Case 1:15-cv-00417-JB-LF Document 1 Filed 05/15/15 Page 1 of 15
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
Civil Action No. ------------------
OLGA SALAZAR, Personal Representative ofthe Estate of JESUS MARQUEZ, Plaintiff,
V.
SAN JUAN COUNTY DETENTION CENTER ("SJCDC"), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER ("SJRMC"), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY, KATIE (Unknown Surname), RN,
Defendants.
COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND WRONGFUL DEATH
COME NOW the plaintiffs, by and through their attorney Mitchel S. Bums, Gregory M. Tucker, Tucker, Bums, Yoder & Hatfield and for their complaint state as follows
PARTIES AND JURISDICTION 1. Plaintiff was a resident of San Juan County in the state of New Mexico at the time ofhis death on March 3, 2015. 2. Plaintiff suffered injuries and death as a result of insufficient medical care
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by the Defendants while incarcerated at the San Juan County Detention Center. 3. Plaintiff claims that Defendants acts were severe and deliberate indifference
to his health needs and violations of his civil rights under the United States and New Mexico Constitution.
4. All of the events described herein occurred in San Juan County, New Mexico, between the dates of July 16, 2014 and March 3, 2015.
5. Defendant SJRMC is a New Mexico corporation doing business in New Mexico pursuant to a contract with San Juan County to provide medical care to inmates at the San Juan County Detention Center from February 17, 2014 to present.
6. Defendant Havel is the Administrator of SJCDC and a proper individual to be sued under 14 U.S.C. § 1983 for deliberate indifference and reckless disregard for inmates' care.
7. Defendant SJRMC is a proper defendant under 42 U.S.C. § 1983 for deliberately indifferent policies, practices, habits, customs, procedures, training and supervision of staff, including of individual Defendants, with respect to the provision of medical care and treatment for inmates with serious emergency medical needs.
8. Defendant SJRMC is a properly named defendant for a negligence claim, as it is a private corporation, not entitled to any immunity under either the Federal Tort Claims Act or New Mexico Tort Claims Act.
9. Defendants Dr. Eric Ketcham, Cindy Ketcham and Katie Moore are properly named defendants for negligence claims, as they are employees of a SJRMC and not entitled to immunity under either the Federal Tort Claims Act or New Mexico Tort Claims Act.
10. Defendant San Juan County is the public entity responsible for the San 2

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Juan County Detention facility.

11.

Tort claim notice was sent in a proper and timely manner pursuant to

the New Mexico Tort Claims Act §41-4-16.

12.

San Juan County is the proper party to be sued for negligent delegation

of decision-making authority to SJRMC acting as contractual fmal delegated decision-

makers with respect to the deliberately indifferent policies and practices for the care and

treatment of persons incarcerated in the San Juan County Detention Center.

13.

San Juan County is the proper party responsible for the deliberately

indifferent and negligent actions of its SJCDC employees.

STATEMENT OF FACTS

14.

Upon information and belief, the contract between San Juan County and

the individual defendants required payment on a per-transport basis for prisoners transported

from SJCDC for medical care; SJCDC intentionally established policies, procedures and/or

practices to save money by not transporting inmates in need of serious medical care except in

the most extreme circumstances.

15.

The individual defendants deprived plaintiff of reasonable medical care

by, inter alia, refusing to allow them to be treated by physicians except in cases of extreme

urgency and delegated their care to non-medical professionals.

16.

As a direct and proximate result of the wrongful conduct of each of the

Defendants, Plaintiff suffered a long painful death that should have been prevented.

17.

For several months, the mother of Jesus Marquez, Olga Salazar,

contacted the jail complaining that the medical staff had refused to properly treat Jesus

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Marquez's diabetes.

18.

Due to Jesus' medical condition worsening significantly while being

held at San Juan County Detention Center, he was transferred from general population to the

medical unit.

19.

On March 2, 2015, a detention officer was working in the medical unit

when Jesus informed her that he was suffering from severe chest pains.

20.

The medical staff treated Jesus' chest pains by taking his vitals and

providing him ibuprofen.

21.

The medical staff was called to treat Jesus that night and the morning of

March 3, 2015.

22.

On the morning of March 3, 2015, a detention officer walked by Jesus'

cell and noticed he was laying in a very awkward, lethargic position, and was an ash color.

23.

The officer banged on his cell and asked, "Jesus, what's wrong?"

24.

The officer asked her fellow officers if medical staffhad checked on

him, and they informed her that they had made the request many times and were repeatedly

told medical staff would arrive in thirty minutes.

25.

Despite thirty minutes having come and gone multiple times, and

medical staff failing to check on Jesus, he was placed in a wheelchair so that he could be

transported to court.

26.

Jesus was in such dire health that he was unable to get into the transport

van. He fell between the seats and was so weak that officers had to take off his restraints

and drag him out of the van.

27.

Jesus was brought back to his cell in the medical unit and again

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informed officers that he could not breathe and renewed his request for a doctor or

ambulance.

28.

The detention officers recognized that Jesus' condition was getting very

severe.

29.

Jesus' skin was grey, around his eyes it was black like a bruise, and his

lips and tongue were a greyish/white color.

30.

One detention officer was also a trained firefighter and performed a

capillary refill test on Jesus and determined that he was not receiving oxygen.

31.

The detention officers once again demanded that medical staff examine

Jesus, and yet again were informed by medical staff that they will examine him in thirty

minutes.

32.

A detention officer then demanded to fellow officers, "you need to get

medical staffhere now!"

33.

After more time has passed, an officer then made the decision to call

medical response as the policy and procedures makes it mandatory for the medical staff to

examine Jesus.

34.

According to a detention officer on scene Jesus was out of it,

and he kept repeating that he could not breathe.

35.

Medical staff member Katie Moore finally showed up due to a medical

response call, and was angry to have been called to examine Jesus.

36.

Nurse Katie used a finger pulse to determine Jesus' heart-rate, but this

was not the correct procedure since Jesus was not getting oxygen to his extremities.

37.

Another medical staff took Jesus' blood pressure, and after she got the

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reading, showed it to Nurse Katie. Nurse Katie informed her, "that can't be, take it again."

38.

The medical staff took Jesus' blood pressure a second time. After

reviewing the results, Katie informed the other staff member to go get her stethoscope.

39.

Jesus again informed them that he could not breathe, and Katie

dismissed this by saying, "you can breathe because you are talking to me."

40.

At this time, a detention officer stated, "are you kidding me? You can

tell he is in distress, but they aren't acting concerned about it."

41.

All the officers knew something was very wrong with Jesus. One officer

stated, "you can't fake your blood pressure. You can't fake your skin color."

42.

At this time, Katie stated, "you can go ahead and clear my first

response."

43.

It was grossly negligent to clear the first response when Jesus was

showing signs of pulmonary heart failure, and none of the appropriate exams had been

performed on him.

44.

With several officers holding Jesus in a sitting position because he was

far too weak to do it on his own, Katie took Jesus' blood pressure again, covered the results

so no one else could read them and said, "he's fine."

45.

Jesus continued to claim he could not breathe, his sentences fragmented

and his speech slurred.

46.

Katie informed the guards, "he just needs some water."

47.

Jesus tried to drink the water he was given, but he could not find his

mouth. He managed a few little sips.

48.

Jesus kept going in and out of consciousness, so the medical staff

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continued to use ammonia sticks on him to keep him awake.

49.

The officers told the medical staff several times that Jesus was dying

and they needed to transport him to the hospital. These suggestions were ignored.

50.

It was the position of the medical staff that Jesus could be faking it.

51.

Again, the officer commented about not being able to fake blood

pressure and the color of his skin.

52.

Jesus continued to claim he could not breathe and that he needed to go

to the hospital. He kept repeating, "tell them to hurry, hurry, hurry."

53.

The officer noticed that Jesus was now bleeding from his mouth.

54.

Despite showing signs of dying from heart failure, Katie and the other

medical staff left Jesus and returned to their offices.

55.

The blood coming from his mouth got so bad that it was literally

dripping to the floor.

56.

The detention officers were left to treat the medical needs of Jesus, and

making decisions during this critical state.

57.

An officer finally stated that they should break protocol and call for an

ambulance or Jesus is going to die.

58.

At this point, a sergeant over the detention officers called for an

ambulance but informed them not to "run code" which slowed the response time down

significantly.

59.

Awaiting for an ambulance, and absent of any medical staffbecause

they had returned to their offices, an officer said, "they are ignoring their Hippocratic oath.

Everyone can see he is dying right now."

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60.

When medical staff failed to return and the detention officers doing

everything they could to keep him alive, an officer stated, "I can't believe they (medical

staff) are doing this."

61.

At the very minimum, medical staff should have given Jesus 02, called

for an ambulance, and, stayed with Jesus until an ambulance arrived and informed EMS

what was going on.

62.

Medical staff didn't show up until a detention officer yelled, "get

medical here now! They need to at least be here when EMS shows up."

63.

Some time later, Katie returns and tells the officer, "Oh, I'm sorry. I

didn't know I needed to be present during a non-emergency transport."

64.

An argument then occurs when officers are asking medical staff to

explain how this situation is not an emergency.

65.

Jesus was moved to the toilet when the officer told Katie about blood

coming from Jesus' mouth. Katie dismissed this telling the officer that he probably bit his

tongue or something.

66.

Upon examination of Jesus' mouth, it was determined that he had not

bitten his tongue, and his tongue, lips, gums were a whitish/grey.

67.

When EMS arrived, the medical staff failed to inform EMS of the

situation. At this time, an officer gave them all the relevant facts.

68.

The officer noticed that Jesus' eyes had already began to glaze over.

69.

Jesus could no longer use his legs, so they had to drag him onto the

gurney. 70.

As soon as Jesus was loaded in the ambulance, an officer told medical

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staff, "and that's not an emergency?"

71.

The officer was informed that Jesus "coded" (flat-lined) once he was

loaded onto the ambulance, and was pronounced dead upon arrival at the hospital.

72. The policies and procedures implemented by Dr. Eric Ketcham, Cindy

Ketcham, and Thomas Havel were inadequate to protect the rights of the inmates and

created an apathetic atmosphere causing death and serious injury.

CLAIMS FOR RELIEF
COUNT I: Violation of 42 U.S.C. § 1983 Eighth Amendment Prohibition Against Cruel and Unusual
Punishment

73 .

Plaintiffhereby incorporate all other paragraphs of this Complaint as

if fully set forth herein.

74.

42 U.S.C. § 1983 provides that:

Every person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the constitution and law shall be liable to the party injured in an action at law, suit in equity, or other appropriate proceeding for redress ...

75.

Plaintiff was a citizen of the United States; Defendant Havel is a person

forpurposesof42U.S.C. § 1983.

76.

Plaintiff had a clearly established right under the Eighth Amendment

to be free from deliberate indifference and reckless disregard for known serious medical

needs.

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77.

Defendant Havel, at all times relevant hereto, was acting under color

of state law.

78.

Havel acted with deliberate indifference to Plaintiffs' serious

medical needs and constitutional rights by willfully ignoring plaintiffs' repeated requests

for medical attention and intentionally deprived plaintiffs of care.

79.

Upon information and belief, Havel instructed SJCDC and SJRMC

staff to act in a manner that deprived persons in need of medical care, such as plaintiff, of

their constitutional rights and violated SJCDC's internal policies in order to save money.

80.

As a direct and proximate result of defendant's conduct, plaintiff

suffered damages in an amount to be determined at trial.

81.

Plaintiff is entitled to attorneys' fees and costs pursuant to 42

U.S.C.§ 1988, pre-judgment interest and costs as allowable by federal law.

82.

Plaintiff also seeks appropriate declaratory and injunctive relief

pursuant to 42 U.S.C. § 1983 to redress the ongoing deliberate indifference in policies,

training and supervision with respect to the serious medical needs of patients and

inmates in violation of the Eighth Amendment of the Constitution.

COUNT II: NEGLIGENCE

83.

Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully

set forth herein.

84.

By their complained of series and pattern of intentional actions and

inactions, de facto policies, customs, habits, usages, and delegated final decision makers'

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decisions, these Defendants acted or failed to act in bad faith and with deliberate

indifference to the obvious serious medical needs of Mr. Marquez.

85.

Upon information and belief, these Defendants knew that potentially

serious or fatal consequences could be suffered by such individuals by their challenged

policies and practices and by their failures to properly train and supervise medical care and/or

develop adequate policies.

86. Defendants violated their duty of care to provide reasonable medical care

to citizens, many of whom have not been convicted of any crime, while incarcerated, by, without limitation, delaying medical care, denying proper medications, providing incorrect medications, delegating medical duties to untrained staff, failure to have medical doctors properly supervise,

failure to provide adequate care as set forth herein, including improper medication management,

and deliberately ignoring plaintiffs' serious medical needs for profit.

