Vasquez v. Tafoya-Lucero et al

Filing 81

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning GRANTING 16 Opposed MOTION to Dismiss Amended Complaint for Violation of Constitutional Rights and Request for Declaratory and Injunctive Relief as it Pertains to the Fourteenth and Eighth Amendment Violations and Discrimination Under the Americans with Disabilities Act and for Qualified Immunity. (fs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT VENCENT VASQUEZ,
Plaintiff,
vs.

No. CIV 22-0593 JB/DLM

NEW MEXICO DEPARTMENT OF
CORRECTIONS; ALISHA TAFOYALUCERO, in her individual and official
capacity; THE WARDEN OF THE
PENITENTIARY OF NEW MEXICO;
DAVID S. FAJARDO or SHARLENE
HAGERMAN, in her individual and official
capacity; THE WARDEN OF GCCF OF
SANTA ROSA, JULIAN MARQUEZ, in his
individual and official capacity;
CORRECTIONS OFFICERS ANGEL
SANCHEZ and ANDRES SANCHEZ, in
their capacity as New Mexico Department of
Corrections Officers and in their individual
capacities, and DANIEL SEDILLO, in his
individual and official capacity,
Defendants.
MEMORANDUM OPINION 1
THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss Amended
Complaint for Violation of Constitutional Rights and Request for Declaratory and Injunctive
Relief as it Pertains to the Fourteenth and Eighth Amendment Violations and Discrimination Under

1

On September 29, 2023, the Court entered an Order granting the Defendants’ Motion to
Dismiss Amended Complaint for Violation of Constitutional Rights and Request for Declaratory
and Injunctive Relief as it Pertains to the Fourteenth and Eighth Amendment Violations and
Discrimination Under the Americans with Disabilities Act and for Qualified Immunity, filed
October 10, 2022 (Doc. 16). See Order at 21, September 29, 2023 (Doc. 45). In the Order, the
Court stated that it will “issue . . . a Memorandum Opinion at a later date more fully detailing its
rationale for this decision.” Order at 1 n.1. This Memorandum Opinion is the promised opinion.

the Americans with Disabilities Act and for Qualified Immunity, filed October 10, 2022
(Doc. 16)(“Motion”). The Court held a hearing on March 22, 2023. See Clerk’s Minutes at 1,
filed March 22, 2023 (Doc. 40). The issues presented are: (i) whether Plaintiff Robert Vencent
Vasquez pleads facts sufficient to state a claim for violations of his rights under the Fourteenth
and Eighth Amendments to the Constitution of the United States as a result of the Defendants’
alleged deliberate indifference in exposing Vasquez to a substantial risk of harm and by requiring
inmates to use an ineffective grievance system to lodge complaints about their safety and
wellbeing; and (ii) whether Vasquez pleads facts sufficient to state a claim for discrimination under
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as a result of the Defendants’ alleged
failure to assist him with the grievance process. The Court concludes that: (i) Vasquez has not
stated a claim for violation of his Fourteenth and Eighth Amendment rights, because he has not
pled plausibly sufficient facts to state a claim that any Defendant violated his clearly established
Constitutional rights in relation to the inmate attack he suffered nor in relation to the prison
grievance system; and (ii) Vasquez has not stated a claim under the Rehabilitation Act, because he
has not plausibly pled that he was discriminated against based on his disability. Accordingly, the
Court grants the Motion.
FACTUAL BACKGROUND
The Court takes its facts from the Plaintiff’s Amended Complaint for Violation of
Constitional [sic] Rights and Request for Declaratory and Injunctive Relief as it Pertains to the
Fourteenth and Eighth Amendment Violations and Discrimination Under the Americans with
Disabilties [sic] Act, filed September 12, 2022 (Doc. 11)(“FAC”). The Court first describes
Vasquez’ allegations as they pertain to the assault he experienced at the hands of fellow inmates,
and then outlines Vasquez’ allegations relating to the New Mexico Corrections Department

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grievance process.
1.

Vasquez is Transferred to Guadalupe County Correctional Facility, Where He
Interacts with Defendants Angel Sanchez and Andres Sanchez and is
Assaulted by Fellow Inmates.

Vasquez is currently incarcerated by the Corrections Department. See FAC ¶ 6, at 3.
Vasquez “has been diagnosed with bi-polar disorder, PTSD, Major Depressive Disorder (MOD),
Anti-social disorder,” and “functions below a 6th grade level in spelling, reading and math.” FAC
¶ 44, at 17. In June, 2022, Vasquez requested a transfer “from a level four to level three facility,”
because corrections officers had informed Vasquez’ fellow inmates that he was a “rat” -- allegedly
in retaliation for the fact that Vasquez had filed grievances against several corrections officers
including Defendants Angel Sanchez and Andres Sanchez -- which resulted in Vasquez receiving
threats from fellow inmates. FAC ¶ 12, at 4. On June 24, 2022, Vasquez was moved from the
Penitentiary of New Mexico (“PNM”) to the Guadalupe County Correctional Facility (“Guadalupe
Correctional”), 2 where corrections officers Angel Sanchez and Andres Sanchez met him. See FAC
¶¶ 13-14, at 4-5. Both Angel Sanchez and Andres Sanchez were involved in a separate incident
of alleged use of excessive force against Vasquez on August 4, 2020, that resulted in Vasquez
filing grievances against the officers involved, and then subsequently filing a federal lawsuit
against both corrections officers. See FAC ¶¶ 15-17, at 5-6. Upon Vasquez’ arrival at Guadalupe
Correctional on June 24, 2022, Angel Sanchez and Andres Sanchez asked Vasquez if “he was
going to have ‘problems’ because he was at the ‘APA[3],’” and Vasquez informed the corrections

2

Although Vasquez does not define the acronyms in his FAC, the Court understands
Vasquez to refer to the Guadalupe County Correctional Facility where he uses “GCCF,” and the
Court understands Vasquez to refer to the Penitentiary of New Mexico where he uses “PNM.”
3

Although Vasquez does not define the “APA” and the Court has been unable to determine
what the acronym stands for, the Court understands Vasquez’ use of the APA to refer to the
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officers that “that there was fallout from the Clayton issue, and that the reason that he was placed
at ‘APA’ was because he had been stabbed at NENMDF/Clayton previously.” FAC ¶ 18, at 6-7.
Angel Sanchez and Andres Sanchez questioned Vasquez about the pending lawsuit and told him
“‘that they all needed to put the matter ‘behind them.’” FAC ¶ 22, at 8. Vasquez’ FAC alleges
that, “[u]pon opinion and belief in retaliation for Plaintiff filing a law suit [sic] against the Sanchez
brothers . . . the Sanchez brothers informed other prisoners in housing Unit 1-E Pod at GCCF in
Santa Rosa that Plaintiff was a ‘rat.’” FAC ¶ 19, at 7.
“Within an hour” of his interaction with Angel Sanchez and Andres Sanchez, FAC ¶ 19, at
7, Vasquez was assaulted by other inmates and “suffered serious stab wounds to the back of his
head, back and neck,” FAC ¶ 37, at 12. The FAC alleges that Angel Sanchez and Andres Sanchez
“purposely put Plaintiff in a Unit where Plaintiff’s life was threatened in retaliation for the law suit
[sic] that Plaintiff had filed against them.” FAC ¶ 18, at 7. See FAC ¶ 48, at 21 (“The fact that
the Sanchez brothers processed Plaintiff at Santa Rosa and that Plaintiff shortly thereafter was
stabbed in the back of the head, neck and back is at a minimum suspect timing for Plaintiff who
was almost immediately stabbed after being processed and placed in a cell block by the Sanchez
brothers.”). Although Vasquez “pressed the emergency call button” when the initial assault began,
assistance did not arrive “for approximately twenty minutes,” by which time Vasquez had suffered
an additional beating. FAC ¶ 23, at 8. Vasquez alleges that Angel Sanchez and Andres Sanchez
“retaliated against [Vasquez] by having him stabbed and beaten and then by refusing to answer
[Vasquez’] request for help while he was being beaten.” FAC ¶ 38, at 13. See FAC ¶ 24, at 8
(“The Sanchez brothers acted with deliberate indifference to Plaintiff’s safety by ignoring the panic

Corrections Department’s mental health unit. See FAC ¶ 44, at 17 (“Plaintiff has been housed in
the NMCD’s (APA) Mental Health Unit in Santa Fe . . . .”).
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button and allowing Plaintiff to get beaten and stabbed.”). The FAC alleges that Defendants Julian
Marquez and Alisha Tafoya-Lucero “allowed the Sanchez brothers to retaliate against the
Plaintiff . . . by not taking procedures at the prison to prevent violent assaults by inmates against
other inmates, and by not taking a review of the litigation history between Plaintiff and the Sanchez
brothers.” FAC ¶ 21, at 7-8. See FAC ¶¶ 35-36, at 11-12 (alleging that Tafoya-Lucero and
Marquez “clearly did not supervise the Sanchez brothers” on the day of Vasquez’ assault and “were
personally aware that . . . employee correction officers use inmates to beat other inmates”).
2.

Vasquez Files Grievances and Informal Complaints Against Guadalupe
Correctional and Defendant Daniel Sedillo.

On June 29, 2022, after his release from the hospital where he was treated for injuries
suffered during the assault, Vasquez was transferred back to PNM, where he “filed an inmate
informal complaint against GCCF . . . for Failure to Protect, Understaffing, and Retaliation.” FAC
¶ 25, at 8. “It was the required policy of NMCD for the Grievance to be filed at PNM with the
PNM Grievance Officer Daniel Sedillo, who was required to forward the grievance to the
Grievance Officer at GUADALUPE CORRECTIONAL in Santa Rosa, New Mexico.” FAC ¶ 26,
at 9. Although the informal complaint was filed appropriately within five working days of the
incident as Corrections Department policy requires, “Grievance Officer Daniel Sedillo rejected the
grievance as not timely filed” and did not forward it to Guadalupe Correctional. FAC ¶ 26, at 9.
See FAC ¶ 26, at 9 (“Daniel Sedillo . . . didn’t have jurisdiction to deny the grievance but was
required to forward it to GCCF . . . .”). Despite that Sedillo “was required under NMCD policy to
provide Plaintiff within five (5) days notice of receipt of the grievance a confirmation of receipt”
and that “Sedillo admitted that he had received the emergency grievance” when Vasquez originally
filed it, Sedillo did not provide Vasquez with a receipt. FAC ¶ 27, at 9-10. Vasquez “never

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received a response to the informal complaint he filed.” FAC ¶ 29, at 10. In addition, “when he
got no response to the informal complaint within ten (10) working days,” Vasquez “filed an
emergency grievance pursuant to NMCD Policy CD-150501 A.4, 6.” FAC ¶ 30, at 10. Vasquez
alleges that Sedillo’s dismissal of and failure to respond to Vasquez’ initial complaint is exemplary
of a grievance process “that is overly complex [and] confusing,” “allows NMCD to deny
grievances based on hyper-technical procedural defects rather than the merits,” and impedes
plaintiffs who suffer from mental illness “from exhausting their administrative remedies.” FAC
¶ 52, at 23. As a result of Officer Sedillo’s perceived “inappropriate behavior,” Vasquez “filed a
grievance with the Warden of PNM Sharlene Hagerman and/or David S. Fajardo.” FAC ¶ 27, at
9. Also “[o]n July 29, 2022,” the same day that Vasquez returned from the hospital and filed his
initial grievance against Sedillo, Vasquez filed a Department Appeal, N-22-07-08 indicating that
all informal complaints and grievances were timely filed pursuant to Corrections Department
Policy CD-150501 A. 1, (a) and (Emergency Procedure) 1.” FAC ¶ 27, at 9. See FAC ¶ 30, at 10.
PROCEDURAL BACKGROUND
The FAC names as Defendants the Corrections Department; Tafoya-Lucero, the
Corrections Department Secretary; Marquez, who “runs the prison facility in Santa Rosa, New
Mexico, known as GCCF”; “David S. Fajardo or Sharlene Hagerman”; Sedillo, a “PNM Grievance
Officer”; and Angel Sanchez and Andres Sanchez. See FAC at ¶¶ 7-11, at 3-4. Each individually
named Defendant is named as a Defendant in their official and individual capacity. See FAC ¶¶ 711, at 3-4. The FAC states two claims for relief. See FAC ¶¶ 56-68, at 35-43. First, Vasquez
alleges the Defendants violated his rights under the Eighth and Fourteenth Amendments in relation
to the assault Vasquez suffered and the inadequate grievance procedures. See FAC ¶¶ 56-59, at
35-38. Vasquez alleges that Angel Sanchez and Andres Sanchez acted “deliberately indifferent to

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[Vasquez’] rights to be free from excessive use of force” by “encouraging inmates” to attack
Vasquez “in retaliation” for his pending lawsuit against them and that Defendants Marquez and
Tafoya-Lucero “were aware that the beatings did and are occurring,” but failed “to take measures
to abate the risk of the serious injury.” FAC ¶ 57, at 35-36. In addition, Vasquez alleges that
“[t]he grievance system maintained by the NMCD violates the Eighth Amendment because it did
not protect and does not protect inmates from cruel and unusual punishment.” FAC ¶¶ 57-58, at
35-37. Second, Vasquez brings a claim under the Rehabilitation Act arising from the Corrections
Department’s alleged failure to provide inmates with mental disabilities an effective grievance
system or with staff to assist with the process. See FAC ¶¶ 60-58, at 39-43. Vasquez seeks
compensatory and punitive damages under 42 U.S.C. § 1983, and declaratory, injunctive relief,
and damages under § 504 of the Rehabilitation Act. See FAC ¶ 69, at 43-45.
1.

