Diab v. Doe et al

Filing 47

MEMORANDUM OPINION AND ORDER denying as moot 6 14 ; denying 17 18] 19 32 38 44 45 46 by Chief Judge M. Christina Armijo. (vv)

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

RICHARD DIAB,
Plaintiff,
v.

No. 16-CV-01002-MCA-GJF

JOHN DOE, NEW MEXICO DEPARTMENT
OF CORRECTIONS, FNU BACA, KEN
SMITH,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court, sua sponte under 28 U.S.C. §§ 1915(e)(2) and 1915A, on
Plaintiff Richard Diab’s Prisoner’s Civil Rights Complaint and Amended Complaint. [Docs. 1,
7] Also before the Court are the following motions filed by Plaintiff: (1) two motions to amend
the complaint to substitute Sergeant Westerfield for the John Doe defendant [Docs. 6, 14]; (2) six
motions to enter evidence [Docs. 17, 18, 19, 32, 38, 45], (3) a motion for summary judgment
[Doc. 44]; and (4) a motion for a status hearing [Doc. 46]. Plaintiff was incarcerated at the time
of filing, appears pro se, and is proceeding in forma pauperis. For the reasons explained below,
Plaintiff’s motions to amend the complaint [Docs. 6, 14] will be denied as moot, Plaintiff’s
motions to enter evidence [Docs. 17, 18, 19, 32, 38, 45] will be denied, Plaintiff’s motion for
summary judgment [Doc. 44] will be denied, and Plaintiff’s motion for a status hearing [Doc. 46]
will be denied. Furthermore, Plaintiff’s § 1983 claims against Defendants New Mexico
Department of Corrections and Central New Mexico Correctional Facility (CNMCF) will be

dismissed with prejudice and the Court will direct notice and waiver of service forms to be sent
to Defendants Westerfield, Baca, and Smith.
I.

BACKGROUND
On September 7, 2016, Plaintiff filed a Prisoner Civil Rights Complaint against

Defendants John Doe, New Mexico Department of Corrections, and Correctional Officer Baca.
Plaintiff’s complaint alleges that the housing conditions at CNMCF are unsanitary and
inhumane, in violation of Plaintiff’s right to be free from cruel and unusual punishment. [Doc.
1] Specifically, Plaintiff alleges that on the night of August 18, 2016 into the morning of August
19, 2016, he was forced to sleep on a bug-infested mattress, causing him to sustain swelling,
pain, itching, and redness in his lower stomach and genital area due to bug bites. When Plaintiff
complained about his bug-infested mattress, John Doe, a correctional officer at CNMCF, brought
him a different mattress and threw his bug-infested mattress outside in a pile of pigeon
droppings. Plaintiff was upset because he had just covered his bug-infested mattress with clean
sheets and a clean blanket. Defendant Doe then removed the other mattress and told Plaintiff to
sleep on the metal plank without a mattress. Approximately three hours later, Defendant Baca
instructed Plaintiff to retrieve his bug-infested mattress from outside. Plaintiff was not provided
with cleaning supplies or clean sheets, but instead was forced to sleep on the bug-infestedpigeon-dropping-covered mattress for seven days, until he was able to send his sheets and
blanket to the laundry. Additionally, Plaintiff was deprived of medical attention for his bug bites
until August 23, 2016, despite multiple sick call requests. Finally, Plaintiff alleges that during
his incarceration at CNMCF he was forced to share a toilet with twenty other inmates and that
the toilet was programmed to flush only once every hour, thus exposing him to the liquid and