87.

SJRMC Defendants are vicariously liable for the negligent acts

and omissions of their agents and/or employees and directly liable for their own negligent failures

in training, policies, and practices.

88.

Involved caregivers at the jail grossly deviated from that standard of care and

were negligent in failing to properly care for and treat Mr. Marquez' known serious medical

needs in the health care services they failed to provide. Inter alia, defendants failed to properly

assess plaintiff, failed to provide proper medications in the proper doses, or at all, failed to

evaluate or treat serious medical issues, failed to transport plaintiff to higher-level medical care

when required, failed to provide inmates access to medical doctors and left plaintiffs' serious

medical needs untreated.

88.

As a direct result of Defendants' unlawful conduct, Plaintiff suffered

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mJunes, damages and losses as described herein entitling them to compensatory and special damages including attorneys' fees in amounts to be determined at trial.

COUNT III: Violations of 42 U.S.C. §§ 12131-12134 The Americans With Disabilities Act ("ADA").

89.

Defendants herein were required by law to observe and adhere to common

law and statutory laws and civil rights laws and guarantees in the performance of their duties to

or for those who are disable and are detained at the San Juan County Detention Center.

90.

Defendants violated their duties under the ADA to make accommodations to

plaintiff with known, obvious, and disclosed disabilities.

91.

As a result of defendants' actions, plaintiff suffered damages as described

herein and in an amount to be proven at trial and are entitled to damages, attorneys' fees and

costs.

COUNT V: WRONGFUL DEATH 92. Plaintiff hereby incorporates all foregoing allegations as if set forth herein. 93. Defendants, their agents, agencies, and employees breached their duty of care and were negligent in failing to establish appropriate protocols in the management and assessment of inmates presenting with serious medical conditions. 94. Defendants, their agents, agencies, and employees breached their duty of care and failed to provide access to a medical doctor.

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95. Defendants, their agents, agencies, and employees breached their duty of care and failed to provide Mr. Marquez a medical transport when requested by Mr. Marquez and his mother, Olga Salazar.
96. Defendant, Dr. Ketcham failed to meet the proper standard of medical care in the evaluation and treatment of Mr. Marquez.
97. Defendants' acts or omissions proximately caused Mr. Marquez's loss of chance of life, pain, suffering, and ultimate death and extreme emotional distress and other damage.

COUNT VI: DECLARATORY RELIEF

98.

Plaintiff repeats and reincorporates the allegations above.

99.

Defendants' actions are ongoing, likely to recur, and cause future damages to

other inmates detained at the SJCDC.

100.

Declaratory relief in the form of changes to policies, procedures, supervision,

training, and contractual payments for medical services is necessary to prevent immediate and

irreparable harm, including constitutional and statutory violations, policy violations, serious

injury and death.

101.

Plaintiff requests appointment of a special master or other expert to determine

what declaratory relief and pursuant to what time frame, will ameliorate the existing situation.

PRAYER FOR RELIEF Plaintiff prays that this Court enter judgment for the Plaintiff and against each of the Defendants and enter the following relief: 102. Award Plaintiff compensatory, non-economic, consequential and economic
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Damages as proven at trial against all of the Defendants; 103. Award Plaintiff special damages as proven at trial; 104. Award Plaintiff punitive damages relating to the federal claims brought in
this matter; 105. Award Plaintiff attorneys' fees and costs pursuant to the provisions of 42
u.s.c.
and the ADA; 106. Award Plaintiff interest from the earliest possible date under appropriate
federal and state statutes; 107. Grant Plaintiff declaratory relief compelling implementation of
constitutionally and statutorily appropriate policies for evaluation and treatment of inmates in need of immediate medical care;
108. All other appropriate relief at law and equity. PLAINTIFF RESPECTFULLY REQUESTS A JURY TRIAL ON ALL TRIABLE ISSUES.
IS/ Gregory M. Tucker Gregory M. Tucker Mitch Bums Jennifer Yoder Christian Hatfield Tucker, Bums, Yoder & Hatfield 105 North Orchard Ave. Farmington, New Mexico 87401 (505) 325-7755 Greg@tbylaw.com Mitch@tbylaw.com
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 Case 1:15-cv-00417-JB-LF Document 97 Filed 11/17/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

OLGA SALAZAR, Personal Representative of the Estate of JESUS MARQUEZ,

Plaintiff,

vs.

No. CIV 15-417 JB/LF

SAN JUAN COUNTY DETENTION CENTER, et al,

Consolidated with: No. CIV 15-439 JB/LF No. CIV 15-497 JB/LF No. CIV 15-526 JB/LF

Defendants.

ORDER DISMISSING ALL FEDERAL CLAIMS AGAINST DEFENDANT SAN JUAN REGIONAL CENTER WITH PREJUDICE IN 1:15-CV-00439 JB/LF

This matter comes before the Court on the Motion of Defendant San Jan Regional

Medical Center (SJRMC) to dismiss all federal claims against it in Cause No. 1:15-cv-00439-JB-

LF. The Motion was filed on October 15, 2015. Plaintiffs filed their Response on November 6,

2105. In their Response, Plaintiffs stated that they approve the Motion.

Plaintiffs’ Second Amended Complaint alleges that SJRMC had the contractual

responsibility for providing medical care at the San Juan County Detention Center (the Center)

beginning February 17, 2014, and that as inmates at the Center, Plaintiffs received inadequate

medical care during their incarcerations. The Second Amended Complaint contains 42 U.S.C. §

1983 claims against SJRMC based on alleged violations of the Eighth Amendment, claims based

on alleged violations of the Americans with Disabilities Act (42 U.S.C. §§ 12131-12134), and

federal claims for declaratory and injunctive relief.

Based on its review of the allegations of the Plaintiffs’ Second Amended Complaint and

its analysis of the arguments and authorities in the Motion, the Court finds as follows:

Case 1:15-cv-00417-JB-LF Document 97 Filed 11/17/15 Page 2 of 3
1. Plaintiffs’ Second Amended Complaint does not contain enough allegations of fact, which taken as true, meet the pleading standards established by Bell Atl.Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) and Kansas Penn Gaming LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Plaintiffs do not allege any particular custom, practice or inadequacy of training or supervision on which they base their claims against SJRMC. The Second Amended Complaint also contains no factual allegations on which a fact-finder could determine that any aspect of the medical treatment for any one Plaintiff, or any injury of a particular Plaintiff, violated the Eighth Amendment. As a result, the Second Amended Complaint does not state a 42 U.S.C. § 1983 claim against SJRMC for violation of the Eighth Amendment that is plausible on its face.
2. The allegations of the Second Amended Complaint specifically allege that SJRMC is a New Mexico corporation. As a private corporation SJRMC cannot be liable to Plaintiffs under Title II of the Americans with Disabilities Act. Phillips v. Tiona, 508 Fed.Appx. 737, 754 (10th Cir. 2013).
3. The Second Amended Complaint does not provide any factual allegations on which the Court could base a declaration of the future rights between each of the Plaintiffs and SJRMC, so the Second Amended Complaint cannot form the basis of any federal declaratory relief against SJRMC. Ysais v. New Mexico, 373 Fed.Appx. 863 (10th Cir. 2010), Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004).
4. Since their Second Amended Complaint fails to state any legal claims against SJRMC based on federal law, Plaintiffs’ claims for federal injunctive relief also cannot succeed. Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007).
The Court also finds that Plaintiffs have not requested to amend their Second Amended Complaint, and that the deadline for amending their pleadings has passed for all parties, as noted
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in the Joint Status Report and Provisional Discovery Plan filed by the parties on September 23, 2015.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that all of the claims against SJRMC in Plaintiffs’ Second Amended Complaint based on federal law, including the claims under 42 U.S.C. § 1983 for alleged violations of the Eighth Amendment, claims based on alleged violations of the Americans with Disabilities Act (42 U.S.C. §§ 12131-12134), and all claims for declaratory and injunctive relief, are hereby dismissed with prejudice.
All parties approve. __________________________________ UNITED STATES DISTRICT JUDGE
Approved: TUCKER, BURNS, YODER & HATFIELD approved by Gregory Tucker via email 11-12-15 Gregory M. Tucker Mitchell S. Burns Christian A. Hatfield Jennifer D. Yoder Counsel for Plaintiffs CIVEROLO, GRALOW, HILL & CURTIS, P.A. / s / Ellen Kelly 11-12-15 Robert J. Curtis Ellen M. Kelly Counsel for Defendant San Juan Regional Medical Center
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 Case 1:15-cv-00417-JB-LF Document 174 Filed 01/15/16 Page 1 of 109

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

OLGA SALAZAR, Personal Representative of the Estate of JESUS MARQUEZ,

Plaintiff,

vs.

No. CIV 15-0417 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY, KATIE (Unknown Surname), RN,

Defendants.

Consolidated with

JESSE BERKEY, EARL CALLAHAN, LARIET CHARLES, GORDON DOUGLAS DERRICK, AARON EATON, CALVIN FINCH, PAUL GOULD, JOSEPH GUTIERREZ, MARK HINOJOS, THOMAS KNIGHT, AURELIO MARQUEZ, ANGELO MARTINEZ, MARK MARTINEZ, RUDY MARTINEZ, VICTORIA MARTINEZ, PAUL MATAMOROS, RICHARD MCDONALD, DEBBIE NEZ, DAVID PAGE, STEVE PARRISH, CLIFFORD ROGERS, ADAM SCHUESSLER, JASON TRUJILLO, FRANKLIN TSO, STEVE VALERIO, JIMMY WEAHKEE and HARRY WILLIAMS,

Plaintiffs,

vs.

No. CIV 15-0439 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”) SAN JUAN COUNTY, CORRECTIONAL HEALTHCARE COMPANIES, INC. (“CHC”), SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), PRESBYTERIAN MEDICAL SERVICES (“PRESBYTERIAN”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR, SAN JUAN COUNTY DETENTION CENTER,

Defendants.

Case 1:15-cv-00417-JB-LF Document 174 Filed 01/15/16 Page 2 of 109

Consolidated with

CHARLES CARTER, Personal Representative of the Estate of WILLIAM “BILLY” CARTER,

Plaintiff,

vs.

No. CIV 15-0497 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY,

Defendants.

Consolidated with

COREY JONES, Personal Representative of the Estate of Sharon Jones

Plaintiff,

vs.

No. CIV 15-0526 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiff’s Motion for Injunctive Relief

Against Defendant San Juan County Detention Center, filed September 28, 2015 (Doc. 48 in

Olga Salazar v. San Juan Cty. Detention Ctr., No. CIV 15-0417 JB/LF (D.N.M.)(“Salazar v. San

Juan”))(“Motion”). The Court held a hearing on November 24, 2015. The primary issues are: (i)

