Petition for Writ of Certiorari — Monte Whitehead, Petitioner v. Greg Marcantel, et al.
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Appellate Case: 18-2021
Document: 010110147958
Date Filed: 04/02/2019
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
April 2, 2019
Elisabeth A. Shumaker
Clerk of Court
MONTE WHITEHEAD,
Plaintiff - Appellant,
v.
GREG MARCANTEL; OTERO COUNTY
BOARD OF COUNTY
COMMISSIONERS; MANAGEMENT
AND TRAINING CORPORATION;
JAMES FRAWNER; RICHARD
MARTINEZ; FNU BOYD, Lieutenant;
FNU EASON, Lieutenant; LARRY
PHILLIPS; FNU CRUZ; C. PASCALE;
LARRY MONK; FNU LNU, unnamed
nurses; FNU WATERS; FNU
PROSPERO; FNU LNU, unnamed
correctional officer; FNU MORENO;
KEEFE CORPORATION; FNU SMITH,
Sergeant,
No. 18-2021
(D.C. No. 2:17-CV-00275-RJ-KK)
(D. N.M.)
Defendants - Appellees.
ORDER AND JUDGMENT*
Before HOLMES, O’BRIEN, and CARSON, Circuit Judges.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Pro se New Mexico state prisoner Monte Whitehead appeals the district court’s
orders (1) dismissing his 42 U.S.C. § 1983 claims for failure to state a claim,
(2) dismissing his claims against defendant Eason for insufficient service of process,
and (3) denying his motions to amend the complaint and to supplement the pleadings.
Mr. Whitehead does not challenge the district court’s order remanding his state-law
claims to state court. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in
part, vacate and remand in part, and reverse and remand in part.
I.
BACKGROUND
Mr. Whitehead is an inmate at the Otero County Prison Facility (OCPF) in
Otero County, New Mexico. Management and Training Corp. (MTC), a private
company, operates OCPF. Mr. Whitehead originally filed suit in New Mexico state
court alleging federal constitutional claims and claims under the New Mexico Tort
Claims Act. In his complaint, Mr. Whitehead asserted that while incarcerated at
OCPF, various prison personnel (the prison-official defendants) violated his
constitutional rights.1 He also asserted constitutional claims against the prison
i « To state a claim under § 1983, a plaintiff. . . must show that the alleged
[constitutional] deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988); accord Yanaki v. Iomed, Inc., 415 F.3d
1204, 1207 (10th Cir. 2005). Neither the district court nor the parties question that,
during the events material here, MTC and its employees acted under color of state
law and were subject to suit under § 1983. We have no reason to question this
position. See Evans v. Newton, 382 U.S. 296, 299 (1966) (“[W]hen private
individuals or groups are endowed by the State with powers or functions
governmental in nature, they become agencies or instrumentalities of the State and
subject to its constitutional limitations.”); Smith v. Cochran, 339 F.3d 1205, 1215-16
(10th Cir. 2003) (“[P]ersons to whom the state delegates its penological functions,
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commissary vendor, Keefe Commissary Network (“Keefe”).2
Defendant Otero County Board of County Commissioners (“Otero County”)
removed the case to federal district court. The district court dismissed the federal
claims under Federal Rule of Civil Procedure 12(b)(6), declined to exercise
supplemental jurisdiction over the state claims, and remanded the state claims to the
state court. Mr. Whitehead then filed a motion to reconsider, which the district court
denied.
II.
JURISDICTION
“[W]e have an independent duty to examine our own jurisdiction.” Williams v.
Akers, 837 F.3d 1075, 1077 n.2 (10th Cir. 2016) (internal quotation marks omitted).
In his notice of appeal, Mr. Whitehead designated only the order denying his
postjudgment motion as the order being appealed. See Fed. R. App. P. 3(c)(1)(B)
(stating the notice of appeal must “designate the judgment, order, or part thereof
being appealed”). “Rule 3(c)(l)(B)’s designation requirement is jurisdictional.”
Williams, 837 F.3d at 1078. But “[wjhen a notice of appeal fails to designate the
which include the custody and supervision of prisoners, can be held liable for
violations of the Eighth Amendment.”).
2 In addition to the named defendants, the complaint caption named as
defendants “unnamed nurses” and “unnamed correctional officer.” Mr. Whitehead
does not pursue claims against the unnamed defendants except to allege generally
that unidentified nurses failed to provide him medication. Courts generally permit a
plaintiff to sue unnamed defendants, but the plaintiff must “provide[] an adequate
description of some kind which is sufficient to identify the person involved so
process eventually can be served.” Roper v. Grayson, 81 F.3d 124, 126 (10th Cir.
1996). Mr. Whitehead has not described the “unnamed nurses” or the “unnamed
correctional officer,” so we do not consider the claims against them.
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order from which the appeal is taken, our jurisdiction will not be defeated if other
papers filed within the time period for filing the notice of appeal provide the
‘functional equivalent’ of what Rule 3 requires.” Denver & Rio Grande W. R.R. Co.
v. Union Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997). Mr. Whitehead’s motion
for leave to proceed in forma pauperis, filed within the time for filing a notice of
appeal, “clearly sets forth [his] intention to appeal from the [Memorandum Opinion
and Order dismissing his claims], and [the defendants] had adequate notice of the
issuefs] being appealed and will not be prejudiced.” Id. Accordingly, we have
jurisdiction over both the order granting dismissal and the order denying
postjudgment relief.
III.
FAILURE TO STATE A CLAIM FOR RELIEF
1. Standards of Review
We review de novo the district court’s order granting dismissal under
Rule 12(b)(6), “accepting] the facts alleged in the complaint as true and viewing]
them in the light most favorable to the plaintiff[].” Lincoln v. Maketa, 880 F.3d 533,
537 (10th Cir. 2018) (internal quotation marks omitted). To withstand dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
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recitals of the elements of a cause of action, supported by mere conclusory
statements,” are not sufficient to state a claim for relief. Id.
“Although a pro se litigant’s pleadings are to be construed liberally and held to
a less stringent standard than formal pleadings drafted by lawyers, this court has
repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (brackets, citation, and internal quotation marks omitted).
2. Denial of Hardback Books, Internet Materials, and Newspapers;
Approved-Vendors Requirement3
Mr. Whitehead’s complaint asserts that certain defendants4 violated his First
Amendment rights by preventing him from receiving hardback books, books from
non-approved vendors, information from the internet, and newspaper articles sent by
mail. “Inmates have a First Amendment right to receive information while in prison
to the extent the right is not inconsistent with prisoner status or the legitimate
penological objectives of the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426
(10th Cir. 2004). We generally apply the four-factor test from Turner v. Safley,
482 U.S. 78, 89 (1987), to evaluate whether a prison regulation that “‘impinges on
inmates’ constitutional rights ... is reasonably related to legitimate penological
3 Mr. Whitehead’s first issue on appeal asserts that the district court required
him to cite legal authorities to survive the motions to dismiss. The court did not. We
address below the allegations in the complaint as relevant to each substantive claim.
4 Mr. Whitehead names the following defendants in regard to this claim:
Marcantel, Otero County, MTC, Frawner, Martinez, Phillips, Cruz, and Moreno.
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interests.”’ Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (quoting
Turner, 482 U.S. at 89).5 However, “in ruling on a motion to dismiss, a court need
only assess, as a general matter, whether a prison regulation is reasonably related to a
legitimate penological interest.” Al-Owhali, 687 F.3d at 1240 (internal quotation
marks omitted).
To state a claim that a prison regulation is unconstitutional, an inmate must
“plead facts from which a plausible inference can be drawn that the action was not
reasonably related to a legitimate penological interest.” Id. (internal quotation marks
omitted). An inmate is not required to “identify every potential legitimate interest
and plead against it.” Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010). “It is
sufficient that he plead facts from which a plausible inference can be drawn that the
action was not reasonably related to a legitimate penological interest.” Id.
Mr. Whitehead alleges that certain defendants limited his access to information
which prevented him from writing opinion articles, engaging in religious reading, and
5 The Turner factors are:
(1) whether a rational connection exists between the prison policy [or]
regulation and a legitimate governmental interest advanced as its
justification; (2) whether alternative means of exercising the right are
available notwithstanding the policy or regulation; (3) what effect
accommodating the exercise of the right would have on guards, other
prisoners, and prison resources generally; and (4) whether ready,
easy-to-implement alternatives exist that would accommodate the
prisoner’s rights.
Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (citing Turner, 482 U.S.
at 89-91).
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staying current with developments in the veterinary profession. He alleged in his
complaint that he requested books on religion and veterinary medicine, but the
defendants denied his requests because the books were hardback. The defendants
also denied his requests for books from non-approved vendors, newspaper articles
sent to him by mail, and access to the internet.
In addition to the enumerated allegations, the complaint contains several
attachments.6 The attachments refer to prison policies that (1) limited reading
material to that sent from approved vendors, R. at 193; (2) prohibited all hardcover
books, id. at 186; Aplee. Supp. App at 185; (3) prohibited Mr. Whitehead from
receiving newspaper articles through the mail, R. at 169; and (4) prohibited access to
the internet absent warden approval, id. at 173.
The defendants do not articulate any legitimate penological interests for these
restrictions. Cf Al-Owhali, 687 F.3d at 1241 (reviewing dismissal of complaint
under Rule 12(b)(6), discussing the prison officials’ proffered justifications for the
restrictions placed on the prisoner). In their appellate brief, the defendants cite only
to Mr. Whitehead’s complaint for their general contention that “[tjhere is a rational
connection between [prison] mail and book regulations and a legitimate interest
6 The attachments provide additional facts that establish more than “a sheer
possibility that a defendant has acted unlawfully, or facts that are merely consistent
with a defendant’s liability.” Gee, 627 F.3d at 1187 (internal quotation marks
omitted); see Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[I]n
deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the
complaint itself and to any documents attached as exhibits to the complaint.”). Thus,
the court may properly rely on these attachments to determine whether Mr.
