See Doc. 44-3 at 8); (Doc. 62 at 10-11). Urioste was ultimately diagnosed
with cholelithiasis (gallstones) and gastritis, and he was told that he would “eventually” need
surgery to remove his gallbladder. (Doc. 44-3 at 8-9); (Doc. 62 at 11). Urioste was prescribed
various medications and a bland low-fat diet, and he was discharged and returned to a medical

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cell at PNM on the evening of February 23 before being sent back to his unit the next afternoon.
(See Doc. 44-3 at 8-9); (Doc. 62 at 12).
Urioste continued to seek additional treatment that he states was not properly afforded to
him by prison medical staff. (See, e.g., Doc. 62 at 13-14). Urioste’s earliest complaints center on
his repeated submission of sick-call slips and requests for nausea medication over the next
month, which he states that medical personnel ignored or denied. (See, e.g., id. at 14-15).
However, Urioste also alleges a variety of other purportedly wrongful acts concerning his
medical treatment by persons other than the NMCD Defendants over the period of March
through early July 2016. (See generally Doc. 62 at 15-25). On July 12, 2016, about two weeks
after this lawsuit was initiated (see Doc. 1), a nurse told Urioste that he was scheduled for
surgery (Doc. 62 at 25). Urioste’s gallbladder was surgically removed on July 14 (id. at 26), and
the Second Amended Complaint asserts no additional claims concerning improper medical
treatment (or lack thereof) after July 2016.
B. GRIEVANCES AND OTHER COMMUNICATIONS
Urioste alleges that he submitted an informal grievance “directly” to Unit Manager Gary
Maciel on February 22, apparently prior to his medical visit later that day, concerning his
treatment by prison medical staff on February 17-18. (See Doc. 44-2 at 18-19); (Doc. 62 at 43).3
Urioste filled out and submitted to Maciel a second informal grievance against “Medical” on
February 29, alleging that the doctor at PNM had denied him medication and stating that he

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Although the grievance itself is also signed by Urioste on February 22, the “date received” field on that form,
which was filled out by Maciel, indicates that Urioste actually submitted the grievance to him on March 2. (See Doc.
44-2 at 18). For present purposes, the undersigned resolves this inconsistency in Urioste’s favor and assumes that the
grievance was submitted as of the date Urioste signed it. However, the Court disregards Urioste’s allegations
concerning the contents of that grievance (see Doc. 62 at 43) to the extent that the allegations are inconsistent with
his own narrative in that document and inconsistent with the time frame of his hospitalization. See, e.g., Vette v.
Sanders, 989 F.3d 1154, 1164-65 (10th Cir. 2021) (citing, e.g., Scott v. Harris, 550 U.S. 372, 380 (2007)) (resolving
inconsistencies at summary judgment in favor of “objective documentary evidence” provided by plaintiff where
such evidence “blatantly contradict[s]” her own account).
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needed to have his gallbladder removed. (See Doc. 44-2 at 20). Maciel requested more
information from PNM medical staff as to these two grievances on March 2, and again on April
13, but he received no response. (See id. at 18, 20); (see also Doc. 44-1 at 2).
On May 3, Maciel noted that he had not yet received any response from PNM medical
staff concerning Urioste’s February 22 and February 29 informal grievances, and he
recommended that Urioste pursue a formal grievance. (Doc. 44-2 at 18, 20). Urioste received
Maciel’s responses that day (see id.) and immediately submitted a formal grievance to Boyer,
requesting “proper medical treatment” and “proper administrative action . . . for lack of medical
treatment.” (See id. at 17). Boyer accepted this formal grievance for consideration on May 9 and
sent an email to PNM medical staff asking that the matter be looked into. (See id. at 16-17). She
received a response from PNM medical staff on June 6 stating that Urioste had been treated by
medical personnel twice in April, that orders for pain medications had been entered, and that he
was scheduled for another examination that day. (Id. at 15). Boyer recommended that the
grievance be marked as resolved, and Franco marked it as such on June 22. (Id. at 14).
Urioste appealed Franco’s response to his grievance to the Director of Adult Prisons (the
“Director”) on July 5, 2016. (See, e.g., Doc. 55 at 61). It is not clear when the Director resolved
the appeal; on January 17, 2017, following a request for follow-up by Urioste, NMCD’s
Grievance Appeals Coordinator forwarded an unsigned and undated copy of the Director’s
decision affirming the resolution of the grievance. (See id. at 61-63).
In late March through July 2016, Urioste allegedly wrote multiple letters and complaints
(including his appeal of the February grievances) to Franco and Olivas concerning his medical
condition and other matters. (See, e.g., Doc. 62 at 30-32). Urioste received no response to these
communications from either individual. (See id.).

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C. OTHER ALLEGATIONS
Urioste alleges multiple purportedly wrongful acts by Perez, Trujillo, Palomino, and
others from late February through June 2016, many of which concerned discipline that he
received, and only some of which were related to his claims concerning his medical conditions
and treatment. On March 15, two officers who are not Defendants to this lawsuit conducted a
shakedown of Urioste’s cell and found an “altered razor” and a length of wire, which were
deemed to be contraband. (See Doc. 44-2 at 106); (see also Doc. 62 at 36) (describing cell
shakedown). A hearing was conducted on March 24, and Franco approved the hearing officer’s
recommendation that Urioste’s phone and rec privileges be revoked for thirty days. (See Doc. 442 at 103). As a further result, on April 14, Maciel approved an order regressing Urioste to “Step
2” under the NMCD Predatory Behavior Management Program (“PBMP”) Conditions of
Confinement policy. (See Doc. 55-1 at 17); (see also Doc. 62 at 37-38) (describing Maciel
involvement); (Doc. 44-4 at 198) (discussing step regression).
Around the same time, Urioste was repeatedly brought before PNM’s Unit Management
Team disciplinary committee (“UMT”) for multiple infractions. After Perez allegedly caught
Urioste “fishing” with another prisoner on March 22, and after Perez and Trujillo allegedly
caught him fishing again on March 24, Urioste was brought before the UMT for hearings, after
which time Maciel revoked two days of rec time for each infraction. (See Doc. 55-1 at 19, 21)
(describing incidents); (see also Doc. 62 at 36-37) (alleging Perez and Trujillo involvement and
medical demands). On April 1, NMCD revoked thirty days of Urioste’s good-time credit in light
of these fishing offenses and the earlier contraband infraction. (See Doc. 55-1 at 18). After
Urioste was caught fishing yet again on April 16, he was again brought before the UMT, and
Maciel caused him to be regressed to “Step 1” in the PBMP. (See id. at 19); (see also Doc. 62 at

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38-39). On June 17, following a fishing report lodged by Palomino three days earlier, Urioste
was again regressed to “Step 1” by Maciel following a UMT proceeding. (See Doc. 62 at 40-41).
Urioste’s remaining potpourri of allegations is more varied. On February 28, Palomino
“refused to call medical” on his behalf; the surrounding circumstances of this incident are not
addressed. (Id. at 36). Also on February 28, Perez and Trujillo denied him a scheduled legal call.
(Id.). On April 7, Palomino denied Urioste another legal call. (Id. at 37). On April 9, Trujillo and
Perez sprayed Urioste with mace; Urioste does not allege the circumstances behind that spraying
except to state that he had been “requesting medical all day.” (Id.). On April 11, Maciel and
Palomino cancelled another of Urioste’s attorney phone calls. (See id.). After Urioste again
requested medical help on April 20, Palomino sprayed him with mace, then laughed and
observed that Urioste “[could]n’t call for medical now.” (Doc. 62 at 38). The following day, after
again “requesting medical,” Urioste was sprayed with mace by Perez. (Id.). On April 22, Trujillo
and Perez purportedly “sprayed an unknown substance” on Urioste’s food. (Id. at 39). Urioste
claims that he tasted bleach in his food on April 28 after Trujillo and Perez “put the chow cart
where the plaintiff could not see it,” and he saw the same officers “tampering with the food” in
an unspecified fashion at a later meal. (Id.). Urioste was sprayed with mace by the same officers
“after requesting medical” on April 29. (Id. at 39-40). Trujillo sprayed Urioste with mace again
on May 11 “for no reason” and served rotten milk to him on May 26. (Id. at 40). On June 14,
Palomino “put[] the plaintiff’s life in danger” by calling him a “rat” for filing complaints
concerning rec time and medical treatment, and he allegedly reported Urioste for fishing on the
same date. (See id. at 40-41).

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II. RELEVANT PROCEDURAL BACKGROUND
Urioste initiated this lawsuit through the filing of a complaint focused primarily on
alleged Eighth Amendment violations on June 29, 2016. (Doc. 1). The Court subsequently
dismissed Urioste’s complaint but provided leave to amend to cure pleading defects. (Doc. 22).
On January 18, 2019, Urioste filed an amended pleading (hereinafter the “First Amended
Complaint”) adding various claims and Defendants. (Doc. 24).4 On review pursuant to 28 U.S.C.
§ 1915A, the Court dismissed certain claims and parties but ordered issuance of notice and
waiver of service forms to the remaining Defendants, including the NMCD Defendants. (Doc.
26). Although service of process on some Defendants remained pending, the undersigned
directed Defendants to submit a Martinez report addressing Urioste’s claims. (Doc. 30).
On April 10, 2020, Urioste filed a motion to amend his complaint a second time in order
to substitute Maciel as a Defendant in place of Trevizo. (Doc. 38). Before this motion could be
resolved, the NMCD Defendants timely filed their Martinez report and supporting
documentation on May 5, 2020.5 (Doc. 44). On June 3, 2020, Urioste again moved for
permission to amend his complaint so as to substitute Maciel in place of Trevizo (Doc. 52), and
he timely filed his response to the NMCD Defendants’ Martinez report one week later (Doc. 54).
On July 8, 2020, the undersigned granted Urioste’s pending motions to amend his complaint
again in order to substitute Maciel for Trevizo, and the undersigned simultaneously granted the
NMCD Defendants’ motion to file a reply brief in support of their Martinez report. (See Doc.