The Defendants’ Motion.

The Defendants move to dismiss Vasquez’ claims under rule 12(b)(6) of the Federal Rules
of Civil Procedure. See Motion at 1. After summarizing Vasquez’ allegations and providing the
relevant legal standard for rule 12(b)(6) motions, see Motion at 2-9, the Defendants argue that
Vasquez has failed to state his Constitutional and Rehabilitation Act claims. See Motion at 9-16.
The Defendants begin by addressing Vasquez’ claims arising out of the assault he suffered at
Guadalupe Correctional. See Motion at 9-13. The Defendants contend that Vasquez does not
“plausibly plead facts stating a claim that Angel Sanchez and Andres Sanchez violated his Eighth
and Fourteenth Amendment rights,” because Vasquez’ allegation that “Defendants Angel and
Andres Sanchez ‘informed other prisoners in housing Unit 1-E Pod . . . that Plaintiff was a rat,’”
is conclusory and speculative. Motion at 9 (quoting FAC ¶ 19, at 7). The Defendants explain that
Vasquez does not “identify[ ]any facts supporting this allegation.” Motion at 9. Rather, the

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Defendants aver, Vasquez “makes it clear that he is only surmising that such a statement occurred
by pleading that it ‘is at a minimum suspect timing’ that he was processed by the Sanchez brothers
and shortly thereafter stabbed.” Motion at 9 (quoting FAC ¶ 48, at 7). Likewise, the Defendants
argue that Vasquez’ argument and that Angel Sanchez and Andres Sanchez “ignored the panic
button” when Vasquez was attacked is “conclusory and lacks any factual support.” Motion at 11.
The Defendants next argue that the Tafoya-Lucero, Marquez, and Fajardo or Hagerman
(“Supervisory Defendants”) “are entitled to qualified immunity for the alleged inmate assault.”
Motion at 11. To establish that a prison official violated an inmate’s Eighth Amendment rights,
the Defendants provide, “‘an inmate must show (1) that the conditions of his incarceration present
an objectively substantial risk of serious harm and (2) prison officials had subjective knowledge
of the risk of harm . . . .’” Motion at 12 (quoting Requena v. Roberts, 893 F.3d 1195, 1214 (10th
Cir. 2018)). Here, the Defendants contend, Vasquez has not “provided any evidence or factual
bases to show that he was objectively at risk of serious harm” nor “made any allegations that the
Defendants had subjective knowledge of those risks.” Motion at 12 (emphasis in Motion).
Moreover, the Defendants aver, “none of the [Supervisory Defendants] are subject to liability on
a theory of respondeat superior.” Motion at 12 (citing Dodds v. Richardson, 614 F.3d 1185, 1197
(10th Cir. 2010), for the proposition that government officials cannot be held liable under a theory
of respondeat superior under § 1983)(emphasis in Motion). The Defendants’ final argument
addressing Vasquez’ assault-related claims is that the Corrections Department and the Supervisory
Defendants in their official capacity are entitled to immunity under Eleventh Amendment to the
Constitution of the United States the extent that Vasquez seeks relief under § 1983. See Motion
at 12-13 (citing Lee v. Univ. of New Mexico, 449 F. Supp. 3d 1071, 1138 (D.N.M.
2020)(Browning, J.)).

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The Defendants proceed to address Vasquez’ “claims premised on the grievance system,”
which the Defendants explain Vasquez alleges under both the Eighth Amendment and the
Rehabilitation Act. Motion at 13. The Defendants argue that Vasquez has not pled facts sufficient
to establish, generally, that “he was denied a fair grievance process.” Motion at 13. Specifically,
the Defendants provide that Vasquez’ grievance-related claims are inadequate under rule 12(b)(6),
because Vasquez “has failed to allege a harm specific to him in the grievance process by any
Defendant or proposed Defendant beyond his conclusory allegations that his rights were
violated . . . .” Motion at 14. Moreover, the Defendants contend that Vasquez’ allegations “that
the Defendants variously engaged in behavior that created an unfair or inadequate grievance
process,” are too conclusory to state a claim upon which relief can be granted. Motion at 14.
Even if Vasquez “made well-pled allegations of harm to him in the grievance process,” the
Defendants argue, “his Eighth Amendment claim would fail as a matter of law.” Motion at 15.
First, the Defendants aver that “it is well established that ‘a failure to adhere to administrative
regulations does not equate to a constitutional violation.’” Motion at 15 (quoting Hovater v.
Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)). The Defendants explain that this case is similar
to a case in which the Honorable Judith Herrera, United States District Judge for the United States
District Court for the District of New Mexico, dismissed an inmate’s Due Process claims that the
Corrections Department had not properly investigated and addressed his prison claims. See
Motion at 16 (citing Gonzales v. New Mexico Corr. Dep’t, No. CIV 18-0107, 2020 WL 6316344,
at *6 (D.N.M. October 28, 2020)(Herrera, J.)). Moreover, the Defendants contend, “to the extent
that Plaintiff is relying on supervisory liability to establish claims against the individual
defendants, such claims are not allowed by law.” Motion at 16-17. At bottom, the Defendants
state: Vasquez “can point to no case law establishing his creative and novel claim that the

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administration of the grievance process violated a right protected by the Eighth Amendment.”
Motion at 17.
Second, the Defendants argue that the Rehabilitation Act is not a proper avenue for
Vasquez’ claims regardless whether the Defendants are sued in their individual or official
capacities. See Motion at 18. The Defendants state: “The Rehabilitation Act does not allow claims
against individual defendants in their individual capacities.” Motion at 18 (citing Moore v.
Cooksey, 242 F.3d 389 (10th Cir. 2000)). “To the extent he brings a Rehabilitation Act claim
against the individual defendants in their official capacity,” the Defendants thus provide, “his claim
would only lie against the NMCD,” because “official-capacity suits ‘generally represent only
another way of pleading an action against an entity of which an officer is an agent’ and are ‘treated
as a suit against the entity.’” Motion at 18 (quoting Kentucky v. Graham, 473 U.S. 159, 165-66
(1985)). Nonetheless, the Defendants contend, Vasquez has failed to state a prima facie claim
under the Rehabilitation Act, which the Defendants explain requires “‘that (1) plaintiff is
handicapped under the Act; (2) [he] is otherwise qualified to participate in the program; (3) the
program receives federal financial assistance; and (4) the program discriminates against plaintiff’
based upon a disability.” Motion at 18-19 (quoting Havens v. Colo. Dep’t of Corr., 897 F.3d 1250,
1262 (10th Cir. 2018))(alteration in Havens v. Colo. Dep’t of Corr.). The Defendants argue that
Vasquez’ Rehabilitation Act claim fails, because “[h]e has only made conclusory allegations that
his grievance was denied or that it was subject to any irregularity in the grievance process,” he
“has not pled facts from which he could demonstrate that, if there was an irregularity and if it
impacted him, it was based on discrimination based on his disability,” and, “[f]inally, the facts he
alleges do not show that, if there was discrimination, it was intentional,” which the Defendants
provide must be demonstrated in order to obtain damages under the Rehabilitation Act. Motion at

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19. For these reasons, the Defendants “request that the Court dismiss Plaintiff’s Amended
Complaint under Rule 12(b)(6).” Motion at 19
2.

Vasquez’ Response.

Vasquez responds to the Motion and argues that he has stated sufficiently his claims under
rule 12(b)(6). See Response to Defendant’s Motion to Dismiss Amended Complaint for Violation
of Constiutional [sic] Rights and Request for Declaratory and Injunctive Relief as it Pertains to the
Fourtheenth [sic] and Eighth Amendment Violations and Discrimination Under the Americans
with Disabilities Act and for Qualified Immunity at 1-2, filed October 18, 2022
(Doc. 20)(“Response”). Vasquez begins by providing additional factual context which did not
appear in the FAC regarding his claims against Angel Sanchez and Andres Sanchez, including that
“[t]he Sanchez brothers . . . were in charge as masters of the control unit which monitors
emergency calls from the Pods.” Response at 2-3. Although Vasquez “concedes that no one in
Unit 1-E Pod after he was placed there by the Sanchez brothers informed him that the Sanchez
brothers had informed them that he was a ‘rat,’” he states that Angel Sanchez and Andres Sanchez
had previously informed other inmates that he was a rat while he was at PNM. Response at 3.
Vasquez levels a legal argument, citing to a United States Court of Appeals for the Seventh Circuit
case for the proposition that the disputes in this case can only be resolved by a trier-of-fact and it
would therefore be improper to dismiss his claims pursuant to rule 12(b)(6). See Response at 4
(citing Santiago v. Lane, 894 F.2d 218, 224 (7th Cir. 1990)).
Vasquez next asserts a retaliation claim under the First Amendment of the Constitution of
the United States. See Response at 5-6. Specifically, Vasquez argues that he has met his burden
to demonstrate that Angel Sanchez and Andres Sanchez violated his clearly established First
Amendment rights, because he

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(1) was engaged in Constitutionally protected activity when he filed grievances
against the Sanchez brothers, and then subsequently his civil law suits against them
(2) the Sanchez brothers actions [sic] caused Plaintiff to suffer a physical and
psychological injury that would chill a person of ordinary firmness from continuing
to engage in filing grievances or civil rights law suits (3) the Defendant Sanchez
brothers adverse action [sic] against Plaintiff was substantially motivated as a
response to Plaintiff’s exercise of his Constitutionally protected conduct, i.e., that
because of the grievances and the law suit that Plaintiff filed against the Sanchez
brothers they used other inmates to stab and beat the Plaintiff.
Response at 5-6. Turning to his Eighth Amendment claim, Vasquez disputes that his “case hinges
on his claim that Sanchez brothers informed other prisoners in housing Unit 1-E Pod that Plaintiff
was a ‘rat’”; rather, Vasquez avers, the case hinges on the fact that he “met with” Angel Sanchez
and Andres Sanchez “two years before,” and filed grievances against them, which led to Angel
Sanchez and Andres Sanchez “retaliat[ing] against him because of his First Amendment protected
activity.”

Response at 7.

Accordingly, Vasquez states that he “has provided sufficient

circumstantial evidence to infer a valid claim and to allow the complaint to go to a jury.” Response
at 7.
In response to the Defendants’ argument that he cannot state a claim against the
Supervisory Defendants, Vasquez first provides that “the law as it pertains to prison officials
protecting inmates from other inmates” affirms that “a prison official will be liable for failing to
protect an inmate from attacks if that official acts with ‘deliberate indifference.’” Motion at 7
(quoting Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir. 1988)). Vasquez asserts that
The NMCD and the prison officials at the minimum acted with recklessness and
deliberate indifference by allowing the Sanchez brothers who had a lawsuit pending
against them by Plaintiff, to process the Plaintiff when he came into Santa Rosa
from PNM, and then by allowing them to escort him to a violent gang pod after
Plaintiff had informed them that he had had trouble with other inmates that resulted
in him getting stabbed in the Clayton prison.
Response at 8. Vasquez avers that Tafoya-Lucero and Marquez “had a list” of his enemies, and

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knew that they were housed in the Guadalupe Correctional unit that Angel Sanchez and Andres
Sanchez placed Vasquez in, “but never took any affirmative action” to ensure Vasquez was not
placed in that unit. Response at 8. See id. at 9 (“When Plaintiff arrived at the prison GCCF he
never underwent an orientation program of one hour, much less one day designed to determine his
security needs.”).
Vasquez next responds to the Defendants’ representation that the Supervisory Defendants
are entitled to qualified immunity in relation to his grievance-system claims. See Response at 1017. Vasquez first clarifies that he “has not alleged that the grievance system violates the Fourteenth
Amendment, but maintains that . . . the grievance policy at issue which did not allow him to
proceed further then by denying his grievance . . . preclude[ed] his right to bring a valid Eighth
Amendment claim.” Response at 11-12. Vasquez references three additional pending cases he
has brought against the Defendants in the United States District Court for the District of New
Mexico and alleges that they are “all included herein by reference as if the allegations had been
made herein . . . .” Response at 11. Vasquez reiterates that he has a mental disability and that “he
has never been offered assistance with filing a grievance” and “his grievances are always dismissed
and never maintained.” Response at 12. Vasquez maintains that to allow inmates to file grievances
but then dismiss them “for being untimely filed, or for some other reason is in and of itself a
violation of the Eighth Amendment.” Response at 12-13. Vasquez asserts that “[t]he Defendants
admit that its prison officials have in place a grievance system that dismisses valid grievance [sic]”
and, while Vasquez concedes that “[t]he denial of grievances by themselves without connection to
the violation of a Constitutional right alleged by Plaintiff, does not establish personal participation
under § 1983,” he argues that he “has made the connection needed by the attached exhibits to the
other complaints noted above along with his allegations, and clearly by the claims he has made in

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the complaint at issue.” Response at 13-14. Vasquez contends that he has “named the official
policy and custom, i.e., the grievance system,” as required to bring his claim. Response at 14-15.
Vasquez acknowledges, as the Defendants argue, that “[t]o state a claim under § 1983 a
Plaintiffs [sic] complaint must make clear exactly who is alleged to have done what to whom,”
and avers that he “has alleged specific harm to him by the grievance process by prison
officials . . . .” Response at 15. For example, Vasquez provides that he has alleged that Fajardo
and Hagerman, “received a grievance against Grievance Officer Daniel Sedillo regarding his
inappropriate denial of the grievance in this case because Daniel Sedillo took negative action on
the grievance action on the grievance [sic] that he had not [sic] authority to take . . . .” Response
at 15. In relation to these allegations, Vasquez reasserts his First Amendment claim, namely that
he engaged in protected activity by filing the grievance against Sedillo and that “Sedillo purposely
manipulated his grievance on this cause which he ultimately wrongfully denied.” Response at 1516.