Whitehead adequately pleaded this claim. See Gee, 627 F.3d at 1187.
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regarding prison safety and security.” Aplee. Prison Officials’ Br. at 22 (citing
Aplee. Supp. App. at 55-62).
The district court ruled that Mr. Whitehead did “not allege that the restrictions
on material by OCPF [were] not reasonably related to prison security concerns, but,
instead, simply disagree[d] with the restrictions.” R. at 984. The district court
further ruled that “the fact that [Mr. Whitehead] was able to write his article
demonstrates that the restrictions did not impair his constitutional right of free speech
and press.” Id. But the district court’s conclusions do not address Mr. Whitehead’s
factual allegations that he wanted materials for religious and veterinary study.
Moreover, the district court did not address Mr. Whitehead’s claims based on the
prohibition of hardback books, the limit or ban on internet use, the ban on articles
received in the mail, or the limitations due to the approved-vendor list. Generally, “a
federal appellate court does not consider an issue not passed upon below.” Walker v.
Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (quoting Singleton v.
Wulff, 428 U.S. 106, 120 (1976)). Therefore, we vacate the dismissal of those claims
and remand them to the district court for consideration in the first instance, which
may include allowing the prison-official defendants to proffer a legitimate
penological reason for the restrictions.
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3. Deliberate Indifference to Prisoner’s Medical Needs
Mr. Whitehead alleges defendant Monk, a prison nurse, violated his Eighth
Amendment rights when Monk told Mr. Whitehead to continue to take his prescribed
medication following an episode of syncope,7 even though Mr. Whitehead questioned
the medication’s appropriateness. He further alleges that Monk prevented him from
seeing a physician for a month following the syncope episode.
“[Deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks
omitted). Prison personnel “may thus be liable under § 1983 for indifference
manifested in their response to the prisoner’s needs or by intentionally denying or
delaying access to medical care or intentionally interfering with treatment once
prescribed.” Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014) (ellipses
and internal quotation marks omitted).
“To state a denial of medical care claim, a plaintiff must satisfy both an
objective and a subjective component.” Id. at 430 (internal quotation marks omitted).
To satisfy the objective component of a failure-to-treat claim, the prisoner’s medical
need must be sufficiently serious. Id. A medical need is sufficiently serious “if it is
one that is so obvious that even a lay person would easily recognize the necessity for
7 Syncope is “loss of consciousness from insufficient blood flow to the brain:
faint.” Syncope, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/syncope (last visited Mar. 8, 2019).
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a doctor’s attention.” Id. (internal quotation marks omitted). To satisfy the
subjective component, the prisoner must present “evidence of the prison official’s
culpable state of mind. He must show that the prison official acted or failed to act
despite his knowledge of a substantial risk of serious harm.” Id. (citation and internal
quotation marks omitted). This standard is akin to criminal recklessness. Farmer v.
Brennan, 511 U.S. 825, 836-37, 839^10 (1994).
The district court assumed the objective component had been satisfied.
Accordingly, we address only the subjective component. To that end, Mr. Whitehead
alleged that Monk examined him following the syncope episode and ensured he took
his prescribed medication. Additionally, Mr. Whitehead claims that a month later his
doctor discontinued one medication. That assertion, however, does not demonstrate
that Monk was deliberately indifferent with regard to Mr. Whitehead’s medical
treatment. In fact, Mr. Whitehead does not allege that Monk “knew he faced a
substantial risk of harm and disregarded that risk” by requiring Mr. Whitehead to
continue taking his prescription medication. Huntv. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999) (emphasis added). Accordingly, Mr. Whitehead fails to establish
that Monk’s actions were akin to criminal recklessness, and he does not satisfy the
Eighth Amendment’s subjective component. Farmer, 511 U.S. at 836-37, 839-40.
“At worst, [Mr. Whitehead alleged that Monk] misdiagnosed
[Mr. Whitehead’s] condition. But a misdiagnosis, even if rising to the level of
medical malpractice, is simply insufficient under our case law to satisfy the
subjective component of a deliberate indifference claim.” Self v. Crum, 439 F.3d
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1227, 1234 (10th Cir. 2006); see Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)
(“[A] difference of opinion [between the prisoner and medical staff] does not support
a claim of cruel and unusual punishment.”). Indeed, as the Supreme Court has held,
“[m]edical malpractice does not become a constitutional violation merely because the
victim is a prisoner.” Estelle, 429 U.S. at 106. The district court properly dismissed
Mr. Whitehead’s Eighth Amendment deliberate indifference claim against Monk.
The complaint also alleges that defendant Pascale violated Mr. Whitehead’s
Eighth Amendment rights by inadequately responding to Mr. Whitehead’s
grievances. Specifically, he claims Pascale’s responses to his grievances allowed
Monk’s actions to continue, and also caused unidentified nurses to fail to provide
Mr. Whitehead his medications. This claim fails as well.
A § 1983 “plaintiff must show the defendant personally participated in the
alleged violation.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). And, the
“denial of a grievance, by itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not establish personal participation
under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Here,
because Mr. Whitehead complains only that Pascale denied his grievance, his claim is
without merit. In this circuit, the mere denial of a grievance without any factual
basis supporting an affirmative link between the denial and the alleged constitutional
violation is fatal to a § 1983 claim. Id. Accordingly, the district court properly
dismissed the Eighth Amendment claims against Pascale.
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Mr. Whitehead abandons on appeal his Eighth Amendment claims against
other defendants by failing to present those arguments in his opening brief. See
COPEv. Kan. State Bd. ofEduc., 821 F.3d 1215, 1223 (10th Cir. 2016) (“Appellants
do not raise this argument in their opening brief, and so it is waived.”).
4. Strip Searches Before Family Visits
The complaint also alleges that the prison policy requiring inmates to submit
to strip searches before family visits violates the Fourth Amendment.8 “The Fourth
Amendment prohibits only unreasonable searches.” Bell v. Wolfish, 441 U.S. 520,
558 (1979). “Courts must consider the scope of the particular intrusion, the manner
in which it is conducted, the justification for initiating it, and the place in which it is
conducted.” Id. at 559. With respect to the scope of the search, “[tjhere can be no
doubt that a strip search is an invasion of personal rights of the first magnitude.”
Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). However, “correctional
officials must be permitted to devise reasonable search policies to detect and deter
the possession of contraband in their facilities,” and “[t]he task of determining
whether a policy is reasonably related to legitimate security interests is peculiarly
8
Mr. Whitehead suggests in his appellate briefing that this claim could be
construed as alleging an Eighth Amendment violation, and the district court should
have evaluated it as such. Although courts construe a pro se litigant’s arguments
liberally, “this rule of liberal construction stops ... at the point at which [the court]
begin[s] to serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009). Therefore, because this claim was not raised in the district court,
we do not consider it. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999
(10th Cir. 2002) (“[A]bsent extraordinary circumstances, we will not consider
arguments raised for the first time on appeal.”).
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within the province and professional expertise of corrections officials.” Florence v.
Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328 (2012) (internal
quotation marks omitted).
Mr. Whitehead failed to meet his burden with regard to this claim. In his brief,
Mr. Whitehead acknowledges the legitimate penological interests for policies that
require inmate strip searches following visits but alleges that pre-visit strip searches
are unreasonable. He does not, however, allege any facts to support this assertion.
Because Mr. Whitehead did not “plead facts from which a plausible inference can be
drawn that the action was not reasonably related to a legitimate penological interest,”
Gee, 627 F.3d at 1188, the district court correctly determined that this allegation
failed to state a valid claim for relief.
5. Sales Taxes Levied on Commissary Purchases
The complaint alleges that Keefe charges sales tax on commissary purchases at
OCPF, while inmates at other prisons are not charged sales tax.9 Mr. Whitehead
asserts that Keefe treats him and other sex offenders, a politically unpopular group,
less favorably than other prisoners. He argues this disparity in treatment is a
violation of the Equal Protection Clause.
Before we may consider the merits of this claim, we must determine the
threshold matter of subject-matter jurisdiction. See Steel Co. v. Citizens for a Better
9 As part of this claim, Mr. Whitehead alleges that some of the prison-official
defendants promoted a nefarious culture that allowed others to harass inmates. This
allegation is too conclusory to state a claim. See Iqbal, 556 U.S. at 678.
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Env’t, 523 U.S. 83, 94 (1998) (stating courts cannot proceed in the absence of
subject-matter jurisdiction). To invoke jurisdiction under § 1983, Mr. Whitehead
must allege conduct under color of state law. Whether a defendant was a state actor
for § 1983 purposes “is a question of law that we review de novo." Nieto v. Kapoor,
268 F.3d 1208, 1215 (10th Cir. 2001). We conclude that the complaint failed to
provide sufficient factual matter to allege that Keefe was a state actor; therefore, the
federal courts lack jurisdiction over this claim.
To establish that the conduct at issue constituted state action, Mr. Whitehead
was required to show (1) the deprivation was “caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the [Sjtate or by a
person for whom the State is responsible,” and (2) the party committing the
deprivation is “a person who may fairly be said to be a state actor.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Mr. Whitehead’s complaint alleges that “Keefe has a contract with OCPF
(MTC) to provide commissary items to inmates held there,” as well as to provide
commissary items at other prisons. R. at 26. The complaint further alleges that
Keefe taxes commissary items at OCPF, but not at other prisons. Id. at 66. It also
asserts: “At all times material hereto Keefe and its officers, employees and agents
acted under color of law and within the scope of their employment.” Id. at 26.