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solid waste of other inmates. Plaintiff’s complaint seeks compensatory and punitive damages.
[Doc. 1 at 14]
On September 19, 2016, Plaintiff filed a motion to amend his complaint to substitute
Sergeant Westerfield for the John Doe defendant. [Doc. 6] On that same date, Plaintiff filed an
amended complaint against Defendants CNMCF and Ken Smith, Warden of CNMCF. [Doc. 7]
Plaintiff’s amended complaint, like his original complaint, alleges that the housing conditions at
CNMCF are unsanitary and inhumane, in violation of Plaintiff’s right to be free from cruel and
unusual punishment. [Doc. 7] Plaintiff’s amended complaint focuses on the unsanitary toilet
that he was forced to share with twenty other inmates, but also mentions that “many inmates are
exposed to mattress with bugs which have bitten them.” [Doc. 7 at 2] In his amended complaint
Plaintiff requests compensatory and punitive damages. Attached to Plaintiff’s amended
complaint is a letter from the medical director of CNMCF regarding the risk of infection from an
unsanitary toilet, Plaintiff’s informal complaint and grievance, and the responses to his informal
complaint and grievance.
On October 3, 2016, Plaintiff filed a document entitled “Notice of Effects,” informing the
Court that he has developed a rash on his buttocks due to the unsanitary toilet that he was forced
to share with twenty other inmates. [Doc. 13 at 1] In his notice, Plaintiff alleges that he has
been deprived of medical care for his rash, despite submitting multiple sick call requests. [Doc.
13] On October 3, 2016, Plaintiff also filed a document entitled “Request to the Court,” again
asking the Court to substitute Sergeant Westerfield for the John Doe defendant. [Doc. 14]
On October 13, 2016, Plaintiff filed three motions to enter evidence. [Docs. 17, 18, 19]
Plaintiff’s first motion asks the Court to consider additional evidence of the unsanitary and
inhumane living conditions at CNMCF. [Doc. 17] Specifically, Plaintiff alleges that he was

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transferred to a different facility for seven days and, upon his return to CNMCF, he was assigned
to a “dirty smelly cell full of dirt, and the toilet was disgusting” because it had not been flushed
or cleaned. [Doc. 17 at 2] Plaintiff further alleges that he had “to stay in that dirty cell, with a
dirty toilet and a dirty floor” for three days, until he was provided with cleaning supplies. [Doc.
17 at 2] Lastly, Plaintiff alleges that the inmates’ food sits outside for thirty to forty-five
minutes, exposed to bird droppings, and that inmates are not provided with utensils for every
meal, so they have to retrieve them from trash cans or reuse them. [Doc. 17 at 3]
Plaintiff’s second motion to enter evidence provides the Court with evidence that Plaintiff
“tried to notify the defendant about the conditions before filing this complaint.” [Doc. 18]
Attached to Plaintiff’s motion is a letter from Plaintiff to Defendant Smith regarding the living
conditions at CNMCF, Plaintiff’s inmate grievance, and the response to Plaintiff’s inmate
grievance. [Doc. 18]
Plaintiff’s third motion to enter evidence, like his second motion, provides evidence that
he notified “the staff of the housing conditions” at CNMCF and the “high risk of getting
infections [and] life threatening diseases.” [Doc. 19] Attached to Plaintiff’s motion is Plaintiff’s
informal complaint, Plaintiff’s inmate grievance, the results of an investigation into Plaintiff’s
informal complaint, the denial of Plaintiff’s inmate grievance, and Plaintiff’s rebuttal to the
denials of his informal complaint and grievance. [Doc. 19]
In addition to these three motions to enter evidence, Plaintiff filed four other motions to
enter evidence on October 17, 2016, November 7, 2016, November 28, 2016, and January 23,
2017. [Docs. 23, 32, 38, 46] Plaintiff’s October 17, 2016 motion asks the Court to consider
“ongoing abuse” of inmates caused by a flood that occurred at CNMCF on October 8, 2017
through October 9, 2017. [Doc. 23] Specifically, Plaintiff alleges that three pods in CNMCF

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were flooded with “a few inches of water” and the inmates were forced to mop up the water with
their towels, blankets, and sheets. [Doc. 23]
Plaintiff’s November 7, 2016 motion asks the Court to consider two letters, one from
Attorney Kelly K. Waterfall and one from Attorney Peter Cubra, regarding the housing
conditions at CNMCF. [Doc. 32] Plaintiff’s November 28, 2016 motion reiterates the facts set
forth in his complaint and amended complaint and asks the Court to consider narratives signed
by other inmates regarding the unsanitary housing conditions at CNMCF and letters from
Plaintiff to Attorneys Waterfall and Cubra detailing the unsanitary housing conditions at
CNMCF. Plaintiff’s final motion to enter evidence, filed on January 23, 2017, asks the Court to
consider photographs of a fungal infection on Plaintiff’s toes, allegedly caused by the unsanitary
housing conditions at CNMCF. [Doc. 45]
In addition to his motions to enter evidence, Plaintiff has filed three Narratives, which
reiterate, clarify, and expound upon the factual allegations in his complaint and amended
complaint. [Docs. 26, 27, 43] Plaintiff also has filed multiple certificates of service, reflecting
that he has mailed requests for admission and interrogatories to Defendants. [Docs. 22, 25, 29,
30] Plaintiff asks the Court to order Defendants to file responses to his requests for admission
and interrogatories. [Docs. 22, 25, 29, 30]
On January 10, 2017, Plaintiff filed a motion for summary judgment asking the court to
enter judgment in his favor. [Doc. 44] Lastly, on March 17, 2017, Plaintiff filed a motion
requesting a status hearing and an evidentiary hearing. [Doc. 46]
II.