Moreover, Vasquez contends that his FAC’s allegations sufficiently state an Eighth

Amendment violation, because “he was not able to receive proper legal redress against the Sanchez
brothers or prison officials for the violation of his Eighth Amendment rights by the Sanchez
brothers and other prison officials.” Response at 16. Specifically, Vasquez states:
Here Daniel Sedillo dismissing the grievance he filed regarding the attack in Santa
Rosa, and that dismissal being rubber stamped by the other prison officials of
Plaintiffs valid Eighth Amendment violation of cruel and unusual punishment at
the hands of the Sanchez brothers, Warden Marquez and Secretary of Corrections
Alisha Tafoya-Lucero; and including that Daniel Sedillo lied about the grievance
not properly filed on a timely basis, and improperly not forwarding the grievance
to the grievance officer at the Santa Rosa facility, and that he failed to investigate
his grievance and that he provided false and misleading information on Plaintiffs
grievance to other prison officials resulted in having Plaintiffs rights to a proper
remedy against the Defendants denied.
Response at 16-17 (citing Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009); Kaba v. Stepp, 458

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F.3d 678 (7th Cir. 2006)). Vasquez concludes that “[t]he grievance system within the NMCD is
deliberately indifferent to Plaintiffs serious illness’ [sic] and injuries and constitute cruel and
unusual punishment contravening the Eighth Amendment as it applies to the Grievance Process.”
Response at 17.
In response to the Defendants’ request that the Court dismiss his Rehabilitation Act claim,
Vasquez argues that he has alleged a prima facie case because his case
has been brought against the NMCD, and Plaintiff has set out facts indicating that
(1) he is handicapped under the Act; (2) [he] is “otherwise qualified” to participate
in the program i.e., to participate in filing grievances for the violation of his Eighth
Amendment rights; (3) the NMCD receives federal financial assistance; and (4) the
program discriminates against the Plaintiff, based on his disability.
Response at 18 (quoting Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1262 (10th Cir. 2018)).
Finally, Vasquez requests “that the Court allow him to Amend his Complaint once again to correct
any deficiencies that this court might find and so he can add additional causes of actions [sic] that
have come to his attention since he filed his law suit [sic].” Response at 18.
3.

The Defendants’ Reply.

The Defendants reply to the Response, arguing that the Response “ultimately fails to
address Defendants’ Motion to Dismiss, and the Court should accordingly grant the Motion to
Dismiss.” Defendants’ Reply in Support of Defendants’ Motion to Dismiss Amended Complaint
for Violation of Constitutional Rights and Request for Declaratory and Injunctive Relief as it
Pertains to the Fourteenth and Eighth Amendment Violations and Discrimination Under the
Americans with Disabilities Act and for Qualified Immunity at 2, filed November 1, 2022
(Doc. 24)(“Reply”). As an initial matter, the Defendants contend that Vasquez fails to respond to
the Defendants’ “central argument” that Vasquez’ complaint “relies upon conclusory allegations
that cannot be the bases for a valid claim.” Reply at 2 (citing Ashcroft v. Iqbal, 556 U.S. 662, 679-

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81 (2009)). “Instead,” the Defendants supply, Vasquez “reiterates his conclusory allegations and
then summarily cites to filings in other cases that he has initiated in an attempt to make his
allegations appear less conclusory.” Reply at 2. The Defendants next note that, despite his promise
to do so in his Response, Vasquez has not yet served “the three parties added to his Amended
Complaint.” Reply at 3.
Turning to Vasquez’ merits arguments, the Defendants explain that despite Vasquez’
discussion “whether the Sanchez Brothers are entitled to qualified immunity,” Vasquez does not
address the Defendants’ argument regarding the “conclusory nature of the allegations” against
Angel Sanchez and Andres Sanchez. Reply at 3-4. The Defendants explain that Vasquez’ reliance
on Santiago v. Lane, 894 F.2d 218, “is flawed,” because the case is a “Seventh Circuit opinion that
predates the Iqbal pleading requirements,” and is, accordingly, “of limited persuasive value at
best.” Reply at 4-5. See id. at 5 (identifying the differences between Santiago v. Lane and
Vasquez’ factual allegations). Moreover, the Defendants argue, Vasquez’ contention that his claim
against Angel Sanchez and Andres Sanchez hinge on the fact that he filed grievances and a lawsuit
against Angel Sanchez and Andres Sanchez two years previously, “requires the Court to take as
true that the Sanchez Brothers conspired against Plaintiff for two years to have other inmates attack
him,” without any factual context. Reply at 5.
The Defendants next aver that Vasquez has not stated a claim against Tafoya-Lucero or
Marquez for failing to protect him from Angel Sanchez and Andres Sanchez’ retaliation, because
Vasquez relies only “on an assertion that these Defendants acted recklessly.” Reply at 6. The
Defendants explain that Vasquez’ “contention that he can establish deliberate indifference using
tort recklessness standards has no support in this jurisdiction or in the jurisdiction that he relied
on,” and that, moreover, Vasquez has provided no well-pled allegations that Tafoya-Lucero and

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Marquez
had subject knowledge [sic] that the Sanchez Brothers were actively conspiring
against an inmate that was being transferred to GCCF, that they knew what unit the
Sanchez Brothers would assign the Plaintiff, and that there were inmates in that unit
that either already were planning to attack the Plaintiff or that those inmates were
operating under the direction of the Sanchez Brothers.
Reply at 6-7.
Proceeding to Vasquez’ “argument regarding the Grievance System,” the Defendants
contend that “the Eighth Amendment offers no relief to Plaintiff’s claims regarding the grievance
system” and that Vasquez fails to “address the lack of well pled allegations” as to his Rehabilitation
Act claim. Reply at 7-8. The Defendants maintain that Vasquez cannot “provide any support that
a grievance system itself can violate the Eighth Amendment,” and thus “it cannot be said that there
is clearly established law that can overcome Defendants’ qualified immunity.” Reply at 7.
Moreover, the Defendants provide, even if Vasquez’ “theory of a grievance system violating the
Eighth Amendment was supported by law,” Vasquez “does not allege facts that the grievance
system and Defendants’ administration of it amount to a violation of the Eighth Amendment.”
Reply at 8. As to Vasquez’ Rehabilitation Act claim, the Defendants argue that Vasquez has not
alleged any facts that “he has been intentionally discriminated against because of his intellectual
disability.” Reply at 8. In sum, the Defendants reiterate that the Court should dismiss Vasquez’
claims, “because he has failed to allege claims that the Court can grant relief upon.” Reply at 8.
4.

The Hearing.

The Court held a hearing on the Motion on March 22, 2023. See Clerk’s Minutes at 1,
filed March 22, 2023 (Doc. 40). In response to the Court’s request to describe the procedural
history of the case, the Defendants began by explaining that Vasquez’ claims stem from the 2022
attack he suffered at Guadalupe Correctional and not the 2020 incident referenced in the FAC. See

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Draft Transcript of Hearing at 2:20-3:2, taken March 22, 2023 (“Tr.”)(Van Meter). 4 Vasquez
responded that, while the 2020 incident -- in which he was “beaten up by two corrections officers”
-- was separate from the 2022 attack, the prior incident “feeds into this case,” because the same
corrections officers were involved in both incidents. Tr. at 4:21-6:2 (Ayala). The Defendants
explained that Vasquez has five pending cases in the District of New Mexico regarding different
incidents that have taken place during his incarceration, but that Vasquez’ claim relating to the
grievance policy appears in each of the cases. See Tr. at 3:4-4:15 (Van Meter).
Proceeding to his claims’ merits, Vasquez averred that the Defendants “have not been able
to produce a single case indicating that an Eighth Amendment violation does not apply to a
grievance policy when it prevents an inmate from raising a valid Eighth Amendment right.” Tr.
at 8:1-5 (Ayala). In response to the Court’s query how Vasquez would “survive the clearly
established prong” if no party could identify case law whether “there is an Eighth Amendment
claim for a grievance process,” Vasquez explained that “[i]t’s not that there is an Eighth
Amendment violation because of the grievance process. But the grievance process itself is barring
the plaintiff[] from being able to grieve Eighth Amendment violations.” Tr. at 8:14-9:13 (Court,
Ayala). Vasquez argued that that the issue whether he could bring an Eighth Amendment claim
had not been decided by an order issued by the Honorable Robert C. Brack, United States District
Judge for the United States District Court for the District of New Mexico, in Vasquez v. TafoyaLucero, No. CIV 20-0612, another pending case that Vasquez has filed regarding similar issues.
9:18-12:18 (Court, Ayala).

4

The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.

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The Defendants, arguing in favor of the Motion, contended that Vasquez’ Eighth
Amendment claim “that the denial of a grievance for violating the Eighth Amendment is itself a
violation of the Eighth Amendment” is not valid, and explained that Judge Brack’s decision in
Vasquez v. Tafoya-Lucero, No. CIV 20-0612, addressed an “identical” claim and demonstrates
that Vasquez cannot state an Eighth Amendment claim. Tr. at 13:3-16:4 (Van Meter). Turning to
Vasquez’ claims against Angel Sanchez and Andres Sanchez, the Defendants represented that
Vasquez concedes that “he does not know of any actual statement by the Sanchez brothers” and
that “nobody told him [that] the Sanchez brothers . . . called him a rat or encouraged other inmates
to jump him.” Tr. at 29:25-30:13 (Van Meter). Moreover, the Defendants maintained, Vasquez
provided facts in his Response about the dangerousness of the Guadalupe Correctional pod in
which Angel Sanchez and Andres Sanchez placed him that did not appear in the FAC. Tr. at 30:1431:17 (Van Meter). The Defendants stated that the Supervisory Defendants cannot be expected to
know of every inmate that posed a danger to plaintiff,” and therefore it is “not plausible that they
had any deliberate indifference toward the plaintiff.” Tr. at 31:20-33:9 (Van Meter). The
Defendants contended that “without some evidence that a specific inmate was in this particular
pod; that the defendants knew that inmate was there and knew that that inmate presented a danger
to plaintiff,” Vasquez’ allegations did not meet “the requirements of the Tenth Circuit’s case law
for showing deliberate indifference.” Tr. at 40:10-22 (Van Meter). As to Vasquez’ claim under
the Rehabilitation Act, which the Defendants reiterated can only be brought against the Corrections
Department, the Defendants argued that Vasquez “has not pled allegations which show that by
following their grievance policy, they would have clearly been violating plaintiff’s rights as a
person with a disability.” Tr. at 33:10-35:6 (Van Meter). The Defendants clarified that they “are
disputing that there was any discrimination, and that any discrimination was intentional.” Tr. at

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52:16-18 (Van Meter).
After clarifying that there was no pending motion to amend the complaint and that the FAC
is the “operative complaint,” Tr. at 16:20-18:2 (Court, Ayala, Van Meter), Vasquez addressed his
Eighth Amendment grievance claim, Tr. at 19:12-26:15 (Ayala). Vasquez reiterated that, because
“all grievances are denied,” the Defendants are “fail[ing] to protect inmates from a known harm,”
which “constitutes a constitutional violation,” and contended that he has “provided the affirmative
link between the grievance system, or lack of it, and the violation of his constitutional rights by
prison officials.” Tr. at 19:16-21:12 (Ayala). Vasquez explained further that, although he has a
mental disability, “he was never offered assistance with filing grievances, although the Corrections
Department is required by its own policy to have a special monitor at every facility to assist
individuals like the plaintiff with the process.” Tr. at 24:5-9 (Ayala). Regarding his claims related
to the assault he suffered at Guadalupe Correctional, Vasquez argued that he informed Angel
Sanchez and Andres Sanchez about “his concerns” related to a previous stabbing that he had
suffered, that the statements Angel Sanchez and Andres Sanchez made to him sounded “like a
threat,” and that he was “stabbed less than an hour later.” Tr. at 43:15-22 (Ayala). See id. at
56:10-57:11 (Ayala). Vasquez contended that he has alleged a prima facie case under the
Rehabilitation Act, because it was undisputed that he suffers from a mental disability and he has
set forth facts sufficient to demonstrate the other necessary factors, included that “the program
discriminates against the plaintiff based on his disability.” Tr. at 47:11-49:22 (Ayala).
Vasquez argued that he had alleged “facts supporting a violation of his First Amendment
right of freedom of speech.” Tr. at 57:12-58:15 (Ayala). The Defendants responded, however,
that Vasquez had not alleged a First Amendment claim in the FAC and that the Court should not
allow Vasquez to amend the FAC. See Tr. at 58:24-59:24 (Van Meter); id. at 38:10-13 (Van