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whether the Plaintiffs’ requested preliminary injunction1 -- which asks the Court to order
Defendant San Juan County Detention Center to provide immediate emergency care to those
Plaintiffs suffering from severe medical conditions or, in the alternative, to appoint a special
master to oversee medical treatment at the San Juan County Detention Center -- falls within one
of the three disfavored categories of such injunctions; (ii) whether the Plaintiffs have a
substantial likelihood of succeeding on the merits of their claim that the Defendants violated the
Eighth Amendment to the Constitution of the United States of America; (iii) whether the
Plaintiffs will suffer irreparable harm between now and a full trial on the merits if the Court does
not issue the requested preliminary injunction; (iv) whether the injury that the Plaintiffs will
sustain in the absence of the requested preliminary injunction outweighs the injury that the
issuance of the requested preliminary injunction will cause the Defendants; and (v) whether
issuing the requested preliminary injunction would be adverse to the public interest. As to the
first issue, the Court concludes that the requested preliminary injunction falls into all three of the
disfavored categories: it would arguably be a mandatory injunction, rather than a prohibitory
one; it would change, rather than preserve, the status quo; and it would shortcut the trial process
by providing the Plaintiffs with all the relief that they could hope to obtain from a full trial on the
merits. As to the second issue, the Court concludes that the Plaintiffs have not put forth evidence
1It is the Court’s understanding that the Plaintiffs have requested only preliminary, and not final injunctive relief. The Motion discusses preliminary injunctions extensively. See Motion at 6. Further, at the November 24, 2015, hearing on the Motion, the Court observed that the relief sought is more in the nature of final injunctive relief, see Tr. at 122:5-13 (Court), and the Plaintiffs responded that the relief would be preliminary in so far as the special master would be appointed only for a short period of time, and that he or she would make recommendations, but that they would carry on into the future without the Court’s supervision. See Tr. at 122:1422 (Hatfield). In sum, the Court construes the Plaintiffs’ request as one seeking preliminary injunctive relief only. Even if the Plaintiffs, however, intended for their Motion to be construed as one seeking final relief, the Court would nonetheless deny the Motion. If the Court is declining to grant a preliminary injunction on the record before it, it would not grant a final injunction.
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indicating that they will have a substantial likelihood of success on the merits at trial. As to the third issue, the Court concludes that the harms that the requested injunction seeks to prevent would be irreparable. As to the fourth issue, the Court concludes that the balance of harms weighs in the Plaintiffs’ favor. As to the fifth issue, the Court concludes that a preliminary injunction would not be adverse to the public interest. Because failure on any of the four prongs necessitates denial of a preliminary injunction, the Court will deny the Motion.
FACTUAL BACKGROUND Pursuant to rule 52(a)(2) of the Federal Rules of Civil Procedure, the Court makes findings of fact and conclusions of law to support its disposition of the Motion. See Fed. R. Civ. P. 52(a)(2), 65(d)(1). See Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1179 (D.N.M. 2011)(Browning, J.). “[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)(quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). “The Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Unlike in a motion for summary judgment, the Court can consider evidence outside the pleadings, including hearsay, when deciding whether to grant a preliminary injunction. See Pharmanex, Inc. v. HPF, 221 F.3d 1352, at *3 (10th Cir. 2000)(unpublished)2(citing J. MOORE, MOORE’S FEDERAL
2Pharmanex, Inc. v. HPF is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The United States Court of Appeals for the Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value
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PRACTICE § 65.23 (1999)). Moreover, at summary judgment, the facts may turn out different and
there may be genuine issues of material fact. The Court divides its findings of fact into four
sections: first, the Court will introduce the parties; second, it will describe Plaintiff Paul
Matamoros’s incarceration at the San Juan County Detention Center; third, it will describe non-
party Christopher Yarnell’s incarceration at the San Juan County Detention Center; fourth, it will
describe non-party James Dominguez’ incarceration at the San Juan County Detention Center;
and fifth, it will describe non-party Martin Veneno’s incarceration at the San Juan County
Detention Center.
1. The Parties. 1. The Plaintiffs3 are current or former inmates at Defendant San Juan County
Detention Center. See Salazar v. San Juan, No. CIV 15-0417 JB/LF (D.N.M.), Complaint for
Violation of Civil Rights and Wrongful Death ¶ 2, at 1-2, filed May 15, 2015 (Doc. 1)(“Salazar
Complaint”); Charles Carter v. San Juan Cty. Detention Ctr., No. CIV 15-0497 JB/LF (D.N.M.),
Complaint ¶¶ 2-3, at 1-2, filed June 12, 2015 (“Carter v. San Juan”)(Doc. 1)(“Carter
with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court finds that Pharmanex, Inc. v. HPF, Belcher v. United States, 216 F. App’x 821 (10th Cir. 2007), Gaston v. Ploeger, 229 F. App’x 702 (10th Cir. 2007), and Vega v. Wiley, 259 F. App’x 104 (10th Cir. 2007), have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.
3The Plaintiffs’ Motion requesting injunctive relief is styled as one on behalf of all Plaintiffs in this lawsuit, but three of the inmates involved -- Jesus Marquez, William “Billy” Carter, and Sharon Jones -- are dead. Further, a number of the remaining twenty-seven named plaintiffs are no longer incarcerated at the San Juan County Detention Center. Moreover, the Court cannot meaningfully fashion an injunctive remedy for Plaintiffs that are dead or not currently incarcerated at the San Juan County Detention Center. To the extent that the Court grants injunctive relief, therefore, it should be for the benefit of inmates currently incarcerated at the San Juan County Detention Center.
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Complaint”); Corey Jones v. San Juan Cty. Detention Ctr., No. 15-0526 JB/LF (D.N.M.), Complaint ¶¶ 2-3, at 1-2, filed June 22, 2015 (“Jones v. San Juan”)(Doc. 1)(“Jones Complaint”); Burkee, et. al. v. San Juan Cty. Detention Ctr., No. CIV 15-0439 JB/LF (D.N.M.), Second Amended Complaint ¶ 1, at 2, filed July 8, 2015 (Burkee v. San Juan)(Doc. 27)(“Burkee Complaint”).
2. Plaintiff Olga Salazar serves as the personal representative of the Estate of Jesus Marquez, who was incarcerated at the San Juan County Detention Center, and was pronounced dead at the hospital after being transported there from the San Juan County Detention Center on March 3, 2015. See Salazar Complaint ¶¶ 1, 2, 71, at 1, 9.
3. Plaintiff Charles Carter serves as the personal representative of William “Billy” Carter, who died while incarcerated at the San Juan County Detention Center. Carter Complaint ¶¶ 1-3, at 1-2.
4. Plaintiff Corey Jones serves as the personal representative of the estate of Sharon Jones, who died while incarcerated at the San Juan County Detention Center. See Jones Complaint ¶¶ 1-3, at 1-2.
5. The remaining twenty-seven named plaintiffs in this lawsuit are individuals who were or are incarcerated at the San Juan County Detention Center between 2013 and the present. See Burkee Complaint ¶ 1, at 2.
6. One such plaintiff is Paul Matamoros, who is currently incarcerated at the San Juan County Detention Center. See Motion at 2-3.
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7. Christopher Yarnell4 is not a party to this lawsuit, but is currently incarcerated at
the San Juan County Detention Center. See Motion at 3-4.
8. James Dominguez is not a party to this lawsuit, but was an inmate at the San Juan
County Detention Center in 2015. See Motion at 4.
9. Martin Veneno is not a party to this lawsuit, but was an inmate at the San Juan
County Detention Center in 2015. See Transcript of Hearing at 12:11-13:5 (Burns, Court,
Veneno)(taken November 24, 2015)(“Tr.”).5
10. The San Juan County Detention Center is a jail in Defendant San Juan County,
state of New Mexico. See Carter Complaint ¶¶ 3,12, at 2-3.
4The Motion is styled as one on behalf of all Plaintiffs, but the Plaintiffs have highlighted the factual circumstances of only one party to this lawsuit -- Matamoros -- and three other current or former inmates of the San Juan County Detention Center that are not parties -Yarnell, James Dominguez, and Martin Veneno. In their Motion, the Plaintiffs state:
21. The above inmates are but a representative sampling of individuals whose medical needs have not been adequately addressed; because of the pressing need for immediate relief; affidavits have not yet been obtained from others with similar unaddressed medical issues.
22. If emergency injunctive relief is not granted, plaintiffs and other inmates will suffer irreparable harm, including extreme pain, exacerbation of existing medical conditions and possible death.
Motion ¶¶ 21-22, at 5. The Motion refers to Yarnell, Dominguez, and Veneno as representational parties, but the Plaintiffs have not moved for class certification. The Court will therefore not treat the Motion as being filed other than on the “Plaintiffs” behalf. The Court will consider Yarnell’s, Dominguez’, and Veneno’s stories as evidence regarding whether the Plaintiffs will be able to prove that they are likely to succeed on the merits. These non-parties, however, lack standing to ask the Court to fashion an injunctive remedy, because they are not before the Court and the Plaintiffs have not moved for class certification. If the Court grants any injunctive relief, it will be designed for the benefit of parties in this case and not for others, although any injunctive relief may incidentally help others. In sum, the Court is treating the evidence regarding Yarnell, Dominguez, and Veneno as evidence that might lend credibility to the Matamoros’ and the Plaintiffs’ assertion that they are likely to succeed on the merits.
5The Court’s citations to the transcript for this hearing refer to the court reporter’s original, unedited version. Any final version may contain slightly different page and/or line numbers.
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11. Defendant San Juan Regional Medical Center is a New Mexico corporation doing business in New Mexico pursuant to a contract with San Juan County to provide medical care to inmates at the San Juan County Detention Center from February 17, 2014 to present. See Salazar Complaint ¶ 5, at 2.
12. Defendant Correctional Healthcare Companies, Inc. is a Delaware corporation doing business in New Mexico pursuant to a contract with San Juan County to provide medical care to inmates at the San Juan County Detention Center from February 17, 2014 to present. See Burkee Complaint ¶ 5, at 2.
13. Defendant Thomas C. Havel is the Administrator of the San Juan County Detention Center. See Salazar Complaint ¶ 6, at 2.
14. Defendants Dr. Eric Ketcham, Cindy Ketcham, and Katie Moore are employees of the San Juan Regional Medical Center. See Salazar Complaint ¶ 9, at 2.
15. Defendant Presbyterian Medical Services is a New Mexico nonprofit organization doing business in San Juan County pursuant to a contract with San Juan County to provide mental health services to inmates at the San Juan County Detention Center. See Burkee Complaint ¶ 7, at 2-3.
16. San Juan County is the public entity responsible for the San Juan County Detention Center. See Salazar Complaint ¶ 10, at 2-3.
2. Matamoros’ Incarceration at the San Juan County Detention Center. 17. Matamoros is currently in the San Juan County Detention Center, where he has been incarcerated for approximately seventeen months, since July 27, 2014. See Tr. at 41:15-18 (Hatfield, Matamoros); id. at 59:3-6 (Childress, Matamoros); Affidavit of Paul Matamoros ¶ 2, at 1 (executed September 10, 2015), filed September 28, 2015 (Doc. 48)(the “Matamoros Aff.”);
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Defendants’ Memorandum in Support of Motion for Summary Judgment as to Paul Matamoros’ Section 1983 Claim at 1, filed November 11, 2015 (Doc. 102 in Salazar v. San Juan).
18. Within Matamoros’ first month of incarceration he was seen by nurses or physicians at the San Juan County Detention Center and was given medication for back pain and related complaints. See Progress Notes, Inmate Health Service Request Forms, and Prescription Orders 7/30/14-8/31/14, filed November 18, 2015 (Doc. 102-2 in Salazar v. San Juan)(“Exhibit 2”).
19. On September 11, 2014, Matamoros was transported to the San Juan Regional Medical Center for a Lumbar spine MRI, see MRI Report, filed November 18, 2015 (Doc. 102-3 in Salazar v. San Juan)(“Exhibit 3”), and on September 30, 2014, he was taken to the San Juan Regional Medical Center for additional diagnostic testing that Dr. Ketcham ordered. See Consultation & Referral Record, filed November 18, 2014 (Doc. 102-4 in Salazar v. San Juan)(“Exhibit 4”).
20. During September and October of 2014, Matamoros continued to be treated at the San Juan County Detention Center for back pain and other medical issues. See Progress Notes, Inmate Health Service Requests, and Prescriptions Orders 9/1/14-10/31/14, filed November 18, 2014 (Doc. 102-6 in Salazar v. San Juan)(“Exhibit 6”).
21. On November 4, 2014, Matamoros was transported to the San Juan Regional Medical Center for evaluation by a physical therapist. See Consultation and Referral Record, filed November 18, 2014 (Doc. 102-7 in Salazar v. San Juan)(“Exhibit 7”).
22. Matamoros had physical therapy sessions at the San Juan Regional Medical Center on eight occasions beginning on November 10, 2014, and ending on December 4, 2014.