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The new allegations and claims asserted in the First Amended Complaint, like the original allegations and claims,
concerned conduct allegedly occurring in 2016. The NMCD Defendants have not raised any statute-of-limitations
concerns or relation-back arguments concerning the allegations and claims first asserted in the First Amended
Complaint.
5
Due to earlier issues regarding lack of service on other parties, the NMCD Defendants are the only Defendants to
have filed a Martinez report as of this date. The undersigned has already taken note of the lack of service on “Officer
Cordova” and Maciel. Additionally, Defendants Ben Martinez, P.A., and Jose Martinez, M.D. have not yet entered
this action. The undersigned has recently addressed the question of service on P.A. Martinez and Dr. Martinez in a
separate order. (See Doc. 67).
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60). The NMCD Defendants filed their reply brief on July 21, 2020. (Doc. 61). Urioste filed the
operative pleading (hereinafter the “Second Amended Complaint”) on July 31, 2020. (Doc. 62).
Urioste also filed a sur-reply in opposition to the NMCD Defendants’ filings. (Doc. 63).
III. LEGAL STANDARDS
A. SUMMARY JUDGMENT
Summary judgment is appropriate where the pleadings, discovery materials, and
affidavits, if any, show 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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986). A fact is “material” if, under the governing law, it could have an
effect on the outcome of the lawsuit, and the dispute is “genuine” if a rational jury could find in
favor of the nonmoving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (citations omitted). In ruling on a summary judgment motion, the Court
may neither make credibility determinations nor weigh the evidence. Gossett v. Oklahoma, 245
F.3d 1172, 1175 (10th Cir. 2001) (quotation marks omitted).
For purposes of summary judgment, a prisoner’s complaint is treated as an affidavit if it
alleges facts based on his personal knowledge and has been sworn under penalty of perjury. Hall
v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (citation omitted). A Martinez report is also
treated as an affidavit, and this report can be used in determining whether to grant summary
judgment if it is “supported by affidavits or other materials provided under oath.” Id. at 1110,
1111 (citations omitted). A court cannot resolve material disputed factual issues by accepting a
Martinez report’s findings when the plaintiff has presented conflicting evidence. Id. at 1111.
However, conclusory allegations without specific supporting facts have no probative value and
cannot create a genuine issue of fact. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1143

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(10th Cir. 2005); Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004); Ledoux v.
Davies, 961 F.2d 1536, 1537 (10th Cir. 1992). As is true with all affidavits, statements of mere
belief must be disregarded. Argo v. Blue Cross & Blue Shield, 452 F.3d 1193, 1200 (10th Cir.
2006).
As with all pleadings filed by pro se individuals, the Court must liberally construe the
allegations contained in the plaintiff’s pleadings. Northington v. Jackson, 973 F.2d 1518, 152021 (10th Cir. 1992) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, the Court
must apply the same legal standards applicable to pleadings drafted by counsel. Id.
B. QUALIFIED IMMUNITY
Additional steps are taken when a summary judgment motion raises a defense of
qualified immunity. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “When a
defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to
show that: (1) the defendant violated a constitutional right and (2) the constitutional right was
clearly established.” Id. The court may consider either of these prongs before the other “in light
of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009). “If, and only if, the plaintiff meets this two-part test does a defendant then bear the
traditional burden of the movant for summary judgment—showing that there are no genuine
issues of material fact and that he or she is entitled to judgment as a matter of law.” Rojas v.
Anderson, 772 F.3d 1000, 1003 (10th Cir. 2013) (internal quotation marks omitted).
The “clearly established” inquiry exists in part to protect officers who were mistaken as
to what the law required at the time of the alleged constitutional violation, but whose mistake of
law was reasonable. See Saucier v. Katz, 533 U.S. 194, 205 (2001). Because the doctrine is
intended to protect “all but the plainly incompetent or those who knowingly violate the law,”

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summary judgment on the basis of qualified immunity is appropriate “[i]f the law did not put the
officer on notice that his conduct would be clearly unlawful.” Id. at 202 (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). Thus, the “clearly established” inquiry “must be undertaken
in light of the specific context of the case, not as a broad general proposition.” Id. at 201.
Ordinarily, a right is considered to be clearly established only when there is “a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other courts
. . . have found the law to be as the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196
(10th Cir. 2012) (quotation omitted). Additionally, “‘[g]eneral statements of law’ can clearly
establish a right for qualified immunity if they apply ‘with obvious clarity to the specific conduct
in question.’” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)).
At the summary judgment stage, a court generally must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment]
motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted). “In qualified immunity
cases, this usually means adopting . . . the plaintiff’s version of the facts,” id., unless that version
“is so utterly discredited by the record that no reasonable jury could have believed him,” id. at
380. “However, because at summary judgment we are beyond the pleading phase of the
litigation, a plaintiff’s version of the facts must find support in the record.” Thomson v. Salt Lake
County, 584 F.3d 1304, 1312 (10th Cir. 2009) (citation omitted). “In short, although [courts] will
review the evidence in the light most favorable to the nonmoving party, the record must clearly
demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are
entitled to qualified immunity.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).

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III. DISCUSSION
In their Martinez report, the NMCD Defendants contend that the undisputed factual
record does not support any deliberate-indifference or retaliation claims against them, that they
are entitled to qualified immunity on those claims in any event, and that the Court should
therefore grant them summary judgment as to these claims. In light of the somewhat messy
posture of the case, the undersigned first addresses certain procedural matters concerning the
permissibility and impact of Urioste’s Second Amended Complaint before turning to the merits
of the NMCD Defendants’ arguments.
A. ALLEGATIONS EXCEEDING SCOPE OF ALLOWED AMENDMENT
On July 8, 2020, the undersigned granted Urioste leave to amend his First Amended
Complaint for the limited purpose of “omit[ting] Defendant Treviso, add[ing] Defendant Maciel,
and exclud[ing] the claims and parties the Court [previously] dismissed.” (See Doc. 60 at 2). The
undersigned also permitted Urioste to clarify in his Second Amended Complaint “that he is suing
all defendants in their individual and official capacities.” (See id. at 1). The Court did not grant
Urioste leave to amend his pleading on any other basis. (See id. at 1-2).
Urioste has complied with these directives for the most part, including only minor
transcription differences between his First Amended Complaint and his Second Amended
Complaint while otherwise making the aforementioned changes. Occasionally, though, Urioste
peppers his newest pleading with conclusory allegations that did not appear in his First Amended
Complaint. Compare (Doc. 24 at 8) (“The plaintiff continued to protest and ask for treatment for
pain and nausea.”), with (Doc. 62 at 13) (“The plaintiff continued to protest and ask for medical
treatment for the sym[p]toms of gallbladder disease, extreme pain and nausea.”) (additions
underlined); compare (Doc. 24 at 10) (“[T]he health care provider would not authorize nothing

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for severe pain management.”), with (Doc. 62 at 18) (“[T]he health care provider would not
authorize nothing for severe pain management (chronic pain).”) (additions underlined). While
outside the scope of the permitted amendment, conclusory allegations of this nature do not
themselves present a serious problem since they have no bearing on a party’s claims either at the
pleadings stage or at summary judgment. See, e.g., Fitzgerald, 403 F.3d at 1143 (quotation
omitted) (“[S]ummary judgment cannot rest on purely conclusory statements either in pleading
or in affidavit form.”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (establishing that
conclusory allegations are not entitled to presumption of truth at pleadings stage).
More problematically, Urioste has now included entirely new sections in his Second
Amended Complaint, including one section entitled “Legal Claim” (Doc. 62 at 45).6 In
particular, the latter section adds a new Fifth Amendment Double Jeopardy claim (see id.) that
has not been pleaded or even suggested in previous complaints. Although Urioste now argues
that his allegations show that he received multiple forms of discipline for the same infraction in
UMT and related proceedings (see, e.g., Doc. 55 at 33, 35), the Tenth Circuit has repeatedly
“held that, because the Double Jeopardy clause only applies to proceedings that are essentially
criminal in nature, it is well established that prison disciplinary sanctions do not implicate double
jeopardy protections.” See, e.g., Barlor v. Patton, 681 F. App’x 674, 678 (10th Cir. 2017)
(unpublished) (quoting Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006)) (cleaned up)
(holding that Double Jeopardy claim based on prisoner’s security classification was not viable).
Moreover, from the outset, Urioste has consistently described this action as concerning “[d]enial
of medical attention” and related “retaliation” and “due process” violations. (See Doc. 1 at 2, 4);

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Urioste’s pleading also adds a new section called “Exhaustion of Legal Remedies.” (Doc. 62 at 44-45). That
portion of the Second Amended Complaint should also be stricken for the reasons discussed here, which should not
prejudice Urioste because he was not required to plead exhaustion, see Jones v. Bock, 549 U.S. 199, 212-17 (2007),
and because the NMCD Defendants have abandoned their exhaustion argument as discussed infra.
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(see also, e.g., Doc. 24 at 24) (citing Eighth Amendment and Fourteenth Amendment caselaw);
(Doc. 62 at 46) (same). Consequently, Urioste’s belated effort to assert a double jeopardy
violation for the first time exceeds the scope of amendment previously permitted by the
undersigned, and it fails to state a claim upon which relief may be granted. Cf. Foman v. Davis,
371 U.S. 178, 182 (1962) (futility of amendment justifies denial of leave to amend).
Federal courts will regularly strike allegations, claims, and even entire amended
pleadings under Federal Rule of Civil Procedure 12(f) where that material exceeds the scope of
an amendment permitted by the court. See, e.g., U.F.C.W. Local 56 Health & Welfare Fund v.
J.D.’s Market, 240 F.R.D. 149, 154 (D.N.J. 2007) (striking new defendant and new legal theories
where plaintiffs obtained leave to amend for limited purposes but “failed to obtain leave to
amend their complaint in the manner in which they amended it”) (emphasis added); see also
Fodor v. Blakey, No. CV 11-08496 MMM (RZx), 2012 WL 12893983, at *6 (C.D. Cal. June 15,
2012) (numerous citations omitted). Striking Urioste’s unauthorized additions under Rule 12(f)
“is appropriate here because to hold otherwise would be to essentially ignore Fed.R.Civ.P.15(a)
and the requirement that a plaintiff seek leave before amending his complaint.” U.F.C.W. Local
56, 240 F.R.D. at 154. Therefore, to the extent that the allegations in Urioste’s Second Amended
Complaint (Doc. 62) differ from those in his First Amended Complaint (Doc. 24) in any way
other than (i) substituting Gary Maciel for Oscar Trevizo; (ii) clarifying that Urioste’s claims are
brought against the Defendants in their official and individual capacities; and (iii) eliminating
claims and parties previously dismissed by the Court (see Doc. 60), the undersigned
RECOMMENDS that the Court STRIKE those allegations pursuant to Rule 12(f).

