Aguirre v. Correction Corporation of America et al

Filing 51

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson GRANTING IN PART 2 Correction Corporation of America and Transcor America's Motion to Dismiss for Failure to State a Claim. Count I is dismissed with prejudice, as it relates to CoreCivic and Transcor; and Count II is dismissed without prejudice as it relates to all Defendants; and GRANTING 19 Defendant Corvel Corporation's Motion to Dismiss for Failure to State a Claim AS FURTHER DESCRIBED HEREIN. (mag)

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

CHRISTOPHER AGUIRRE,
Plaintiff,
v.

No. 1:17-cv-01267 WJ/CG

CORRECTION CORPORATION OF
AMERICA, also known as CORECIVIC,
CORVEL CORPORATION, TRANSCOR AMERICA
WARDEN CHAD MILLER,
CORRECTIONAL OFFICE ISSACS, AND
CORRECTIONAL OFFICER FUENTES,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are the Motions to Dismiss filed by corporate Defendants CoreCivic,
Transcor America, and CorVel Corporation (Docs. 2 and 19). Having reviewed the Complaint,
the Motions, and applicable law, the Court will dismiss Plaintiff’s Eighth Amendment claims
against the corporate Defendants and dismiss CorVel from this lawsuit.
BACKGROUND1
This case arises from a transport van accident involving inmate Christopher Aguirre
(Plaintiff) and two correctional officers. Officers Issacs and Fuentas were transporting Plaintiff
from Estancia to Las Cruces on July 18, 2016. Plaintiff was sitting on a bench without a seatbelt.
He was fully restrained by belly chains, wrist restraints, and leg shackles. At some point Officer
Issacs saw an animal near the side road and stated: “Don’t do it. Don’t you do it.” The animal
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The background facts are taken from the allegations in Plaintiff’s Complaint, which the Court accepts as true for the
limited purpose of this ruling.

crossed, causing a collision. Plaintiff was thrown from his seat and sustained a large laceration to
his head. Plaintiff asked Officers Issacs and Fuentes to free his hands so he could stop the
bleeding, but they refused and instead retrieved the antlers from the van’s grill. Plaintiff continued
to lie on the floor bleeding until another officer could respond. He remembers feeling like he was
going to die.
The officers transported Plaintiff to Presbyterian Hospital in Albuquerque, where doctors
sutured the laceration and treated him for neck pain, dizziness, vomiting, and loosened front teeth.
Plaintiff scheduled a follow-up visit for July 21, 2016 and returned to the Torrance County
Detention Facility (TCDF) in Estancia. On July 20, 2016, prison officials again attempted to
transport Plaintiff from Estancia to Las Cruces. However, he refused to board the van because it
did not have seatbelts. Captain Arbagast urged Plaintiff to “get over it” because “it was just an
accident.” (Doc. 1-1 at 6). Plaintiff again refused, and Warden Miller placed him in segregation.
Thereafter, Plaintiff complained of dizziness, nausea, vomiting, and anxiety. He requested
a mental health assessment and was seen by Nurse Lombardi on July 22, 2016. Nurse Lombardi
indicated she would refer Plaintiff to a psychologist due to the accident’s “lasting effects [on] his
mental state.” (Doc. 1-1 at 6). Prison officials did not take Plaintiff to his follow-up appointment
at Presbyterian Hospital, and it is unclear whether he ever saw a psychologist.
Plaintiff filed the Complaint, through counsel, on November 3, 2017 in New Mexico’s
Second Judicial District Court. He asserts a claim for negligence under the New Mexico Tort
Claims Act (NMTCA) (Count I) and an Eighth Amendment claim for deliberate indifference to
medical needs (Count II) against:
Officer Issacs, who drove the transport van;
Officer Fuentes, who sat in the passenger seat of the van;
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Warden Miller, who placed Plaintiff in segregation;
CoreCivic and Transcor America (Transcor), the private prison administrators that employ
Miller, Fuentes, and Issacs; and
CorVel Corporation, the third-party claims administrator for CoreCivic’s automobile
insurer.
In January 2018, CoreCivic and Transcor removed the case to federal court and moved for
dismissal of the Complaint under Fed. R. Civ. P. 12(b)(6). They argue private entities are not
liable under Bivens, and, in any event, the alleged constitutional violations do not stem from an
official policy or custom under 42 U.S.C. § 1983. They further contend the NMTCA only
imposes liability on public employers, rather than private entities providing public services.
CorVel filed a separate motion to dismiss in March 2018, arguing it is not a proper party to this
case.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case for
failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a
complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court
must accept all factual allegations as true, the same is not true of legal conclusions. Id. Mere
“labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” will not
suffice. Twombly, 550 U.S. at 555. The Court will therefore disregard all conclusory statements
of law and consider whether the “remaining specific factual allegations, if assumed to be true,
plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
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1214 (10th Cir. 2011).
DISCUSSION
A.