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Meter). The Court informed the parties that it is “not inclined to allow the Eighth Amendment
grievance claim to go forward.” Tr. at 29:10-17 (Court).
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four
corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d
337, 340 (10th Cir. 1994). The Complaint’s sufficiency is a question of law, and, when considering
a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint,
view those allegations in the light most favorable to the nonmoving party, and draw all reasonable
inferences in the non-moving party’s favor. See Tellabs, Inc. v. Makor Issues & Rts, Ltd., 551
U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of
plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith
v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule
12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these
allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036,
1039 (10th Cir. 2006))). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone
is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d
1562, 1565 (10th Cir. 1991).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient.
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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See Ashcroft v. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557). See Crane v. Utah Dep’t of Corr.,
15 F.4th 1296, 1303 (10th Cir. 2021)(“Courts do not assume as true allegations that are legal
conclusions, formulaic recitations of elements, or naked assertions devoid of further factual
enhancement.”). Rather, “[f]actual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555.
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if
assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility
that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;
the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood
of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the line
from conceivable to plausible.” The allegations must be enough that, if assumed to
be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cnty. Board of Cnty. Comm’rs,
278 F. Supp. 3d 1245, 1259 (D.N.M. 2017)(Browning, J.).
“When a party presents matters outside of the pleadings for consideration, as a general rule
‘the court must either exclude the material or treat the motion as one for summary judgment.’”
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir.
2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three
limited exceptions to this general principle: (i) documents that the complaint incorporates by
reference, see Tellabs, Inc. v. Makor Issues & Rts, Ltd., 551 U.S. at 322; (ii) “documents referred
to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute
the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002);
and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rts,
Ltd., 551 U.S. at 322. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103
(holding that the district court did not err by reviewing a seminar recording and a TV episode on
a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint,” central
to the plaintiff’s claim, and “undisputed as to their accuracy and authenticity”). “[T]he court is
permitted to take judicial notice of its own files and records, as well as facts which are a matter of
public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on
other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
LAW REGARDING THE EIGHTH AMENDMENT
When a prisoner is incarcerated after being indicted, the Eighth Amendment protects him
from “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm.” Farmer v.
Brennan, 511 U.S. 825, 828 (1994). An incarcerated person bringing an Eighth Amendment claim
to challenge prison conditions must satisfy a two-pronged test with objective and subjective

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components. See Farmer v. Brennan, 511 U.S. at 834. Sawyers v. Norton, 962 F.3d 1270, 127273 (10th Cir. 2020)(“‘The deliberate indifference standard has objective and subjective
components.’” (quoting Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019))). First, the
plaintiff must demonstrate that the official caused an injury that, objectively, is “sufficiently
serious,” Farmer v. Brennan, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)),
because it deprives the plaintiff of “the minimal civilized measure of life’s necessities,” Farmer v.
Brennan, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). To establish
the first prong of the test, “the prisoner must show that the risk of which he complains is not one
that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Those
conditions that “pose an unreasonable risk of serious damage to a [person’s] future health” may
violate the Eighth Amendment even if the damage has not yet occurred and may not affect every
incarcerated person exposed to the conditions. Farmer v. Brennen, 511 U.S. at 836.
Second, the official, subjectively, must have a “sufficiently culpable state of mind.”
Farmer v. Brennan, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)). This
second prong represents the functional application of the deliberate indifference standard. See
Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006). In other words, the plaintiff must
prove that the defendant knew of the risk posed by the challenged condition and disregarded that
knowledge by failing to take reasonable measures to abate the risk. See Martinez v. Beggs, 563
F.3d 1082, 1088-89 (10th Cir. 2009). That a risk is obvious is circumstantial evidence that permits
the conclusion that a prison official knew of the risk, even absent direct evidence about what the
official knew. See Farmer v. Brennan, 511 U.S. at 842-43. The Supreme Court has stated: “With
deliberate indifference lying somewhere between the poles of negligence at one end and purpose
or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference

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with recklessness.” Farmer v. Brennan, 511 U.S. at 836.
LAW REGARDING THE REHABILITATION ACT
Section 504 of the Rehabilitation Act provides “that an otherwise qualified handicapped
individual must be provided with meaningful access to the benefit that the grantee offers.”
Alexander v. Choate, 469 U.S. 287, 301 (1985). “To establish a prima facie claim under § 504, a
plaintiff must demonstrate that ‘(1) plaintiff is handicapped under the Act; (2) [he or she] is
“otherwise qualified” to participate in the program; (3) the program receives federal financial
assistance; and (4) the program discriminates against plaintiff’” based upon a disability. Barber
ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)(quoting
Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir. 2008)). “The Supreme Court
has recognized that § 504 is intended to ensure that ‘an otherwise qualified handicapped individual
[is] provided with meaningful access to the benefit that the grantee offers . . . . [T]o assure
meaningful access, reasonable accommodations in the grantee’s program or benefit may have to
be made.’” Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d at 1229 (quoting Alexander
v. Choate, 469 U.S. 287, 301 (1985))(alterations in Alexander v. Choate).
Nonetheless, while “‘Section 504 seeks to assure evenhanded treatment and the
opportunity for handicapped individuals to participate in and benefit from programs receiving
federal assistance’” it does not “‘guarantee the handicapped equal results’ from participation in
such programs and services.” Havens v. Colorado Dep’t of Corr., 897 F.3d 1250, 1263 (10th Cir.
2018)(quoting Alexander v. Choate, 469 U.S. at 304).

“The plaintiff bears the burden of

establishing that the defendant ‘discriminated against the handicapped’ in the offered program or
service by failing to provide meaningful access to the program and service, “such that the need for
a remedial interactive process aimed at finding a reasonable accommodation was triggered.”

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Havens v. Colorado Dep’t of Corr., 897 F.3d at 1263 (quoting Barber ex rel. Barber v. Colo. Dep’t
of Revenue, 562 F.3d at 1233 (Gorsuch, J., concurring)). In order to recover damages under the
§ 504, “a plaintiff must establish that the agency’s discrimination was intentional,” Barber ex rel.
Barber v. Colo. Dep’t of Revenue, 562 F.3d at 1228, and “[d]eliberate indifference is sufficient to
satisfy the intentional-discrimination requirement for compensatory damages under § 504,”
Havens v. Colorado Dep’t of Corr., 897 F.3d at 1264. “In construing the scope of liability under
§ 504 of the Rehabilitation Act, courts may also reference cases decided under Title II of the
ADA.” Havens v. Colorado Dep’t of Corr., 897 F.3d at 1263.
LAW REGARDING § 1983 LIABILITY
Section 1983 creates a cause of action for a plaintiff to seek money damages from state
officials who have violated his or her constitutional or statutory rights. See 42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights
elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “To state a claim under
§ 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person acting under
color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988). Individual, non-supervisory

defendants may be liable if they knew or reasonably should have known that their conduct would
lead to the deprivation of a plaintiff’s constitutional rights by others, and an unforeseeable
intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255
(10th Cir. 2012). The Supreme Court has stated that there is no respondeat superior liability under
§ 1983. See Ashcroft v. Iqbal, 556 U.S. at 675 (“Because vicarious liability is inapplicable to

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Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)(“Bivens”) 5] and § 1983 suits,
a plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397,
403 (1997). “An entity cannot be held liable solely on the basis of the existence of an employeremployee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011, 2011 WL
7444745, at *25 (D.N.M. December 8, 2011)(Browning, J.)(citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 689 (1978)). Supervisors can be held liable only for their own unconstitutional or
illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299,
1307-08 (10th Cir. 1998).
The Tenth Circuit recognizes that non-supervisory defendants may be liable if they knew
or reasonably should have known that their conduct would lead to the deprivation of a plaintiff’s
constitutional rights by others, and an unforeseeable intervening act has not terminated their
liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012); Trask v. Franco, 446 F.3d
1036, 1046 (10th Cir. 2006). The Tenth Circuit also recognizes that Ashcroft v. Iqbal limited, but
did not eliminate, supervisory liability for government officials based on an employee’s or
subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing
Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)). The language that may have altered
the landscape for supervisory liability in Ashcroft v. Iqbal is: “Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official

5

In Bivens, the Supreme Court held that a violation of the Fourth Amendment of the
Constitution “by a federal agent acting under color of his authority gives rise to a cause of action
for damages consequent upon his unconstitutional conduct.” 403 U.S. at 389.

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defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson stated:
Whatever else can be said about Iqbal, and certainly much can be said, we conclude
the following basis of § 1983 liability survived it and ultimately resolves this case:
§ 1983 allows a plaintiff to impose liability upon a defendant-supervisor who
creates, promulgates, implements, or in some other way possesses responsibility
for the continued operation of a policy the enforcement (by the defendantsupervisor or her subordinates) of which “subjects, or causes to be subjected” that
plaintiff “to the deprivation of any rights . . . secured by the Constitution . . . .”
614 F.3d at 1199 (quoting 42 U.S.C. § 1983). The Tenth Circuit has noted, however, that “Iqbal
may very well have abrogated § 1983 supervisory liability as we previously understood it in this
circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d
at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously
enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d
at 1200. More specifically, the Tenth Circuit recognized that there must be “an ‘affirmative’
link . . . between the unconstitutional acts by their subordinates and their ‘adoption of any plan or
policy . . . -- express or otherwise -- showing their authorization or approval of such misconduct.’”
Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).
LAW REGARDING QUALIFIED IMMUNITY
Under the doctrine of qualified immunity, government officials performing “discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts qualified
immunity, therefore, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or
her constitutional or statutory rights; and (ii) that the right was clearly established at the time of
the alleged misconduct. See Est. of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1178 (10th
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Cir. 2020). A right is clearly established when it is “sufficiently clear that every reasonable official
employee would have understood that what he is doing violates that right.” Reichle v. Howards,
566 U.S. 658, 664 (2012).
In the Tenth Circuit, until recently, this rule meant that a right is clearly established only
when there is a factually similar “Supreme Court or Tenth Circuit decision on point, or if the
clearly established weight of authority from other courts shows that the right must be as the
plaintiff maintains.” Truman v. Orem City, 1 F. 4th 1227, 1235 (10th Cir. 2021)(quoting Thomas
v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)). The Supreme Court of the United States,
however, recently suggested that a plaintiff need not, in every situation, point to a case that is
sufficiently factually similar. See Taylor v. Riojas, 141 S. Ct. 52, 54 (2020)(“Taylor”)(“[N]o
reasonable correctional officer could have concluded that, under the extreme circumstances of this
case, it was constitutionally permissible to house [the plaintiff] in such deplorably unsanitary
conditions for such an extended period of time.”). The Tenth Circuit has understood Taylor to
clarify that it is no longer the case that an almost-identical case must exist for a constitutional
violation to be clearly established. See Truman v. Orem City, 1 F. 4th at 1241 (“Just like any
reasonable corrections officer should have understood the inmate in Taylor’s conditions of
confinement offended the Constitution, so too should any reasonable prosecutor understand that
providing a medical examiner fabricated evidence and then putting him on the stand to testify
based on that false information offends the Constitution.”). The Court proceeds with both lines of
analysis:
An officer therefore is entitled to qualified immunity unless a plaintiff can
demonstrate: (i) that the defendant’s actions violated his or her constitutional or
statutory rights; and (ii) that the right was clearly established either (a) by a
factually similar Supreme Court or Tenth Circuit case on point, see Thomas v.
Kaven, 765 F.3d at 1194, or, in rare cases, by “general constitutional principles,”

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Routt v. Howry, 835 F. App’x. at 382 -- at the time of the alleged misconduct, or
(b) because the conduct was “particularly egregious” such that “any reasonable
officer should have realized” it was unlawful, Taylor, 141 S. Ct. at 54.
Caldwell v. Univ. of N.M. Bd. of Regents, No. CIV 20-0003, 2023 WL 4236016, at *36 (D.N.M.
June 28, 2023)(Browning, J.).
To evaluate a motion to dismiss on the grounds of qualified immunity, “a court must
consider ‘whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional
right,’ and ‘whether the right at issue was clearly established at the time of defendant’s alleged
misconduct.’” Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011)(quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The Tenth Circuit “uses the same standard in
evaluating dismissals in qualified immunity cases as to dismissals generally.” Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Because qualified immunity “is an immunity from
suit rather than a mere defense to liability,” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1150
(10th Cir. 2006), “the claim is dismissed” where the “plaintiff’s allegations, if true” cannot
“establish a constitutional violation,” Shero v. City of Grove, 510 F.3d at 1204.
LAW REGARDING ELEVENTH AMENDMENT IMMUNITY
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Supreme Court has construed Eleventh Amendment immunity to prohibit
federal courts from entertaining suits against non-consenting States that their own citizens or
citizens of another State bring. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304
(1990). State agencies and State officials likewise enjoy immunity as “an arm of the state.” Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280-81 (1977). Under the Eleventh Amendment,

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“claims against the state pursuant to § 1983 in the federal courts are barred as a matter of law.”
ETP Rio Rancho Park, LLC v. Grisham, 522 F. Supp. 3d 966, 1005-06 (D.N.M. 2021)(Browning,
J.). See Quern v. Jordan, 440 U.S. 332, 340 (1979). The doctrine that the Supreme Court
announced in Ex Parte Young, 209 U.S. 123, 128 (1908), however, allows certain suits seeking
prospective relief from violations of federal law to proceed against state officials. See ETP Rio
Rancho Park, LLC v. Grisham, 522 F. Supp. 3d at 1006 (citing Elephant Butte Irrigation Dist. of
N.M. v. Dep’t of the Interior, 160 F.3d 602, 607-08 (10th Cir. 1998)).
ANALYSIS
The Court dismisses Vasquez’ FAC, pursuant to rule 12(b)(6), for failure to state a claim
upon which relief can be granted. The Court first considers Vasquez’ claim pertaining to the
assault he suffered at Guadalupe Correctional and concludes that Vasquez has not alleged
sufficient facts to state a plausible claim that any Defendant violated his Eighth Amendment rights.
Accordingly, the individually named Defendants in their individual capacity are entitled to
qualified immunity as to Vasquez’ assault-related Eighth Amendment claim. In addition, the Court
concludes that the Corrections Department and the individually named Defendants in their official
capacity are entitled to immunity under the Eleventh Amendment. The Court turns next to
Vasquez’ claims related to the grievance process, and concludes that the FAC does not state: (i) an
Eighth Amendment claim against any Defendant, because there is no legal basis on which the
Court could grant Vasquez’ requested relief; and (ii) a claim under § 504 of the Rehabilitation Act,
because Vasquez alleges no facts that he suffered discrimination because of his disability.
Accordingly, the Court grants the Motion.