The allegation that Keefe provided commissary services under a contract with
MTC does not state a claim that Keefe acted under color of state law. See Gallagher
v. “Neil Young Freedom Concert,’’ 49 F.3d 1442, 1448 (10th Cir. 1995) (“[T]he fact
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that a private entity contracts with the government or receives governmental funds or
other kinds of governmental assistance does not automatically transform the conduct
of that entity into state action.”). Moreover, the general allegations that Keefe and its
employees acted under color of state law are “naked assertions devoid of further
factual enhancement,” and, therefore, insufficient to state a claim for relief, Iqbal,
556 U.S. at 678 (brackets and internal quotation marks omitted).
Mr. Whitehead’s allegations are insufficient to establish subject-matter
jurisdiction over this claim. Therefore, we affirm the district court’s dismissal, but
remand with directions to specify that the dismissal of this claim is without prejudice
to its refiling. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006) (“[Djismissals for lack of jurisdiction should be without prejudice because the
court, having determined that it lacks jurisdiction over the action, is incapable of
reaching a disposition on the merits of the underlying claims.”).
Mr. Whitehead further argues that Keefe violated the Commerce Clause by
charging him sales tax on commissary purchases.10 The federal courts lack
jurisdiction to address the Commerce Clause claim because, as with the equal-
10 In his appellate brief, Mr. Whitehead briefly mentions that he had asked the
district court to consider his claim against Keefe under 42 U.S.C. § 1985. The
argument on this point in his reply brief is similarly undeveloped. See Aplt. Reply
Br. at 19 (arguing “that for purposes of bringing a claim under [§ 1985], Mr.
Whitehead has plead [sic] class-based animus”). “This is inadequate appellate
argument.” Simpson v. T.D. Williamson Inc., 414 F.3d 1203, 1206 n.4 (10th Cir.
2005) (holding appellate argument inadequate where party had “not cited a single
authority to support its arguments” or “argued that its positions [were] sound despite
a lack of supporting authority or in the face of contrary authority”). Therefore, we do
not consider this claim. See id.
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protection claim, Mr. Whitehead’s allegations are insufficient to establish subjectmatter jurisdiction over this claim. Although alleged state violations of the
Commerce Clause may be challenged by suits brought under § 1983, Dennis v.
Higgins, 498 U.S. 439, 447, 451 (1991), Mr. Whitehead has failed to sufficiently
allege that Keefe was a state actor. And as with the equal-protection claim, we
remand this claim with directions to specify that the dismissal on an alternative,
jurisdictional basis, is without prejudice to its refiling.
6. Claims Against Prison-Official Defendants in Their Official and
Personal Capacities
The complaint named the individual prison-official defendants in their official
and personal capacities. “When a state official is sued in his or her official capacity,
the Eleventh Amendment bars retrospective relief, usually in the form of money
damages, because any such judgment is deemed directed at the state as the real party
in interest rather than the nominal officer.” Muscogee (Creek) Nation v. Okla. Tax
Comm’n, 611 F.3d 1222, 1233 (10th Cir. 2010).
Even so, injunctive relief may be available against a defendant in his or her
official capacity. See Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631
(10th Cir. 1998) (“[A] suit against a state official in his or her official capacity
seeking prospective injunctive relief is not... a suit against the state for Eleventh
Amendment purposes.”). But while Mr. Whitehead requested injunctive relief in the
district court, he did not argue this point in his opening brief. Therefore, this claim is
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waived. See COPE, 821 F.3d at 1223 (“Appellants do not raise this argument in their
opening brief, and so it is waived.”).
On appeal, Mr. Whitehead challenges the dismissal of his personal-capacity
claims against prison-official defendants Marcantel, Phillips, and Cruz. The
complaint alleges that (1) defendant Marcantel was “responsible for the overall
operation of the department including overseeing and implementing [prison] policy,”
R. at 19; (2) defendant Phillips “was responsible for handling grievance appeals” and
for “ensuring] that state inmates had an opportunity to be heard,” id. at 23; and
(3) defendant Cruz “was responsible for making sure MTC and its employees . . . met
the requirements of its contract with the state and that state policy was enforced,” id.
These allegations fail to state a claim for several reasons. First, to the extent
they allege liability based on supervisor status, “supervisor status by itself is
insufficient to support liability,” Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.
1996). Second, they do not allege that any of these defendants personally
participated in a violation of Mr. Whitehead’s constitutional rights. See Jenkins,
81 F.3d at 994 (stating that a § 1983 “plaintiff must show the defendant personally
participated in the alleged violation”). Finally, the allegations are “mere conclusory
statements,” insufficient to state a claim for relief. Iqbal, 556 U.S. at 678.
7. Claims Against Otero County Board of County Commissioners
The complaint alleges that Otero County “failed to properly create, adopt and
inculcate or simply adhere to appropriate policies and procedures . . . ; failed to
properly train, monitor, supervise and discipline [various prison staff members] or
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supervisory personnel[;] . . . and failed to otherwise institute adequate procedures and
policies that would protect the rights of plaintiff.” R. at 57, 64-65, 69. Thus,
Mr. Whitehead alleges that Otero County “maintained a custom or policy which
permitted or condoned the . . . violations of Plaintiff s Constitutional rights.” Id. at
57, 65, 69. The district court dismissed the claims against Otero County because:
(1) claims based on a respondeat superior theory cannot support a § 1983 claim;
(2) the complaint failed to identify any Otero County policy, custom, or other
practice; and (3) Mr. Whitehead’s generalized allegations that Otero County allowed
a nefarious culture to exist at the prison were factually insufficient to state a claim.
Mr. Whitehead did not challenge the dismissal of the claims against Otero
County in his opening brief on appeal, but raised them in response to Otero County’s
brief. “Arguments not clearly made in a party’s opening brief are deemed waived.”
Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012). Accordingly, this argument is
waived and we do not address it.11
n « It is not sufficient to merely mention an issue in a reply brief.” Coleman v.
B-GMaint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997). “[T]he
reasons for [this] rule are two-fold: ‘First, to allow an appellant to raise new
arguments at this juncture would be manifestly unfair to the appellee who, under our
rules, has no opportunity for a written response .... Secondly, it would also be
unfair to the court itself, which, without the benefit of a response from appellee to an
appellant’s late-blooming argument, would run the risk of an improvident or
ill-advised opinion, given our dependence as an Article III court on the adversarial
process for sharpening the issues for decision.’” Hill v. Kemp, 478 F.3d 1236, 1251
(10th Cir. 2007) (quoting Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1278
(10th Cir. 1994)).
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8. Grievance Procedure
The complaint asserts that some of the prison-official defendants12 violated the
rights of prisoners by thwarting and frustrating their attempts to resolve prison
grievances.13 But Mr. Whitehead cannot sue on behalf of other inmates. “A litigant
may bring his own claims to federal court without counsel, but not the claims of
others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000)
(citing 28 U.S.C. § 1654). Therefore, we affirm the dismissal of this claim.
IV.
DISMISSAL OF CLAIMS AGAINST DEFENDANT EASON
Mr. Whitehead challenges the district court’s grant of defendant Eason’s
motion to dismiss for insufficient process and insufficient service of process,
pursuant to Fed. R. Civ. P. 12(b)(4) & (5). The district court held Mr. Whitehead’s
attempt to serve Eason, a former MTC employee, by serving the law firm
representing other MTC employees was insufficient. Notably, Mr. Whitehead had
earlier filed a motion seeking Eason’s address so she could be served. Cf Martinez
v. Winner, 111 F.2d 424, 442 (10th Cir. 1985) (remanding to allow discovery so
plaintiff could identify the particular FBI agents who he believed violated his rights),
12 Mr. Whitehead names the following prison-official defendants with regard
to this claim: Eason, Boyd, Smith, Frawner, Phillips, Cruz, and Marcantel.
13 Mr. Whitehead acknowledges that he was able to exhaust the grievance
procedure for his claims. He further acknowledges that he was not denied access to
the court for failure to exhaust the grievance process. Cf. Jones v. Bock, 549 U.S.
199, 211 (2007) (stating prison grievance procedures must be exhausted before
claims may be brought in court).
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vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138 (1986); see also
Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997) (recognizing district court’s
obligation to allow pro se plaintiff limited discovery to identify defendant for service
of process). A magistrate judge addressed the motion, stating that if the complaint
survived initial screening under 28 U.S.C. §§ 1915(e)(2) and 1915A, “the Court will
issue and serve all process as provided in § 1915(d).” Dist. Ct. docket 73, at 2.14
Neither the magistrate judge nor the district court, however, evaluated whether
Mr. Whitehead’s claims against Eason survived initial screening.
We affirm the dismissal, albeit for reasons other than those stated by the
district court. See Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878—79 (10th Cir.
2017) (appellate court may affirm the district court’s “ruling on any grounds
adequately supported by the record, even grounds not relied upon by the district
court” (internal quotation marks omitted)). The complaint included only one claim
against Eason, namely that she thwarted and frustrated inmates’ attempts to resolve
prison grievances. Given that we reject this argument with respect to other
defendants in this order and judgment, a remand for the district court to evaluate the
claim under §§ 1915(e)(2) and 1915A would be futile. See Comm, for First
Amendment v. Campbell, 962 F.2d 1517, 1525 (10th Cir. 1992) (“Courts are not
14 Neither party included this document in the record on appeal. We “exercise
our discretion to take judicial notice of publicly-filed records in our court and certain
other courts concerning matters that bear directly upon the disposition of the case at
hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
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required to remand in futility . . .
Date Filed: 04/02/2019
Page: 21
Accordingly, we affirm the district court’s
dismissal of Mr. Whitehead’s claim against Eason.
V.
DENIAL OF LEAVE TO AMEND THE COMPLAINT AND TO
SUPPLEMENT THE PLEADINGS
Mr. Whitehead filed a motion for leave to amend the complaint and a later
motion to supplement the pleadings. The district court summarily denied both
motions as moot based on the district court’s dismissal of all federal claims.
Generally, we review both rulings for an abuse of discretion. Cohen v. Longshore,
621 F.3d 1311, 1313 (10th Cir. 2010) (leave to amend the complaint); Walker v.
United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001) (leave to supplement
the pleadings). However, we review legal conclusions, such as mootness, de novo.