Count II Fails to State a Constitutional Claim Against CoreCivic and Transcor

CoreCivic and Transcor seek dismissal of Count II based on two alternative theories.
First, they argue Plaintiff’s Eighth Amendment claims are properly analyzed under Bivens,2 rather
than 42 U.S.C. § 1983, because Plaintiff was a federal pretrial detainee when the accident occurred.
Count II must be dismissed under Bivens, which does not extend liability to private prison
administrators.

See Correctional Services Corp. v. Malesko, 534 U.S. 61, 70-74 (2001).

Alternatively, CoreCivic and Transcor contend that even if the claim is analyzed under § 1983 - as
Plaintiff was housed and transported by a state facility - the Complaint fails to state a claim against
the corporate defendants.
The Court need not distinguish between the theories because, even under the lower § 1983
standard, Count II fails. “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, 215 F.3d 1168,
1172 (10th Cir. 2000). Private prison administrators are “persons” subject to suit under § 1983,
but they cannot face liability solely because they employ a tortfeasor. Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1216 (10th Cir. 2003). To be liable under § 1983, the private entity must have
“had an ‘official ... policy of some nature ... that was the direct cause or moving force behind the
constitutional violations.” Id.
The alleged violations here involve negligent driving and indifference to medical needs
following the accident. The Complaint does not allege CoreCivic or Transcor had an official

2

A “Bivens action” refers to the Supreme Court case of Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).

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policy or custom that directly caused those issues, nor does it even mention the corporations
beyond naming them as employers. Plaintiff’s counseled response to the motion to dismiss is
similarly deficient. It simply gives lip-service to the Dubbs standard, alleging “each [employee]
was acting under the authority, policy, and custom” of CoreCivic and Transcor. Such statement
gives no insight into how any corporate decision contributed to the accident. Count II therefore
fails to state an Eighth Amendment claim against CoreCivic or Transcor.
B.

Plaintiff May Amend Count I (Negligence)

CoreCivic and Transcor also ask the Court to dismiss Count I (Negligence) to the extent it is
brought under the NMTCA.

Count I cites N.M.S.A. 1978 41-4-15, which provides: “The

immunity granted pursuant to [the NMTCA] does not apply to liability for damages … caused by
the negligence of public employees while acting within the scope of their duties in the operation …
of any motor vehicle.” CoreCivic and Transcor argue the NMTCA only applies to “government
entities” rather than private prison administrators. N.M.S.A. 1978 § 41-4-2. Plaintiff did not
directly address the NMTCA in his response to the motion to dismiss.
The NMTCA grants blanket immunity to governmental entities and public officials “acting
within the scope of duty,” and goes on to identify exceptional circumstances under which plaintiffs
can sue. See N.M.S.A. 1978 § 41-4-4, et. seq. The statute was enacted to “affirm[] the sovereign
immunity of [New Mexico] from tort claims.” Martinez v. New Mexico Dep’t of Transp., 296
P.3d 468, 470 (N.M. 2013). However, private prison administrators do not enjoy the protections
of sovereign immunity and are “fully exposed to the numerous … suits brought by inmates.”
Phillips v. Tiona, 508 Fed. App’x 737, 752 (10th Cir. 2013) (citing Richardson v. McKnight, 521
U.S. 399, 413 (1997)). Accordingly, courts in this district have uniformly held that suits against
private prison employees and administrators are governed by New Mexico’s general tort principles
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rather than the NMTCA. See Giron v. Corrections Corp. of America, 14 F. Supp. 2d 1245, 1252
(D.N.M. 1998) (Hansen, L.) (noting “the [New Mexico] legislature did not intend for the
corrections officers employed by private prison operators to have the same tort immunities as those
possessed by corrections officers employed directly by the state”); Ramirez v. Trujillo, 2010 WL
11618914, at *1 (D.N.M. Dec. 3, 2010) (Johnson, W.) (“It is not at all clear that [Corrections Corp.
of America] is a ‘governmental entity’ under the NMTCA”); Sarshik v. Corr. Med. Servs., Inc.,
2012 WL 13071877, at *8 (D.N.M. Nov. 8, 2012) (Johnson, W.) (citing Giron and noting: “no law
specifically provides that a private correctional company hired by the state corrections department
constitutes an instrumentality of the state”); Pena v. Greffet, 922 F. Supp. 2d 1187, 1255 (D.N.M.
2013) (Browning, J.) (general tort principles, rather than NMTCA, apply to claims against private
prison administrators and employees).
Based on this authority, the Court agrees the Complaint fails to state a claim under the
NMTCA. However, the appropriate remedy is not to dismiss Count I with prejudice, as CoreCivic
and Transcor request. Plaintiff has alleged facts “respecting all the material elements necessary to
sustain a recovery under some viable [negligence] theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (Plaintiffs can survive 12(b)(6) where the alleged facts demonstrate an
entitlement to “recovery under some viable legal theory”) (quotations omitted). See also Barrett
v. Tallon, 30 F.3d 1296, 1299 (10th Cir. 1994) (“A complaint should not be dismissed under Rule
12(b)(6) merely because plaintiff's allegations do not support the legal theory he intends to proceed
on, ... and certainly not when other theories are apparent on the face of the complaint.”). The
Court will therefore dismiss Count I without prejudice and grant leave to amend the negligence
claim within 30 days of entry of this Order.