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I.

VASQUEZ DOES NOT STATE AN EIGHTH AMENDMENT CLAIM AGAINST
ANY DEFENDANT IN RELATION TO THE ATTACK HE SUFFERED.
Vasquez’s FAC brings Eighth Amendment claims against Angel Sanchez, Andres

Sanchez, Marquez, and Tafoya-Lucero, in relation to the assault that he suffered. FAC ¶¶ 56-57,
at 35-36. As the Court describes in detail below, Vasquez pleads insufficient facts that Angel
Sanchez and Andres Sanchez’ encouraged other inmates to assault him in retaliation for the lawsuit
and grievances he filed against them and that Angel Sanchez and Andres Sanchez’ purposefully
failed to come to Vasquez’ aid after the assault. In addition, Vasquez does not allege sufficient
facts that the Supervisory Defendants knew of and exhibited deliberate indifference towards Angel
Sanchez and Andres Sanchez’ alleged actions. The Court concludes, therefore, that dismissal of
Vasquez’ assault-related claims is appropriate.
A.

VASQUEZ DOES NOT STATE AN EIGHTH AMENDMENT CLAIM
AGAINST ANGEL SANCHEZ AND ANDRES SANCHEZ.

Vasquez alleges that Angel Sanchez and Andres Sanchez violated his Eighth Amendment
rights by failing to protect him from the assault he suffered at Guadalupe Correctional. See FAC
¶ 57, at 35. The FAC alleges that, on August 4, 2020, Angel Sanchez sprayed Vasquez and a
different corrections officer who was holding Vasquez down with mace, and that Andres Sanchez
witnessed this incident. See FAC ¶¶ 15-16, at 5-6. Vasquez alleges, however, that neither Angel
Sanchez nor Andres Sanchez “reported the excessive use of force as required by department
policy,” and that Andres Sanchez “lied” in his report on the incident, and later admitted that he
“slammed his hand against a window and broke it because he had so much adrenaline” after the
incident. FAC ¶¶ 15-16, at 5-6. Following this “misconduct,” Vasquez alleges that he filed
grievances against the corrections officer who beat him and against Andres Sanchez and Angel
Sanchez “and then filed a federal law suit [sic] which is pending in federal court.” FAC ¶ 17, at

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6. Vasquez alleges that “one of the Sanchez brothers” filed a meritless disciplinary report against
him casting Vasquez as the aggressor in the attack, despite that no weapon was found in Vasquez’
possession. See FAC ¶ 37, at 12-13.
Two years later, “[o]n or about June 24, 2022,” the FAC alleges that Vasquez was
transferred from PNM to Guadalupe Correctional, “and when he arrived he was met by brother
STIU Sgt Angel Sanchez, Andres Sanchez and an other [sic] individual.” FAC ¶ 14, at 5. Vasquez
alleges “[u]pon opinion and belief” that “upon seeing Plaintiff at GCCF or prior to Plaintiff’s
arrival at GCCF the Sanchez brothers informed other prisoners in Unit 1-E Pod at GCCF in Santa
Rosa that Plaintiff was a ‘rat,’” FAC ¶ 19, at 7, and then “purposefully put” Vasquez in the Unit
1-E Pod “in retaliation for the law suit [sic] that Plaintiff had filed against them,” FAC ¶ 20, at 7.
In support of this allegation, Vasquez alleges that Angel Sanchez and Andres Sanchez “questioned
Plaintiff about the pending lawsuit in the federal court against them and informed Plaintiff that
they all needed to put the matter ‘behind them.’” FAC ¶ 22, at 8. The FAC states that the
corrections officers also asked Vasquez “if he was going to have ‘problems’ because he” had been
housed in the Corrections Department’s mental health unit. FAC ¶ 18, at 6-7. Vasquez alleges
that he informed Angel Sanchez and Andres Sanchez “that there was fallout from the Clayton
issue, and that the reason that he was placed [in the mental health unit] was because he had been
stabbed at NENMDF/Clayton previously.” FAC ¶ 18, at 7.
The FAC alleges that “within an hour after the Sanchez brothers had placed Plaintiff in EPod at GCCF Plaintiff was jumped by several inmates in the E-Pod and was stabbed and had to be
transported for emergency medical care to a hospital.” FAC ¶ 19, at 7. See FAC ¶ 48, at 21
(alleging that the fact that he was “almost immediately stabbed after being processed and placed
in a cell block by” Angel Sanchez and Andres Sanchez “is at a minimum suspect timing”). The

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FAC alleges that, after Vasquez was attacked and pressed the emergency call button, help did not
arrive for “approximately twenty minutes,” and, as a result, Vasquez “suffered a second beating.”
FAC ¶ 23, at 8. Vasquez alleges that this delay was the result of Angel Sanchez and Andres
Sanchez “ignoring the panic button and allowing Plaintiff to get beaten and stabbed.” FAC ¶ 24,
at 8.
The Defendants argue that Vasquez’ allegations against Angel Sanchez and Andres
Sanchez are too conclusory to state a claim and therefore Angel Sanchez and Andres Sanchez are
entitled to qualified immunity. See MTD at 9-11. To overcome qualified immunity, Vasquez
must: (i) plausibly allege a violation of a Constitutional right; and (2) demonstrate that the right
was clearly established at the time of the alleged violation. See Frey v. Town of Jackson, 41 F.4th
1223, 1232 (10th Cir. 2022). “A right is clearly established ‘when a Supreme Court or Tenth
Circuit decision is on point, or if the clearly established weight of authority from other courts
shows that the right must be as the plaintiff maintains.’” Truman v. Orem City, 1 F.4th 1235.
Courts “may address either prong first to achieve ‘the fair and efficient disposition of each case.’”
Frey v. Town of Jackson, 41 F.4th at 1232 (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th
Cir. 2011)). Opting to address the clearly established prong first, the Court concludes that “it is
clearly established . . . that labelling a prisoner a snitch constitutes deliberate indifference” under
the Eighth Amendment.

Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001).

Accordingly, at the time of the alleged inmate attack, Angel Sanchez and Andres Sanchez would
have understood, based on existing precedent from the Supreme Court and the Tenth Circuit, that
their alleged actions violated Vasquez’ Eighth Amendment rights. See Casey v. W. Las Vegas
Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007).

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Turning to the second prong of the qualified immunity analysis, the Court must apply “the
Iqbal/Twombly standard to determine whether Plaintiff stated a plausible constitutional violation.”
Frey v. Town of Jackson, 41 F.4th at 1232. Accordingly, in assessing the MTD, the Court must
accept as true all well-pled factual allegations in the FAC, view those allegations in the light most
favorable to Vasquez, and draw all reasonable inferences in Vasquez’ favor. See Tellabs, Inc. v.
Makor Issues & Rts, Ltd., 551 U.S. at 322; Smith v. United States, 561 F.3d at 1098. Nonetheless,
the Court must “not assume as true allegations that are legal conclusions, formulaic recitations of
elements, or naked assertions devoid of further factual enhancement.” Crane v. Utah. Dep’t of
Corr., 15 F.4th at 1303. The Court’s task, therefore, is to determine whether the FAC contains
sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See
Bell Atl. Corp. v. Twombly, 550 U.S. at 570. Vasquez’ claims have “facial plausibility” sufficient
to survive a motion to dismiss “when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. at 678. Having considered closely each of the FAC’s properly pled factual allegations
against Angel Sanchez and Andres Sanchez, the Court concludes that he has “not nudged [his]
claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. at
570.
The Supreme Court has outlined a “two-pronged approach” that “a court considering a
motion to dismiss” may follow. Ashcroft v. Iqbal, 556 U.S. at 679. Under this two-pronged
approach, the Supreme Court advises that courts identify first the conclusory allegations that are
not entitled to a presumption of truth and then determine whether the remaining well-pled factual
allegations, assumed to be true, “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal,
556 U.S. at 679. Accordingly, the Court will “begin by identifying pleadings that, because they

- 35 -

are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556
U.S. at 679. First, the FAC here contains several “legal conclusions” and “formulaic recitations
of elements,” that the Court will “not assume as true allegations.” Crane v. Utah. Dep’t of Corr.,
15 F.4th at 1303. Vasquez’ claim that Angel Sanchez and Andres Sanchez “acted with deliberate
indifference,” FAC ¶ 24, at 8, and in “retaliation” for Vasquez’ complaints, FAC ¶ 20, at 7, like
the conclusory allegation of an unlawful agreement not to compete in Bell Atl. Corp. v. Twombly,
are nothing more than “formulaic recitation[s] of the elements of” an Eighth Amendment claim.
550 U.S. at 555.
In addition, the FAC includes a number of “naked assertions devoid of further factual
enhancement,” the veracity of which the Court will not presume. Crane v. Utah. Dep’t of Corr.,
15 F.4th at 1303. Vasquez’ allegation that Angel Sanchez and Andres Sanchez informed inmates
in the Unit E-1 Pod that Vasquez is a rat, which Vasquez makes “[u]pon opinion and belief,” FAC
¶ 19, at 7, and that they “ignored his calls for help,” are “bare assertions” that are “conclusory and
not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. at 681. In Al-Owhali v. Holder, 687
F.3d 1236 (10th Cir. 2012), the Tenth Circuit declined to afford the presumption of veracity to a
similar claim that the Tenth Circuit concluded was “lacking any factual context.” 687 F.3d at
1243. The Tenth Circuit reasoned that the plaintiff’s “allegation that he was ‘restricted from
receiving [a] book’” in violation of his Constitutional rights, was insufficient where the plaintiff
had not, for example, “indicated that prison officials had informed him that he could not receive
the book or that he had explicitly requested it and received no response.” 687 F.3d at 1243.
Vasquez similarly has not alleged how he arrived at his “opinion,” FAC ¶ 19, at 7, that Angel
Sanchez and Andres Sanchez informed other inmates that he was a rat and “concedes that no one
in Unit 1-E Pod after he was placed there by the Sanchez brothers informed him that the Sanchez

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brothers had informed them that he was a ‘rat,’” Response at 3. “[B]y stating his belief that” Angel
Sanchez and Andres Sanchez set Vasquez up for attack in the Unit E-1 Pod in retaliation for his
complaints against them “while also admitting that he was not informed” that they had done so,
Vasquez “merely highlight[s] the theoretical basis of his claim.” Al-Owhali v. Holder, 687 F.3d
at 1243. Likewise, Vasquez has provided no factual context for his claim that Angel Sanchez and
Andres Sanchez “ignore[d] the panic button” when Vasquez pressed it and “allow[ed] him to get
stabbed.” FAC ¶ 24, at 8. He has not alleged, for example, that Angel Sanchez and Andres
Sanchez were responsible for responding to calls from the Unit E-1 Pod nor how he knows that
they ignored his call for help. See Al-Owhali v. Holder, 687 F.3d at 1243 (“Al-Owhali did not
face a high threshold to establish his claims. But a mere assertion that he believes that there is a
secret policy in place that prevents him from obtaining [a] book is not enough.”); Walker v.
Hickenlooper, 627 F. App’x 710, 715 (10th Cir. 2015)(“Mr. Walker’s allegations on information
and belief provide no plausible basis to believe that Mr. Falk knew the alternative source was
contaminated.”). 6 Accordingly, Vasquez’ bare factual assertions are “too speculative” and
conclusory to credit as truthful. Al-Owhali v. Holder, 687 F.3d at 1243.

6

Walker v. Hickenlooper, 627 F. App’x 710 (10th Cir. 2015), is an unpublished opinion,
but the Court can rely on a Tenth Circuit unpublished opinion to the extent its reasoned analysis is
persuasive in the case before it. See 10th Cir. R. 32.1(A)(“Unpublished decisions are not
precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . [a]nd we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that Walker
v. Hickenlooper, Brown v. Narvais, 265 F. App’x 734 (10th Cir. 2008), Fisher v. Oklahoma Dep’t
of Corr., 213 F. App’x 704 (10th Cir. 2007), Marin v. King, 720 F. App’x 923 (10th Cir. 2018),
- 37 -

The Supreme Court’s analysis in Ashcroft v. Iqbal illustrates why Vasquez’ bare assertions
of the Sanchez brothers’ knowledge and causal responsibility are insufficient for rule 12(b)(6)’s
purposes. In Ashcroft v. Iqbal, the Supreme Court presumed as true the plaintiff’s allegations that
the FBI arrested and detained thousands of Muslim men following the September 11, 2001,
terrorist attacks, but declined to afford the same presumption to the Plaintiff’s allegations that
petitioner Robert Mueller was “the ‘principal architect’ of this invidious policy” and was
“‘instrumental’ in adopting and executing it.” 556 U.S. at 680-81. Likewise, here, as described
below, the Court assumes as truthful Vasquez’ claim that Angel Sanchez and Andres Sanchez
placed Vasquez in a pod where he was later attacked and that he waited twenty minutes for help
to arrive following the attack. The Court declines, however, to credit Vasquez’ conclusory
assertions that it was Angel Sanchez and Andres Sanchez who purposefully brought about the
attack and the delay in assistance. Vasquez has not alleged, for example, that he heard Angel
Sanchez or Andres Sanchez tell other inmates that he was a rat, nor has Vasquez alleged that Angel
Sanchez and Andres Sanchez knew that he would be at risk in the Unit E-1 Pod or that they were
monitoring the panic button when Vasquez was attacked. See Ashcroft v. Iqbal, 556 U.S. at 686
(“[T]he Federal Rules do not require courts to credit a complaint’s conclusory statements without
reference to its factual context.”). These allegations, therefore, bring the FAC “close to stating a
claim, but without some further factual enhancement it stops short of the line between possibility
and plausibility.” Bell Atl. Corp. v. Twombly, 550 U.S. at 546.