Ghailani v. Sessions, 859 F.3d 1295, 1300 (10th Cir. 2017) (“We review mootness
de novo as a legal question.” (internal quotation marks omitted)).
Mr. Whitehead sought to amend his complaint to add unspecified exhibits,
expand on his equal-protection claim, and expand on his First Amendment retaliatory
transfer claim. The motion to amend asserts that Mr. Whitehead had been
“transferred for bringing this suit.” R. at 516. Similarly, the motion to supplement
the pleadings asserts that defendant Martinez retaliated against Mr. Whitehead for
filing the underlying lawsuit and for filing grievances by transferring him to another
prison facility. Mr. Whitehead alleges the transfer violated his First, Fifth, and
Fourteenth Amendment rights.
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The retaliatory transfer claim Mr. Whitehead sought to add to his suit may be a
proper claim for relief.15 This claim was not dependent on the claims dismissed by
the district court. Accordingly, Mr. Whitehead’s motions to expand his retaliatory
transfer claim did not become moot when the district court dismissed Mr.
Whitehead’s remaining claims.16
Further, the district court denied both motions without an “apparent or
declared reason” such as “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [or]
futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). Indeed, the
district court’s denial of these motions based on a faulty legal conclusion is akin to
an “outright refusal to grant leave.” Id. Such a refusal constitutes an abuse of
discretion. Id. We thus conclude that the district court abused its discretion when it
denied these motions. Accordingly, we reverse and remand the denial of
Mr. Whitehead’s motion to amend the complaint and his motion to supplement the
15 For example, prison officials may violate a prisoner’s First Amendment
rights when they transfer the prisoner because the prisoner exercised those rights.
Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990) (“[W]hile a prisoner enjoys
no constitutional right to remain in a particular institution and generally is not
entitled to due process protections prior to such a transfer, prison officials do not
have the discretion to punish an inmate for exercising his first amendment rights by
transferring him to a different institution.” (internal quotation marks omitted)).
16 Mr. Whitehead’s request to expand on his equal-protection claim did not
provide any additional facts or explain how he intended to supplement this claim.
Thus, we conclude that the district court did not err in denying Mr. Whitehead leave
to expand on his equal-protection claim or to add unspecified exhibits.
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pleadings to the district court for evaluation consistent with this order and judgment.
On remand, the district court may consider whether other grounds exist for denying
these motions.
VI.
CONCLUSION
We vacate the district court’s dismissal of the First Amendment claims relating
to hardback books, internet access, mailed-in newspaper articles, and materials
limited to approved vendors and reverse the district court’s denial of the motions to
amend the complaint and to supplement the pleadings. We remand these claims for
further proceedings consistent with this order and judgment. We also remand the
equal-protection and Commerce Clause § 1983 claims with directions to specify that
the dismissal of those claims is without prejudice. The district court’s judgment is
affirmed in all other respects.
Entered for the Court
Joel M. Carson, III
Circuit Judge
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UNITED STATES COURT OF APPEALS
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
May 13, 2019
Elisabeth A. Shumaker
Clerk of Court
MONTE WHITEHEAD,
Plaintiff - Appellant,
v.
No. 18-2021
GREG MARCANTEL, et al.,
Defendants - Appellees.
ORDER
Before HOLMES, O’BRIEN, and CARSON, Circuit Judges.
Appellant’s petition for rehearing is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
Case 2:17-cv-00275-MV-KK Document 98 Filed 01/16/18 Page lot 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MONTE WHITEHEAD,
Plaintiff,
No. CV 17-00275 RJ/KK
vs.
GREGG MARCANTEL, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING
MOTION FOR RECONSIDERATION
THIS MATTER is before the Court on the Motion to Reconsider Order to Dismiss
(“Motion to Reconsider”) filed by Plaintiff Monte Whitehead on October 19, 2017 (Doc. 93), the
Responses in opposition to the Motion to Reconsider filed by the Defendants (Doc. 94, 95, 96,
and Plaintiff Whitehead’s Reply filed November 15, 2017 (Doc. 97). The Court will deny
Plaintiff Whitehead’s Motion to Reconsider.
Plaintiff Whitehead originally filed his Complaint in the State of New Mexico, County of
Otero, Twelfth Judicial District Court. He titled his filing “Complaint (Tort).” The Complaint
expressly states:
“77//T is a Tort suit authorized by the New Mexico Tort Claims Act...
The Twelfth Judicial District has jurisdiction in tort actions
pursuant to the New Mexico Tort Claims Act N.M.S.A. Chapter 41.
Notice of claims have been previously filed with Risk Management
pursuant to 41-4-16 N.M.S.A. (1978).”
(Doc. 1-1 at 1-2) (emphasis added). The Defendant Otero County removed the case to this Court
contending that the Complaint alleges 42 U.S.C. § 1983 federal claims. (Doc. 1). This Court
determined that Plaintiff Whitehead’s Complaint fails to state any federal claim for relief and
remanded the case to the Twelfth Judicial District Court for Whitehead to pursue his state tort
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claims in the court he originally chose. Paradoxically, Whitehead now contends that the Court is
in error and should reconsider its ruling. (Doc. 93, 97).
The Court’s Memorandum Opinion and Order dismissing any federal claims and
remanding the state-law claims was entered on September 27, 2017. (Doc. 91). Whitehead filed
his Motion to Reconsider on October 19, 2017. (Doc. 93). The Defendants contend that the
Federal Rules of Civil Procedure do not contemplate motions for reconsideration. (Doc. 94, 95,
96). Because Whitehead’s Motion to Reconsider was filed within twenty-eight days after entry of
the Memorandum Opinion and Order, the Court will treat the Motion to Reconsider as a timely
motion to alter or amend judgment under Fed.R.Civ. P. 59(e). See Price v. Philpot, 420 F.3d
1158, 1167 & n. 9 (10th Cir.2005).
Grounds warranting a motion to reconsider under Rule 59(e) include (1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (3) the need to
correct clear error or prevent manifest injustice. See Brumark Corp. v. Samson Resources Corp.,
57 F.3d 941, 948 (10th Cir. 1995). A motion for reconsideration is proper where the court has
clearly misapprehended the facts, a party's position, or the controlling law, but is not appropriate
to revisit issues already addressed in prior filings. See Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). Plaintiff Whitehead does not argue that there has been an intervening change in the
controlling law or cite any new evidence that was previously unavailable.
Nor does Plaintiff Whitehead’s Motion to Reconsider demonstrate any clear error on the
part of the Court or show that reconsideration is necessary to prevent manifest injustice. See,
e.g., Doc. 97 at 6. Instead, Whitehead asks the Court to revisit his prior filings. Plaintiffs
Motion to Reconsider contains extensive quotes from cases setting out legal elements and directs
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the Court to prior filings where he has made formulaic recitations of those elements. See, e.g.,
Doc. 93 at 4, 5, 7-10, 11-13). He contends that the allegations and arguments made in his prior
filings are sufficient to state federal claims for relief and the Defendants have failed to cite cases
or make arguments that contradict Plaintiffs claims. (Doc. 97 at 10-11). His contentions do not
afford a basis for reconsideration of the Court’s ruling. Van Skiver v. United States, 952 F.2d at
1243.
The Court has carefully scrutinized Whitehead’s Complaint as required by Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) and has
determined that Whitehead does not state an actionable federal claim. The pleading standard of
Fed. R. Civ. P. 8 does not require detailed factual allegations, but Whitehead’s pleadings offer no
more than labels, conclusions, and formulaic recitations of the elements of the cause of action.
These are insufficient to meet Rule 8’s requirements. Twombly, 550 U.S. at 555.
Plaintiff Whitehead chose to bring this case as a state tort proceeding in New Mexico
state court. The Court has dismissed any federal claims and has remanded his state-law claims to
the New Mexico state forum chosen by Whitehead to permit him to proceed forward on those
claims. Whitehead has not presented any argument sufficient to warrant reconsideration of the
Court’s ruling. The Court will deny Whitehead’s request for reconsideration.
IT IS ORDERED that Plaintiff Monte Whitehead’s Motion to Reconsider Order to
Dismiss (Doc. 93) is DENIED.
UNITED STATESajISTRICT JUDGE
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Case 2:17-cv-00275-MV-KK Document 91 Filed 09/27/17 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MONTE WHITEHEAD,
Plaintiff,
No. CV 17-00275 RJ/KK
vs.
GREGG MARCANTEL, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court sua sponte under 28 U.S.C. § 1915A and on
motions to dismiss filed by several of the Defendants (Doc. 2, 4, 6, 20, 55). The Corat will
dismiss Plaintiffs federal civil rights claims under 42 U.S.C. § 1983, and will remand the case to
state court for adjudication of Plaintiff s state-law claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Monte Whitehead is a prisoner in the custody of the State of New Mexico. He is
proceeding pro se. Plaintiff Whitehead was charged with 53 counts and pled guilty/no contest to
five counts of criminal sexual penetration of a minor child. He was sentenced to a term of 15
years of imprisonment. State of New Mexico v. Monte Whitehead, Fifth Judicial District Cause
No. D-503-CR-2006-00120.
After serving a portion of his prison sentence in correctional
facilities in Estancia and Clayton, New Mexico, he was transferred to the Otero County Prison
Facility (“OCPF”) on March 6, 2013. (Doc. 1-1 at 3).
Plaintiff Whitehead filed his Civil Complaint (Tort) (“Complaint”) in the State of New
Mexico, County of Otero, Twelfth Judicial District Court on November 14, 2016. (Doc. 1-1).
He alleges that his suit is authorized by the New Mexico Tort Claims Act, Chapter 41 NMSA,
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and seeks redress for violation of his rights under Constitutional Amendments I, IV, V, VIII, and
XIV, and comparable New Mexico Constitutional rights. (Doc. 1-1 at 1-2). Whitehead claims
his constitutional rights were violated by several different conditions of confinement at OCPR.