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B. MOOTNESS OF MARTINEZ REPORT
The fact that Urioste filed his Second Amended Complaint after the NMCD Defendants
filed their Martinez report—which was directed at claims asserted in the First Amended
Complaint—arguably creates a procedural tangle. “[I]t is well established that an amended
complaint ordinarily supersedes the original and renders it of no legal effect.” Davis v. TXO
Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (quotation omitted). Accordingly, any motion
directed at the superseded complaint—including any pending summary judgment motion—is
ordinarily rendered moot by the filing of an amended pleading. See, e.g., Klintworth v. Valley
Forge Ins. Co., Case No. 20-CV-0178-CVE-FHM, 2020 WL 6994259, at *1 (N.D. Okla. July
10, 2020) (citations omitted).
In this case, however, the NMCD Defendants did not oppose Urioste’s efforts to amend
his pleading notwithstanding their pending Martinez report. (See Doc. 60 at 1) (noting lack of
opposition). Further, because the Court only allowed limited amendments to the First Amended
Complaint as described above, and because the undersigned has recommended that the Court
strike any aspects of the Second Amended Complaint that exceed the permissible scope of
amendment, the relevant allegations and claims asserted against the NMCD Defendants in the
two pleadings (and addressed by the instant filings) are wholly indistinguishable. Under these
particular circumstances, the efficient management of this case would be needlessly hindered if
the parties were required to refile their Martinez report and responsive briefs simply because
those filings are now technically moot. Cf., e.g., Bird v. Regents of N.M. State Univ., No. 08-cv00851 BB/LAM, 2010 WL 11492347, at *2 (D.N.M. Dec. 28, 2010) (predicting that “relatively
minor” differences between superseded and amended pleadings, and prospect of “needless[]
delay,” would weigh against finding pending summary judgment motions to be moot); United

15

States v. Copar Pumice Co., Inc., No. 09-cv-01201 JP/RLP, 2010 WL 11475731, at *5 (D.N.M.
Nov. 12, 2010) (citing Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006))
(proceeding to evaluate motion to dismiss directed at superseded pleading where arguments
“apply equally to the Amended Complaint and the parties have treated the [motion] as applying
to the Amended Complaint”). Accordingly, the undersigned will evaluate the Martinez report
and responsive briefs thereto as they pertain to the Second Amended Complaint.
C. URIOSTE’S SURREPLY
This Court’s Local Rules require leave of the Court before filing a surreply. See
D.N.M.LR-Civ. 7.4(b). Although the NMCD Defendants have stated that they would not be
opposed to Urioste being allowed to file a surreply (see Doc. 58 at 2), Urioste did not seek—and
the Court did not grant him—permission to do so before filing his surreply on August 7, 2020
(Doc. 63). Nevertheless, as detailed below, the NMCD Defendants’ reply brief backtracks
significantly on their earlier argument concerning exhaustion of administrative remedies, and
substantial parts of Urioste’s surreply are aimed at addressing that argument and other points
raised for the first time therein.
In the interests of justice, and in light of Urioste’s pro se status, the undersigned
RECOMMENDS that the Court sua sponte GRANT Urioste leave to file his surreply nunc pro
tunc to August 7, 2020. Moreover, in assessing the NMCD Defendants’ Martinez report, the
undersigned has considered the relevant arguments raised in Urioste’s surreply.
D. UNIT MANAGER OSCAR TREVIZO
In his original and First Amended Complaint, Urioste identified “Oscar Treviso” as the
“unit manager” at PNM. (See, e.g., Doc. 24 at 2). However, prior to the filing of the NMCD
Defendants’ Martinez report, Urioste admitted that he was mistaken about the PNM unit

16

manager’s identity and sought leave to again amend his complaint to substitute PNM Unit
Manager Gary Maciel as a Defendant. (See Doc. 38); (see also Doc. 34) (noting error). In their
Martinez report, the NMCD Defendants explain that Oscar Trevizo has worked continuously at a
different NMCD facility for thirty years and was not employed at PNM during the events alleged
in Urioste’s pleadings. (See, e.g., Doc. 44 at 7). Subsequently, Urioste again sought leave to
amend to substitute Maciel for Trevizo. (See Doc. 52). The Court granted leave to amend on this
basis (Doc. 60), and Urioste’s operative Second Amended Complaint no longer alleges any
wrongdoing by Trevizo. (See generally, Doc. 62). Accordingly, the undersigned
RECOMMENDS that Defendant Trevizo be DISMISSED as a party to this proceeding.
E. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Prison Litigation Reform Act (“PLRA”) prohibits any action regarding prison
conditions from being brought by any prisoner until he has exhausted all administrative remedies
that are available. 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524 (2002)
(recognizing that exhaustion is required for any suit challenging prison conditions, regardless of
the cause of action). Because Congress has specifically mandated exhaustion of administrative
remedies, the Court cannot waive this requirement, even if the remedy sought is not actually
available to the prisoner through the administrative process. Booth v. Churner, 532 U.S. 731, 739
(2001) (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). A prisoner must properly
complete the full administrative review process set by the facility’s grievance policy in order to
exhaust administrative remedies. See Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford
v. Ngo, 548 U.S. 81, 88 (2006)); Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010); see
also Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (noting that it is not enough for a
prisoner to begin the grievance process without completing it).

17

A prisoner’s failure to exhaust administrative remedies is an affirmative defense, see
Jones, 549 U.S. at 216, that the defendant bears the burden of establishing, see Roberts v.
Barreras, 484 F.3d 1236, 1240-41 (10th Cir. 2007) (citations omitted). Although the NMCD
Defendants spend a significant portion of their Martinez report describing NMCD’s grievance
policies (see Doc. 44 at 17-20) and the procedural history of at least three of Urioste’s grievances
(see id. at 20-23), their legal argument regarding the exhaustion of “relevant” grievances consists
of essentially two paragraphs concerning Grievance No. N-16-05-04 (see id. at 31). However,
after Urioste produced evidence that he had indeed fully exhausted this grievance (see, e.g., Doc.
55 at 63), the NMCD Defendants conceded in their reply brief that Urioste “has cleared the
hurdle of grievance exhaustion regarding his claims that he did not receive adequate medical care
for pain” (see Doc. 61 at 1-3).7 While the NMCD Defendants state that their remaining
“information . . . concerning Plaintiff’s other grievances[] is unchanged” (see id. at 2), they raise
no legal argument in either their Martinez report or their reply brief concerning those other
grievances and the impact of their alleged unexhausted status on Urioste’s claims.8 Accordingly,

7

Urioste’s evidence of exhaustion includes his copy of an unsigned, undated response to that grievance from
NMCD’s Director of Adult Prisons, as well as a January 2017 letter from Grievance Appeals Coordinator Steve
Madrid acknowledging that the grievance was exhausted. (Doc. 55 at 62-63). It was Madrid himself, in an affidavit
submitted with the NMCD Defendants’ Martinez report, who incorrectly attested that Urioste had not properly
appealed Franco’s resolution of his grievance to the Director. (See Doc. 44-2 at 3). Madrid now attributes his
original “oversight” to a failure to scan documents due to a “change in record-keeping practices which occurred
soon after this grievance was exhausted.” (Doc. 61-1 at 2-3). However, the NMCD Defendants have still not
submitted the Director’s signed and dated response into the record. Since the NMCD Defendants are now
abandoning their exhaustion defense, the undersigned would be less troubled by this ongoing omission if this were
the only relevant NMCD-generated document that the NMCD Defendants failed to submit with their Martinez
report. But, as Urioste has shown, it is not. (See, e.g., Doc. 55 at 17-21) (PBM records concerning contraband and
fishing offenses); (cf. Doc. 62 at 36-40) (alleging that fishing allegations and cell shakedown for contraband
constituted retaliation). The undersigned reminds the NMCD Defendants of their obligation to submit “any . . .
documents relevant to any allegation or defense” when filing a Martinez report in the District of New Mexico. (Doc.
30 at 2) (emphasis added).
8
The NMCD Defendants’ reply brief implies in passing that Urioste somehow erred by failing to allege exhaustion
as to conduct by Palomino. (See Doc. 61 at 9) (“Plaintiff does not allege exhaustion.”). But again, failure to exhaust
is an affirmative defense, and the burden is on the NMCD Defendants to establish non-exhaustion rather than on
Urioste to allege otherwise. See, e.g., Jones, 549 U.S. at 216.
18

the NMCD Defendants have not met their burden to establish failure to exhaust as an affirmative
defense, and the undersigned proceeds to consider the merits of Urioste’s claims against them.
F. DELIBERATE INDIFFERENCE
The Tenth Circuit recognizes two broad types of deliberate indifference claims: those in
which a medical professional fails to properly treat a serious medical condition, and those where
“prison officials prevent an inmate from receiving treatment or deny him access to medical
personnel capable of evaluating the need for treatment.” Sealock v. Colorado, 218 F.3d 1205,
1211 (10th Cir. 2000). Because Defendant medical professionals Jose Martinez and Ben
Martinez are not parties to the instant Martinez report, the only type of claim presently at issue is
the second, concerning whether the NMCD Defendants prevented Urioste from receiving
treatment or denied him access to medical personnel. See id.
As to either type of claim, the standards concerning claims of deliberate indifference to a
prisoner’s serious medical needs are well established:
Deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.
To state a cognizable Eighth Amendment claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs. The deliberate indifference test involves an objective and a
subjective component. The objective component requires the plaintiff to allege the
deprivation at issue was sufficiently serious. That is, the defendant's actions must
result in the denial of the minimal civilized measure of life's necessities. The
subjective component requires the prisoner to allege the official was deliberately
indifferent to a serious medical need. A plaintiff sufficiently alleges a culpable
mindset when the facts alleged show a prison official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.
Walker v. Mohiuddin, 947 F.3d 1244, 1250 (10th Cir. 2020) (cleaned up).
Where, as here, a prisoner’s allegations concern a delay in medical treatment rather than
an outright denial of treatment, the prisoner must show “that the delay resulted in substantial