DISCUSSION
As a preliminary matter, the Court must identify the operative pleading and fulfill its

statutory obligation to screen the operative pleading pursuant to 28 U.S.C. §§ 1915(e) and

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1915A. The Court will also address Plaintiff’s numerous motions and requests for relief.

A.

Plaintiff’s Complaint and Amended Complaint Are the Operative Pleading
On September 19, 2016, Plaintiff moved to amend his complaint to substitute Sergeant

Westerfield for the John Doe defendant and also filed an amended complaint adding Defendants
Defendants Ken Smith and CNMCF. [Docs. 6, 7] Federal Rule of Civil Procedure 15 governs
the amendment and supplementation of pleadings and it provides, in relevant part, as follows:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), €, or (f), whichever is
earlier.
(2) Other Amendments. In all other cases, a party may
amend its pleading only with the opposing party’s written consent
or the court’s leave. The court should freely give leave when
justice so requires.
***
(d) Supplemental Pleadings. On motion and reasonable notice,
the court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented. The
court may permit supplementation even though the original
pleading is defecting in stating a claim or defense. The court may
order that the opposing party plead to the supplemental pleading
within a specified time.
Fed. R. Civ. P. (a)(1)-(2), (d). Plaintiff’s complaint has not yet been served and, therefore, he
may amend his complaint “once as a matter of course” without requesting leave of the Court.
Fed. R. Civ. P. 15(a)(1)(A). Accordingly, Plaintiff’s motion to amend the complaint [Doc. 6]

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will be denied as moot and the Clerk of the Court will be directed to substitute Sergeant
Westerfield for the John Doe defendant. Plaintiff’s duplicative “Request to the Court” [Doc. 14],
which also seeks to amend the complaint to substitute Sergeant Westerfield for the John Doe
defendant, will be denied as moot.
In conjunction with his motion to amend the complaint [Doc. 6], Plaintiff filed an
amended complaint [Doc. 7], which adds Ken Smith, Warden of CNMCF, and CNMCF as
defendants in this case. Because Plaintiff’s amended complaint was docketed on the same date
and at the same time as his motion to amend the complaint, the Court will construe the two
documents collectively as Plaintiff’s amended complaint. Ordinarily, the filing an amended
complaint supercedes the original complaint, see Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir.
2007), but in this case, it appears as if Plaintiff intended to supplement his original complaint by
adding additional constitutional claims against additional defendants. Mindful of the Court’s
obligation to construe pro se pleadings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991), the Court will construe Plaintiff’s original and amended complaints [Docs. 1, 6, 7]
collectively as the operative pleading.
Some of Plaintiff’s subsequent filings appear to seek to amend and/or supplement the
operative pleading by expounding upon Plaintiff’s existing factual allegations and by adding
additional claims against additional defendants. [See Docs. 13, 17, 23, 26, 27, 43] As
previously explained, Plaintiff may amend his complaint only once as a matter of course and any
subsequent amendment and/or supplementation requires leave of the court. See Fed. R. Civ. P.
15(a)(2). The Local Civil Rules of the United States District Court for the District of New
Mexico provide that “[a] proposed amendment to a pleading must accompany a motion to
amend.” Fed. R. Civ. P. 15.1. Plaintiff’s pro se status does not excuse the obligation to comply

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with the fundamental requirements of the Federal Rules of Civil Procedure or the Local Civil
Rules. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (“While we of course
liberally construe pro se pleadings, an appellant’s pro se status does not excuse the obligation of
any litigant to comply with the fundamental requirements of the Federal Rules of Civil and
Appellate Procedure”); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (noting that
although pro se pleadings are construed liberally, pro se litigants “nevertheless must follow the
same rules of procedure that govern other litigants”). Furthermore, a “plaintiff may not simply
file piecemeal amendments and supplements to his complaint,” but rather must “set forth all of
his original and supplemental allegations and claims in a single document.” Brown v. Harris,
No. Civ. A. 05-CV-02203-WD, 2006 WL 3833938, at *2 (D. Colo. Dec. 28, 2006)
(unpublished). Because Plaintiff has failed to file a motion to amend and/or supplement his
pleading as required by Fed. R. Civ. P. 15 or a proposed amended or supplemental complaint that
sets forth all of his claims against all of the defendants in a single document as required by Local
Rule 15.1, Plaintiff’s requests to amend and/or supplement the operative pleading will be denied
without prejudice.
C.