Rozenberg v. Knight, 542 F. App’x 711 (10th Cir. 2013), Lewis v. Clark, 577 F. App’x 786, 801
(10th Cir. 2014), Hull v. State of N.M. Taxation & Rev. Dept. Motor Vehicle Div., 179 F. App’x
445 (10th Cir. 2006), and Boyd v. Werholtz, 443 F. App’x 331 (10th Cir. 2011) have persuasive
value with respect to a material issue and will assist the Court in its disposition of this
Memorandum Opinion and Order.
- 38 -

Of course, the conclusory allegations in the FAC “can provide the framework of a
complaint,”

so

the

Court

must

now

consider

Vasquez’

“well-pleaded

factual

allegations, . . . assume their veracity[,] and then determine whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. Vasquez’ non-conclusory and well-pled
factual allegations may be summarized as follows: Upon Vasquez’ arrival at Guadalupe
Correctional, Angel Sanchez and Andres Sanchez, against whom Vasquez had previously filed
grievances and a federal lawsuit in relation to an incident of alleged excessive force involving the
two corrections officers, processed Vasquez. See FAC ¶¶ 14-18, at 5-7. At this time, Angel
Sanchez and Andres Sanchez questioned Vasquez about the lawsuit, informed him that they all
needed to put the matter behind them, and asked Vasquez whether they were going to have
problems, because Vasquez had been placed in the Corrections Department’s mental health unit
following an incident at a previous detention facility in Clayton, New Mexico. See FAC ¶¶ 18,
22, at 7-8. Angel Sanchez and Andres Sanchez then put Vasquez in the Unit E-1 Pod where, an
hour later, Vasquez was attacked and stabbed by other inmates. See FAC ¶¶ 19, 48, at 7, 21.
Although Vasquez pressed the emergency call button, it took approximately twenty minutes for
help to arrive. FAC ¶ 23, at 8. To state an Eighth Amendment claim against Angel Sanchez and
Andres Sanchez for failing to protect him from the attack he suffered, Vasquez “must show that
he is incarcerated under conditions posing a substantial risk of serious harm . . . and that the prison
official was deliberately indifferent to his safety.” Verdencia v. Adams, 327 F.3d 1171, 1175 (10th
Cir. 2003). Vasquez may also meet this standard by establishing that Angel Sanchez and Andres
Sanchez labeled him a snitch. See Benefield v. McDowall, 241 F.3d at 1271 (“[L]abeling an
inmate a snitch satisfies the Farmer standard, and constitutes deliberate indifference to the safety
of that inmate.”); Brown v. Narvais, 265 F. App’x 734, 736 (10th Cir. 2008)(“[A]llegations of a

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prison officer’s deliberate disclosure of dangerous information about an inmate’s status are
sufficient to state a claim under the Eighth Amendment provided the alleged danger is facially
concrete and plausible enough to satisfy basic pleading standards.”).
Against this legal and factual backdrop, the Court concludes that the well-pled factual
allegations that Vasquez puts forth to support his claim do not enable “the court to draw the
reasonable inference,” Ashcroft v. Iqbal, 556 U.S. at 678, that Angel Sanchez and Andres Sanchez
informed other inmates that he was a rat or otherwise failed to protect him in violation of the Eighth
Amendment. For example, that Angel Sanchez and Andres Sanchez questioned Vasquez about
the pending lawsuit and informed him that they should put the matter behind them makes it
possible to infer that the corrections officers were unhappy about the litigation, but it does not
make it plausible that Angel Sanchez and Andres Sanchez then had Vasquez attacked. See FAC
¶ 22, at 8. That Vasquez was attacked shortly after his interaction with the Angel Sanchez and
Andres Sanchez is insufficient to “nudge[ his] claims across the line from conceivable to
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. at 570. As Vasquez acknowledges, the timing
of his attack is “at minimum suspect timing,” but without further factual context, it is no more.
FAC ¶ 48, at 21. Likewise, the only non-conclusory fact that Vasquez puts forth regarding his
contention that Angel Sanchez and Andres Sanchez allowed him to be attacked, is that it took
twenty minutes for help to arrive. See FAC ¶ 24, at 8; Fisher v. Oklahoma Dep’t of Corr., 213 F.
App’x 704, 708-09 (10th Cir. 2007)(“Plaintiffs’ allegations that Mr. Yott read their letters to the
other inmates intending that those inmates would injure plaintiffs are conclusory.”).
In Benefield v. McDowall, the plaintiff survived a motion to dismiss his Eighth
Amendment claim that prison staff labeled him a snitch to other inmates by alleging specific facts
that a staff member “show[ed] other inmates a letter he allegedly wrote, indicating that he was

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giving information to the prison investigations staff.” 241 F.3d at 1270. Similarly, in Brown v.
Narvais, 265 F. App’x 734 (10th Cir. 2008), the complaint provided a description that the plaintiff
heard the defendant corrections officer inform his cell mate that he was a “child molester.” 265
F. App’x at 735.

Here, by contrast, the well-pled allegations Vasquez puts forth about Angel

Sanchez and Andres Sanchez’ actions “encompass a wide swath of conduct, much of it innocent,”
Robbins v. Oklahoma, 519 F.3d at 1247, and “do not permit the court to infer more than the mere
possibility of misconduct,” Ashcroft v. Iqbal, 556 U.S. at 679. Compare Parker v. Taylor, No.
CIV 21-3146, 2021 WL 5038781, *4-5 (D. Kan. October 28, 2021)(Crow, J.)(concluding that the
plaintiff’s conclusory allegations that a corrections officer “‘made it known to other inmates that
[Plaintiff] was state evidence and a snitch’” did not state a valid Eighth Amendment claim (quoting
the record)(alteration in Parker v. Taylor)), with Houck v. Denham, No. CIV 15-0894, 2017 WL
11425592, at *8 (D. Colo. March 27, 2017)(Tafoya, M.J.)(reasoning that the plaintiff alleged
sufficient facts that a corrections officer “violated his Eighth Amendment rights by stating, during
a meeting . . . and in front of 26 other inmates, that he was a ‘predator of children’” (citing the
record)).
In addition to the conclusory nature of Vasquez’ allegations, Vasquez’ claims against
Angel Sanchez and Andres Sanchez contain an additional inadequacy. In the context of § 1983
claims against multiple government actors, “‘[i]t is particularly important . . . that the complaint
make clear exactly who is alleged to have done what to whom, . . . as distinguished from collective
allegations . . . .’”

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.

2011)(quoting Robbins v. Oklahoma, 519 F.3d at 1250)(emphases in Kan. Penn Gaming, LLC v.
Collins and in Robbins v. Oklahoma). Vasquez makes no particularized claims against either
Angel Sanchez or Andres Sanchez, but rather alleges each one of his claims against both Angel

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Sanchez and Andres Sanchez collectively. See FAC ¶¶ 14, 18-20, 22, at 6-8. The FAC’s collective
allegations that both Angel Sanchez and Andres Sanchez asked him specific questions, informed
other inmates he was a rat, and ignored his calls for help, render it is impossible to discern exactly
which Defendant is alleged to have taken which action against Vasquez.

See Robbins v.

Oklahoma, 519 F.3d at 1250 (“Given the complaint’s use of . . . a list of the defendants named
individually but with no distinction as to what acts are attributable to whom, it is impossible for
any of these individuals to ascertain what particular unconstitutional acts they are alleged to have
committed.”). The Court cannot therefore discern from Vasquez’ collective allegations any
“specific actions taken by particular defendants.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d
504, 532 (10th Cir. 1998). See Tavasci v. Cambron, No. CIV 16-0461, 2017 WL 3173011, at *24
(D.N.M. May 31, 2017)(Browning, J.)(concluding that the defendant’s “collective allegation” that
multiple Corrections Department employees failed to make reasonable accommodations was
insufficient to state a claim against any one of the individual defendants). For these reasons, even
viewed in the light most favorable to Vasquez, the “mere assertion that he believes,” Al-Owhali v.
Holder, 687 F.3d at 1243, that Angel Sanchez and Andres Sanchez retaliated against him by having
him attacked is not enough to state a valid Eighth Amendment claim.
B.

VASQUEZ DOES NOT STATE AN EIGHTH AMENDMENT CLAIM
AGAINST MARQUEZ AND TAFOYA-LUCERO.

Next, Vasquez alleges that Marquez and Tafoya-Lucero violated his Eighth Amendment
rights by failing to supervise corrections officers who “use inmates to beat and stab other inmates.”
FAC ¶ 57, at 35-36. Specifically, Vasquez alleges that Marquez and Tafoya-Lucero “allowed the
Sanchez brothers to retaliate against” Vasquez and did not “tak[e] procedures at the prison to
prevent violent assaults by inmates against other inmates.” FAC ¶ 21, at 7-8. Vasquez alleges

- 42 -

that Marquez and Tafoya-Lucero failed to “review . . . the litigation history between Plaintiff and
the Sanchez brothers,” FAC ¶ 21, at 8, and “allowed correction officers like the Sanchez brothers
to hold positions which allow them to retaliate against inmates,” FAC ¶ 41, at 14-15. More
generally, Vasquez alleges that Marquez and Tafoya-Lucero “are and were personally aware that
inmates are subject to excessive force at the hands of employee-correction officers.” FAC ¶¶ 3537, at 11-12. See Reply at 7-9. The Defendants respond that Marquez and Tafoya-Lucero are
entitled to qualified immunity, because Vasquez’ conclusory allegations do not plausibly establish
that Marquez and Tafoya-Lucero were “deliberately indifferent to a substantial risk of serious
harm.” Motion at 11-12.
“A § 1983 defendant sued in an individual capacity may be subject to personal liability
and/or supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Section
1983, however, “does not authorize liability under a theory of respondeat superior.” Schneider v.
City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th Cir. 2013). “The Tenth Circuit
recognizes that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for
government officials based on an employee’s or subordinate’s constitutional violations.” Green
v. Padilla, 697 F. Supp. 3d 1115, 1183 (D.N.M. 2023)(Browning, J.). Accordingly, to state a
supervisory claim, the plaintiff must establish “an ‘affirmative link’ between the supervisor and
the constitutional violation.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d at 767
(citing Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). This standard requires “more
than ‘a supervisor’s mere knowledge of his subordinate’s’ conduct.” Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d at 767 (quoting Ashcroft v. Iqbal, 556 U.S. at 677). Rather, a
plaintiff must satisfy “three elements . . . to establish a successful § 1983 claim against a defendant
based on his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3)

- 43 -

state of mind.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d at 767. Because
Vasquez has not plausibly alleged that Marquez or Tafoya-Lucero caused the alleged
Constitutional violation nor that they were deliberately indifferent to a substantial risk of harm,
Vasquez has not stated a claim against them under the Eighth Amendment.
As to the required element of personal involvement, many of Vasquez’ claims that
Marquez and Tofoya-Lucero allowed Angel Sanchez and Andres Sanchez to retaliate against him
and that Marquez and Tofoya-Lucero were aware of the excessive force the corrections officers
subjected inmates to are too conclusory to properly allege Marquez and Tofoya-Lucero’s personal
involvement. See FAC ¶¶ 35-37, 41, at 11-12, 14-15; Vasquez v. N.M. Dep’t of Corr., No. CIV
22-0522, 2024 WL 1282766, at *7 (D.N.M. March 26, 2024)(Strickland, J.)(“Plaintiff focuses
extensively on the alleged generalized failure of Defendants Tafoya Lucero and Martinez to
discipline corrections officers accused of violence, absent any specific details.” (emphasis in
original)). Vasquez does, however, allege specifically that Marquez and Tafoya-Lucero failed to
review the “litigation history” between him and Angel Sanchez and Andres Sanchez, and thus
alleges that Marquez and Tafoya-Lucero had some, if minimal, personal involvement in the alleged
events leading up to the assault. FAC ¶ 21, at 8. See Dodds v. Richardson, 614 F.3d at 1195
(“Personal involvement does not require direct participation because § 1983 states any official who
‘causes’ a citizen to be deprived of her constitutional rights can also be held liable.” (quotations
and alteration omitted)). Cf. Pena v. Bd. of Cnty. Comm’rs for Cnty. of Cibola, No. CIV 22-0516,
2024 WL 3617539, at *3 (D.N.M. August 8, 2024)(Strickland, J.)(“Plaintiff makes no allegations
regarding the personal involvement of either Defendant Rosa or Saavedra in the series of events
leading up to Peña’s death.”).

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As to element two, causation, “‘[a] plaintiff [must] establish the requisite causal connection
by showing the defendant set in motion a series of events that the defendant knew or reasonably
should have known would cause others to deprive the plaintiff of her constitutional rights.’”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d at 768 (quoting Dodds v. Richardson,
614 F.3d at 1195-96)(second alteration in Schneider v. City of Grand Junction Police Dep’t).
Vasquez’ supervisory claim against Marquez and Tafoya-Lucero falters under this prong for two
reasons. First, for Vasquez to successfully allege causation of a Constitutional violation, he “must
first plausibly allege that a constitutional violation has taken place.” Pena v. Bd. of Cnty.
Commissioners for Cnty. of Cibola, 2024 WL 3617539, at *3. See Marin v. King, 720 F. App’x
923, 941-42 (10th Cir. 2018)(“When a § 1983 plaintiff pursues a claim of supervisory liability, he
must show the subordinate violated his constitutional rights -- a supervisor cannot be liable if the
subordinate did not commit a violation.”). As discussed in Section I.A., supra, at 32-42, Vasquez
has not successfully pleaded a Constitutional violation against Angel Sanchez or Andres Sanchez,
whom Vasquez alleges Marquez and Tafoya-Lucero supervised, and thus has not cleared this
hurdle. Second, even if Vasquez properly had stated a claim that Angel Sanchez or Andres
Sanchez violated his Eighth Amendment rights, he has not plausibly alleged that Marquez and
Tafoya-Lucero “set in motion a series of events that the [they] knew or reasonably should have
known would cause” Angel Sanchez or Andres Sanchez to violate Vasquez’ Constitutional rights.
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d at 768 (quoting Dodds v. Richardson,
614 F.3d at 1195-96). See Blantz v. Cal. Dep’t of Corr. & Rehab., Div. of Corr. Health Care
Servs., 727 F.3d 917, 926 (9th Cir. 2013)(“The only allegations that mention Hill are that, ‘on
information and belief,’ he ‘direct[ed]’ the other defendants to take the actions that form the basis
of the complaint.”).