19

harm” in order to establish that an official’s deliberate indifference was “sufficiently serious” in
order to satisfy the objective component of the Eighth Amendment test. See Sealock, 218 F.3d at
1210 (citation omitted). The Tenth Circuit has recognized that the substantial harm requirement
is satisfied by a showing of “lifelong handicap, permanent loss, or considerable pain.” Garrett v.
Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (citations omitted); see also Al-Turki v. Robinson,
762 F.3d 1188, 1193 (10th Cir. 2014) (quotation omitted) (“Although ‘not every twinge of pain
suffered as a result of delay in medical care is actionable,’ when the pain experienced during the
delay is substantial, the prisoner ‘sufficiently establishes the objective element of
the deliberate indifference test.’”).
The NMCD Defendants argue broadly, without citation to pertinent authority, that
Urioste “has not shown substantial harm” because “he has not shown the pain [he experienced
prior to surgery] was different or more than any other person who might be waiting for
gallbladder surgery to be scheduled.” (Doc. 44 at 33). However, the crux of Urioste’s claims is
not that he experienced comparatively more pain than other similarly situated people, but that he
experienced unnecessary severe pain because the surgery in question was improperly delayed.
The NMCD Defendants’ argument fundamentally misunderstands the role of the “considerable
pain” showing: “[t]he point of the objective prong of the deliberate indifference test is to ‘limit
claims to significant, as opposed to trivial, suffering,’” not to establish that another person facing
similar delays would have experienced a comparable amount of pain. See Al-Turki, 762 F.3d at
1193. In Al-Turki, the Tenth Circuit concluded that allegations of severe pain lasting for several
hours, which allegedly could have been alleviated through earlier medical treatment, were
sufficient to overcome summary judgment. See id. at 1193-94. Urioste repeatedly attests that he
similarly experienced substantial pain for several months while waiting for surgery (see, e.g.,

20

Doc. 62 at 3), and the medical evidence presented thus far does not show otherwise. As in AlTurki, that is enough to overcome the NMCD Defendants’ blanket substantial-harm argument at
this stage absent any further showing.
The NMCD Defendants also argue that Urioste has failed to show that any NMCD
Defendant delayed his treatment or that any NMCD Defendant, either subjectively or
objectively, “would have had reason to believe that Plaintiff was not receiving medical
attention.” (See, e.g., Doc. 44 at 32). The undersigned considers the claims against each
individual NMCD Defendant in turn. 
1. Perez and Trujillo
Urioste lists four occasions in which Perez and/or Trujillo purportedly ignored his
requests for medical assistance. On February 18, when Urioste asked to return to his cell due to
nausea and fatigue, Trujillo told him to wait briefly until his rec time was over, at which point
officers carried Urioste inside and he was seen by medical providers. (See Doc. 62 at 5-6). On
March 29, Perez and Trujillo “refused” to call for medical help. (Id. at 37). On April 9, Perez and
Trujillo never called for medical staff and allegedly sprayed mace in Urioste’s cell even though
Urioste had been calling for such assistance “all day”; no other details of this incident are
provided. (See id.). On April 21, Perez again sprayed Urioste with mace following requests for
medical assistance, with no other details provided. (See id. at 39).
The NMCD Defendants, while presenting no evidence disputing these events, argue that
they do not amount to deliberate indifference. (See Doc. 44 at 10-12, 33). Urioste summarily
refers to the February 18 incident in his responsive briefing but adds no new factual information

21

or evidence concerning that specific event. (See Doc. 55 at 15). Urioste does not add further
argument regarding Perez’s or Trujillo’s alleged deliberate indifference in his responsive briefs.9
Assuming that the evidence here satisfies the objective prong of a deliberate indifference
claim, Urioste has failed to show that either Perez or Trujillo knew of or disregarded an
excessive risk to his health on any of these occasions. At no point does the record show, or does
Urioste allege facts showing, that on any of these occasions Perez or Trujillo themselves were
subjectively aware of any substantial risk to Urioste’s health that might result from any delays in
obtaining medical treatment for him. (Cf. Doc. 62 at 37, 39). Urioste’s conclusory, generalized
assertions that “the defendants witnessed” his symptoms on unspecified dates (see, e.g., Doc. 55
at 23) do not establish with particularity that these individuals were aware of Urioste’s particular
medical needs at these specific times. Nor does any evidence in the record support the allegation
that either Perez or Trujillo unduly delayed Urioste’s receipt of medical care. Indeed, the
allegations concerning the February 18 event demonstrate that Urioste was seen by medical
personnel shortly after his complaints of nausea and fatigue to Trujillo. (See Doc. 62 at 6). And
as to the alleged events of April 21, Urioste’s own allegations indicate that he was actually seen
by medical personnel on that date (see id. at 17), which appears to belie any suggestion that
Perez unduly (or at all) delayed his medical treatment.
In the absence of any supporting evidence, Urioste has not shown that Perez and Trujillo
violated his Eighth Amendment rights. Consequently, Perez and Trujillo are entitled to qualified
immunity on Urioste’s deliberate indifference claims against them, and summary judgment in
their favor is proper.

9

Urioste’s sole reference to Perez in his response to the Martinez report concerns alleged food tampering by Perez
and Trujillo. (Doc. 55 at 19-20). As Urioste does not refer to medical delays in making these allegations (see Doc.
62 at 39-40), the undersigned construes any food-tampering allegations as underlying his retaliation claims and will
address them accordingly.
22

2. Palomino
Urioste alleges that Palomino “refused to call medical” on his behalf on February 28
(Doc. 62 at 36), without adding any further detail about the incident or his condition at that time
in either his Second Amended Complaint or his responsive briefs. Evidence presented by the
NMCD Defendants, and undisputed by Urioste, shows that he was triaged by a nurse the
following day and underwent a more thorough examination one day later. (See, e.g., Doc. 44-3 at
10-11). Again, in the absence of any evidence concerning what Palomino actually knew about
Urioste’s condition on February 28, and in the absence of any evidence of undue delay on
Palomino’s part, Urioste has not shown that Palomino acted with deliberate indifference.
Palomino is therefore entitled to qualified immunity and summary judgment on this claim.
3. Boyer
Urioste alleges that he submitted informal grievances concerning his medical care to
Grievance Officer Boyer on February 26, February 29, March 16, April 14, May 27, and June 15.
(See Doc. 62 at 3, 33-35). Urioste further suggests that Boyer ignored a “complaint” labeled
“Emergency Medical” that he submitted to Maciel on February 22. (See id. at 33) (noting that
complaint “was filed” on that date); (see also id. at 43) (specifying that Urioste sent this
complaint “directly to the Unit Manager Gary Maciel”). Urioste contends that Boyer acted with
deliberate indifference to his serious medical needs by “ignor[ing] all complaints and
grievances.” (See id. at 35).
NMCD’s “Inmate Grievances” policy provides that prisoners generally initiate the
grievance process by filing an informal complaint with the unit manager, who must “make every

23

effort to resolve the complaint.” (See Doc. 44-4 at 137).10 If the unit manager’s resolution of the
informal grievance does not satisfy the prisoner, he may attach the informal grievance to a
formal grievance and submit the documents to the facility’s grievance officer. (See id. at 13738). The grievance officer reviews the formal grievance for proper procedural compliance, then
investigates and answers any proper grievance. (See, e.g., id. at 140-41). The grievance officer
subsequently delivers her report and recommendations to the warden, who makes a decision on
her recommendations. (Id. at 141). After the warden’s decision is reported to the prisoner, further
appeals may be made to the Secretary of Corrections. (See id. at 134, 141-42).
Aside from Urioste’s sworn allegations, the record in this case lacks any evidence of any
informal or formal grievances concerning medical care filed on or about February 26, March 16,
April 14, May 27, or June 15. (See, e.g., Doc. 44-2 at 6-7) (Urioste grievance history). And
Urioste now concedes in a self-maintained log of events that his alleged informal grievances of
April 14 and May 27 pertained respectively to inmate property and religious services, not
medical care. (See Doc. 55 at 65); (see also Doc. 44-2 at 11-12) (copy of April 14 grievance
regarding property).11 But even if Urioste had attempted to submit health-related informal
grievances to Boyer on each of these dates as he attests, there is no evidence to suggest that she
ever received them because informal grievances are routed to the unit manager, not the grievance
officer. (See Doc. 44-4 at 137). For this reason, and because there is no record of Urioste
submitting any such informal grievances to Boyer as part of a formal grievance, there is no

10

Two versions of this policy were in effect over the course of relevant events (see Doc. 44-4 at 126-50, id. at 15175), but those policy versions are functionally indistinguishable for present purposes. For the sake of simplicity, the
undersigned cites solely to the earlier policy, which was in effect for most of the alleged events.
11
As for the purported March 16 and June 15 informal grievance, Urioste’s log only has the word “Medical”
corresponding to those dates. (Doc. 55 at 65). These entries do not specify that they refer to any grievances, much
less grievances submitted directly to Boyer. (Cf. id.).
24

evidence to suggest that Boyer was subjectively aware of any medical issues discussed therein.
Urioste may not maintain a deliberate indifference claim against Boyer on these facts.
The evidentiary record does show that Urioste submitted informal grievances concerning
his medical care to Maciel—not Boyer—on or about February 22 and February 29, and that it
was Maciel who handled these grievances together at the informal stage. (See Doc. 44-2 at 1820) (indicating receipt of informal grievances bearing those dates). Urioste expressly concedes as
much in his allegations concerning the February 22 grievance (see Doc. 62 at 43), and contrary
to his original suggestion, he now acknowledges that it was Maciel and not Boyer who took
about “40 days” to respond to these two grievances (see Doc. 55 at 29-30). The record also
establishes that Urioste first submitted these materials to Boyer as part of a formal grievance on
or about May 3. (See Doc. 44-2 at 17).
For Boyer to be held liable for deliberate indifference, Urioste must establish that she was
aware of facts from which the inference could be drawn that a substantial risk of serious harm
could result from delay, that she drew that inference, and that she nonetheless disregarded the
substantial risk. See, e.g., Sealock, 218 F.3d at 1210 (finding subjective prong satisfied where
defendant “knew of and disregarded the excessive risk to [plaintiff’s] health that could result
from the delay”); Martinez, 563 F.3d at 1089. Per NMCD policy, the earliest an informal
grievance normally is brought to the grievance officer’s attention is on the date that the unit
manager resolves it. (See Doc. 44-4 at 137). With respect to Urioste’s February 22 and February
29 complaints, that date was May 3, (see Doc. 44-2 at 18, 20) (noting Maciel’s resolution of
grievances on that date), the same day that he submitted his formal grievance to Boyer. No
evidence in the record suggests that Boyer had any knowledge of any of Urioste’s relevant
medical issues prior to that date. See, e.g., Bird v. Lampert, 839 F. App’x 218, 223 (10th Cir.