The Complaint was removed from the Twelfth Judicial District Court to this Court by Defendant
Otero Board of County Commissioners (“Otero County”) on March 1,2017. (Doc. 1).
Otero County also filed a Motion to Dismiss the Complaint on March 1, 2017. (Doc. 2).
On March 6, 2017, Defendants Ricardo Martinez and Management & Training Corporation filed
their Motions to Dismiss. (Doc. 4, 6). Defendant Eason submitted his Motion to Dismiss on
April 18, 2017. (Doc. 20). Defendant Keefe Corporation’s Motion seeking dismissal of the
Complaint was filed on June 13, 2017. (Doc. 55). Answers to the Complaint were filed by
Defendants Boyd, Smith, Pascale, Prospero, Waters, and Moreno on March 6, 2017, by
Defendant Frawner on March 21, 2017, by Defendant Management & Training Corporation on
June 12, 2017, and by Defendant Monks on July 5, 2017. (Doc. 5, 8, 54, 67). Each Answer
raises the defense of failure to state a claim on which relief can be granted. (Doc. 5 at 19, Doc. 8
at 15, Doc. 54 at 16, Doc. 67 at 16).
II. DISMISSAL FOR FAILURE TO STATE A CLAIM
The Court has the discretion to dismiss a pro se complaint sua sponte for failure to state a
claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6). A claim should be
dismissed where it is legally or factually insufficient to state a plausible claim for relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Fed.R.Civ.P. 12(b)(6) the Court must
accept all well-pled factual allegations, but not conclusory, unsupported allegations, and may not
consider matters outside the pleading.
Twombly, 550 U.S. at 555; Dunn v. White, 880 F.2d
1188, 1190 (10lh Cir. 1989). The court may dismiss a complaint under rule 12(b)(6) for failure to
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state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged.”
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma Dep’t of
Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
The Court liberally construes the factual allegations in reviewing a pro se complaint. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff’s
pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 .(10th
Cir. 1994). The court is not obligated to craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiff’s claims. Nor may the court assume the role of advocate for
the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.
III. ANALYSIS OF PLAINTIFF WHITEHEAD’S CLAIMS AND
DEFENDANTS’ MOTIONS TO DISMISS AND I2(bl(6) DEFENSES
Plaintiff Whitehead’s Complaint does not expressly allege causes of action under 42
U.S.C. § 1983.
However, 42 U.S.C. § 1983 is the exclusive vehicle for vindication of
substantive rights under the U.S. Constitution. See, Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979); Albright v. Oliver, 510 U.S. 266, 271 (1994) (Section 1983 creates no substantive rights;
rather it is the means through which a plaintiff may seek redress for deprivations of rights
established in the Constitution); Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006).
Plaintiff Whitehead’s Complaint states:
“Plaintiff Monte Whitehead, pro se, brings this Tort for Damages for violations
of Civil and Constitutional Rights .. .as follows:
(1) This is a Tort suit authorized by the New Mexico Tort Claims Act,
Chapter 41 NMSA, by a collections department prisoner who seeks
damages for:
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(a) Violation of Plaintiff s Constitutional Amendment rights I, V,
and XIV and comparable New Mexico Constitutional rights ...
(b) Violation of Plaintiff s Constitutional Amendment rights IV and
VIII and comparable New Mexico Constitutional rights ...”
(Doc. 1-1 at 1-2). Therefore, the Court construes the portions of Whitehead’s Complaint
alleging claims for violation of rights under the U. S, Constitution as civil rights claims brought
under 42 U.S.C. § 1983.
Section 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom,
or usage of any State .. .subjects or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law ...”
42 U.S.C. § 1983. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must assert acts
by government officials acting under color of law that result in a deprivation of rights secured by
the United States Constitution. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). There
must be a connection between official conduct and violation of a constitutional right. Conduct
that is not connected to a constitutional violation is not actionable under Section 1983. See Trask
v. Franco, 446 F.3d 1036, 1046 (10th Cir. 1998).
Further, a civil rights action against a public official or entity may not be based solely on
a theory of respondeat superior liability for the actions of co-workers or subordinates. A plaintiff
must plead that each government official, through the official’s own individual actions, has
violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948 (2009).
Plaintiff must allege some personal involvement by an identified official in the alleged
constitutional violation to succeed under § 1983. Fogarty v. Gallegos, 523 F!3d 1147, 1162 (10lh
Cir. 2008). In a Section 1983 action, it is particularly important that a plaintiffs complaint
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“make clear exactly who is alleged to have done what to whom, to provide each individual with
fair notice as to the basis of the claim against him or her.” Robbins v. Oklahoma, 519 F.3d 1242,
1249-50 (10lh Cir. 2008) (emphasis in the original). Nor do generalized statements that
defendants caused the deprivation of a constitutional right, without plausible supporting factual
allegations, state any claim for relief. Robbins v. Oklahoma, 519 F.3d at 1249-50.
As set out, below, the Court concludes that Plaintiffs Complaint fails to state a claim for
relief under § 1983.
The Court will grant the Rule 12(b)(6) motions to dismiss filed by
Defendants Otero County Board of Commissioners (Doc. 2), Ricardo Martinez (Doc. 4), and
Keefe Corporation (Doc. 55), and the Rule 12(b)(6) defenses raised by Defendants Boyd, Smith,
Pascale, Prospero, Waters, Frawner, Management & Training Corporation, and Monks (Doc. 5 at .
19, Doc. 8 at 15, Doc. 54 at 16, Doc. 67 at 16) and will dismiss all of Plaintiff s federal claims in
this case.
A. Claims Against New Mexico Corrections Department and Official Capacity Claims
Against State Officials:
Plaintiff Whitehead identifies the New Mexico Corrections Department as a Defendant
and seeks to assert claims against the New Mexico Corrections Department Secretary, Gregg
Marcantel, New Mexico Corrections Department Monitor Cruz, and New Mexico Collections
Department Grievance Officer Larry Phillips in their official capacities. (Doc. 1-1 at
4, 13, 14,
56, 109). The New Mexico Collections Department is a state agency. As such, the claims
against it are claims against the State of New Mexico. Official capacity claims against New
Mexico Collections Department officers are also claims against the State.
The State is not a “person” within the meaning of 42 U.S.C. § 1983 and, therefore, there
is no remedy against the State under § 1983. Will v. Michigan Dep’t ofState Police, 491 U.S. 58,
63-64 (1989). Therefore, the official capacity claims against the New Mexico Corrections
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Department,
Secretary Marcantel, Monitor Cruz and Grievance Officer Phillips will be
dismissed.
B. Civil Rights Claims Against Otero County:
Plaintiff Whitehead asserts claims against the Otero County Board of Commissioners for
violation of his First, Fifth, and Fourteenth Amendment rights to petition the government for
redress of grievances and due process, violation of his Fourth and Eighth rights to privacy and to
be free of unreasonable searches, violation of his First Amendment rights to freedom of speech
and of the press, and violation of his Fourteenth Amendment rights to equal protection and due
process in taxation. See Doc. 1-1, Claims One, Two, Four, and Five. Otero County has filed a
Motion to dismiss the claims against it under Fed. R. Civ. P. 12(b)(6) on the grounds that the
allegations of the Complaint are insufficient to state a § 1983 claim for relief. (Doc. 2).
A county may not be held liable under a respondeat superior theory in a § 1983 case.
Instead, a plaintiff seeking to impose § 1983 liability on a county must identify a custom or
policy that caused the plaintiffs injury. J.B. v. Washington County, 127 F.3d 919, 923 (10th
Cir.1997) (citing Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403
(1997)). To establish liability of a county government under § 1983, a plaintiff must
demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a
county policy or custom exists; and (iii) that there is a direct causal link between the policy or
custom, and the injury alleged. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006).
Such a policy or custom may be established by proving the existence of an express policy or
custom, or the provision of inadequate training, or a practice so widespread as to constitute
custom or usage with the force of law. Winters v. Board q/’County Convn'rs, 4 F.3d 848, 855
(10th Cir. 1993); Sauers v. Salt Lake County, 1 F.3d 1122, 1129 (10th Cir.1993).
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Plaintiff Whitehead alleges:
“Otero County was the owner of OCPF and therefore responsible for ensuring
that the contract obligations of Management and Training Corporation (MTC)the private prison contractor who manages OCPF-were met... Otero
County had a statutory obligation to appropriate funds and otherwise provide
the necessary funding to maintain and operate a facility for the incarceration
of prisoners.”
(Doc. 1-1 at 1f5).
“Defendants Otero County .. . maintained a custom or policy which permitted
or condoned the foregoing violations of Plaintiff s Constitutional rights.”
(Doc. 1-1 at 1(44).
“Otero County allowed this culture to propogate unchecked.”
(Doc. 1-1 at 1J 56).
“The actions of. . . Otero County reveal a nefarious culture among staff,
correctional officers, and administrators that was designed to harm, intimidate
and harass a politically undesireable group.”
(Doc. 1-1 at H 65).
“Otero County and other unnamed defendants reveals a nefarious culture among
staff and administrators that brings harm and anxiety to a politically undesireable
group.”
(Doc. 1-1 at H 109).
“Otero County.. . and its employees think it is ok to treat Plaintiff and other
imnates unequally or differently than other similarly situated person without
regard for humane or decent treatments.”
(Doc. 1-1 at H 124).
Although Whitehead makes a generalized statement that Otero County “maintained a
custom or policy,” Whitehead does not actually identify any specific policy or custom of Otero
County. His generalized allegations that its actions allowed a nefarious culture to exist within
OCPF are factually insufficient to state a federal civil rights claim against Otero County. Graves
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v. Thomas, 450 F.3d at 1218.