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See Consultation and Referral Record, filed November 18, 2014 (Doc. 102-7 in Salazar v. San Juan)(“Exhibit 7”).
23. During November 2014, Matamoros continued to be treated at the San Juan County Detention Center for his back pain and other medical problems. See Progress Notes, Inmate Health Service Requests, and Prescription Orders 11/1/14-11/30/14, filed November 18, 2014 (Doc. 102-8 in Salazar v. San Juan)(“Exhibit 8”).
24. On December 17, 2014, the diagnostic testing performed on September 30, 2014 was repeated. See Report of 12/17/14, filed November 18, 2014 (Doc. 102-9 in Salazar v. San Juan)(“Exhibit 9”).
25. On September 30, 2014, Matamoros saw Dr. Jonathan Jones MD, a neurosurgeon, who compared the December 17, 2014, test with the September 30, 2014, test, and observed no significant changes. See Report from San Juan Health Partners Neurosciences, filed November 18, 2014 (Doc. 102-10 in Salazar v. San Juan)(“Exhibit 10”).
26. During December 2014, Matamoros continued to receive treatment for his back pain and related ailments. See Progress Notes, Inmate Health Service Requests, and Prescription Orders 12/1/15-12/31/15, filed November 18, 2014 (Doc. 102-11 in Salazar v. San Juan)(“Exhibit 11”).
27. On January 8, 2015, Matamoros was transported to the San Juan Regional Medical Center Neuroscience Department for a follow-up with Dr. Jones, who scheduled an injection for Matamoros. See Consultation & Referral Record of 1/8/15, filed November 18, 2014 (Doc. 102-12 in Salazar v. San Juan)(“Exhibit 12”).
28. On February 13, 2015, Matamoros was transported to the San Juan Regional Medical Center where Dr. Jones gave him an injection. See Consultation & Referral Record
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dated 2/13/15 and Inmate Health Service Request dated 2/15/15, filed November 18, 2015 (Doc. 102-14 in Salazar v. San Juan)(“Exhibit 14”).
29. On March 27, 2015, neurosurgeon Dr. Koijan Kainth evaluated Matamoros. See Report from San Juan Health Partners Neurosciences, filed November 18, 2015 (Doc. 102-17 in Salazar v. San Juan)(“Exhibit 17”).
30. Dr. Kainth reported that Matamoros did not have a “life threatening problem” and was “currently neurologically intact.” See Report from San Juan Health Partners Neurosciences, filed November 18, 2015 (Doc. 102-17 in Salazar v. San Juan)(“Exhibit 17”).
31. On June 16, 2015, Matamoros had a CT Scan of the Lumbar Spine. See Consultation & Referral Record, 6/12/15, filed November 18, 2015 (Doc. 102-19 in Salazar v. San Juan)(“Exhibit 8”).
32. In addition, Matamoros was transported and treated at the San Juan Regional Medical Center Emergency Room on five other occasions. See ER Consultation & Referral Record for 4/10/15, 4/15/15, and 5/16/15, filed November 18, 2015 (Doc. 102-20 in Salazar v. San Juan)(“Exhibit 20”); Records of ER Treatment for 8/28/15 (dated August 28, 2015)(entered into evidence as Exhibit B at the November 24, 2015 hearing)(“Exhibit B”); Records of ER Treatment for 9/24/15, filed October 26, 2015 (Doc. 73-2 in Salazar v. San Juan)(“ Records of ER Treatment for 9/24/15”).
33. In addition to these other medical issues, Matamoros has developed a severe rash on his groin and penis. See Tr. at 41:19-42:16 (Hatfield, Matamoros); id. at 61:17-62:6 (Childress, Matamoros); Motion ¶ 3, at 3; Matamoros Aff. ¶ 2, at 1.
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34. Matamoros began experiencing problems with his penis approximately seven days before August 26, 2015. See Tr. at 42:4-16 (Hatfield, Matamoros); id. at 63:1-64:8 (Childress, Matamoros).
35. During those seven days, Matamoros would go to the medical unit at the San Juan County Detention Center “for med pass6 at 11:00” a.m. and repeatedly tell the nurses that “[he] was having an issue down there.” Tr. at 42:4-43:4 (Hatfield, Matamoros). See Motion ¶ 4, at 3; Matamoros Aff. ¶ 3, at 1.
36. During this time, his penis got worse, but the nurses told him that they could not look at it, because Matamoros was male, while they were female, or because there was not a male medical staff member on hand. See Tr. at 42:4-44:3 (Hatfield, Matamoros).
37. A female nurse refusing to look at a patient’s penis who needs medical attention, because he is male, is generally not a medically sound reason to delay medical care. See Tr. at 101:2-11 (Rudolf, Tucker); id. at 113:15-21 (Rudolf, Tucker).
38. If a facility has a policy requiring that a male be present when a male is examined, a facility should make arrangements to get the patient to a place where there is a male person. See Tr. at 101:2-11 (Rudolf, Tucker).
39. Three days before August 28, 2015, Matamoros began feeling pain in his penis.7 See Tr. at 112:11-23 (Tucker, Rudolf).
6The Court does not know the precise meaning of “med pass,” but will interpret it as being a pass which authorizes an inmate to visit the medical unit of the San Juan County Detention Center.
7There is some dispute whether, when Matamoros arrived at the hospital on August 28, 2015, he reported that he had been experiencing the problem with his penis for three days or whether it was that he had been feeling pain for three days. The Court concludes that the evidence is consistent with Matamoros having experienced pain beginning three days before his hospital visit on August 28, 2015. The hospital records from his August 28, 2015, visit to the
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40. Matamoros told them “it was getting serious” and that, if someone did not see it,
“[he] was going to call [his] attorney.” Tr. at 44:4-10 (Hatfield, Matamoros). See Motion ¶ 4, at
3.
41. Dr. Dwinel8 then looked at Matamoros’ penis and informed him that he needed to
“[f]ill out a kite9. . . . I need to send you to the emergency room.” Tr. at 44:11-18 (Hatfield,
Matamoros). See Motion ¶ 4, at 3.
42. Matamoros then filled out a kite, dated August 26, 2015 and a second one on
August 27, 2015. See Tr. at 44:24-45:4 (Hatfield, Matamoros); Motion ¶ 4, at 3; Inmate Health
Service Requests 7/1/15-8/27/15 at 16-17, filed October 26, 2015 (Doc. 73-4 in Salazar v. San
Juan)(“Inmate Health Service Requests 7/1/15-8/27/15”).
San Juan Regional Medical Center indicate that Matamoros stated: “The pain has been occurring for 3 day(s).” Records of ER Treatment for 8/28/15 at 2 (dated August 28, 2015)(entered into evidence as Exhibit B at the November 24, 2015 hearing)(“Exhibit B”). The records also state: “. . . also has sore on his penis which is painful and been there for the past 3 days.” Exhibit B at 2. These statements, however, are consistent with Matamoros’ assertion that his problem with his penis began earlier -- seven days before August 26, 2015.
8The Court has been unable to find Dr. Dwinel’s first name in any of the briefing or in the transcript from the November 24, 2015 hearing on the Motion. The record does indicate, however, that Dr. Dwinel is a male. See Tr. at 44:11-15 (Matamoros, Hatfield)(“And the minute he sees me, he goes, ‘Fill out a kite.’ And ‘I need to send you to the emergency room.’”).
9A “kite” or Inmate Health Service Request is a form that an inmate fills out to make a complaint or request for services. See Tr. at 126:6-24 (Court, Hatfield). It appears that the word kite has two possible origins. See Tr. at 149:3-22 (Park). The first explanation for the term is that inmates would typically fill out a health request form or other communication, but that because correctional facility staff members do not care, they may as well just throw it away. See Tr. at 149:3-22 (Park). The second explanation for the origin of the term is that originally when inmates used to communicate with one another, they would throw handwritten notes from one cell to another. See Tr. at 149:3-22 (Park). Inmates would attach the note to a piece of string so that in the event that the note did not quite reach the next cell, they could pull it back and try again. See Tr. at 149:3-22 (Park). Based on this practice, eventually any type of correctional communication came to be known as a “kite.” See Tr. at 149:3-22 (Park).
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43. On August 28, 2015, Matamoros was transported to the San Juan County Medical Center Emergency Room. See Tr. at 45:5-25 (Hatfield, Matamoros); Motion ¶ 4, at 3; Matamoros Aff. ¶ 4, at 1; Exhibit B at 1-2.
44. Between the time when Matamoros first noticed the problem with his penis and when he was transported to the San Juan Regional Medical Center on August 28, 2015, his penis went “from it looking like a blister to starting to eat [his] flesh, to where you could pretty much see [his] urethra10. . . . And it got bad. It was bad.” Tr. at 72:7-14 (Hatfield, Matamoros).
45. Failing to treat a penis for eight days, if there is an infection causing the symptoms, “could cause ongoing and worsening damage to the penis,” and permanent damage. Tr. at 112:24-113:14 (Rudolf, Tucker).
46. At the San Juan Regional Medical Center Emergency Room, Matamoros tested negative for sexually transmitted diseases, they administered an IV, a doctor looked at his penis, and the doctor diagnosed him with a yeast infection. See Motion ¶ 5, at 3; Tr. at 46:17-21 (Matamoros); Matamoros Aff. ¶ 4, at 1; Exhibit B at 1-5.
47. Matamoros’ blood was also drawn, and staff at the San Juan Regional Medical Center Emergency Room performed a CT scan of his abdomen and his pelvis. See Tr. at 66:5-11 (Childress, Matamoros); Exhibit B at 1-5.
48. “Matamoros was not swabbed or tested for serious, life-threatening illnesses such as MRSA, which are prevalent in jail and take many forms.” Motion ¶ 6, at 3. See Matamoros Aff. ¶ 3, at 1.
10The urethra is “the duct by which urine is conveyed out of the body from the bladder and which in male vertebrates also conveys semen.” Urethra, New Oxford American Dictionary (3d ed. 2010).
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49. Matamoros was prescribed fifteen grams of Nystatin cream and 500 milligram tabs of Cephalexin antibiotics. See Tr. at 44:4-11 (Hatfield, Matamoros); id. at 47:4-11 (Hatfield, Matamoros); id. at 66:12-17 (Childress, Matamoros); Matamoros Aff. ¶ 4, at 1; Exhibit B at 5; Matamoros Prescriptions at 5, filed October 26, 2015 (Doc. 73-5 in Salazar v. San Juan)(“Matamoros Prescriptions”).
50. After Matamoros was returned to the San Juan County Detention Center, his penis got worse. See Tr. at 47:14-18 (Hatfield, Matamoros).
51. After he returned from the hospital, Matamoros was informed that he had experienced an allergic reaction to the medications he was taking. See Tr. at 47:16-25 (Matamoros).
52. Matamoros was eventually switched from Cephalexin to Prednisone antibiotics on approximately September 1, 2015. See Tr. at 47:20-24 (Matamoros); Matamoros Prescriptions at 5.
53. His penis started to improve approximately ten days after he began taking the Prednisone. See Tr. at 48:3-5 (Matamoros); id. at 66:18-68:5 (Childress, Matamoros).
54. At some point, Matamoros again raised the issue of his penis not healing with the medical staff at the San Juan County Detention Center. See Tr. at 48:6-18 (Hatfield, Matamoros).
55. A nurse practitioner and a male guard looked at Matamoros’ penis, and the nurse told Matamoros that he would have to see a urologist because his penis was healing incorrectly. See Tr. at 48:8-18 (Matamoros).
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56. Matamoros told them that he had lost all feeling, and she said that he probably would not have feeling there for approximately two years or longer. See Tr. at 48:6-18 (Matamoros).
57. Matamoros filed additional kites on September 6, 2015, September 11, 2015, and September 20, 2015. See Tr. at 49:7-25 (Hatfield, Matamoros).
58. The September 6, 2015, kite states: “The skin under my penis is not healing correctly. It’s healing wrong. I need to be seen ASAP.” Tr. at 49:7-15 (Hatfield, Matamoros).
59. The September 11, 2015, kite states: “I lost all feeling on the bottom of my penis. It’s not healing right. Please help me.” Tr. at 49:16-19 (Hatfield, Matamoros).
60. The September 20, 2015, kite states: “I’d like to speak with you about a certain issue that has arose concerning my medical treatment that I would like to clarify with you ASAP.” Tr. at 49:20-25 (Hatfield, Matamoros).
61. During this time period, Matamoros also made oral complaints to jail personnel, including C. Ketcham. See Tr. at 50:1-3 (Hatfield, Matamoros).
62. At some point before September 24, 2015, Matamoros also had blood in his stool and inner hemorrhoids, about which he went to the medical unit. See Tr. at 55:9-19 (Matamoros).
63. The medical unit took a stool sample and stated that, if Matamoros had any more issues related to his stool, it would send him to the San Juan Regional Medical Center Emergency Room. See Tr. at 55:9-19 (Matamoros).
64. Matamoros and the other Plaintiffs in Burkee v. San Juan filed their amended complaint in this case on July 8, 2015. See Burkee Complaint at 1.
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65. Also before September 24, 2015, Matamoros completed an affidavit for this preliminary injunction.11 See Tr. at 50:18-21 (Hatfield, Matamoros).
66. On September 24, 2015, Matamoros was again taken to the San Juan Regional Medical Center Emergency Room. See Tr. at 50:21-51:16 (Hatfield, Matamoros); id. at 68:6-8 (Childress, Matamoros); San Juan Regional Medical Center Medical Records as to Paul Matamoros at 1 (dated September 24, 2015)(entered into evidence as Exhibit C at the November 24, 2015 hearing)(“Exhibit C”).
67. At that point, Matamoros’ penis was about three quarters of the way through the healing process. Tr. at 67:24-68:8 (Childress, Matamoros).
68. Matamoros did not know why he had been taken to the San Juan Regional Medical Center Emergency Room. See Tr. at 50:21-51:13 (Hatfield, Matamoros); Exhibit C at 1.
69. At the hospital, doctors told Matamoros to “drop [his] pants because they needed to check [his] penis.” Tr. at 50:25-51:2 (Hatfield, Matamoros).
70. Matamoros informed the doctors at the San Juan Regional Medical Center that he thought he was there about the blood in his stool. See Tr. at 51:2-4 (Hatfield, Matamoros).