25

2020) (unpublished) (affirming summary judgment on deliberate indifference claim where
plaintiff “does not cite any evidence that [grievance officer] was aware of the delay before he
filed his grievance or that she had any involvement in, or prior knowledge of,” medical staffing
shortages). Because there is no evidence that Boyer had any awareness of his medical
circumstances—or even the existence of his health-related informal grievances—prior to May 3,
Urioste has not satisfied the subjective prong of any deliberate indifference claim against Boyer
concerning conduct prior to that date.
Nor is there any support in the record for a deliberate indifference claim against Boyer
for her conduct on or after May 3. Rather than showing delay, the record establishes that Boyer
reviewed Urioste’s formal grievance for proper procedural compliance and accepted it for
consideration within three working days (see Doc. 44-2 at 17); that she contacted PNM medical
personnel that same morning (id. at 16); that medical personnel responded by outlining some of
Urioste’s most recent treatment for his condition and noting that he was scheduled for another
examination that day (id. at 15); and that Boyer submitted a recommendation on Urioste’s
grievance on the same day that she heard back from his medical providers (id. at 14). Nothing in
the applicable NMCD policies suggests that Boyer was required to do anything further in her
capacity as grievance officer. (See, e.g., Doc. 44-4 at 138) (outlining grievance officer
responsibilities). Indeed, having confirmed that Urioste was receiving medical treatment that was
intended to address the conditions he complained of, it would have been improper for Boyer to
substitute her judgment for that of his treating medical professional. Therefore, the undisputed
material record fails to establish that Boyer was aware of facts allowing for an inference that
Urioste faced a substantial risk of serious harm, that she in fact drew such an inference, or that
she acted with delay in disregard of that substantial risk.

26

The only particularized argument Urioste raises concerning Boyer’s alleged delay12 is to
contend that Boyer should have acted more quickly because he marked his February 22 informal
grievance (which formed part of the basis of his May 3 formal grievance) with the label
“Emergency Medical!!” (See, e.g., Doc. 55 at 5, 21-22, 28); (Doc. 63 at 3-4). NMCD policy does
establish an expedited procedure for emergency grievances where (1) the prisoner submits a
formal grievance form (Form CD-150501.1) directly to the grievance officer; (2) he designates
the grievance as an emergency; (3) his grievance “demonstrate[s] the factors creating a risk that
serious harm may result if the emergency grievance is processed according to standard time
limits”; and (4) the grievance officer “determine[s], through investigation, [that] the inmate’s
grievance is, in fact, an emergency grievance.” (Doc. 44-4 at 135). But here, contrary to this
policy, Urioste submitted his purported “emergency” grievance directly to Maciel, not Boyer
(see, e.g., Doc. 62 at 43), on an informal grievance form (see Doc. 44-2 at 18); (cf. Doc. 44-4 at
146-47) (blank formal grievance form). Additionally, rather than demonstrating the existence of
“a risk that serious harm may result” in the absence of immediate future action, Urioste’s own
grievance narrative describes a retrospective problem, specifically stating that his “main issue . . .
[was] being laughed at by medical staff and [being] ignored” prior to receiving treatment. (See
Doc. 44-2 at 18-19). Even if Urioste had otherwise properly followed emergency grievance
procedures, there is no reason to believe that any investigation of that grievance would have
revealed an unresolved emergency because Urioste was seen by medical providers on the same
day that the grievance was filed, was hospitalized for two days, and received medical care on
multiple dates shortly thereafter. (See, e.g., Doc. 44-3 at 8-12) (showing medical examinations

12

The undersigned disregards Urioste’s allegation that Boyer “ignored all complaints” (see Doc. 62 at 35) because
he acknowledges in his own exhibits that he received a response to his May 3 formal grievance (see Doc. 55 at 61).
See Vette, 989 F.3d at 1164-65 (citing, e.g., Scott, 550 U.S. at 380) (resolving inconsistencies at summary judgment
in favor of plaintiff’s “objective documentary evidence” that “blatantly contradict[ed]” her own account).
27

on February 22-24, February 29, March 6); cf. Carter v. Bravo, 09-cv-00573 BB/GBW, 2010
WL 11623440, at *12 (D.N.M. May 27, 2010) (rejecting deliberate indifference claim
concerning “emergency” complaint against grievance officer who “should be able to rely on the
fact that [plaintiff] was evaluated twice by [medical provider] who apparently did not consider
[his] issues an emergency”), PFRD adopted, (Doc. 19) (D.N.M. June 24, 2010). These
undisputed facts do not suggest that Boyer was subjectively aware of any purported “emergency”
situation; rather, they show that Urioste himself failed to follow emergency-grievance protocols.
More to the point, it is well established that a mere violation of prison policy or
regulations, absent a violation of federal law, is insufficient to establish liability under § 1983.
See, e.g., Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (finding no cognizable
§ 1983 claim for “alleged violations of . . . prison regulations”); Hovater v. Robinson, 1 F.3d
1063, 1068 n.4 (10th Cir. 1993) (citing Davis v. Scherer, 468 U.S. 183, 194 (1984)) (“[A] failure
to adhere to administrative regulations does not equate to a constitutional violation.”). Even if
Boyer had failed to follow governing NMCD emergency grievance procedures—which does not
appear to be the case—such a failure does not alone establish an improper delay in medical
treatment for Eighth Amendment purposes. The same reasoning applies to Urioste’s belated
argument that Boyer failed to follow other timelines set forth in the NMCD grievance policy.
(See, e.g., Doc. 63 at 16-19).
In summary, Urioste cannot sustain a deliberate indifference claim against Boyer for her
alleged failure to respond to informal grievances where, in light of governing NMCD policy,
there is no evidence that she received those grievances, that she was aware of their contents, or
that the grievances had anything to do with medical care. To the extent that Urioste did properly
submit relevant health-related grievances to Boyer, there is no evidence that she was aware of

28

their contents before he did so, and there is no evidence of undue delay or the requisite subjective
awareness on her part after he did so. Accordingly, Boyer is entitled to qualified immunity and to
summary judgment on Urioste’s Eighth Amendment claims against her.
4. Franco
Urioste alleges that Warden Franco never responded to “letters” and informal
“complaints” sent directly to him concerning Urioste’s medical care on March 26, April 7, May
16, June 16, and June 22.13 (Doc. 62 at 30-32). Urioste also suggests that Franco did not
adequately act on his formal grievance concerning medical care. (See id. at 31).14 Urioste
contends that Franco’s failures to act amounted to deliberate indifference, and he hints that this
deliberate indifference contributed to a delay in his receipt of necessary medical treatment. (See
id. at 32). The NMCD Defendants do not directly dispute Urioste’s factual allegations, but they
argue that Urioste has not established that Franco was subjectively aware of any serious medical
condition, that he delayed Urioste’s medical care, or that he otherwise acted improperly with
respect to Urioste’s serious medical needs. (See Doc. 44 at 7, 15, 33); (Doc. 61 at 6-7).
Franco in his individual capacity may not be held liable to Urioste based simply on the
action or inaction of his subordinates, since § 1983 does not authorize liability on a theory of
respondeat superior. See, e.g., Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011); see
also Serna v. Colo. Dep’t of Corrs., 455 F.3d 1146, 1153 (10th Cir. 2006) (permitting liability
based “upon active unconstitutional behavior,” rather “than a mere right to control employees”).

13

Although Urioste also alleges that he sent a complaint to Franco on July 7 (see Doc. 62 at 31-32), his own
evidentiary submission indicates that this complaint concerned religious matters, not his medical care (see Doc. 55
at 78). See Vette, 989 F.3d 1154, 1164-65 (10th Cir. 2021) (citing, e.g., Scott, 550 U.S. at 380).
14
Urioste originally alleged that he submitted this “formal appeal to Warden G. Franko” on July 5. (Doc. 62 at 31).
However, the grievance was actually resolved by Franco on June 22 (see Doc. 44-2 at 14), and documents provided
by Urioste show that his July 5 appeal was in fact an appeal of Franco’s decision to the Director of Adult Prisons.
(See Doc. 44 at 61-63) (see also Doc. 44-4 at 141-42) (describing warden’s action on formal grievances and appeals
thereto). The undersigned liberally construes Urioste’s claim as attacking Franco’s adoption of Boyer’s
recommendation as to his formal grievance on June 22.
29

Instead, Urioste must show that Franco personally participated in a violation of his constitutional
rights in order to hold him liable. See, e.g., Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997). To the extent that he intends to establish Franco’s liability on a supervisory basis, this
means he must show that “(1) [Franco] promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to establish” deliberate
indifference. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). Merely playing “a
passive role in the alleged constitutional violation” will not suffice; rather, liability may only
attach to Franco in a supervisory capacity if evidence shows that he “set in motion a series of
events that [he] knew or reasonably should have known would cause others to deprive” Urioste
of necessary treatment for a serious medical need. See Pemberton v. Patton, 673 F. App’x 860,
868-69 (10th Cir. 2016) (unpublished) (quoting Dodds, 614 F.3d at 1195-96, 1204).
As an initial matter, Franco’s disposition of Urioste’s grievance (see also Doc. 44-2 at
14), standing alone, will not suffice to demonstrate personal participation in any constitutional
infirmity. Cf. Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations omitted)
(“[A] denial of a grievance, by itself without any connection to the violation of constitutional
rights alleged by plaintiff, does not establish personal participation under § 1983.”). But more
broadly, Urioste cannot prevail on his claim against Franco because the record here does not
show that Franco acted with the culpability needed to support a deliberate indifference claim.
The undersigned finds instructive the analysis of the Honorable Gregory B. Wormuth,
United States Magistrate Judge, in Carter v. Bravo. In that action, as here, a prisoner alleged that
he wrote a letter to his facility’s warden about delays in medical treatment after previously
submitting a grievance about the matter. See Carter, 2010 WL 11623440, at *13-14. In