The Court will grant Otero County’s Motion and dismiss
Plaintiffs § 1983 claims against the Otero County Board of Commissioners for failure to state a
claim on which relief can be granted. l
C. Claims Against Keefe Corporation:
Plaintiff Whitehead names “Keefe Corporation” as a Defendant in this case. Keefe
Commissary Network, LLC (“Keefe”) has filed a Motion to Dismiss, noting that there is no
entity called “Keefe Corporation.” (Doc. 55 at 1, nt. 1). The only claim asserted by Whitehead
against Keefe is Claim Five. (Doc. 1-1 at 50). In Claim Five, Whitehead contends that Keefe
violated his rights under the Fourteenth Amendment and comparable New Mexico constitutional
provisions by charging tax on sales of commissary items at OCPF. Plaintiff Whitehead asserts
that inmates in other facilities are exempt from taxes and only prisoners at OCPF pay taxes on
commissary purchases. (Doc. 1-1 atfflj 115, 122).
Keefe seeks dismissal on the grounds that it is a private actor, not a state actor, and is not
subject to liability under § 1983. 42 U.S.C. § 1983 states:
“Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State... subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law ...”
42 U.S.C. § 1983 (emphasis added). For liability to be imposed, Section 1983 requires that the
defendant be acting under color of state law. Gallagher v. Neil Young Freedom Concert, 49 F.3d
1442, 1447 (10lh Cir. 1995). The Courts, including this Court, have consistently held that, in
making commissary sales, entities such as Keefe are private actors, not a state actors, and are not
1 To the extent Whitehead’s Complaint alleges a cause of action against Otero County under the
New Mexico Tort Claims Act, the Court will not address those claims and, as set out, below, will
remand them to state court.
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subject to § 1983 liability. See Ahlgrim v. Keefe Grp LLC, No. CV 16-00177 JB/GJF, 2016 U.S.
Dist. LEXIS 166006 at *9 (D.N.M. 2016); Thornton v. GEO Grp., Inc., No. CV 14-00893
MCA/CG, 2016 U.S. Dist. LEXIS 140710 at *37 (D.N.M. 2016); Leatherwood v. Rios, No. CV
15-00767, 2016 U.S. Dist. LEXIS 171997 at *10 (W.D. Okla 2016); Kyles v. Keefe Commissary
Network, LLC, No. CV 14-11907, 2015 U.S. Dist. LEXIS 49152 at *4 (E.D. Mich. 2015); Bomer
v. Access Catalog Co., 75 Fed. App’x 382, 383 (6th Cir. 2003). Keefe’s Motion to Dismiss will
be granted and Plaintiff Whitehead’s § 1983 claims against Keefe will be dismissed.
D. Claim One—Grievance Procedures:
In Claim One, Plaintiff Whitehead alleges that Defendants Lt. Eason, Lt. Boyd, Sgt.
Smith, Warden Frawner, Mr. Phillips, Ms. Cruz and Gregg Marcantel violated the First, Fifth,
and Fourteenth Amendments by frustrating his right to petition the government for redress of
grievances and frustrated his right to due process of law. (Doc. 1-1 at 11). The essence of his
allegations is that prison and corrections officials did not adequately respond to his prison system
grievances or did not decide those grievances in a manner favorable to Plaintiff. (Doc. 1-1 at
31,33-39).
Prison grievance procedures do not create a protected liberty interest and, as a
consequence, do not implicate a prisoner's due process rights. See Murray v. Albany County Bd.
of County Comm'rs, No. 99-8025, 2000 WL 472842, at *2 (10th Cir. Apr.20, 2000)
(unpublished op.) (“[PJrison grievance procedures do not ‘give rise to a protected liberty interest
requiring the procedural protections envisioned by the fourteenth amendment.’ ”) (quoting
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993)); Anderson v. Colorado Dep’t of
Corrections, No. 98-1477, 1999 WL 387163, at *2 (10th Cir. June 14, 1999) (unpublished op.)
(holding that a state inmate's § 1983 “allegations relating to the requirements of the Department
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of Corrections grievance procedure do not support a due process claim because those procedures
do not create any liberty interest in the incarcerated petitioner”). Johnson v. Richins, No. 2:08CV-945 CW, 2010 WL 3121144, at *7 (D. Utah Aug. 9, 2010), affd, 438 F. App'x 647 (10th
Cir. 2011).
Defendants' handling of Plaintiffs grievances does not, by itself, give rise to a
constitutional violation. A prison officer's failure to adequately respond to a prisoner's grievance
does not implicate a constitutional right. See Buckley v. Barlow, 997 F.2d 494, 495 (8th
Cir. 1993) (per curiam) (official’s failure to process inmates' grievances, without more, is not
actionable under section 1983); Greer v. DeRobertis, 568 F.Supp. 1370, 1375 (N.D.U1.1983)
(prison officials' failure to respond to grievance letter violates no constitutional or federal
statutory right); see also Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982) (a prison grievance
procedure does not require the procedural protections envisioned by the Fourteenth
Amendment).
Prison grievance procedures are a procedural right, only, and do not confer any
substantive right upon an inmate. Grievance Procedures do no give rise to a protected liberty
interest requiring the procedural protections of the fourteenth amendment. Buckley, 997 F.2d at
495 (quoting Azeez v. DeRobertis, 568 F.Supp. 8 (N.D.I11.1982)); see also Mann v. Adams, 855
F.2d 639, 640 (9th Cir. 1988) (an inmate has no legitimate claim of entitlement to a grievance
procedure). Therefore, to the extent Plaintiff Whitehead complains that his grievances were
improperly handled in violation of his right to due process, he has failed to state a claim upon
which relief may be granted.
Nor does an allegedly inadequate prison grievance system implicate a prisoner’s First
Amendment rights to petition the government for redress of grievances. Instead, “when the
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claim underlying the administrative grievance involves a constitutional right, the prisoner's right
to petition the government for redress is the right of access to the courts, which is not
compromised by the prison's refusal to entertain his grievance.” Boyd v. Werholtz, 443
Fed.App’x 331, 332 (10th Cir. 2011) (alteration and internal quotation marks omitted). The
failure of prison and corrections officials to handle or decide Plaintiffs grievances in different
manner does not, by itself, compromise the prisoner’s right of access to the courts or implicate
any First Amendment rights.
Plaintiff Whitehead lacks any protected liberty interest in filing grievances, and,
therefore, Defendants handling of his grievances, standing alone, fails to state a valid claim for
relief under § 1983. See Spry v. MeKune, 479 Fed.App’x 180, 181 (10th Cir. 2012) (rejecting
plaintiffs claim that his due process rights were violated “when he was persuaded not to pursue a
formal grievance”); Boyd v. Werholtz, 443 Fed.App’x at 332 (10th Cir. 2011) (“As the district
court recognized, there is no independent constitutional right to state administrative grievance
procedures.”). Nor does Plaintiff allege that any failure of the prison grievance system denied
him access to the courts, and, indeed, he was able to file this action. Plaintiff has failed to state a
valid claim 1983 claim for relief based on the handling of his prison system grievances. See
Fogle v. Infante, 595 Fed.App’x 807, 810 (10th Cir. 2014); Boyd, 443 Fed.App’x at 332.
E. Claim Two—Prison Conditions and Searches in Violation of the Fourth and
Eighth Amendments:
In Claim Two, Whitehead alleges that Defendants Frawner, Martinez, Marcantel, MTC,
Phillips, Cruz, Waters, and Prospero violated Plaintiffs Fourth and Eighth Amendment rights by
providing inadequate shower and toilet facilities and by conducting strip searches before and
after family visits. (Doc. 1-1 at
47-63). Whitehead claims that the prison showers and toilets
afforded him inadequate privacy protections. (Doc. 1-1 at ^ 45-57).
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(1) Shower and Toilet Conditions. Plaintiffs claims regarding conditions of the shower
and toilet facilities proceed under the Eighth Amendment. Inmates alleging Eighth Amendment
violations based on prison conditions must demonstrate that prison officials were deliberately
indifferent to their health or safety by subjecting them to a substantial risk of serious harm.
Former v. Brenncm, 511 U.S. 825, 834, (1994); Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th
Cir.1995). Prison officials display a deliberate indifference to an imnate's well-being when they
consciously disregard an excessive risk of harm to the inmate's health or safety. Fanner, 511
U.S. at 838-40; Wallis, 70 F.3d at 1077. The Eighth Amendment standard requires proof of both
an objective and a subjective component. Hudson v. MeMillion, 503 U.S. 1 (1992). If either of
these components is not established, the court need not inquire as to the existence of the other.
Helling v. McKinney, 509 U.S. 25, 35 (1993).
First, the deprivation alleged must objectively be sufficiently serious, resulting in a denial
of the “minimal civilized measures of life's necessities.” Farmer, 511 U.S. at 834 (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In proving the objective component, an inmate
must establish that there was both some degree of actual or potential injury, and that society
considers the acts that the plaintiff complains of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to those acts. Helling, 509 U.S. at 36; see
also Estelle v. Gamble, 429 U.S. 97,102, (1976).
The second subjective component requires that the prison official possesses a sufficiently
culpable state of mind: “deliberate indifference to inmate health and safety.” Farmer, 511 U.S. at
834-36. With regard to deliberate indifference, a prison official is not liable “unless the official
knows of and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
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exists, and he must also draw the inference.” Id. at 837. The subjective component requires proof
that the official was: (1) aware of the facts that would lead a reasonable person to infer the
substantial risk of serious harm; (2) actually made the inference that the substantial risk of
serious harm to the plaintiff existed; and (3) knowingly disregarded the risk. Id at 844.