71. He further stated that he did not want anything to happen unless he spoke with his attorneys, as he remembered that the injunction had been filed. See Tr. at 51:4-7 (Hatfield, Matamoros).
72. The doctors said that he was there about his penis, about which he was complaining, see Tr. at 56:3-4 (Hatfield, Matamoros), and stated: “Well, we need to do this. It’s per the jail,” see Tr. at 51:7-8 (Hatfield, Matamoros).
11Several days later, on September 28, 2015, Matamoros and the other Plaintiffs filed the Motion for injunctive relief. See Motion at 1.
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73. Matamoros responded: “Well, this is a great time for you guys to do it. You guys
are far too into it. . . . It’s been too long. . . . . [W]hy are you guys going to bring me now for
this issue, when it’s been far too late.” Tr. at 56:5-9 (Hatfield, Matamoros).
74. Matamoros further stated that he did not have any problems with his penis at that
time, that his penis was fine, and that his lawyer was dealing with it.12 See Tr. at 56:10-22
(Hatfield, Matamoros); Exhibit C at 1.
12There is some dispute what Matamoros told his doctors about his penis problem during his September 24, 2015, visit to the San Juan Regional Medical Center Emergency Room. At the hearing, Matamoros was asked about “a statement in the medical record where they said that you said, “[i]t’s fine.” Matamoros responded that, when he stated it was fine, he was using the word sarcastically. See Tr. at 56:10-22 (Hatfield, Matamoros).
Q: So there is a statement in the medical record where they said that you said, “It’s fine.” Did you say, “It’s fine”?
A: When I stated it was fine, I was using it sarcastically.
Q: What exactly did you tell them?
A: I said -- I told them, “Yeah, I’m fine,” under the impression, besides me not being able to feel my urine, it being numb, and my penis being deformed now, I told them, “Yeah, if you consider that fine, yeah, I’m fine.” But it was sarcastically. Just by the looks, I believe that the doctors knew that it wasn’t fine, though.
Tr. at 56:10-22 (Hatfield, Matamoros). The Defendants assert that Matamoros was not using the phrase “[i]t’s fine” sarcastically. The Court has examined the original medical records, which do not appear to use the phrase “[i]t’s fine.” Exhibit C at 1-12. Rather, regarding Matamoros’ penis problem, the medical records state: “Pt also present with affidavit stating ongoing problems with penile lesions. Pt presently states that he does not have ‘any problems with that’ at this time. And his lawyer is ‘dealing with it.’” Exhibit C at 1. The Court concludes that, even if Matamoros intended for his comment to be interpreted as sarcastic, the doctors did not take the statement as a sarcastic statement and did not have a sound basis to consider it a sarcastic statement. The Court does not have a recording of the encounter between Matamoros and the doctors on November 24, 2015, which might shed more light on whether the doctors did or should have interpreted Matamoros’ statement as being sarcastic. The Court therefore concludes, based on the evidence before it, that, during his November 24, 2015, visit to the San Juan Regional Medical Center Emergency Room, Matamoros informed doctors that he did not
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75. Matamoros also presented the doctors with an affidavit concerning his penis
problem in relation to the Motion. See Exhibit C at 1; Tr. at 51:17-52:7 (Hatfield, Matamoros).
76. Matamoros went ahead and complied with their request, and told them what he
had told the jail -- that he does not have any feeling down there, it’s deformed, numb, and that he
urinates on himself. See Tr. at 51:9-13 (Hatfield, Matamoros).
77. While at the San Juan Regional Medical Center Emergency Room on September
24, 2015, doctors also recommended a colonoscopy for Matamoros’ stool problem, which took
place at a later date. See Tr. at 69:20-70:16 (Childress, Matamoros).
78. The skin on Matamoros’ “penis is now black, necrotic-appearing, and has open, festering wounds,”13 Motion ¶ 7, at 3, and the condition “is so severe it causes [Matamoros] pain
and suffering every minute of every day,” Matamoros Aff. ¶ 3, at 1.
have any problems with his penis at that time, that his penis was fine, and that his lawyer was dealing with it.
13In their Motion, the Plaintiffs contend that the danger of losing a penis “poses a high suicide risk for young males if the loss of the organ itself does not lead to death.” Motion ¶ 3, at 3. The Plaintiffs do not support this assertion with any evidence, such as an academic article or study. The Court therefore declines to make a finding of fact regarding whether the danger of losing a penis poses a high suicide risk for young men, if the loss of the organ does not itself lead to death.
The plaintiffs also state that Matamoros is “suffering from a severe medical condition, which, if left untreated, will result in immediate and irreparable harm to plaintiff, including severe injury and possible death.” Motion ¶ 2, at 2-3. Other than citing to an affidavit that Matamoros signed and attached to the Motion, the Plaintiffs do not offer any support for the proposition that the current condition of Matamoros’ penis could result in severe injury and possible death. See Motion ¶ 2, at 2-3 (citing Matamoros Aff.). The Court finds that the skin on Matamoros’ “penis is now black, necrotic-appearing, and has open festering wounds,” Motion ¶ 2, at 2-3, that his penis is still numb and deformed, and that he is still leaking urine out of his urethra, see Tr. at 48:19-49:6 (Hatfield, Matamoros); id. at 56:23-57:2 (Hatfield, Matamoros). Looking at the available evidence, however, the Court can go so far only as to say that Matamoros’ condition could cause permanent damage. See Tr. at 113:10-14 (Rudolf, Tucker).
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79. Matamoros’ penis is “still numb underneath there,” Tr. at 56:23-57:2 (Hatfield, Matamoros), and sometime after the September 24, 2015, emergency room visit, Dr. Dwinell and Dr. Havel stated that “they were going to take [him] to a urologist for the deformation and the numbness, and to see why [he] was still leaking urine out of [his] urethra,” id. at 48:19-49:6 (Hatfield, Matamoros).
80. “Matamoros is currently in fear not only of losing his penis, but of spreading infection that threatens his life.” Motion ¶ 8, at 3. See Matamoros Aff. ¶ 7, at 1.
81. “[Matamoros is] in fear of [his] health, losing [his] life, and seriously injuring others through the spreading of whatever disease [he] is carrying.” Matamoros Aff. ¶ 9, at 2.
82. On another occasion, on July 3, 2015, the medical staff gave him the wrong medication. See Tr. at 57:3-58:18 (Hatfield, Matamoros).
4. Yarnell’s Incarceration at the San Juan County Detention Center. 83. Yarnell is also currently incarcerated in the San Juan County Detention Center, where he has been incarcerated for approximately five months. See Tr. at 74:12-14 (Hatfield, Yarnell); Motion ¶ 9, at 3; Affidavit of Christopher Yarnell ¶ 1, at 1 (dated September 18, 2015), filed September 28, 2015 (Doc. 48)(the “Yarnell Aff.”). 84. Nurses from the medical unit come twice per day to give Yarnell his medication. See Tr. at 76:10-14 (Childress, Yarnell). 85. On approximately August or September 26, 2015, a nurse in the medical unit was giving Yarnell his morning medication See Tr. at 74:19-22 (Yarnell); id. at 76:10-25 (Childress, Yarnell). 86. Yarnell informed the nurse giving him his medication that the medication being given to him was not his. See Tr. at 74:21-24 (Yarnell); Motion ¶ 9, at 3; Yarnell Aff. ¶ 2, at 1.
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87. The pill that the nurse gave him was a different color than what he usually takes, and Yarnell told the nurse: “I’ve never seen it like that before.” Tr. at 74:24-75:4 (Yarnell); Yarnell Aff. ¶ 2, at 1.
88. Yarnell “looked at the officer and asked him what [he] should do, and he said that the nurse said it’s yours and [he] should take it. [Yarnell] then took it.” Tr. at 74:24-75:4 (Yarnell). See Motion ¶ 9, at 3; Yarnell Aff. ¶ 2, at 1.
89. Several minutes later, Yarnell started to feel “weird, light-headed, really groggy. And [he] knew right away something was wrong.” Tr. at 75:5-7 (Yarnell).
90. Yarnell then went to the restroom, where he fell down, hit and cut his head on the sink, lost consciousness, and stopped breathing. See Tr. at 75:7-8 (Yarnell); Motion ¶ 10, at 3-4; Yarnell Aff. ¶ 2, at 1.
91. He “got up and tried to go to push the button for medical. But some of the other inmates had already done so.” Tr. at 75:9-10 (Yarnell).
92. The medical staff eventually came, and “they could not get a pulse because the medication had slowed [Yarnell’s] heart down to the point where there was no pulse.” Tr. at 75:10-15 (Yarnell).
93. The medical staff rushed Yarnell to the San Juan Regional Medical Center Emergency Room. See Tr. at 75:14-15 (Yarnell); Motion ¶ 10, at 3-4; Yarnell Aff. ¶ 3, at 1.
94. Once at the emergency room, they did “tests, blood tests, and ran saline through [his] system to dilute the medication that [he] was given.” Tr. at 75:16-18 (Yarnell). See Motion ¶ 11, at 3-4; Yarnell Aff. ¶ 2, at 1.
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95. Afterwards, Yarnell was released from the San Juan Regional Medical Center Emergency Room and was returned to the San Juan County Detention Center. See Tr. at 75:1820 (Yarnell).
96. He later learned that he had incorrectly been given Seroquel. See Tr. at 75:21-23 (Hatfield, Yarnell).
97. Seroquel is a major tranquilizer that relaxes the nervous system, is used for people with insomnia, and calms some psychiatric illnesses. See Tr. at 99:6-12 (Rudolf, Tucker).
98. Yarnell did not receive any treatment for taking the wrong medication nor was he treated for hitting his head on the sink. See Tr. at 77:1-23 (Childress, Yarnell).
99. Months after this incident, Yarnell was taken to the San Juan Regional Medical Center Emergency Room again for more tests. See Tr. at 77:1-23 (Childress, Yarnell).
100. Yarnell had been having severe headaches on the left side of his head, which medical providers have told him resulted from when he fell and hit his head on the sink. See Tr. at 77:14-23 (Childress, Yarnell).
101. There is no medical institution where a medical administration error cannot happen, and a medical administration error is not, in and of itself, a serious problem. See Tr. at 98:11-14 (Rudolf, Tucker).
102. Where someone questions whether the medication being given to them is the proper medication and states that it does not look like their medication, however, providing appropriate medical care would, at a minimum, require the person administering the medication to double-check that the medication is correct before administering it. See Tr. at 98:11-100:1 (Rudolf, Tucker).
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5. Dominguez’ Incarceration at the San Juan County Detention Center. 103. Dominguez was an inmate at the San Juan County Detention Center beginning on August 21, 2015,14 for a period of nine days. See Tr. at 79:12-20 (Burns, Dominguez); Motion ¶ 12, at 4; Affidavit of James Dominguez ¶ 1, at 1 (executed September 21, 2015), filed September 28, 2015 (Doc. 48)(the “Dominguez Aff.”); Supplemental Response to Motion for Injunctive Relief at 2-3, filed January 7, 2016 (Doc. 158 in Salazar v. San Juan)(“First Supplemental Response”); James Dominguez Records from the San Juan Regional Medical Center and the San Juan County Detention Center at 1 (dated August 21, 2015), filed January 7, 2016 (Doc. 158-1 in Salazar v. San Juan)(“Dominguez Records”). 104. Dominguez suffers from severe diabetes. See Tr. at 89:18-90:1 (Childress, Dominguez); Motion ¶ 13, at 4; Dominguez Aff. ¶ 2, at 1. 105. On approximately March 12, 2012, before Dominguez’ incarceration at the San Juan County Detention Center, all five of his toes and part of his right foot were amputated as a result of his diabetes.15 See Tr. at 79:21-80:11 (Burns, Dominguez); Tr. at 84:3-10 (Childress, Dominguez); Motion ¶ 13, at 4; Dominguez Aff. ¶ 2, at 1.
14There is some dispute when Dominguez was incarcerated at the San Juan County Detention Center. In the Motion and in Dominguez’ affidavit and testimony at the hearing, Dominguez referred to a ten-day incarceration beginning on July 21, 2015. See Tr. at 79:12-20 (Burns, Dominguez); Motion ¶ 12, at 4; Dominguez Aff. ¶ 1, at 1. Records provided by the Defendants, however, indicate that Dominguez was incarcerated at the San Juan County Detention Center for nine days beginning on August 21, 2015. See Dominguez Records at 1-14. The Court finds by a preponderance of the evidence that Dominguez was incarcerated at the San Juan County Detention Center for a period of nine days beginning on August 21, 2015, and not on July 21, 2015.
15At the hearing on the Motion, Dominguez was cross-examined about his use of methamphetamines before and after his foot surgery. See Tr. at 84:19-85:17 (Childress, Dominguez). The Court does not find this information to be relevant to this Motion and will therefore not make findings of fact regarding Dominguez’ use of methamphetamines.
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106. At that time, he developed an infection while in the hospital. See Tr. at 79:2580:1 (Dominguez).
107. The infection left a large hole in the right side of his foot, and a doctor that Dominguez saw in April 2015 ordered him to change wound bandages three times per day and to apply antibiotic ointment. See Tr. at 80:5-20 (Dominguez).
108. Between April, 2015, and August 21, 2015, Dominguez’ wound was healing well and the hole in his right foot had gone from about two inches to approximately the size of a thumbnail. See Tr. at 83:13-17 (Burns, Dominguez).
109. When Dominguez was taken into custody and sent to the San Juan County Detention Center on August 21, 2015, his foot had not completely healed, but he could walk without a cane or assistance, and with no pain. See Tr. at 80:1-11 (Burns, Dominguez).