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considering the prisoner’s deliberate indifference claim against the warden, Judge Wormuth
enumerated several important facts, including that (1) the prisoner told the warden that he
believed he needed surgery quickly; (2) despite this assertion, his communications with the
warden did not utilize the facility’s emergency grievance system; (3) the text of these
communications did not indicate that an emergency existed; (4) a review of medical record
generated prior to his communications to the warden would have indicated that medical
providers had already treated the prisoner for this issue several times; (5) the prisoner was also
seen by medical personnel not long after the warden allegedly learned about his condition; and
(6) there was no allegation or evidence that the warden “had any control over when the off-site
surgery was scheduled.” See id. at *12-14. Based on these and other facts, Judge Wormuth
concluded that the warden had not been deliberately indifferent to the prisoner’s serious medical
needs. See id. at *14.
While there are minor differences between the two cases, Judge Wormuth’s reasoning in
Carter remains applicable here in light of the substantial factual similarities. First, although
Urioste did label one of his informal grievances as an emergency, an observer would have been
entitled to conclude that no emergency was present because Urioste did not utilize NMCD’s
emergency process and because, as noted, his backwards-looking grievance did not actually
describe an ongoing emergency. (See Doc. 44-2 at 18-19); cf. Carter, 2010 WL 11623440, at *14
(“[T]he text of Mr. Carter's complaints do[es] not communicate a medical emergency”). Second,
Urioste did not designate his subsequent informal or formal grievances on the same issues as
emergencies, which would suggest to an observer that his situation was not especially dire. Cf.
Carter, 2010 WL 11623440, at *13 (finding it relevant that “Mr. Carter filed a second informal
grievance . . . and a formal grievance” but “did not designate either as an emergency”). Third,

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once Franco was purportedly notified of Urioste’s complaints, a review of prior and subsequent
medical records would have revealed to him that—far from ignoring his condition—medical
personnel had examined and/or treated Urioste for his gallbladder-related symptoms on February
17-20 (Doc. 44-3 at 5-7), February 22-24 (id. at 8-9), March 1 (id. at 11), March 6 (id. at 12),
March 26 (id. at 13-14), April 2 (id. at 15-17), April 4 (id. at 18), May 16 (id. at 19), May 26 (id.
at 20), June 3 (see id. at 22), June 6 (id. at 21), June 27 (id. at 26), July 3 (id. at 27), and July 8
(id. at 28-29), among other dates. Fourth, Franco would have been entitled to rely on the medical
judgment of healthcare personnel who, judging from their notes, never considered Urioste’s
situation to be an emergency requiring speedier treatment on any of these occasions. (See id.);
see also Carter, 2010 WL 11623440, at *14 (“[The warden] should be able to rely on the fact
that Mr. Carter was twice evaluated by the on-site dentist who apparently did not consider Mr.
Carter's issues an emergency.”); cf. Broadus v. Corr. Health Partners, Inc., 770 F. App’x 905,
909 (10th Cir. 2019) (unpublished) (citing, e.g., Callahan v. Poppell, 471 F.3d 1155, 1160 (10th
Cir. 2006)) (“[P]risoners do not have [an] Eighth Amendment right to a particular course of
treatment.”). Fifth, Urioste has provided no evidence that any of his letters to Franco indicated an
immediate need for surgery, and he alleges nothing to that effect. (See Doc. 62 at 30-32); see
also Carter, 2010 WL 11623440, at *14 (“Nothing in Mr. Carter's letter or grievances
demonstrated some emergency so acute that a ten-day delay would demonstrate deliberate
indifference to a substantial risk of serious harm.”). Finally, even if this were not the case,
“Plaintiff has not alleged, and the evidence does not suggest, that [Franco] had any control over
when the off-site surgery was scheduled.” See Carter, 2010 WL 11623440, at *14.
On the undisputed factual record before the Court, “[Franco] has carried his burden of
proving that there are no genuine issues of material fact with regard to whether he possessed a

32

sufficiently culpable state of mind.” See id. Moreover, this record does not show that Franco
personally, affirmatively participated in any alleged unconstitutional delay in providing medical
care to Urioste, that Franco created or promulgated any policy resulting in a denial or delay of
Urioste’s medical care, or that Franco had any control whatsoever over the timing of the surgery
that Urioste claimed to need. See id.; see also, e.g., Dodds, 614 F.3d at 1199. Because this record
does not establish a constitutional violation, Franco is entitled to qualified immunity and
summary judgment on Urioste’s deliberate indifference claims against him.
5. Olivas
Urioste’s claims against Deputy Warden Olivas are essentially identical to his claims
against Franco, with no independent basis for liability asserted. (See Doc. 62 at 30-32) (alleging
letters sent to Franco, then alleging that similar demands were sent to Olivas “[o]n each of the
above dates” except one). The record includes no evidence suggesting that Olivas was any more
deliberately indifferent to Urioste’s serious medical needs than was Franco. Because the
undisputed factual record does not support a deliberate indifference claim as to Franco, it
necessarily supports no such claim as to Olivas. Qualified immunity therefore protects Olivas,
and summary judgment in his favor is proper.
6. Conclusion
The record before the Court fails to establish that any of the NMCD Defendants violated
Urioste’s Eighth Amendment rights. For this reason, the undersigned recommends that the Court
grant each of the NMCD Defendants summary judgment as to Urioste’s deliberate indifference
claims against them.

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G. RETALIATION
Urioste alleges that various NMCD Defendants retaliated against him for seeking medical
care and/or filing grievances concerning those and other efforts. “Prison officials may not
retaliate against prisoners for exercising their constitutional rights, including filing internal
prison grievances” and seeking medical care. See Williams v. Allred, 611 F. App’x 491, 495
(10th Cir. 2015) (unpublished) (citing Fogle, 435 F.3d at 1264); cf. also, e.g., Witmer v. Powell,
114 F. App’x 372, 375 (10th Cir. 2004) (unpublished) (affirming summary judgment on claim
alleging retaliation for seeking necessary medical care). To establish a retaliation claim, Urioste
must show (1) that he was engaged in constitutionally protected activity, (2) that the relevant
NMCD Defendant(s) caused him to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity, and (3) that the Defendants’ adverse reaction
was “substantially motivated” as a response to Urioste’s protected conduct. See, e.g., Shero v.
City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). The third prong requires a showing that,
“but for” the Defendants’ improper retaliatory motive, the disciplinary action would not have
taken place. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quotation omitted).
Urioste “must allege specific facts showing retaliation because of the exercise of [his]
constitutional rights.” Id. (quotation omitted).
Although Urioste prefaces his relevant factual narrative with the allegation that he
“suffered extreme retaliation . . . for vigorously pursuing medical attention” (Doc. 62 at 35),
generalized conclusory allegations of this nature are not sufficient to state a retaliation claim, see
Iqbal, 556 U.S. at 678, much less to overcome a showing of entitlement to summary judgment,
see Fitzgerald, 403 F.3d at 1143. Because the bulk of Urioste’s retaliation claims rely on such
conclusory allegations, the undersigned recommends summary judgment as to most of these

34

claims.15 However, because Urioste has established that genuine disputes of material fact exist as
to other retaliation claims, and because the NMCD Defendants have not shown otherwise,
summary judgment as to those claims is precluded.
1. Labeling Urioste a “Rat”
In his sworn pleading, Urioste attests that Palomino entered his pod on June 14 and called
him a “rat” in front of other prisoners due to his filing of “complaints for rec and medical and
sick calls,” resulting in concern that Palomino had “put[] the plaintiff’s life in danger.” (Doc. 62
at 40). In his response brief, Urioste clarifies that he filed an internal grievance against Palomino
no more than two weeks before the aforementioned incident and that this grievance had resulted
in Palomino’s discipline. (See Doc. 55 at 46); see also, e.g., Hayes v. Whitman, 264 F.3d 1017,
1025 (10th Cir. 2001) (“[I]t might be appropriate for a court to consider additional facts or legal
theories asserted in a response brief to a motion to dismiss if they were consistent with the facts
and theories advanced in the complaint.”). Urioste further states that after being disciplined,
Palomino labeled both him and a neighboring prisoner as “rats,” promised to “show you
tomorrow,” and then “assaulted [his] neighbor” the next day. (Doc. 55 at 46). The NMCD
Defendants argue in conclusory fashion that such allegations “are not credible” (Doc. 44 at 32)

15

Urioste argues that he is facing difficulty gathering records and testimony from other prisoners in support of his
claims since “it has been 4 years and some witnesses have been transferred . . . or released from the D.O.C.” (Doc.
55 at 32, 38). However, since Urioste does not expressly request more time to gather this evidence, and in fact states
that he “believes he has shown adequate documentation to move forward” (Doc. 63 at 1), the undersigned does not
construe his statement as invoking Federal Rule of Civil Procedure 56(d). See Hartford Cas. Ins. Co. v. Trinity Univ.
Ins. Co. of Kan., 153 F. Supp. 3d 1323, 1334 (D.N.M. 2015) (citing Lewis v. Ft. Collins, 903 F.2d 752, 758 (10th
Cir. 1990)) (“Rule 56(d) may not be invoked based solely upon the assertion that discovery is incomplete or that
specific facts necessary to oppose summary judgment are unavailable.”). Even had Urioste properly invoked Rule
56(d), however, such relief would be inappropriate since Urioste has failed to identify the probable facts not
available or to state with specificity how any requested time would enable him to meet his burden in opposing
summary judgment. See Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citations
omitted). Finally, given that this action has been pending for the better part of the past five years, the undersigned
concludes that Urioste’s failure to obtain evidence in support of his claims during this lengthy period supports a
finding of dilatory conduct. See id. (disfavoring dilatory Rule 56(d) motions).
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and that they do not establish retaliation in any event (see Doc. 61 at 9). The NMCD Defendants
have otherwise submitted no evidence directly relevant to this claim.
For present purposes, Urioste has satisfied the first element of a retaliation claim because
he has attested, and the NMCD Defendants do not dispute, that he “was filing complaints”
against Palomino. See, e.g., Fogle, 435 F.3d at 1263-64 (internal grievances satisfy first element
of retaliation claim). Urioste has also satisfied the third element of such a claim because he has
attested, again without genuine dispute,16 that Palomino’s purportedly adverse actions were done
specifically in response to, and shortly after, the filing of these grievances. See Shero, 510 F.3d
at 1203; Peterson, 149 F.3d at 1144; see also Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir.
2010) (finding substantial-motivation element satisfied where defendant was allegedly aware of
protected activity complaining of his conduct and took adverse action against plaintiff “in close
temporal proximity to the protected activity”). The remaining question is whether, construing the
undisputed record in the light most favorable to Urioste, Palomino’s actions amounted to an
injury sufficient to chill an ordinary person from filing grievances under similar circumstances.
See Shero, 510 F.3d at 1203.
In a related context, at least one court has concluded that “[a] single prison official
verbally labeling an inmate a ‘rat,’ one time, does not support an inference of ‘threats or
intimidation that reasonably would prevent the inmate from pursuing administrative remedies.’”
See Pemberton v. Patton, No. CIV-14-129-D, 2015 WL 1638638, at *30 (W.D. Okla. Apr. 13,
2015) (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)) (dismissing claim as
unexhausted despite allegation that plaintiff was deterred from using grievance process when