Plaintiff’s Motions to Enter Evidence and Motion For Summary Judgment Will Be
Denied
Plaintiff has filed numerous motions seeking to admit evidence in support of his claims

and a motion for summary judgment. [Docs. 17, 18, 19, 32, 38, 44, 45] Although Plaintiff bears
the burden of proof on his constitutional claims, the manner and degree of evidence required
depends on the successive stages of the litigation. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). “At the pleading stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss [the Court] presume[s] that general
allegations embrace those specific facts that are necessary to support them.” Id. (internal
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quotation marks and citations omitted). Whereas, at the summary judgment stage, a “plaintiff
can no longer rest on such ‘mere allegations’ but must ‘set forth’ by affidavit or other evidence
‘specific facts,’ Fed. R. Civ. P. 56(e), which for purposes of the summary judgment motion will
be taken as true.” Id. “And at the final stage, those facts (if controverted) must be supported
adequately by the evidence adduced at trial.” Id. (internal quotation marks omitted).
Although Plaintiff has filed a motion for summary judgment, this case is still in the
pleading stage. Plaintiff’s complaint and amended complaint have not yet been screened under
28 U.S.C. §§ 1915(e) and 1915A, Defendants have not yet been served with process in
accordance with Fed. R. Civ. P. 4, and Defendants have not had an opportunity to file an answer
or other responsive pleading under Fed. R. Civ. P. 12. At this preliminary stage of the
proceedings, the specific factual allegations in Plaintiff’s complaint and amended complaint are
presumed to be true and Plaintiff need not adduce evidence in support of his claims. See Bell
Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Therefore, the Court concludes that Plaintiff’s
motions to admit evidence and motion for summary judgment are premature and these motions
will be denied without prejudice to Plaintiff’s right to re-file them at the appropriate stage of the
litigation.
D.

Screening of the Complaint and Amended Complaint Under §§ 1915(e) and 1915A
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under

§ 1915(e)(2) “at any time if . . . the action . . . is frivolous or malicious; [or] fails to state a claim
on which relief may be granted.” § 1915(e)(2). Additionally, the Court has an obligation under
§ 1915A to screen “a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity” and to “identify cognizable
claims or dismiss the complaint, or any portion of the complaint” if it “is frivolous, malicious, or

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fails to state a claim upon which relief may be granted.” § 1915A. “Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The burden is on the plaintiff to frame a
complaint that contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id.
Plaintiff is proceeding pro se and “[a] pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall,
935 F.2d at 1110.. Therefore, “if the court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite
proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.” Id. At the same time, however, it
is not “the proper function of the district court to assume the role of advocate for the pro se
litigant.” Id.
Plaintiff’s amended complaint names the New Mexico Department of Corrections and
CNMCF as defendants. “A cause of action under section 1983 requires the deprivation of a civil
right by a ‘person’ acting under color of state law.” McLaughlin v. Bd. of Trustees of State
Colleges of Colorado, 215 F.3d 1168, 1172 (10th Cir. 2000). “[A] governmental entity that is an
arm of the state for Eleventh Amendment purposes is not a ‘person’ for section 1983 purposes.”

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Id. (internal quotation marks and citation omitted). “Similarly, state-operated detention facilities
do not have a separate legal identity from the state, and therefore are not ‘persons’ who have the
capacity to be sued under § 1983.” Buchanan v. Oklahoma, 398 F. App’x 339, 342 (10th Cir.
Oct. 12, 2010) (unpublished). “In these circumstances, the barrier is not Eleventh Amendment
immunity—‘[t]he stopper [is] that § 1983 creates no remedy against a State.”

Prokop v.