Although Plaintiff Whitehead makes generalized allegations using the requisite language,
his Complaint does not factually establish that the shower and toilet conditions presented some
degree of actual or potential injury to him, or that society considers the conditions that the
plaintiff complains of to be so grave that they violate contemporary standards of decency to
expose anyone unwillingly to those acts. Helling, 509 U.S. at 36; see also Estelle v. Gamble, 429
U.S. 97, 102, (1976). Nor does he claim that any official was aware of the facts that would lead a
reasonable person to infer the substantial risk of serious harm, made the inference that the
substantial risk of serious harm to the plaintiff existed, and knowingly disregarded the risk.
Fanner at 844. Whitehead’s shower and toilet claims do not state a § 1983 claim for relief under
the Eighth Amendment.
(2) Strip Search Claims. Prisoners in conectional facilities do have Fourth Amendment
constitutional rights to be free of unreasonable searches and seizures. However, not all strip
searches are unconstitutional. Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir. 1997). A policy
or practice of strip searching, even without reasonable suspicion to believe that the inmate may
be concealing contraband, is constitutionally permissible. A practice impinging on an inmate's
constitutional rights will be upheld where it is reasonably related to legitimate penological
interests. Turner v. Sajley, 482 U.S. 78, 89 (1987).
Maintaining safety and order at detention centers is reasonably related to legitimate
penological interests and requires the expertise of correctional officials, who must have
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substantial discretion to devise reasonable solutions to problems. Turner v. Safley, 482 U.S. at
89. Therefore, a strip search in a correctional facility is constitutionally permissible, at least
where the strip search is no more intrusive than the one the Supreme Court upheld in Bell v.
Wolfish, 441 U.S. 520, 558 (1979). See Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008).
The Supreme Court, in Bell v. Wolfish, upheld a rule requiring pretrial detainees in
federal correctional facilities “to expose their body cavities for visual inspection as a part of a
strip search conducted after every contact visit with a person from outside the institution[s].” 441
U.S. at 558. The Court deferred to the judgment of correctional officials that the inspections
served not only to discover but also to deter the smuggling of weapons, drags, and other
prohibited items. 441 U.S. at 558. See, also, Block v. Rutherford, 468 U.S. 576, 586-587(1984).
Correctional officials must be permitted to devise reasonable search policies to detect and deter
the possession of contraband in their facilities. Hudson v. Palmer, 468 U.S. at 522-523; Block,
486 U.S. at 584-585; Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct.
1510, 1511-12 (2012).
The obvious security concerns inherent in a situation where a prisoner will be placed in
the general prison population warrant searches of inmates. Archuleta v. Wagner, 523 F.3d 1278,
1284 (10th Cir.2008). The rights of prisoners placed in custodial housing with the general jail
population are not violated by a policy or practice of strip searching each one of them, provided
that the searches are no more intrusive on privacy interests than those upheld in the Bell case,
and the searches are not conducted in an abusive manner. Bull v. City and County of San
Francisco, 595 F.3d 964, 980-81 (9'" Cir. 2010); Powell, 541 F. 3d at 1314.
Although Plaintiff Whitehead makes generalized claims that strip searches before and
after visits are unreasonable, he presents no factual allegations to support his claims. Nor do
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Plaintiff’s allegations establish that the searches were unreasonably intrusive. To the contrary, he
appears to claim that prison officials conducted only visual strip searches, and does not claim
more intrusive bodily cavity searches at issue in Bell.
Plaintiff Whitehead’s allegations
regarding strip searches fail to state a § 1983 claim for relief. Foote v. Spiegel, 118 F.3d at 1425.
F. Claim Three—Eighth Amendment Medical Care:
In Claim Three, Plaintiff Whitehead alleges Eighth Amendment claims for deliberate
indifference in medical care. (Doc. 1-1 at 29). Plaintiff claims that the response of the OCPF
medical staff, including Defendants Pascale and Monk, to a medical incident on November 20,
2015 was inadequate. (Doc. 1-1 at
71-87). Whitehead also contends that the response of
Defendants Phillips and Marcantel to grievances he filed was also inadequate and seek to hold
Defendants MTC, Otero County, and New Mexico Department of Corrections liable for the acts
of then employees. (Doc. 1-1 at
88-94).
The Eighth Amendment protects against the infliction of cruel and unusual punishments.
U.S. Const. Amend. VIII. The Eighth Amendment’s prohibition against cruel and unusual
punishment encompasses deliberate indifference by prison officials. Howard v. Waide, 534 F.3d
1227, 1235 (10th Cir.2008) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)). Deliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment. Deliberate indifference may be
manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed. Regardless of whether it is evidenced by conduct of prison medical
officials or prison guards, deliberate indifference to a prisoner’s serious illness or injury may
state a cause of action under § 1983. Estelle, 429 U.S. at 104-05.
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Determining the sufficiency of an Eighth Amendment claim for deliberate indifference
involves a two-pronged inquiry, comprised of an objective component and a subjective
component. Self v. Cram, 439 F.3d 1227, 1230 (10th Cir. 2006); Kikumura v. Osagie, 461 F.3d
1269, 1291 (10th Cir.2006). With respect to the objective component, a medical need is serious
if it is “one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (internal quotation and citation omitted). The
question is not limited to whether the inmate’s symptoms render a medical need sufficiently
serious, but also extends to whether the potential harm to the inmate is sufficiently serious. Mata
v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005). The record establishes the first prong that Gonzales
has a serious medical need. (Doc 22 at 2).
Under the subjective component, the defendant must have a sufficiently culpable state of
mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Self 439 F.3d at 1230-31. In other
words, the plaintiff must establish that the defendant “knew he faced a substantial risk of harm
and disregarded that risk, by failing to take reasonable measures to abate it.” Hunt v. Uphoff 199
F.3d 1220, 1224 (10th Cir. 1999) (internal citation and quotation omitted). With regard to the
subjective component, the question for consideration by the Court is: “were the symptoms such
that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”
Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir.2009) (quoting Mata, 427 F.3d at 753). An
official responds to a known risk in an objectively unreasonable manner if he knew of ways to
reduce the harm but knowingly or recklessly declined to act. Prison officials violate the Eighth
Amendment when they are deliberately indifferent to the serious medical needs of prisoners in
their custody. Howard, 534 F.3d at 1239-40.
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However, prison officials who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded reasonably to the risk, even if the harm
ultimately was not averted. Howard, 534 F.3d at 1239 (quoting Farmer, 511 U.S. at 844-45).
Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or
treatment of a medical condition does not constitute a medical wrong under the Eighth
Amendment. See Estelle, supra, 429 U.S. at 105-06. Moreover, a difference of opinion between
the prison’s medical staff and the inmate as to the diagnosis or treatment which the inmate,
receives does not support a claim of cruel and unusual punishment. See, e. g, Smart v. Villar,
547 F.2d 112, 114 (10th Cir. 1976); Selfv. Crum, 439 F.3d at 1231; Thompson v. Gibson, 289
F.3d 1218, 1222 (10th Cir.2002). A prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation. Taylor v. Ortiz, 410 F.
App'x 76, 79 (10th Cir. 2010).
Assuming that the first prong is established, the record in this case fails to establish the
second, subjective, component.
Rather than showing deliberate indifference, Plaintiff
Whitehead’s allegations reflect a disagreement with the diagnosis and treatment he was provided
by prison medical staff. While the allegations may be sufficient to support a state-law claim that
the treatment fell below a medical standard of care or was negligent, they do not rise to the level
of stating an Eighth Amendment constitutional violation. Smart v. Villar, 547 F.2d at 114.
G, Claim Four—Violation of First Amendment Freedom of Speech and the Press:
Plaintiff Whitehead alleges in Claim Four that Defendants Marcantel, Otero County,
MTC, Frawner, Martinez, Phillips, Cruz, and Moreno violated his First Amendment
constitutional rights to free speech and the press, (Doc. 1-1 at 42). Whitehead claims that his
rights were violated when prison officials did not allow him to receive newspaper clippings and
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internet materials, books from vendors not on the approved-vendor list, and hardback books.
(Doc. 1-1 at
102-104). He contends that the denial of access to the materials impaired his
ability to write an article criticizing the conditions at OCPF. (Doc. 1-1 at ^ 96-100, 105-107).
Inmates do have a First Amendment right to receive information while they are in prison,
but only to the extent the right is not inconsistent with prisoner status or the legitimate
penological objectives of the prison. Jocklovich v. Simmons, 392 F.3d 420, 426 (10th Cir.2004).
When a prison regulation limits a prisoner’s First Amendment rights, the regulation is valid if it
is reasonably related to legitimate penological interests.” Turner v. Sqfley, 482 U.S. at 89. The
validity is determined based on four factors: “(1) whether a valid and rational connection exists
between the regulation and the asserted legitimate governmental interest; (2) whether alternative
means of exercising the constitutional right remain available to inmates; (3) any effect
accommodating the right would have on guards, inmates, and the allocation of prison resources;
and (4) the absence of ready alternatives.” Turner, 482 U.S. at 89-90; accord Jocklovich, 392
F.3d at 426; Jones v. Salt Lake County, 503 F.3d 1147, 1153-54 (10th Cir.2007). The burden is
not on the State to prove the validity of prison regulations, but on the prisoner to disprove it.
Overton v. Bazzetta, 539 U.S. 126, 132, (2003). Sperry v. Werhollz, 413 F. App'x 31, 39-40
(10th Cir. 2011).
The Courts have consistently upheld reasonable limitations on a prisoner’s receipt of
hardback books, mail, and other packages. See Thornburgh v. Abbott, 490 U.S. 401, 416
(1989)(holding that prison authorities have broad discretion in regulating the entry of material
into a prison); Turner v. Safley, 482 U.S. at 91-92 (upholding prison restrictions on mail as
reasonably related to legitimate security concerns); Bell v. Wolfish, 441 U.S. at 550 (upholding
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ban on inmate receipt of certain hardback books and packages containing personal property and
food in order to counter risk of smuggled contraband).
Prisons present unique circumstances, and government conduct that would be
unacceptable in other settings may be acceptable, even necessary, in a prison. Prisoner’s rights
may be restricted in ways that would raise First Amendment concerns outside the prison context.