16

Despite the NMCD Defendants’ insistence that Urioste’s claims “are not credible” (Doc. 44 at 32), “[i]t is
axiomatic that a judge may not evaluate the credibility of witnesses in deciding a motion for summary judgment,”
Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000), particularly where no evidence in the record rebuts the
allegedly non-credible witness’s statements made under penalty of perjury.
36

officer called him a “rat” for filing earlier grievance). Conversely, in the context of Eighth
Amendment claims, the Tenth Circuit has recognized that it is clearly established that “labeling
an inmate a snitch . . . constitutes deliberate indifference to the safety of that inmate” and that a
prisoner’s resulting psychological injury can suffice to support such a claim. See Benefield v.
McDowall, 241 F.3d 1267, 1271-72 (10th Cir. 2001). Other courts have also denied summary
judgment on retaliation claims against officers who labeled prisoners as “snitches” in response to
their exercise of constitutional rights. See Phillips v. Steinbeck, No. 06-cv-02569-WDM-BNB,
2009 WL 2055188, at *3 (D. Colo. July 13, 2009); Merritt v. Hawk, 153 F. Supp. 2d 1216, 122122 (D. Colo. 2001) (denying dismissal and summary judgment on claim that officers labeled
plaintiff “snitch” in retaliation for litigation); see also Valandingham v. Bojorquez, 866 F.2d
1135, 1137-39 (9th Cir. 1989) (reversing grant of summary judgment on retaliation claim where
prisoner labeled “snitch” for filing grievances); cf. Harmon v. Berry, 728 F.2d 1407, 1409 (11th
Cir. 1984) (per curiam) (reversing dismissal of retaliation claim on allegations that prison
officials labeled plaintiff “snitch” due to prior lawsuits); Wilson v. Tolentino, No. 19-cv-03084CMA-NRN, 2020 WL 6119541, at *5 (D. Colo. Apr. 9, 2020), R&R adopted, 2020 WL 5559472
(D. Colo. Sept. 17, 2020) (holding that accusation that prisoner “narced” and was a “rat”
established retaliatory intent). Notably, the Tenth Circuit’s decision in Benefield relied in part on
some of the aforementioned out-of-circuit retaliation decisions. See 241 F.3d at 1271 (citing,
e.g., Valandingham, 886 F.2d at 1138-39, and Harmon, 728 F.2d at 1409).
In light of these authorities and the failure of the NMCD Defendants to submit evidence
relevant to this claim, and liberally construing Urioste’s stated concern that Palomino’s conduct
“put[] [his] life in danger” (Doc. 62 at 40), the undersigned concludes that a question of material
fact remains as to whether Palomino’s public labeling of Urioste as a “rat” resulted in a

37

psychological “injury that would chill a person of ordinary firmness” from filing grievances
against corrections officers. See Shero, 510 F.3d at 1203. Moreover, although the NMCD
Defendants have invoked the defense of qualified immunity (see Doc. 44 at 34), the Tenth
Circuit’s reasoning in Benefield applies “with obvious clarity to the specific conduct in
question.” Halley, 902 F.3d at 1149 (quoting Hope, 536 U.S. at 741). The Tenth Circuit, like
other courts, has straightforwardly held that it is clearly established “that labeling an inmate a
snitch has the potential for great harm and may violate constitutional guarantees.” Benefield, 241
F.3d at 1271; see also Miller v. Leathers, 913 F.2d 1085, 1088 n.* (4th Cir. 1990) (citing
Harmon, 728 F.2d at 1409) (“It is impossible to minimize the possible consequences to a
prisoner of being labelled a ‘snitch.’”). If any reasonable officer would understand that the
psychological injury from such conduct may rise to the level of a compensable wrong under the
Eighth Amendment, see id. at 1271-72, then any such officer would likewise be on notice that an
injury of that nature may chill a prisoner from engaging in the protected activity that allegedly
motivated that conduct. Indeed, at least one district court considering a claim of this nature has
persuasively reached the same conclusion. See Phillips, 2009 WL 2055188, at *2-4 (denying
qualified immunity on First and Eighth Amendment claims concerning, inter alia, officer
labeling prisoner a “snitch”).
Genuine disputes of fact exist as to whether Urioste engaged in constitutionally protected
activity, whether Palomino’s conduct caused him an injury that would chill an ordinary person
from engaging in that activity, and whether Palomino’s conduct was substantially motivated by
his protected activity. To the extent that Urioste’s retaliation claim is premised on this conduct,
summary judgment is improper.

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2. Use of Mace
For the most part, the viability of Urioste’s claims regarding the use of mace against him
in April and May 2016 is more straightforward. Urioste first alleges that he was sprayed with
mace by Trujillo and Palomino on April 9 “after requesting medical all day.” (Doc. 62 at 37).
Similarly, Urioste claims without further elaboration that he was sprayed with mace by Perez on
April 21 and by Perez and Trujillo on April 29, both times after requesting medical help. (Id. at
38, 39-40). Aside from the aforementioned conclusory allegation of “extreme retaliation” (id. at
35) and a suggestion of temporal proximity, Urioste alleges no retaliatory nexus between his
requests for medical care and the officers’ use of mace. See, e.g., Trant v. Oklahoma, 754 F.3d
1158 (10th Cir. 2014) (“[T]emporal proximity between the protected speech and the alleged
retaliatory conduct, without more, does not allow for an inference of a retaliatory motive.”) In
the absence of “specific facts” showing retaliatory conduct or intent, the NMCD Defendants are
entitled to summary judgment on this claim. See Peterson, 149 F.3d at 1144.
Urioste’s retaliation claim against Trujillo concerning the use of mace on May 11 finds
even less support in the record. (See id. at 40). In this instance, Urioste does not allege that he
called for medical assistance or engaged in any other protected activity, and rather than showing
retaliatory motive, he alleges that Trujillo sprayed him with mace “for no reason.” (Id.). It is not
clear that Urioste actually intended for these allegations to support a retaliation claim; to the
extent that he did, Trujillo is entitled to summary judgment on that claim.
The events of April 20 present a different situation. Urioste claims that on that date, after
he requested medical attention, Palomino “arbitrarily” sprayed mace through his chow port and
laughed, “Can’t call for medical now.” (Doc. 62 at 38). The NMCD Defendants, arguing in
conclusory fashion that “[c]orrectional officers do not ‘arbitrarily’ spray inmates,” speculate that

39

“[p]ossibly, there was an event in Plaintiff’s pod that called for use of chemical restraint.” (Doc.
44 at 10 n.7). While that cursory argument could succeed when paired with an appropriate
factual showing, the NMCD Defendants offer no evidence suggesting that there is no genuine
dispute as to the absence of retaliatory motive. At present, the only evidence of record
concerning this incident is Urioste’s sworn statements concerning both Palomino’s comment,
which expressly tied the use of mace to Urioste’s requests for medical care, and the temporal
proximity between those events. Construing these facts in the light most favorable to the
nonmoving party, the undersigned finds that Urioste has established a genuine dispute as to
whether Palomino’s use of mace was substantially motivated by Urioste’s constitutionally
protected requests for medical care. Further, Urioste’s sworn (and undisputed) allegation that
Palomino’s conduct left him “chok[ing] and struggl[ing] to breathe” (Doc. 62 at 38) suffices to
show a genuine dispute of fact as to whether he suffered an injury that would chill an ordinary
person from continuing to engage in protected activity. Cf., e.g., Peterson v. Kopp, 754 F.3d 594,
602 (8th Cir. 2014) (quotation omitted) (denying qualified immunity on protestors’ claims
retaliation against officer where it was undisputed that “pepper spraying someone in the face
‘would chill a person of ordinary firmness’”) Garcia v. Jaramillo, No. 05-cv-01212 JB/RLP,
2006 WL 4079681, at *16-17 (D.N.M. Nov. 27, 2006) (denying summary judgment and
qualified immunity on claim that officer sprayed arrestee in face due to protests protected under
First Amendment, as evidence showing officer “spray[ed] someone in the face with mace and
then arrest[ed] them . . . meets the second element of a retaliation claim,” but granting summary
judgment to officer on evidence that the detained plaintiff was “non-compliant and combative”).
Finally, because it is clearly established that prison officials may not retaliate against prisoners

40

for engaging in protected conduct, see Peterson, 149 F.3d at 1144, qualified immunity as to this
claim is unavailable.
On this record, in the absence of any relevant evidentiary showing whatsoever by the
NMCD Defendants, summary judgment on Urioste’s retaliation claim against Palomino
concerning the use of mace on April 20 is not warranted. However, as to all other retaliation
claims concerning the use of mace against Urioste, the undersigned recommends that the Court
grant summary judgment in favor of the NMCD Defendants.
3. Discipline
Several of Urioste’s retaliation claims concern discipline he received for various
infractions. However, as Urioste acknowledges (Doc. 55 at 35), most of these infractions—
specifically a March 15 contraband discovery, a fishing incident on March 22, and a second
fishing incident on March 24—together resulted in the revocation of good-time credit. (See Doc.
55-1 at 11) (justifying revocation due to contraband and fishing infractions). It is well established
that where favorable judgment on a prisoner’s § 1983 claim concerning prison discipline would
“imply the invalidity of the deprivation of good-time credits,” and thereby “necessarily
demonstrate the invalidity of confinement or its duration,” such a claim is barred unless the
prisoner establishes that the disciplinary conviction has been overturned. See, e.g., Kilman v.
Williams, 831 F. App’x 396, 398 (10th Cir. 2020) (unpublished) (citing, e.g., Edwards v. Balisok,
520 U.S. 641. 646 (1997)); cf. Heck v. Humphrey, 512 U.S. 477 (1994) (requiring dismissal of
§ 1983 claim that would “necessarily imply the invalidation of [a] conviction or sentence” that
has not been overturned). While commonly applied to due process challenges raised by
prisoners, this rule has equal application to retaliation claims under § 1983. See, e.g., Brown v.
Cline, 319 F. App’x 704, 705-06 (10th Cir. 2009) (unpublished) (affirming dismissal of