Colorado, 30 F. App’x 820, 821 (10th Cir. 2002) (unpublished) (quoting Arizonans for Official
English v. Arizona, 520 U.S. 43, 69 (1997)). The New Mexico Department of Corrections and
CNMCF are not “persons” subject to suit under § 1983 and, therefore, Plaintiff’s § 1983 claims
against these defendants will be dismissed with prejudice.
The Court concludes that the factual allegations in Plaintiff’s complaint and amended
complaint [Docs. 1, 6, 7] state a colorable claim for relief under § 1983 against Defendants Baca,
Smith, and Westerfield for the alleged deprivation of Plaintiff’s right to be free from cruel and
unusual punishment under the Eighth Amendment. Therefore, the Court will direct the Clerk of
the Court to send notice and waiver of service forms, along with a copy of this Memorandum
Opinion and Order and Plaintiff’s complaint and amended complaint, to Defendants Baca,
Smith, and Westerfield at CNMCF.
E.

Plaintiff’s Motion For Status Hearing and Requests for Responses to Admissions and
Interrogatories Will Be Denied
Plaintiff has filed a motion requesting a status hearing [Doc. 46] and also has asked the

Court to order Defendants to respond to his requests for admission and interrogatories [Docs. 22,
25, 29, 30]. Plaintiff has filed a prisoner petition challenging the conditions of his confinement
while incarcerated at CNMCF and prisoner petitions are exempt from certain pretrial case
management and discovery procedures under Fed. R. Civ. P. 16 and 26. See D.N.M.LR-Civ.
16.3, 26.3(a)(1). In lieu of the traditional pretrial case management and discovery procedures,
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the Court will, if appropriate, order a Martinez Report, which is a “court-authorized investigation
and report by prison officials.” Hall, 935 F.2d at 1109. The Martinez Report will require prison
officials to investigate Plaintiff’s claims and “develop a record sufficient to ascertain whether
there are any factual or legal bases for [those] claims.” Id. The Martinez Report may be used by
the Court in deciding whether to grant summary judgment, either upon one of the parties’
motions or sua sponte, and will contain all materials relevant to Plaintiff’s claims, including
medical records, incident reports, and inmate grievances, among other documents.

Once

produced, the Martinez Report will be filed on the docket of this case and served on Plaintiff,
and Plaintiff will then have an opportunity to file a response.
The production of the Martinez Report, if appropriate, may obviate the need for a status
hearing in this case or responses to Plaintiff’s requests for admission and interrogatories and,
therefore, Plaintiff’s motion for a status hearing and requests for responses will be denied
without prejudice as premature at this time. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310
(10th Cir. 2010) (holding that staying discovery, pending the evaluation of a Martinez Report in
a prisoner case, does not constitute “an abuse of discretion or impermissibly contravene[] the
discovery provisions of the federal rules”). Plaintiff may re-file his motion and his requests at a
later stage in this proceeding if, after a Martinez Report is ordered and produced, Plaintiff
determines that additional discovery is required.
III.

CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s motions to amend the complaint [Docs.

6, 14] are DENIED as moot and the Clerk of the Court is directed to substitute Sergeant
Westerfield for the John Doe defendant;
IT IS FURTHER ORDERED that Plaintiff’s requests to amend and/or supplement the

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complaint and amended complaint are DENIED without prejudice;
IT IS FURTHER ORDERED that Plaintiff’s motions to enter evidence [Docs. 17, 18, 19,
32, 38, 45] and motion for summary judgment [Doc. 44] are DENIED without prejudice;
IT IS FURTHER ORDERED that Plaintiff’s § 1983 claims against Defendant New
Mexico Department of Corrections and CNMCF are DISMISSED with prejudice and Defendant
New Mexico Department of Corrections and CNMCF are DISMISSED as a parties to this action;
IT IS FURTHER ORDERED that the Clerk of the Court is directed to send notice and
waiver of service forms, along with a copy of this Memorandum Opinion and Order and
Plaintiff’s complaint and amended complaint [Docs. 1, 6, 7] to Defendants Baca, Smith, and
Westerfield at CNMCF, P.O. Drawer 1328, 1525 Morris Road, Los Lunas, New Mexico 870311328;
IT IS FURTHER ORDERED that Plaintiff’s motion for a status hearing [Doc. 46] and
requests for an order requiring Defendants to respond to his requests for admission and
interrogatories [Docs. 22, 25, 29, 30] are DENIED without prejudice;
IT IS SO ORDERED.

______________________________________
CHIEF UNITED STATES DISTRICT JUDGE

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