110. Also at that time, before his August 21, 2015, incarceration, Dominguez was continuing to change his bandages three times per day and to apply antibiotic ointment pursuant to the doctor’s orders. See Tr. at 80:12-20 (Burns, Dominguez).
111. Before his incarceration on August 21, 2015, Dominguez had also been taking medications for his diabetes. See Tr. at 89:18-90:1 (Childress, Dominguez).
112. Upon being booked into the San Juan County Detention Center on August 21, 2015, Dominguez was immediately taken to the medical unit where he met with a nurse. See Tr. at 90:23-91:2 (Childress, Dominguez).
113. Dominguez signed a medical screening form -- dated August 21, 2015 -- which states that Dominguez was not on any medication, that he did not bring any medication with him into the San Juan County Detention Center, and that he had not taken any medications for one
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year. See Tr. at 89:3-90:16 (Childress, Dominguez); First Supplemental Response at 3;
Dominguez Records at 1-3.
114. In response to the question “[d]o you have any medical problems?” the medical
screening form indicates that on March 12, 2015, Dominguez’ toes and foot were amputated,
Dominguez Records at 1-3, and Dominguez orally told the nurse that he needed daily bandage
changing and antibiotic ointment for his foot and toes,16 see Tr. at 80:14-82:18 (Burns,
Dominguez).
115. The medical screening form further states that he has a medical condition --
“diabetic” -- that requires a special diet, and Dominguez informed the nurse that he needed
diabetic trays for meals as well as diabetic medications.17 Dominguez Records at 2; Tr. at 89:24-
90:1 (Childress, Dominguez).
16The medical screening form thoroughly documents that Dominguez informed the nurse of his amputated foot and toes, which is consistent with the San Juan County Detention Center’s decision to place him in the Medical Unit. See First Supplemental Response at 3; Dominguez Records at 1-4. The Court concludes that this documentary evidence is consistent with Dominguez’ assertion that he told the nurse that he needed daily bandage changing, and antibiotic ointment, for his foot and toes. See Tr. at 80:14-82:18 (Burns, Dominguez). The Defendants appear to dispute, however, that Dominguez informed them about his need for antibiotic ointment, pointing to the signed medical screening form which states that Dominguez had not taken any medications for one year. The Court does not conclude, however, that medications are the same thing as antibiotic ointment and can understand why Dominguez might not have mentioned the ointment in response to a question about medications. The word medication typically evokes images of an oral pill, and the medical screening form itself under “ROUTE” lists “oral, injection, etc . . . .” in parentheses. Dominguez Records at 1. The Court therefore concludes that Dominguez’s assertion that he told the nurse that he needed antibiotic ointment is not inconsistent with the medical screening form’s statement that Dominguez stated that he had not taken any medications for one year.
17The Defendants appear to dispute that Dominguez informed the nurse that he needed diabetic medications by pointing to the medical screening form’s statement that Dominguez said that he had not taken any medications for one year. The medical screening form, however, notes that Dominguez informed the nurse of his special diet because he is diabetic, see Dominguez Records at 2, and the Court finds that documentary evidence consistent with Dominguez’ assertion that he also informed the nurse of his need for diabetic medications. Particularly if
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116. Dominguez was placed in the Medical Unit because of his need for wound care. See First Supplemental Response at 3; Dominguez Records at 1-4.
117. Dominguez did not receive a diabetic tray except for one day in the ten days that he was incarcerated at the San Juan County Detention Center. See Tr. at 89:3-90:16 (Childress, Dominguez).
118. Dominguez subsequently asked the guards and the nursing staff if they could change his bandages two or three times per day, but they did not comply with his request. See Tr. at 81:17-82:23 (Burns, Dominguez); Dominguez Aff. ¶ 3, at 1.
119. After five days of incarceration, the medical staff began bandaging Dominguez’ foot and applying bacitracin, an antibiotic ointment. See Tr. at 82:24-83:6 (Burns, Dominguez); Motion ¶ 17, at 4; Dominguez Aff. ¶ 3, at 1; First Supplemental Response at 3; Dominguez Records at 10-14.
120. “Once [he] was finally being provided antibiotics, [he] was not given the correct dosage of antibiotics as prescribed and was given the antibiotics less frequently than prescribed.” Dominguez Aff. ¶ 4, at 1.
121. By that time, Dominguez “couldn’t even walk. [His] right leg swelled up four times the size of [his] left leg. And it was so painful, [he] couldn’t walk. They used to have to take [him] to the clinic appointments and whatnot in a wheelchair.” Tr. at 83:7-12 (Burns, Dominguez). See Dominguez Aff. ¶ 5, at 1.
Dominguez mentioned his diabetic medications in response to a question about his special diet, the Court can understand how the nurse might not have properly noted his need for diabetic medications. The Court thus finds that Dominguez informed the nurse of his need for diabetic meals as well as his need for diabetic medications.
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122. Dominguez’ foot became infected and worsened. See Tr. at 83:3-22 (Burns,
Dominguez); Motion ¶ 16, at 4; Dominguez Aff. ¶ 5, at 1.
123. Because of the five-day delay and foul condition of Dominguez’ wound, nursing
staff had to disinfect and scrub the wound site five times, which is extremely painful and preventable.18 See Motion ¶ 18, at 4; Dominguez Aff. ¶ 7, at 1; First Supplemental Response at
3; Dominguez Records at 10-14
124. Failing to provide bandages for five days and antibiotics for seven days could lead
to a serious bacterial infection that could result in complications such as the loss of the foot in an
extreme case, if the infection were to spread. See Tr. at 96:5-12 (Tucker, Rudolf).
125. Dominguez’ leg starting to smell bad and swelling up to three times larger than
his other leg are symptoms consistent with infection, and one of the causes of such an infection
could be the failure to provide proper wound care. See Tr. at 96:13-22 (Tucker, Rudolf).
126. The care that Dominguez received at the San Juan County Detention Center was
medically “inadequate.” Tr. at 97:19-98:2 (Tucker, Rudolf).
18In their First Supplemental Response, the Defendants state that Dominguez’ “wound was cleaned at least five times during Mr. Dominguez’ nine day stay,” and they attach records for the five cleanings. First Supplemental Response at 3 (citing Dominguez Records at 10-14). As the Defendants acknowledge in footnote 1 of their First Supplemental Response, three of the forms documenting Dominguez’ wound cleanings are not dated. See First Supplemental Response at 3.n1. One of the five forms is dated August 29, 2015, see Dominguez Records at 13, one of the forms is dated August 27, 2015, see Dominguez Records at 14, but the three remaining forms are undated. Dominguez’ testimony persuades the Court that there was a fiveday delay in him receiving wound care, and the Court concludes that the documentary evidence is consistent with that conclusion. Given that the two dated wound cleaning forms are dated August 27, 2015, and August 29, 2015, the Court concludes that it is likely that the three undated wound cleanings took place on August 25, August 26, and August 28, 2015, but it cannot be certain that Dominguez did not receive multiple cleanings on a single day. In any event, without evidence to the contrary, the Court has no reason to doubt Dominguez’ testimony that there was a five-day delay in him receiving wound care.
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6. Veneno’s Incarceration at the San Juan County Detention Center. 127. Veneno is a retired police officer who spent fourteen years working for the Jicarilla Apache Nation in Dulce, New Mexico. See Tr. at 12:4-20 (Burns, Veneno). 128. Veneno suffered a heart attack and at some point was hospitalized in 2014. See Tr. at 12:21-13:1 (Burns, Veneno). 129. In 2015, Veneno learned that his driver’s license was not current and he went to municipal court in Farmington to straighten it out on October 5, 2015. See Tr. at 13:20-25 (Burns, Veneno). 130. At municipal court, Veneno learned that he had an outstanding warrant for an old traffic ticket. See Tr. at 13:11-14:5 (Burns, Veneno). 131. The Farmington Police Department arrested Veneno and booked him into the San Juan County Detention Center on October 5, 2015. See Tr. at 13:9-14:7 (Burns, Veneno); id. at 30:5-7 (Childress, Veneno); Martin Veneno Records from the San Juan Regional Medical Center and the San Juan County Detention Center at 1 (dated October 5, 2015), filed January 7, 2016 (Doc. 158-2)(“Veneno Records”). 132. At that time, Veneno had been prescribed certain medications for his heart condition and was taking twelve to thirteen pills, including Lisinipril, Carvedilol, Lipitor, Brilinta, Sodium Bicarbonate, and Lantus Soln. See Tr. at 14:15-15:20 (Burns, Veneno). 133. Veneno is also an insulin dependent diabetic and has been taking insulin daily for the past thirty years. See Tr. at 15:19-22 (Burns, Veneno). 134. Veneno did not have any of his medications with him when he was arrested and admitted to the San Juan County Detention Center. See Tr. at 30:14-21 (Childress, Veneno); First Supplemental Response at 4; Veneno Records at 1.
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135. When Veneno was booked into the San Juan County Detention Center, he told them that he was insulin diabetic -- Type 2 -- and that he had a heart condition for which he took heart medication daily. See Tr. at 16:1-10 (Burns, Veneno).
136. Veneno’s medical screening form reflects that, on October 5, 2015, the date he was incarcerated, a nurse named “Yvonne” was notified of his medical conditions. Tr. at 34:111 (Childress, Veneno).
137. Veneno, however, could not remember his medications, and he refused to sign a Release of Information that would have allowed medical personnel to obtain records for Veneno. See First Supplemental Response at 4; Veneno Records at 1-5.
138. The medical screening form also indicates that Veneno refused a special diet for being diabetic.19 See First Supplemental Response at 4; Veneno Records at 2.
139. Veneno was jailed at the San Juan County Detention Center for a total of five days, during which he did not receive his insulin or his heart medication, although he asked or begged for it on numerous occasions. See Tr. at 16:11-23 (Burns, Veneno).
140. Veneno, however, never filled out and submitted a formal, written medical request form. See First Supplemental Response at 4; Veneno Records at 1-11.
141. Veneno’s son had Veneno’s medications, but Veneno did not have money or a money card to telephone his son, and the security guard denied his request to use their private telephone to call him to obtain his medications. See Tr. at 30:22-31:15 (Childress, Veneno).
19The Court finds by a preponderance of the evidence that Veneno refused a special diet for being diabetic when he was booked into the San Juan County Detention Center on October 5, 2015. As reflected in this Memorandum Opinion and Order’s findings of fact 130 through 140, the Court also finds that Veneno’s verbal request for diabetic meals was denied on several occasions. While it is a close call, the Court credits Veneno’s testimony and finds that although he refused a special diet when he was booked into the San Juan County Detention Center on October 5, 2015, he later made verbal requests for a special diet, which were refused.
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142. On Monday evening, the first day of Veneno’s incarceration, he was served a meal consisting of meat and/or fried food. See Tr. at 17:2-16 (Burns, Veneno).
143. Veneno told them that he could not eat that meal because of his medical condition of being diabetic, and they responded: “Well, that’s all we’ve got. You have to eat it. It was served to you, you have to eat that food.” Tr. at 17:2-18:3 (Burns, Veneno).
144. At some point on Monday, Veneno also requested his insulin shot, because he had not received it that day. See Tr. at 18:4-14 (Burns, Veneno).
145. He said to security: “Please, I do need my insulin. I haven’t got my insulin today. I need my insulin shot.” Tr. at 18:6-12 (Veneno).
146. Security ignored his request. See Tr. at 18:10-11 (Veneno). 147. Veneno also told them that he “needed [his] oral pills for [his] heart condition, but [he] was ignored again.” Tr. at 18:11-12 (Veneno). 148. On Tuesday, October 6, 2015, Veneno again told security that he was supposed to take about seven oral pills in the morning and that he needed them. See Tr. at 18:15-23 (Burns, Veneno). 149. Veneno told security: “I do need to see a nurse or some medical staff . . . I do need to take those pills.” Tr. at 18:15-23 (Veneno). 150. By Tuesday, October 6, 2015, Veneno had started to feel weak and/or dizzy, and he started to feel pain in his chest. See Tr. at 18:24-19:4 (Burns, Veneno). 151. On Tuesday, October 6, 2015, Veneno was again served a meal, but he could not eat it because of his medical condition. See Tr. at 19:14-20:1 (Burns, Veneno). 152. He also received Kool-Aid to drink, which he was also not able to drink because of the sugar content. See Tr. at 19:14-20:1 (Burns, Veneno).
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153. By Wednesday, October 7, 2015, Veneno was experiencing more pain, like “needles . . . going through [his] chest . . . on the left side.” Tr. at 20:2-10 (Burns, Veneno).
154. He felt numbness in his arms, and he was limited in his ability to use them. See Tr. at 20:2-10 (Burns, Veneno).
155. On Thursday, October 8, 2015, Veneno “beg[ged] the security guard” for his insulin and heart medication, telling them that “[he] was really in pain,” that “[his] chest [was] really hurting,” and that “[his] arms [were] turning black and blue.” Tr. at 20:11-21:4 (Burns, Veneno).