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). An inmate does not have a First Amendment
right to make violent, explicit, or harassing statements. See Kervin v. Barnes, 787 F.3d 833, 835
(7th Cir.2015); Lockett v. Suanlini, 526 F.3d 866, 874 (6th Cir.2008); Cowans v. Warren, 150
F.3d 910, 912 (8th Cir. 1998); Ustrakv. Fairman, 781 F.2d 573, 580 (7th Cir.1986). A prisoner’s
disagreement with prison restrictions, alone, does not state a claim for violation of First
Amendment rights. Turner v. Falk, 632 F. App'x 457, 460-61 (10th Cir. 2015).
Plaintiff Whitehead does not allege that the restrictions on material by OCPF are not
reasonably related to prison security concerns but, instead, simply disagrees with the restrictions.
(Doc. 1-1 at U 105). Moreover, the fact that Plaintiff was able to write his article demonstrates
that the restrictions did not impair his constitutional right of free speech and press. (See "Is
Governor Martinez Involved in Human Trafficking?” Doc. 1-1 at 144-149).
Plaintiff
Whitehead’s allegations fail to state a claim of violation of his First Amendment Rights.
H. Claim Five—Equal Protection in Taxation:
Claim Five asserts a Fourteenth Amendment claim against Defendants Marcantel,
Frawner, Martinez, MTC, Otero County, Cruz, Phillips, and Keefe Corp. on the grounds that the
charging of sales tax on prison commissary purchases violates the equal protection clause. (Doc.
1-1 at 50-53).
Whitehead alleges:
“Since Plaintiffs arrival at OCPF he and other inmates have been taxed on
commissary items. State inmates at other prisons in N.M. are exempt from
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paying taxes since they are wards of the state and have no voting privileges and
thus no representation in government. . ..
MTC, Keefe and state officials clam state inmates at OCPF have to pay taxes
because their commissary comes from Texas .. .
All state prisons and other private
prisons in the state operate their commissary through Keefe Corporation.
However, only state inmates at OCPF have to pay taxes.”
(Doc. 1-1 at HU 115, 119, 122).
Prisoners have no federal constitutional right to purchase items (food or non-food) from a
commissary. See Tokcir v. Armontrout, 97 F.3d 1078, 1083 (8th Cir.1996) (“we know of no
constitutional right of access to a prison gift or snack shop”); Hopkins v. Keefe Commissary
Networks Sales, 2007 WL 2080480, at *5 (W.D.Pa.2007) (“Inmates have no federal
constitutional right to be able to purchase items from a commissary”); Torres v. Droim, No. 01
Civ. 1844(DJS)(TPS), 2004 WL 721729, at *7 (D.Conn. Mar. 30, 2004) (“The plaintiff has no
constitutional right to purchase items from the commissary or outside vendors”); Bagwell v.
Brewington-Carr, No. 97-714-GMS, 2000 WL 1239960, at *3 (D.Del. Aug.25, 2000) (“while
incarcerated [plaintiff] does not have a constitutional right to purchase potato chips and soda
pop”). Because a prisoner does not have a federal constitutional right to purchase commissary
items, Plaintiff Whitehead’s Claim Five does not state a § 1983 claim. See, e.g., McCall v. Keefe
Supply Co., 71 Fed. Appx. 779, 780 (10th Cir.2003); Fogle v. Pierson, 435 F.3d 1252, 1261
(10th Cir. 2006).
IV. REMAINING PENDING MOTIONS
Also pending before the Court are Plaintiff Whitehead’s Motion for Preliminary
Injunction (Doc. 14), Motion to Amend (Doc. 23), Motion for Hearing on Motion for
Preliminary Injunction (Doc. 44), Motion for Clarification of Statements (Doc. 46), Motion to
Appoint Counsel (Doc. 47), Motion for Supplemental Pleading (Doc. 60), Motion to be Allowed
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to Include Exhibits (Doc. 76), and Motion for Order to Cure Deficiency in Affidavits (Doc. 87).
Because the Court is dismissing all federal claims, the Court will deny those Motions as moot.
Plaintiff Whitehead has also filed a Motion to Prevent GCCF from Interfering with Mail.
(Doc. 68) and a Motion for Preliminary Injunction and Temporary Restraining Order to Prevent
Guadalupe County Correctional Facility from Interfering with Plaintiffs Mail (Doc. 88). GCCF
is not a party to this proceeding and, therefore, the Court cannot grant the relief requested by
Plaintiff against GCCF. Plaintiffs Motions will be denied.
Defendant Lieutenant Eason has entered a special appearance and filed a Motion to
Dismiss under Fed. R. Civ. 12(b)(4) and (5) on the grounds of insufficient process and service of
process. (Doc. 20). Defendant Eason contends that he has never been properly served with
process in this case, and Plaintiffs attempt to serve a summons through a law firm that is not
authorized to accept service is invalid. (Doc. 20 at 2-3). Plaintiff Whitehead filed a Response to
several motions to dismiss (Doc. 25). However, that response did not address the insufficiency
process or service of process raised in Defendant’s Eason’s Motion. See Doc. 25.
Proper service of process under Fed. R. Civ. P. 4 is necessary to bring a defendant before
the Court. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 344-45 (1999). Service
of process is fundamental to any procedural imposition on a named defendant. See Omni Capital
Int'l, Ltd v. Rudolf Wolff & Co., 484 U.S. 97, 104. (In the absence of such service or waiver of
service by the defendant, a court ordinarily may not exercise power over a party the complaint
names as defendant). Fed. R. Civ. P, 4(e)(2)(C) requires that the summons and complaint be
served on an agent authorized to accept service of process and service on attorneys not
authorized to accept that service is invalid under Rule 4. Plaintiff Whitehead fails to establish
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that he has effectuated proper service of process on Defendant Eason and the Court will grant
Defendant Eason’s Motion to Dismiss.
Defendant Management & Training Corporation also filed a Motion to Dismiss for lack
of service under Fed. R. Civ. P. 4. (Doc. 6). However, that Motion was withdrawn by MTC on
May 25, 2017. (Doc.38).
V. REMAND OF STATE LAW CLAIMS
Plaintiff Whitehead originally filed his Complaint in the Twelfth Judicial District Court
of the State of New Mexico. He alleges that he is proceeding under the New Mexico Tort
Claims Act, N.M. Stat. Ann. 41-4-1, et seq. (1978). (Doc. 1-1 at 1). In addition to alleging
violation of his U.S. Constitutional rights, Whitehead claims that his rights under the New
Mexico Constitution have been violated. (Doc. 1-1 at 1-2).
Within the supplemental jurisdiction granted by 28 U.S.C. § 1367, a federal court has
subject-matter jurisdiction over certain state-law claims. A district court’s decision whether to
exercise supplemental jurisdiction after dismissing all claims over which it has original
jurisdiction is discretionary. See § 1367(c). Under § 1367(c), the district courts may decline to
exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over
which it has original jurisdiction. Osborn v. Haley, 549 U.S. 225, 245 (2007); Arbangh v. Y & H
Corp., 546 U.S. 500, 514, (2006).
The U.S. Supreme Court has stated that needless decisions of state law should be avoided
both as a matter of comity and to promote justice between the parties, by procuring for them a
surer-footed reading of applicable law. United Mine Workers ofAmer. v. Gibbs, 383 U.S. at 726,
86 S.Ct. 1130 (footnote omitted). When all federal claims have been dismissed, a district court
may, and usually should, decline to exercise jurisdiction over any remaining state claims. Koch v.
22
Case 2:17-cv-00275-MV-KK Document 91 Filed 09/27/17 Page 23 of 24
City of Dei City, 660 F.3d 1228, 1248 (10th Cir.2011); Smith v. City of Enid ex rel. Enid City
Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998); Young v. City of Albuquerque, 77 F. Supp. 3d
1154, 1185 (D.N.M. 2014).
This Court is dismissing all federal claims in this case. The Court declines to exercise
supplemental jurisdiction over Plaintiff Whitehead’s remaining state-law claims, and will
remand this proceeding to state court for adjudication of those state-law claims.
IT IS ORDERED:
(1) Plaintiffs Motions for Preliminary Injunction (Doc. 14), Motion to Amend (Doc. 23),
Motion for Hearing on Motion for Preliminary Injunction (Doc. 44), Motion for Clarification of
Statements (Doc. 46), Motion to Appoint Counsel (Doc. 47), Motion for Supplemental Pleading
(Doc. 60), Motion to be Allowed to Include Exhibits (Doc. 76), Motion for Order to Cure
Deficiency in Affidavits (Doc. 87), Motion to Prevent GCCF from Interfering with Mail. (Doc.
68), and Motion for Preliminary Injunction and Temporary Restraining Order to Prevent
Guadalupe County Correctional Facility from Interfering with Plaintiffs Mail (Doc. 88) are
DENIED;
(2) Defendant Lieutenant Eason’s Motion to Dismiss under Fed. R. Civ. 12(b)(4) and (5)
(Doc. 20) is GRANTED;
(3) Defendant Management & Training Corporation’s Motion to Dismiss (Doc. 6) is
WITHDRAWN;
(4) The Motions to Dismiss filed by Defendant Otero County Board of Commissioners
(Doc. 2), Ricardo Martinez (Doc. 4), and Keefe Corporation (Doc. 55) are GRANTED as to
Plaintiff Whitehead’s federal civil rights claims;
(5) All federal claims asserted by Plaintiff in his Complaint are DISMISSED for failure
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Case 2:17-cv-00275-MV-KK Document 91 Filed 09/27/17 Page 24 of 24
to state a claim under Fed. R. Civ. P. 12(b)(6);
(6) This case is REMANDED to the State of New Mexico, County of Otero, Twelfth
Judicial District Court for adjudication of Plaintiff Whitehead’s state-law claims.
24
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