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The FAC’s only specific allegation on this issue is, again, that Marquez and Tafoya-Lucero
did not review the fact that Vasquez had previously filed a lawsuit against Angel Sanchez and
Andres Sanchez. FAC ¶ 21, at 8. Vasquez has not alleged, however, that by failing to conduct
such a review Marquez and Tafoya-Lucero reasonably should have known Angel Sanchez or
Andres Sanchez would seek to violate Vasquez’ rights. For example, Vasquez has not alleged that
a litigation review is required by Corrections Department policy, that it would have been
unreasonable for Marquez and Tafoya-Lucero to allow Angel Sanchez and Andres Sanchez to
process Vasquez in light of the pending lawsuit, or that there have been other instances of
Corrections Department staff retaliating against inmates that would have put Marquez and TafoyaLucero on notice of the risk that Vasquez faced. See Vasquez v. Jones, No. CIV 20-0612, 2024
WL 492409, at *4 (D.N.M. February 8, 2024)(Brack, J.)(“Vasquez does not plead facts to show
there were other instances of inmate-on-inmate violence, delayed treatment, or inadequately
treated injuries at the hands of poorly trained healthcare professionals. Consequently, he fails to
show Jones or Tafoya Lucero knew or should have known that their failure to hire and train staff
‘would cause others to deprive [Vasquez] of [his] constitutional rights.’” (quoting Schneider v.
City of Grand Junction Police Dep’t, 717 F.3d at 779)).
Finally, as to element three, allegations of deliberate indifference suffice to establish the
requisite state of mind for an Eighth Amendment violation claim brought under Section 1983. See
Est. of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014). Accordingly, Vasquez must plausibly
allege that Marquez and Tafoya-Lucero acted “‘with deliberate indifference that a constitutional
violation would occur.’” Dodds v. Richardson, 614 F.3d at 1195 (quoting Serna v. Colo. Dep’t of
Corr., 455 F.3d 1146 (10th Cir. 2006)). This rule means that Marquez and Tafoya-Lucero must
be “aware of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and . . . must also draw the inference.” Farmer v. Brennan, 511 U.S. at 837. Vasquez bare
allegations that Marquez and Tafoya-Lucero knew of and allowed Angel Sanchez and Andres
Sanchez’ misconduct are too conclusory to establish that Marquez and Tafoya-Lucero acted with
the requisite mental state. See Vasquez v. New Mexico Dep’t of Corr., 2024 WL 1282766, at *8
(“While Plaintiff repeatedly asserts that Defendants Tafoya Lucero and Martinez were
knowledgeable as to the general risk of corrections officers committing violence against
inmates . . . he has alleged no facts which would lend credence to those allegations, which are
otherwise wholly conclusory.”). Moreover, Vasquez’ single well-pled fact in relation to Marquez
and Tafoya-Lucero, that they did not review the litigation history between Vasquez and Angel
Sanchez and Andres Sanchez, tends to establish that Marquez and Tafoya-Lucero were unaware
that Vasquez was at risk.

See Rozenberg v. Knight, 542 F. App’x 711, 714 (10th Cir.

2013)(concluding that the plaintiff had “not alleged with specificity that Knight was aware of or
deliberately indifferent to a substantial risk of harm to him,” where the plaintiff did “not allege any
facts supporting an inference that Knight was aware of a particular risk to him”); Lewis v. Clark,
577 F. App’x 786, 801 (10th Cir. 2014)(“As to state of mind, he does not advance any factual
allegations to support his conclusory statements that the unknown attorneys possessed a culpable
state of mind.”).
Furthermore, while the Court understands Vasquez’ Eighth Amendment claim against
Marquez and Tafoya-Lucero to be based on supervisory liability, to the extent that Vasquez alleges
that Marquez and Tafoya-Lucero are individually liable for violating Vasquez’ Constitutional
rights, Marquez and Tafoya-Lucero are entitled to qualified immunity. Under the first qualified
immunity prong, as the Court has discussed, Marquez and Tafoya-Lucero did not fail to act despite
their knowledge of a substantial risk of serious harm by failing to review Vasquez’ litigation

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history. See Farmer v. Brennan, 511 U.S. at 842. Under the second prong of the qualified
immunity analysis, “[i]t is clearly established that specific conduct violates a constitutional right
when Tenth Circuit or Supreme Court precedent would make it clear to every reasonable officer
that such conduct is prohibited.” Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016). In addition,
the Supreme Court and the Tenth Circuit have held that certain conduct is so egregious that it
renders “the violation . . . so obvious that our own . . . cases g[i]ve respondents fair warning that
their conduct violate[s] the Constitution.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). See Browder
v. City of Albuquerque, 787 F.3d 1076, 1082 (10th Cir. 2015). Here, Vasquez has directed the
Court to no precedent establishing that failing to assess whether an inmate has filed a lawsuit
against corrections officers he or she interacts with violates the Eighth Amendment, and failure to
make this assessment is not conduct so egregious that Marquez and Tafoya-Lucero would have
been on notice that their failure violated the Constitution. In sum, Vasquez has not stated plausibly
a claim that Marquez or Tafoya-Lucero violated his Eighth Amendment rights by failing to
supervise Angel Sanchez and Andres Sanchez or by directly infringing on Vasquez’ Eighth
Amendment rights, and, accordingly, Marquez and Tafoya-Lucero are entitled to qualified
immunity.
II.

VASQUEZ DOES NOT STATE AN EIGHTH AMENDMENT CLAIM OR A
REHABILITATION ACT CLAIM AGAINST ANY DEFENDANT IN RELATION
TO THE GRIEVANCE PROCEDURES.
Vasquez’s FAC brings Eighth Amendment claims and claims for violations of § 504 of the

Rehabilitation Act against Sedillo, Fajardo or Hagerman, Tafoya-Lucero, and the Corrections
Department in relation to the Corrections Department’s allegedly inadequate grievance
procedures. See FAC ¶¶ 58-68, at 36-43. Vasquez’ Eighth Amendment claims fail, because
inadequate grievance procedures do not amount to a Constitutional violation. Similarly, Vasquez

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does not state a claim under § 504 of the Rehabilitation Act, because he has not alleged facts
demonstrating that he suffered discrimination because of his mental health issues. The Court
concludes, therefore, that dismissal of Vasquez’ grievance-related claims is appropriate.
A.

VASQUEZ DOES NOT STATE A CLAIM THAT THE GRIEVANCE
PROCESS VIOLATES THE EIGHTH AMENDMENT.

Vasquez alleges that the inadequate grievance procedures and specific actions taking by
various Defendants to implement and oversee the grievance process violate his Eighth Amendment
Rights. See FAC ¶¶ 58-59, at 36-39. The FAC alleges that the Defendants “implemented and
required inmates at PNM to use a grievance system to complain about safety and medical issues
that was meant to defeat the claims of inmates.” FAC ¶ 58, at 37. Vasquez specifically alleges
that Sedillo “rejected” the grievance that he filed after his assault “as not timely filed,” even though
Vasquez alleges that it was timely, FAC ¶ 26, at 9; see FAC ¶ 45, at 19, failed to provide Vasquez
with “notice of receipt of the grievance” as Corrections Department policy requires even though
he “admitted” that he was aware of the grievance, FAC ¶ 27, at 9, and “did not provide assistance
to” Vasquez in filing his grievances, FAC ¶ 54, at 28. The FAC alleges that Vasquez filed a
grievance with Fajardo or Hagerman “[b]ecause of the inappropriate behavior of Daniel Sedillo,”
and that Marquez, Tafoya-Lucero, and Fajardo or Hagerman “maintain[] a grievance system which
did not and does not allow the Plaintiff and others similarly situated to grieve beatings . . . .” FAC
¶ 43, at 15-16. See id. ¶ 40, at 14. Vasquez further alleges that Sedillo and Tafoya-Lucero
“purposely manipulate the grievance process to prevent inmates like Plaintiff from filing legitimate
grievances and court action.” FAC ¶ 43, at 15-16.
More generally, the FAC contains allegations that the Defendants “have taken advantage
of Plaintiff’s low IQ,” “refused to allow Plaintiff to file grievances,” and “have been consistent in

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improperly processing Plaintiff’s grievances.” FAC ¶¶ 44-45, at 17-18. In addition, Vasquez
alleges that the grievance process is “overly complex [and] confusing,” and “allows NMCD to
deny grievances based on hyper-technical procedural defects rather than the merits.” FAC ¶ 52,
at 23. Specifically, Vasquez alleges that the grievance procedures are inadequate, because inmates
“do not have the benefit of legal assistance,” FAC ¶ 54-A-1, at 24, or assistance from Corrections
Department staff when filing grievances, FAC ¶ 54-B, at 27-29. Finally, Vasquez contends that
the Corrections Department interferes with the grievance process and violates its own policies by
“allowing employees that are a party to a grievance . . . [to] participate in the grievance,”
FAC ¶ 54-C, at 29-30, by failing to provide “forms for inmate grievances,” FAC ¶ 54-D, at 30, by
using “deliberately vague, confusing and conflicting grievance policies,” FAC ¶ 54-E, at 30-31,
and by failing to prevent staff from retaliating against inmates who file grievances, FAC ¶¶ 54-HI, at 32.
The Court concludes that Vasquez fails to show an Eighth Amendment violation as to any
Defendant. As an initial matter, because the Corrections Department is a state agency, it “cannot
be sued under Section 1983 as it is not a ‘person’ for the purposes of Section 1983.” Vasquez v.
Tafoya-Lucero, No. CIV. 20-612, 2023 WL 110974, at *5 (D.N.M. January 5,
2023)(Sweazea, J.)(quoting 42 U.S.C. § 1983), report and recommendation adopted, No. CIV 20612, 2023 WL 2012504 (D.N.M. Feb. 15, 2023)(Brack, J.). See Hull v. State of N.M. Taxation &
Rev. Dept. Motor Vehicle Div., 179 F. App’x 445, 446 (10th Cir. 2006); Gallegos v. Bernalillo
Cnty. Bd. of Comm’rs, No. CIV 16-0127, 2017 WL 3575883, at *38 (D.N.M. August 17,
2017)(Browning, J.). The individual Defendants sued in their official capacities are likewise
immune from suit under the Eleventh Amendment where they are named in their official capacity,
because these Defendants are state-agency employees. See Hull v. N.M. Tax’n & Revenue Dep’t

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Motor Vehicle Div., 179 F. App’x 445 (10th Cir. 2006)(“[S]tate officials acting in their official
capacities . . . are immune from § 1983 damages suits.”).
Moreover, Vasquez’ general allegations that Marquez, Tafoya-Lucero, and Fajardo or
Hagerman maintain and oversee and inadequate grievance process, which they manipulate to
prevent inmates from seeking relief for harms they suffer, are too conclusory to state a claim
against these defendants under § 1983, because they do not “make clear exactly who is alleged to
have done what . . . .” Robbins v. Oklahoma, 519 F.3d at 1250. Vasquez does not allege who
takes advantage of him and refuses to allow him to file grievances, see FAC ¶¶ 44-45, at 17-18,
nor provide any factual basis for his naked assertions that the Defendants “purposely manipulate
the grievance process,” FAC ¶ 43, at 15-16. See Ashcroft v. Iqbal, 556 U.S. at 678; Walker v.
Hickenlooper, 627 F. App’x at 716 (“The term ‘conclusory’ refers to the expression of ‘a factual
inference’ without including ‘the underlying facts on which the inference is based.’” (quoting
Black’s Law Dictionary (10th ed. 2014))). Indeed, that Vasquez’ allegations are premised largely
on his conclusory statements that he has been prevented from availing himself of the grievance
system is undercut by the FAC’s statements that Vasquez “has filed numerous grievances,
appealed those grievances, and sought relief from state and federal courts regarding the outcome
of the grievances, which demonstrates access to and use of the grievance system.” Vasquez v.
Tafoya-Lucero, 2023 WL 2012504, at *4. To the extent that Vasquez’ allegations can be construed
as supervisory claims, i.e., that Marquez, Tafoya-Lucero, and Fajardo or Hagerman violated
Vasquez’ Constitutional rights by failing to supervise Sedillo and other grievance officers,
Vasquez has not established these Defendants’ “personal involvement,” by plausibly alleging they
had any connection to the alleged denials or any knowledge of their supervisees’ actions.
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d at 767. See Gallagher v. Shelton, 587