156. Veneno was then taken to a nurse, where he was given a Tuberculosis (“TB”) shot in his arm. See Tr. at 21:5-14 (Burns, Veneno).
157. Veneno asked the nurse why she was giving him a TB shot, and she responded that he was “probably going to be in the kitchen to work.” Tr. at 21:16-20 (Burns, Veneno).
158. Veneno told her to look at his arms, that he had no business being in the kitchen handling food and that he “I need[ed his] insulin shot” right away. Tr. at 21:15-22:1 (Burns, Veneno).
159. She said: “Oh, when we get some time, when we get some time, we’ll go ahead and tend to you.” Tr. at 22:3-4 (Burns, Veneno).
160. Veneno responded: “I’ve been asking this every night every morning. . . . You people here have not even paid any attention to me, not one time.” Tr. at 22:5-7 (Burns, Veneno).
161. On Friday morning at 3:00 a.m., Veneno was moved along with some other inmates from a cell called B1 to C1. See Tr. at 22:8-25:17 (Burns, Veneno).
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162. Veneno had difficulty carrying his belongings and, after a confrontation with the guards, he finally dragged them to his new cell. See Tr. at 22:8-25:17 (Burns, Veneno).
163. Once in his new cell, the inmates there ran to him, picked up his belongings, and helped him into his bed, where he went to sleep. See Tr. at 22:8-25:17 (Burns, Veneno).
164. On Friday, Veneno was awaken very early and told that he would have kitchen duty. See Tr. at 25:18-26:12 (Burns, Veneno).
165. A nurse was standing at the doorway, and she checked that he had a TB shot. See Tr. at 26:7-12 (Burns, Veneno).
166. Veneno showed her his arms again, which were completely purple and blue by that point, and she responded, “You go ahead. The security guard wants you to go to the kitchen.” Tr. at 26:7-20 (Burns, Veneno).
167. Veneno proceeded to the kitchen along with the other prisoners, where he was given the job of “washing trays and scraping the food off the trays, and lifting like 20 to 25 trays at one time, and putting it in place.” Tr. at 27:1-5 (Burns, Veneno).
168. Veneno informed the head cook that he was having difficulty doing this job, and he was subsequently assigned the task of mopping the floor. See Tr. at 27:22-28:2 (Burns, Veneno).
169. Veneno struggled to mop the floor, because “the mop [was] really heavy” and “[his] arms were so weak, [he] couldn’t even mop the floor or nothing.” Tr. at 28:3-5 (Burns, Veneno).
170. Veneno asked to go to the restroom, because he was “going to throw up” and “[didn’t] feel so good.” Tr. at 28:3-7 (Veneno).
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171. The head cook responded: “No, you just keep doing what you have to do there.” Tr. at 28:8--9 (Veneno).
172. Veneno told the security guard standing there: “Sir, you’re going to have to do something for me here. I can’t do this.” Tr. at 28:8-12 (Veneno).
173. Veneno then turned around and was going to walk back over to begin mopping again, but “[w]hen [he] turned around, everything got dizzy. [He] got dizzy, and everything just started turning, and [he] fell. [He] fell on [his] back. [H]e went backwards and [he] fell. And [he] don’t know what happened to [him] there. [H]e fainted. [H]e just forgot everything.” Tr. at 28:13-20 (Veneno).
174. A guard immediately called for medical assistance, and Veneno was immediately transported by an ambulance to the hospital, where he woke up in a pool of blood. See Tr. at 28:21-29:5 (Burns, Veneno); id. at 36:4-23 (Childress, Veneno); First Supplemental Response at 4.
175. Veneno was told that he had experienced a severe, massive heart attack, and he received five stints in his right artery. See Tr. at 29:6-15 (Burns, Veneno).
176. The San Juan Regional Medical Center Emergency Room contacted Veneno’s son. See Tr. at 37:1-20 (Childress, Veneno).
177. Veneno’s son, at that point, spoke with the judge and various authorities to have Veneno released, and the judge released Veneno, because he should not have been incarcerated. See Tr. at 37:1-38:14 (Childress, Veneno).
178. Both diabetes and a heart condition require daily ongoing medical care, and the maintenance of proper medications. See Tr. at 101:19-102:6 (Rudolf, Tucker).
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179. If an individual with diabetes and a heart condition does not take his or her medications, the consequences are serious. See Tr. at 101:22-102:6 (Rudolf, Tucker).
180. Failure to continue administering diabetes medications on a regular basis can lead to severe metabolic derangements that can result in extreme situations in a coma or death. See Tr. at 101:24-102:5 (Rudolf, Tucker).
181. Failure to continue administering heart medications on a regular basis can lead to “heart attack, potentially leading to death.” Tr. at 101:24-102:5 (Rudolf, Tucker).
182. An individual’s arms turning purple and black are “symptoms that could be consistent with cardiovascular disease” and “in someone with [Veneno’s history] would absolutely raise . . . suspicions.” Tr. at 102:7-12 (Rudolf, Tucker).
183. It would increase the risk of a patient, who suffers from diabetes and a heart conditions, to send him or her to work in the kitchen and do manual labor. See Tr. at 102:13-19 (Rudolf, Tucker).
184. It “certainly increase[] the probability that someone with heart disease is going to have an acute cardiac event, if he’s not taking medications that are designed to prevent such an event.” Tr. at 102:20-103:3 (Rudolf, Tucker).
PROCEDURAL BACKGROUND The Court will briefly outline this case’s progress and summarize the parties’ arguments for and against the Motion. The Court will first describe what has happened in the case besides the Motion. It will then describe, in turn, the Plaintiffs’ and the Defendants’ arguments vis-à-vis the Motion.
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1. The Case’s Pre-Motion Background. 1. On May 15, 2015, Salazar, as the personal representative of the Estate of Marquez, filed a complaint in the United States District Court for the District of New Mexico in Salazar v. San Juan. See Salazar Complaint at 1. On June 12, 2015, C. Carter, as the personal representative of the Estate of W. Carter, filed a complaint in the United States District Court for the District of New Mexico in Carter v. San Juan. See Carter Complaint at 1. On June 22, 2015, C. Jones, as the personal representative of the Estate of S. Jones, filed a complaint in the United States District Court for the District of New Mexico in Jones v. San Juan. See Jones Complaint at 1. Each of the three individual plaintiffs assert causes of action for: (i) violations of the Eighth Amendment’s prohibition on cruel and unusual punishment under 42 U.S.C. § 1983; (ii) negligence; (iii) violations of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134; and (iv) wrongful death. Salazar Complaint ¶¶ 73-97, at 9-13; Carter Complaint ¶¶ 38-64, at 6-10; Jones Complaint ¶¶ 34-60, at 5-9. Each of the individual Plaintiffs also requests that the Court provide identical declaratory relief: Plaintiff repeats and incorporates the allegations above. Defendants’ actions are ongoing, likely to recur, and cause future damages to other inmates detained at SJCDC. Declaratory relief in the form of changes to policies, procedures, supervision, training, and contractual payments for medical services is necessary to prevent immediate and irreparable harm, including constitutional and statutory violations, policy violations, serious injury and death. Plaintiff requests appointment of a special master or other expert to determine what declaratory relief and pursuant to what time frame, will ameliorate the existing situation. Salazar Complaint ¶¶ 98-101, at 13; Carter Complaint ¶¶ 65-68, at 10-11; Jones Complaint ¶¶ 61-64, at 9. On July 8, 2015, twenty-seven plaintiffs filed their amended complaint in the United
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States District Court for the District of New Mexico in Burkee v. San Juan. See Burkee Complaint. The twenty-seven plaintiffs in Burkee v. San Juan assert causes of action for: (i) violations of the Eighth Amendment’s prohibition on cruel and unusual punishment under 42 U.S.C. § 1983; (ii) negligence; (iii) ADA violations; and (iv) intentional infliction of emotional distress. See Burkee Complaint ¶¶ 154-178, at 21-25. They also request the same declaratory relief as the individual plaintiffs in Salazar v. San Juan, Carter v. San Juan, Jones v. San Juan. See Burkee Complaint ¶¶ 179-182, at 25.
2. The four cases -- Salazar v. San Juan, Carter v. San Juan, Jones v. San Juan, and Burkee v. San Juan were subsequently consolidated before the Court for the purposes of discovery and motions, but the parties agree that they will be tried separately. See Transcript of Hearing at 3:18-9:4 (taken September 24, 2105)(Court)(“Sept. 24th Tr.”);20 id. at 13:7-22 (Childress, Court, Hatfield, Kelly, Mowery, Park).
2. The Plaintiff’s Motion. 3. The Plaintiffs request a preliminary injunction: ordering defendant San Juan County Detention Center to provide immediate emergency medical care to inmates whose medical needs are not being met; in the alternative, plaintiffs request appointment of a medical doctor unaffiliated with the defendants in this case to oversee medical conditions and operations at the San Juan County Detention Center until defendants can demonstrate to the Court that inmates’ constitutional right to adequate medical care is being met. Motion at 9. The Plaintiffs maintain that they and other inmates continue to suffer from untreated or improperly treated medical issues and conditions that pose an immediate risk of harm or death. See Motion at 2. In seeking an injunction, the Plaintiffs outline the factual circumstances of one plaintiff -- Matamoros -- and two non-parties -- Yarnell and Dominguez.
20The Court’s citations to the transcript for this hearing refer to the court reporter’s original, unedited version. Any final version may contain slightly different page and/or line numbers.
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See Motion at 2-4. The Court has already outlined its factual findings as to these individuals
based upon the motion, affidavits, and testimony at the November 24, 2015 hearing. In light of
these individuals’ experiences at the San Juan County Detention Center, the Plaintiffs assert:
19. There is immediate and imminent threat of death and further violations of plaintiffs’ right to be free from cruel and unusual punishment and other Constitutional violations if the San Juan County Detention Center is not compelled to take immediate action to prevent further injuries and deaths; grave and systemic deficiencies in provision of medical care to inmates at the jail is ongoing and rises to the level of deliberate indifference to the inmates medical needs.
20. Coupled with the injuries suffered by the names plaintiffs listed in Plaintiffs’ Second Amended Complaint, the pattern of deliberate indifference to inmates medical needs has not been remedied since the inception of this litigation. 2d Am. Compl.
21. The above inmates are but a representative sampling of individuals whose medical needs have not been adequately addressed; because of the pressing need for immediate relief, affidavits have not yet been obtained from others with similar unaddressed medical issues.
22. If emergency injunctive relief is not granted, plaintiffs and other inmates will suffer irreparable harm, including extreme pain, exacerbation of existing medical conditions and possible death.
Motion at 4-5.
4. The Plaintiffs next provide an overview of preliminary injunctions, the rights that
inmates have to medical care, and the standard for a violation under the Eighth Amendment. See
Motion at 5-6. The Plaintiffs contend that “[p]risoners are entitled to basic medical care while
incarcerated,” Motion at 5 (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)), and that
“[d]eliberate indifference to inmates’ medical needs is shown when officials prevent an inmate
from receiving medical care or denies access to medical personnel capable of evaluating the need
for treatment,” Motion at 5 (citing Inmates of Alleghany Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979)). The Plaintiffs then quote the Supreme Court of the United States of America:
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We have held repugnant to the Eighth Amendment punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society . . . .
These elementary principles establish the government’s obligation to provide medical care for those whom it is punishment by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such failure may actually produce physical torture or lingering death . . . . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose . . . . The infliction of such suffering is inconsistent with contemporary standards of decency . . . We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . . proscribed by the Eighth Amendment.
Motion at 5-6 (quoting Estelle v. Gamble, 429 U.S. at 102-103).
5. The Plaintiffs next quote from the United States District Court for the Southern
District of Indiana’s decision in Young v. Ballis, 762 F. Supp. 823 (S.D. Ind. 1990), where the
district court stated that, “[d]efined broadly, a preliminary injunction is an injunction that is
issued to protect plaintiff from irreparable injury and to preserve the court’s power to render a
meaningful decision after a trial on the merits.” Motion at 6 (quoting Young v. Ballis, 762 F.
Supp. at 826). Moreover, the Plaintiffs assert that, to obtain a preliminary injunction, they must
make four showings: (i) irreparable injury unless the injunction issues; (ii) the threatened injury
outweighs any damages the injunction might cause the opposing party; (iii) the injunction would
not be adverse to the public interest; and (iv) a substantial likelihood on the merits. See Motion
at 6 (citing Navajo Health Foundation v. Burwell, No. CIV 14-0958 JB/GBW). The Plaintiffs
recognize that the United States Court of Appeals for the Tenth Circuit has noted that three forms
of preliminary injunctions are specially disfavored: (i) preliminary injunctions that alter the