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C.

CorTel is Not a Proper Party to this Suit

In a separate motion, CorVel also seeks dismissal from this lawsuit. CorVel contends it is
not a proper defendant because it merely functions as the third party administrator for CoreCivic’s
auto insurance carrier. Plaintiff responds that CorVel sent a letter to counsel requesting a Release
of Information, and the company is therefore acting as a representative of the tortfeasors. This
fact, if true, does not make CorVel a proper party to this suit. There are no allegations that CorVel
owns, operates, or is otherwise involved in prison operations, nor does the Complaint otherwise
suggest CorVel is liable for any wrongdoing. It merely states CorVel “is a foreign corporation
registered to do business in New Mexico…;” “is authorized to do business in the State of New
Mexico;” and “was doing business in the State … at all times relevant to this complaint.” Doc. 1-1
at ¶¶9, 13.
The Court also rejects the notion that CorVel is a proper party as a matter of law. It is true
that a defendant’s insurer may be named in a negligence suit when the defendant is compelled by
statute to maintain automobile liability insurance. See Raskob v. Sanchez, 970 P.2d 580 (N.M.
1998). The insurer’s involvement is predicated on a privity theory, as New Mexico law assumes
that “an insurance [contract] procured by force of legislative enactment inures to the benefit of any
injured member of the public.” Id. (quoting Breeden v. Wilson, 273 P.2d 376, 380 (1954).
However, Plaintiff has also not cited, nor has the Court uncovered, any authority suggesting a
plaintiff is in privity with the defendant’s insurer’s third party claims administrator. Indeed, it is
difficult to imagine how such a tenuous relationship could exist by virtue of a standard automobile
insurance contract. Even it were possible, the Complaint alleges no facts to support such a
relationship. Plaintiff has therefore failed to state a claim against CorVel, and the Court will grant
CorVel’s motion to dismiss.
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D.

The Court Declines to Impose Sanctions

CorVel also seeks sanctions against Plaintiff for refusing to consent to voluntary dismissal.
Plaintiff has not had an opportunity to respond to the request, as CorVel raised it in a reply brief.
In any event, the Court finds sanctions are not warranted at this time. Plaintiff’s counsel may have
believed in good faith that it was appropriate to name CorVel under Raskob v. Sanchez, 970 P.2d
580 (N.M. 1998) and similar cases. CorVel also contacted Plaintiff’s counsel for information,
which could have added to the confusion. The Court therefore denies CorVel’s request for
sanctions, but admonishes Plaintiff’s counsel to research any further issues before refusing to
cooperate with opposing counsel.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Motion to Dismiss filed by CoreCivic and
Transcor (Doc. 2) is GRANTED, IN PART; Count I is DISMISSED WITH PREJUDICE, as it
relates to CoreCivic and Transcor; and Count II is DISMISSED WITHOUT PREJUDICE as it
relates to all Defendants.
IT IS FURTHER ORERED that Plaintiff may file a complaint which amends Count II
within 30 days of entry of this Order.
IT IS FINALLY ORDERED that the Motion to Dismiss filed by CorVel (Doc. 19) is
GRANTED.
SO ORDERED.

______________________________________
CHIEF UNITED STATES DISTRICT JUDGE

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