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F.3d 1063, 1069 (10th Cir. 2009)(“Because Gallagher’s only allegations involving these
defendants relate to the denial of his grievances, he has not adequately alleged any factual basis to
support an ‘affirmative link’ between these defendants and any alleged constitutional violation.”).
In contrast, Vasquez pleads well several factual allegations against Sedillo in relation to
the June 29, 2022, grievance Vasquez filed after he suffered the assault at Guadalupe Correctional.
See FAC ¶¶ 25-27, 45, 54-B-22, at 8-9, 19, 28. Nonetheless, Vasquez’ Eighth Amendment claim
against Sedillo -- and, concomitantly, his Eighth Amendment claims against Marquez, TafoyaLucero, and Fajardo or Hagerman were Vasquez to have alleged sufficient facts as to these
defendants -- fail as a matter of law. First, Vasquez’ claims that Sedillo’s denial of his grievance,
without more, amounts to an Eighth Amendment violation is inconsistent with Tenth Circuit
precedent, see Walker v. Hickenlooper, 627 F. App’x at 715 (“[W]e have squarely held that a
prison official’s denial of a grievance cannot create liability under § 1983.”), because the denial of
a grievance, “does not establish personal participation under § 1983,” Gallagher v. Shelton, 587
F.3d at 1069. Likewise, Vasquez’ allegations that Sedillo rejected his grievance as not timely
filed, see FAC ¶ 26, at 9, failed to forward the grievance to Guadalupe Correctional as required,
see FAC ¶ 26, at 9, did not provide Vasquez with notice that he had received the grievance, see
FAC ¶ 7, at 9, and provided Vasquez with no assistance in filing his grievance, see FAC ¶ 54-B,
at 28, do not state an Eighth Amendment claim.
As the Court has discussed, to establish an Eighth Amendment claim, an inmate must
plausibly allege that the defendant was deliberately indifferent to a substantial risk of serious harm
by showing both that the inmate suffered, objectively, a sufficiently serious harm, and,
subjectively, that the defendant knew of and disregarded the risk of harm. See Sawyers v. Norton,
962 F.3d at 1283. Here, Vasquez’ factual allegations do not establish that he suffered harm

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“ris[ing] to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment
Clause.” Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019). The Eighth Amendment guards
against injuries that deprive inmates of “the minimal civilized measure of life’s necessities.”
Rhodes v. Chapman, 452 U.S. at 347. These necessities include “adequate food, clothing, shelter,
sanitation, medical care, and reasonable safety.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.
2008). Sedillo’s alleged actions and, moreover, the general inadequacies that Vasquez has
identified in the grievance procedures are not “sufficiently serious,” Farmer v. Brennan, 511 U.S.
at 834, to rise to the level of a deprivation of a “basic human need,” Rhodes v. Chapman, 452 U.S.
at 347. See Vasquez v. Tafoya-Lucero, 2023 WL 2012504, at *4-5 (concluding that Vasquez’
allegations regarding the Corrections Department’s grievance process did not amount to an Eighth
Amendment violation, because the defendants’ actions did not constitute a specific deprivation of
a human need). Furthermore, Vasquez does not allege that Sedillo, by failing to acknowledge,
forward, or grant Vasquez’ grievance, knew that he was subjecting Vasquez to a “substantial risk
of serious harm” and disregarded that risk. Burke v. Regalado, 935 F.3d at 992. See Vasquez v.
Jones, 2024 WL 492409, at *5 (concluding that Vasquez’ allegation that a grievance officer failed
to forward a grievance about his medical treatment did not amount to an Eighth Amendment
violation, because Vasquez did not “demonstrate either that his medical condition was sufficiently
serious or that Rodriguez was aware that her conduct posed a substantial risk of serious harm to
Vasquez”).

Accordingly, Vasquez’ allegations that the Corrections Department’s grievance

process and individual Defendants’ actions relating to the grievance process violates his Eighth
Amendment rights are legally insufficient. See Gonzales v. New Mexico Corr. Dep’t, No. CIV
18-0107, 2020 WL 6316344, at *6 (D.N.M. October 28, 2020)(Herrera, J.)(“A prison officer’s
failure to adequately respond to a prisoner’s grievance does not implicate a constitutional right.”).

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At bottom, even if Vasquez had properly alleged an Eighth Amendment violation based on
the grievance system, the individually named Defendants are entitled to qualified immunity. To
overcome qualified immunity, a plaintiff must not only allege facts demonstrating that the officials
violated a federal constitutional or statutory right, but also that the right was clearly established at
the time of the defendant’s conduct. See Sawyers v. Norton, 962 F.3d at 1282. A right is clearly
established if: (i) Supreme Court or Tenth Circuit, or the weight of authority from other courts, see
Truman v. Orem City, 1 F. 4th at 1235, “place[s] the statutory or constitutional question beyond
debate,” Ashcroft v. al-Kidd, 563 U.S. at 741; or (ii) the conduct was “particularly egregious” such
that “any reasonable officer should have realized” it was unlawful, Taylor v. Riojas, 592 U.S. at
9. Vasquez has not identified any precedent that would have put the Defendants on notice that
their grievance-process conduct was violative of the Eighth Amendment. Cf. Boyd v. Werholtz,
443 F. App’x 331, 332 (10th Cir. 2011)(“[T]here is no independent constitutional right to state
administrative grievance procedure . . . .”). In addition, the Defendants’ alleged actions are not so
egregious that any reasonable officer would have realized they were violating Vasquez’ Eighth
Amendment rights. Cf. Taylor v. Riojas, 592 U.S. at 8-9 (“[N]o reasonable correctional officer
could have concluded that, under the extreme circumstances of this case, it was constitutionally
permissible to house Taylor in such deplorably unsanitary conditions for such an extended period
of time.”). In conclusion, Vasquez has not stated an Eighth Amendment claim arising out of the
grievance procedures and the Defendants are entitled to qualified immunity.

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B.

VASQUEZ DOES NOT STATE A CLAIM UNDER § 504 OF THE
REHABILITATION ACT.

Last, Vasquez alleges that the inadequate grievance procedures also violate § 504 of the
Rehabilitation Act. See FAC ¶¶ 60-68, at 39-43. Vasquez points specifically to the fact that he
was not provided with assistance in filing his grievances, see FAC ¶ 63, at 40, and that his
grievances were denied on “pre-textual grounds because of” his disability, see FAC ¶ 64, at 41.
According to the FAC, these denials are the result of an “unwritten policy by NMCD” to “punish”
inmates with mental health issues for “offending behaviors that are a manifestation of
their . . . mental health issues.” FAC ¶ 65, at 42. See id. at ¶ 54, at 35. The FAC alleges that
“[w]hen Plaintiff appealed his denials they have been ignored or summarily denied without
investigation because of his disability.” FAC ¶ 64, at 42. Vasquez alleges that, by providing a
grievance system that inmates do not understand, see FAC ¶ 66, at 42, failing provide inmates with
assistance, see FAC ¶¶ 62-63, at 40, “improperly processing Plaintiff’s grievances,” FAC ¶ 45, at
18; see id. at ¶ 49, at 22, and “refus[ing] to allow Plaintiff to file grievances,” FAC ¶ 44, at 17, the
Defendants violate § 504. Vasquez alleges that “[t]he NMCD is discriminating against inmates
solely on their disabilities that drive their disruptive and problematic behaviors.” FAC ¶ 68, at 43.
Vasquez contends that, because this discrimination was intentional, he is entitled to damages under
the Rehabilitation Act. See FAC ¶ 64, at 41. For the reasons described below, the Court concludes
that Vasquez has not alleged sufficient facts to state a claim under § 504 of the Rehabilitation Act.
To allege a claim under the Rehabilitation Act, the plaintiff must demonstrate that: (i) he
or she is handicapped under the Act; (ii) he or she is otherwise qualified to participate in the
program; (iii) the program receives federal financial assistance; and (iv) the program discriminates
against plaintiff based upon his or her disability. See Hollonbeck v. U.S. Olympic Comm., 513

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F.3d at 1194. The fourth prong requires the plaintiff to allege “the Defendants discriminated
against them ‘solely by reason of’ their disability.” Baumeister v. N.M. Comm’n for the Blind,
425 F. Supp. 2d 1250, 1266 (D.N.M. 2006)(Smith, M.J.)(quoting 29 U.S.C. § 794(a)). In the
Rehabilitation Act and the similar Americans with Disabilities Act (“ADA”) 7 context, “[c]ourts
have recognized three ways to establish a discrimination claim: (1) intentional discrimination
(disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.”
J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir. 2016). Vasquez has not stated a
claim that the grievance process discriminates against him in any way or that any alleged
discrimination was “based upon” his disability. Havens v. Colo. Dep’t of Corr., 897 F.3d at 1262.
First, the only statements in the FAC that Vasquez has faced intentional discrimination are too
conclusory to state a plausible claim and constitute only a “formulaic recitation of the elements of
a cause of action,” and, moreover, lack any factual context. Ashcroft v. Iqbal, 556 U.S. at 678.
See, e.g., FAC ¶ 68, at 43 (“[The NMCD is discriminating against inmates solely on their
disabilities that drive their disruptive and problematic behaviors.”). Second, while “a claim for
disparate impact doesn’t require proof of intentional discrimination,” Cinnamon Hills Youth Crisis
Ctr., Inc. v. Saint George, 685 F.3d 917, 922 (10th Cir. 2012), it does require that the plaintiff
alleged that “a specific policy caused a significant disparate effect on a protected group,” Reinhart
v. Lincoln Cnty., 482 F.3d 1225, 1229 (10th Cir. 2007). Here too, Vasquez’ only allegations that
inmates with disabilities are treated differently -- for example, Vasquez’ allegation that there is an
“unwritten policy” of denying disabled inmates’ grievances “as punishments on the inmates,” FAC

7

To state a claim for disability discrimination under the Rehabilitation Act, a plaintiff may
prove the same elements required to prevail under Title II of the ADA, because Congress has
directed courts to construe the ADA as giving at least the same amount of protection as the
Rehabilitation Act. See Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n.7 (10th Cir.1998).
- 56 -

¶ 65, at 42 -- are too conclusory to state a plausible claim, Al-Owhali v. Holder, 687 F.3d at 1243
(concluding that the plaintiff’s “mere assertion that he believes that there is a secret policy in place”
is insufficient to state a claim).
Third, a public entity “must provide a reasonable accommodation under the ADA when it
knows that the individual is disabled and ‘requires an accommodation of some kind to participate
in or receive the benefits of its services.’” J.V. v. Albuquerque Pub. Sch., 813 F.3d at 1299
(quoting Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d at 1197). Here, while Vasquez
alleges that he was not offered assistance in preparing his grievances, he has not alleged that any
Defendants knew that he was disabled nor that he requested any accommodation. See J.V. v.
Albuquerque Pub. Sch., 813 F.3d at 1299 (“Because they failed to request an
accommodation . . . this claim fails.”); Rigler v. Lampert, 248 F. Supp. 3d 1224, 1245 (D. Wyo.
2017)(Skavdahl, J.)(“Plaintiff offers no facts to indicate he was ever denied access to any benefits
or services offered by the Wyoming Department of Corrections.”).

Moreover, Vasquez’

allegations that he filed numerous grievances and appeals, including filing grievances against
individuals for improperly denying other grievances, undercut somewhat a claim that he required
accommodations to enjoy “meaningful access” to the grievance process. “Section 504 seeks to
assure evenhanded treatment and the opportunity for handicapped individuals to participate in and
benefit from programs receiving federal assistance. The Act does not, however, guarantee the
handicapped equal results” from participation in such programs and services. Havens v. Colo.
Dep’t of Corr., 897 F.3d at 1263; Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 146 (1st Cir.
2014)(holding, in the context of a prisoner’s claim against a prison system, that § 504 “entitle[s]
[a disabled individual] to reasonable accommodations, not to optimal ones finely tuned to his
preferences”).

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At bottom, even if Vasquez alleged facts demonstrating that he had been discriminated
against, he states only conclusory allegations that the discrimination he alleges was “based upon”
his disability, as § 504 requires. Havens v. Colorado Dep’t of Corr., 897 F.3d at 1262. See, e.g.,
FAC ¶ 64, at 42 (“When Plaintiff appealed his denials they have been ignored or summarily denied
without investigation because of his disability.”). In conclusion, the Court concludes that Vasquez
has not stated a claim under § 504 claim, because he has not alleged sufficiently that the Defendants
discriminated against him on the basis of his disability. See Vasquez v. Tafoya-Lucero, 2023 WL
2012504, at *4 (concluding that Vasquez’ allegations “that NMCD ‘took advantage’ of his mental
disabilities by denying his grievances, refusing to allow him to file grievances, and refusing to
allow his grievances to be processed . . . do not constitute a claim that NMCD denied Vasquez
access to services, programs, or activities or that any such denial was because of his disability” in
violation of the Rehabilitation Act).
IT IS ORDERED that: (i) the Defendants’ Motion to Dismiss Amended Complaint for
Violation of Constitutional Rights and Request for Declaratory and Injunctive Relief as it Pertains
to the Fourteenth and Eighth Amendment Violations and Discrimination Under the Americans
with Disabilities Act and for Qualified Immunity, filed October 10, 2022 (Doc. 16), is granted; (ii)
the Plaintiff’s Amended Complaint for Violation of Constitional [sic] Rights and Request for
Declaratory and Injunctive Relief as it Pertains to the Fourteenth and Eighth Amendment
Violations and Discrimination Under the Americans with Disabilties [sic] Act, filed September
12, 2022 (Doc. 11), is dismissed with prejudice; and (iii) all Plaintiff Robert Vencent Vasquez’
claims against the Defendants are dismissed with prejudice.

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________________________________
UNITED STATES DISTRICT JUDGE

Counsel:
Shavon M. Ayala
Albuquerque, New Mexico
Attorney for the Plaintiff
Jason Michael Burnette
Kari E. Cole
Lindsay Fay Van Meter
GermanBurnette & Associates, LLC
Albuquerque, New Mexico
Attorneys for the Defendants

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