41

retaliation claim under Edwards); Roberts v. Champion, 91 F. App’x 108, 110 (10th Cir. 2004)
(unpublished) (same). Here, Urioste has not shown or even alleged that the disciplinary
convictions concerning his March 15, March 22, and March 24 infractions have been invalidated.
As such, the NMCD Defendants are entitled to summary judgment on any retaliation claim
premised on the events surrounding those three disciplinary convictions.
But even if those claims were not barred by Edwards, summary judgment would still be
required. As to the contraband infraction, Urioste originally alleged that Perez and Trujillo
“destroyed” his cell during the March 15 shakedown that resulted in the contraband discovery.
(Doc. 62 at 36); (see also Doc. 44-2 at 106). However, the NMCD Defendants have submitted
evidence in support of their Martinez report showing that it was two other officers, who are not
Defendants to this lawsuit, who conducted the shakedown. (See Doc. 44-2 at 103-08). Urioste
now appears to implicitly concede that officers other than Perez and Trujillo searched his cell on
that date. (See Doc. 55 at 50) (discussing shakedown and one officer involved). Additionally,
Urioste’s claim that this action constituted retaliation is only supported by his aforementioned
conclusory allegation of “extreme retaliation” (see Doc. 62 at 35), which is not enough to
establish entitlement to relief, see Peterson, 149 F.3d at 1444.
With respect to the March 24 incident, Urioste alleges that Perez and Trujillo’s fishing
report on March 24 was made as retaliation for his requests to see medical providers “all day.”
(See id. at 37); (see also Doc. 55-1 at 19, 21) (showing date of incident(s)). Aside from this
conclusory allegation, Urioste alleges no specific facts showing retaliatory intent. He does not
deny that he was engaged in fishing on this date, and he acknowledges that the consequences of
the officers’ report were actually imposed by Maciel following review by the UMT. (See Doc. 62
at 37). Urioste also acknowledges that he spoke to the “med. pass nurse” on that date and was

42

seen by the sick call nurse two days later (see id. at 16), which strongly suggests that the officers
passed along Urioste’s request for medical assistance and that the fishing report was unrelated to
that request. Given that Perez and Trujillo reported Urioste for conduct that he does not deny,
and given that his requests for medical assistance were apparently not ignored, the circumstances
presented here do not show a retaliatory motive and do not establish retaliation.
As to the March 22 incident, Urioste alleges that Perez lodged “false allegations” of
fishing. (Doc. 62 at 36); (see also Doc. 55-1 at 19, 21) (showing date of incident). However,
Urioste appears to claim that it was Maciel’s punishment for that offense, rather than Perez’s
purportedly false allegations, that amounted to retaliation for his requests for medical attention.
(See Doc. 62 at 36) (complaining of retaliation in the form of being “taken to a U.M.T.” hearing
by unnamed officers and Maciel revoking privileges). But even if this were not the case, Urioste
does not allege any medical requests or other protected conduct preceded Perez’s “false
allegations,” and again, the record shows that Urioste spoke with a “med. pass nurse” and other
medical personnel in the following days (see id. at 16), suggesting that officers had appropriate
passed along Urioste’s requests for medical attention. Thus, the alleged circumstances
surrounding the March 22 incident do not support a retaliation claim, and Urioste has not
produced evidence showing otherwise.
In addition to the foregoing, Urioste also premises retaliation claims on punishment he
received following an April 16 report of fishing by unnamed officers and following a June 14
report of fishing by Palomino. As to the former incident, Urioste once again does not deny the
fishing allegation, and he does not allege that any named NMCD Defendants were responsible
for that report. (See id. at 38-39); (see also Doc. 55-1 at 19) (noting infraction date). And
Urioste’s claim concerning the latter incident, like the March 22 fishing infraction, appears

43

intended to support a claim against Maciel for imposing the punishment, rather than against
Palomino for reporting the matter. (See Doc. 62 at 40-41) (claiming that UMT hearing and
punishment were “retaliation for complaints and requests filed by Plaintiff”). In neither case does
Urioste assert anything other than generalized conclusory allegations regarding retaliation, rather
than the “specific facts” required to support a § 1983 claim on that basis. See Peterson, 149 F.3d
at 1444. For this reason, any retaliation claim concerning these two incidents may not proceed.
4. Remaining Allegations of Retaliatory Conduct
Urioste’s remaining retaliation claims concern relatively minor conduct. In evaluating
these claims, the undersigned is mindful that the Constitution does not serve “as a micromanager
of daily prison activities, and a guarantee of prisoner preferences over those of prison officials.”
Handy v. Price, 996 F.2d 1064, 1068 (10th Cir. 1993); see also Sandin v. Conner, 515 U.S. 472,
482 (1995) (“[F]ederal officials ought to afford appropriate deference and flexibility to [prison]
officials trying to manage a volatile environment.”). Reviewing these allegations and the
evidence in the light most favorable to Urioste, the undersigned recommends that the Court grant
the NMCD Defendants summary judgment as to these claims.
Urioste asserts that he was denied scheduled legal calls by Perez and Trujillo on February
28, by Palomino on April 7, and by Palomino on April 11. (Doc. 62 at 36, 37). As the NMCD
Defendants argue, though, Urioste “implies more than alleges that this was some sort of
retaliatory measure.” (Doc. 44 at 9). Again, aside from the previously mentioned conclusory
allegation of “extreme retaliation” (Doc. 62 at 35), Urioste describes no factual circumstances
concerning the denials of these calls, let alone enough factual circumstances to establish that any
requests for medical care constituted the “but-for” cause of these denials. To the extent that

44

Urioste’s retaliation claim is premised on these events, they do not establish a retaliation claim
and are not sufficient to defeat the NMCD Defendants’ entitlement to summary judgment.
Urioste contends that he saw Perez and Trujillo “spray[] an unknown substance” on his
food on April 22. (Id. at 39). He also contends that Perez and Trujillo hid his tray out of sight at
some point on April 28, that he “noticed the taste of bleach” in his food afterward, and that he
saw the same officers “tampering with the food” at another meal that day. (Id.). Urioste further
alleges that Trujillo served him rotten milk on May 11. (Id. at 40). But Urioste does not allege
that these purported acts followed any request for medical assistance. (See id.). Moreover,
allegations of unspecified “tampering,” that his food tasted different on one occasion, and that an
“unknown substance” was added to his food at another time are far too generalized to establish
that any adverse conduct occurred. Cf. Carroll v. Newton, No. 00-cv-00099 MV/KBM, 2002 WL
35650178, at *4 (D.N.M. Feb. 19, 2002), PFRD adopted, (Doc. 68) (D.N.M. Mar. 25, 2002),
aff’d, 44 F. App’x 455 (10th Cir. 2002) (unpublished). These allegations do not support a claim
of retaliation.
5. Conclusion
For the foregoing reasons, the undersigned RECOMMENDS that the Court DENY the
NMCD Defendants’ request for summary judgment as to Urioste’s retaliation claims against
Palomino for spraying him with mace on April 20 and calling him a “rat” on June 14. As to
Urioste’s remaining retaliation claims, the undersigned RECOMMENDS that the Court GRANT
summary judgment in favor of the NMCD Defendants on the basis of qualified immunity.
H. DUE PROCESS
In addition to his claims of deliberate indifference and retaliation against the NMCD
Defendants, Urioste has also asserted due process claims concerning discipline that he has

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received. (See, e.g., Doc. 36-38) (addressing punishment relating to discovery of contraband);
(id. at 37-39) (discussing certain UMT hearings and discipline imposed). However, these claims
appear to be directed at Maciel in his individual and official capacity and not at the current
NMCD Defendants, given that it was Maciel who allegedly imposed the discipline at issue. (See
id. at 36-39) (discussing punishment imposed by Maciel at hearings on March 24, March 31,
April 14, and April 22); (see also id. at 3) (noting capacity of Defendants). Because Maciel
appears not to have received service of process as of this writing, the undersigned does not
address these claims at this time.
I. OFFICIAL CAPACITY CLAIMS
The NMCD Defendants express some confusion as to whether Urioste’s claims are raised
against them in their individual or official capacities. (See Doc. 44 at 34). This confusion is
understandable; Urioste himself only recently sought to clarify that he is suing Defendants in
both their official and individual capacities. (See Doc. 52) (motion to amend); (see also Doc. 62
at 3) (stating for first time that “[e]ach defendant is sued individually and in his or her official
capacity”). Perhaps as a result, the NMCD Defendants raise the same arguments for summary
judgment regardless of the capacity in which they are targeted by Urioste’s claims; they have not
asserted any defenses specific to claims asserted against them in their official capacity.
“An official capacity suit is only another way of pleading an action against an entity of
which an officer is an agent.” See Johnson v. Bd. of Cnty. Comm’rs, 85 F.3d 489, 493 (10th Cir.
1996). Since no official-capacity claim may lie where there is no underlying constitutional
violation, see, e.g., Martinez, 563 F.3d at 1091-92 (citation omitted), the NMCD Defendants are
entitled to summary judgment in their official capacity to the same extent as in their individual
capacity. Thus, to the extent that the undersigned recommends that the Court grant summary

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judgment to the NMCD Defendants in their individual capacity, the undersigned recommends
that the Court grant summary judgment to the same Defendants in their official capacity. In all
other respects, the undersigned recommends that summary judgment be denied.
IV. CONCLUSION
IT IS, THEREFORE, RECOMMENDED that the Court:
1)

STRIKE certain allegations in Urioste’s Second Amended Complaint in a manner

consistent with these recommendations;
2)

GRANT Urioste permission to file his surreply (Doc. 63) nunc pro tunc to August

7, 2020;
3)

GRANT summary judgment to the NMCD Defendants as to Urioste’s Eighth

Amendment deliberate indifference claims;
4)

DENY summary judgment to Defendant Palomino as to certain retaliation claims

against him as specified herein; and
5)

GRANT summary judgment to the NMCD Defendants as to Urioste’s remaining

retaliation claims.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN (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)(c). Any request for an extension of time must be filed in writing no later than
seven (7) days from the date of this filing. A party must file any objections with the Clerk of
the District Court within the fourteen (14) day period, together with any period for which an
order is entered granting an extension of time, 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.

_____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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