status quo; (2) mandatory preliminary injunctions; and (iii) preliminary injunctions that afford
the movant all the relief it could recover after a full trial on the merits. See Motion at 6 (citing
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Navajo Health Foundation v. Burwell, No. CIV 14-0958 JB/GBW). The Plaintiffs contend that, in this case they are requesting a mandatory preliminary injunction. See Motion at 6. The Plaintiffs assert that,
[a]s Young [v. Ballis] noted: In cases such as this, claims that jail conditions are so poor that they are constitutionally violative, money damages are inadequate. The plaintiffs are seeking to correct conditions which presently exist; conditions which they contend pose an immediate threat to the health and safety of the inmates of the jail. These claims have no adequate remedy at law. Motion at 6-7 (quoting Young v. Ballis, 762 F. Supp. at 827). 6. On the irreparable-harm prong, the Plaintiffs argue that the danger of irreparable harm is real and present. See Motion at 7. They assert that death is irreparable, that deaths have occurred at the San Juan County Detention Center -- three in 2015 alone -- and that there is a likelihood of future deaths. See Motion at 7. The Plaintiffs further contend that “the pain and suffering of inmates not being provided adequate medical care, and the fear of illness and death, are also irreparable in terms of mere money damages.” Motion at 7. 7. As to the substantial-likelihood-of-success prong, the Plaintiffs contend that they have either been injured or died while incarcerated. See Motion at 7. According to the Plaintiffs, “[t]he primary fact questions at trial will be: how did these injuries and deaths occur and who could have prevented them?” Motion at 7. They assert that the Defendants will likely attempt to establish that “the plaintiffs caused the harm to themselves, were not harmed, or, if they were, that the defendants’ conduct was not the proximate cause.” Motion at 7. The Plaintiffs maintain that the basic fact remains that incarcerated persons lack the ability to provide medical care for themselves and are completely at the mercy of their jailers. See Motion at 7.
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8. On the balance-of-harms prong, the Plaintiffs assert that the only detriment to the
Defendants -- for example, in assigning an independent doctor to review all inmate medical
issues on a weekly or bi-weekly basis -- would be monetary. See Motion at 7. The Plaintiffs
maintain that, if the independent doctor identifies and rectifies serious deficiencies in medical
care, the long-term cost savings to the county would offset any additional costs expended. See
Motion at 7. The Plaintiffs quote the Tenth Circuit for the proposition that, “[w]hile an inmate
does not have a federal constitutional right to rehabilitation, he is entitled to be confined in an
environment which does not result in his degeneration or which threatens his mental and physical
well-being.” Motion at 7 (quoting Ramos v. Lamm, 639 F.3d 559, 566 (10th Cir. 1980)).
Further, according to the Plaintiffs, “(i)t is incumbent on the incarcerating body to provide the
individual with a healthy habilitative environment.” Motion at 7 (quoting Ramos v. Lamm, 639
F.3d at 568)(parenthesis in original). The Plaintiffs further analyze the Tenth Circuit’s decision
in Ramos v. Lamm:
The court went on to note that the state has a duty to provide medical care for those it incarcerates:
Although the constitutional requirement for adequate health care has not been fully spelled out, the Supreme Court has held that in the context of a § 1983 action . . . that only deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment proscription against cruel and unusual punishment.
Id. at 574-75 (citing Estelle v. Gamble, 429 U.S. 97 (1976))(internal quotations omitted).
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.
Id. at 575 (internal citation omitted). Examples include, among others, inmates with dental problems being forced to wait an inordinate amount of time before receiving dental care (as has been alleged in this case), with resultant infections,
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abscesses, “unnecessary pain and loss of teeth.” Id. at 576 (internal citation omitted). Failures to transport, delays in transport, and lack of proper psychiatric care, among others. Id. at 577.
When the entire system for delivering medical services is challenged, deliberate indifference to inmates’ health needs may be shown by proving repeated examples of denials of medical care which disclose a pattern of conduct by the prison medical staff, or by proving there are such systemic and gross deficiencies in staffing, equipment, or procedures that the inmate is effectively denied access to adequate medical care. Id. at 575. Motion at 7-8. In sum, according to the Plaintiffs, the Tenth Circuit in Ramos v. Lamm affirmed the district court’s order to provide the plaintiffs with basic human needs or close the facility. See Motion at 8-9 (citing Ramos v. Lamm, 639 F.3d at 586). 3. The Response in Opposition to the Motion. 9. The Defendants filed their Response to the Motion on October 26, 2015. See Response to Plaintiffs’ Motion for Injunctive Relief Against Defendant San Juan County Detention Center, filed October 26, 2015 (Doc. 73 in Salazar v. San Juan)(“Response”). The Defendants contend that the Plaintiffs fail to meet the requirements for injunctive relief and, therefore, ask the Court to deny the Motion. See Response at 2. Broadly speaking, the Defendants assert principally two arguments: (i) the Plaintiffs lack standing to seek injunctive relief for Yarnell and Dominguez; and (ii) as to Matamoros, the Plaintiffs “cannot meet the heightened burden for disfavored injunctions and for injunctions directed at jails.” Response at 21. 10. The Defendants first attack the Plaintiffs’ suggestion that the inmates referenced in their Motion “are a sufficient ‘representative sampling’ to establish that irreparable harm will be suffered by all of the Plaintiffs in the Second Amended Complaint if a preliminary injunction
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is not issued.” Response at 2. The Defendants argue that there are no common issues of fact among the Plaintiffs that would allow for the experience of one or two individuals to be representative of all the Plaintiffs. See Response at 2-3. According to the Defendants, the Plaintiffs’ alleged conditions range from high blood pressure to dental problems to a skin condition. See Response at 3. They further assert that the Complaints are equally dissimilar in that they range from an alleged failure to receive certain diagnostic tests to an alleged failure to schedule a thumb surgery. See Response at 3. The Defendants argue that many of the Plaintiffs in the Second Amended Complaint are also no longer inmates at the San Juan County Detention Center and for that, reason, any injunctive relief would be improper, as being moot to inmates no longer incarcerated. See Response at 3. The Defendants maintain that the plaintiffs must satisfy a stringent, heightened burden to prove that a preliminary injunction is warranted, and that the submission of Affidavits relating to a few individuals, with no supporting medical evidence, cannot meet that burden. See Response at 3. Moreover, the Defendants assert that the individual Plaintiffs’ claims must be evaluation separately, as to both injunctive relief and damages. See Response at 3.
11. The Defendants next argue that the Plaintiffs lack standing to seek relief for Yarnell and Dominguez. See Response at 4. The Defendants assert that neither Yarnell nor Dominguez are parties to this lawsuit and that any injunction must be applied only to the plaintiffs to the lawsuit, because a federal court may not determine the rights of persons not before it.21 See Response at 4 (citing Zepeda v. United States Immigration & Naturalization Serv., 753 F.2 719, 727 (9th Cir. 1983)). The Defendants further contend that one of the
21The Defendants recognize in a footnote that there is an exception to this rule, but “one of the requirements for the exception is a showing that there is some hindrance to the thirdparty’s ability to protect his or her own interests.” Response at 4 n.4.
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requirements for the issuance of an injunction is a showing that the petitioner will suffer irreparable harm traceable to the conduct of the respondent and that, where the alleged conduct no longer affects a petitioner, any attempt at injunctive relief is inappropriate as moot. According to the Defendants, because Dominguez is no longer incarcerated at the San Juan County Detention Center, injunctive relief is inappropriate. See Response at 5 (citing Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir. 1974)).
12. The Defendants then move to their assertion that Matamoros is not entitled to injunctive relief, which they spend the remainder of their brief addressing. See Response at 5. According to the Defendants, only Matamoros’ claim is before the Court and any injunctive relief must be narrowly tailored to that claim. See Response at 5. The Defendants concede that Matamoros is a plaintiff in this lawsuit and remains incarcerated, but nonetheless contend that he is not entitled to any relief under the four-pronged test for issuance of a preliminary injunction. See Response at 5. The Defendants first address the irreparable-harm prong, contending that Matamoros offers no medical evidence to support his contention that he is in fear of severe injury or possible death. See Response at 6. The Defendants cite to William v. Brar, 2012 U.S. Dist. LEXIS 50315, at *1-3 (E.D. Cal. Apr. 9, 2012), where, in denying injunctive relief to an inmate, the United States District Court for the Eastern District of California stated:
Plaintiff’s motion is not supported by any admissible evidence that he is likely to suffer irreparable harm in the absence of relief. . . . The issue is one of medical care and Plaintiff is not qualified to offer his opinion that he is being subjected to experimental drugs or that he is likely to suffer irreparable harm absent intervention. Motion at 6. 13. The Defendants assert that, as the Plaintiffs concede, they are seeking a preliminary injunction that is disfavored. See Response at 7. The Defendants contend that such
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disfavored injunctions must be more closely scrutinized, see Response at 7 (citing Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005), and that, where a prison inmate seeks an order enjoining prison officials, courts are required to proceed with the utmost care and must recognize the unique nature of the prison setting, see Response at 7-8 (citing Lowe v. Vadlamudi, 2008 U.S. Dist. LEXIS 108150, at *6-8 (E.D. Mich. June 6, 2008). The Defendants assert that the Plaintiffs’ burden is a heightened and stringent one. Moreover, the Defendants argue that, although the Plaintiffs appear to seek a mandate merely to provide medical treatment, their “real request appears to be the alternative relief seeking the appointment of an independent medical doctor to oversee medical conditions and operations at the [San Juan County Detention Center].” Response at 8. The Defendants assert that, in light of this preference for the alternative requested relief, the Plaintiffs seek to alter the status quo and obtain the kind of affirmative action falling into the category of mandatory injunctive relief. See Response at 8. According to the Defendants, a party “seeking such a disfavored injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms,” Response at 8 (quoting Navajo Health Foundation v. Burwell, 2015 U.S. Dist. LEXIS at *123), and the Plaintiffs cannot make such a showing, see Response at 8.
14. The Defendants next address the likelihood-of-success-on-the-merits prong, contending that the “Plaintiffs cannot make the required ‘strong showing with regard to the likelihood of success on the merits’” on their Eighth Amendment claim. Response at 9 (quoting Navajo Health Foundation v. Burwell, 2015 U.S. Dist. LEXIS at *123). The Defendants argue that, for the Plaintiffs to succeed on a claim for inadequate medical attention, they must show “deliberate indifference to serious medical needs.” Response at 9 (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)). The Defendants contend that the test for deliberate
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indifference is both objective and subjective. See Response at 9 (citing Martinez v. Beggs, 563 F.3d at 1088). According to the Defendants, the objective component of the test is met “if the harm suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause of the Eighth Amendment,” Response at 9 (citing Martinez v. Beggs, 563 F.3d at 1088), while the subjective component requires showing “that the defendants knew [they] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it. . . ,” Response at 9 (Martinez v. Beggs, 563 F.3d at 1089). Moreover, the Defendants contend that “evidence of medical treatment belies a claim of deliberate indifference,” Response at 9 (citing Randall v. Bd. of Cty. Comm’rs, 184 F. App’x 723, 727 (10th Cir. 2006)(unpublished)), and that a prisoner who merely disagrees with a diagnosis or course of treatment does not state a constitutional violation, see Response at 9 (citing Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999)).
15. The Defendants argue that, in this case, Matamoros has received medical treatment -- including for the specific injury set forth in the Motion -- and that he has not offered any medical evidence to support his assertion of inadequate medical care. See Response at 9-10. They further assert that the available medical records point in the opposite direction. See Response at 10. The Defendants first point to attached medical records from Matamoros’ visit to the hospital on August 28, 2015, explaining:
Mr. Matamoros’ complaint was of groin/flank pain. The History of Present Illness notes that he “has sore on his penis which is painful and been there for the last 3 days.” The records indicate that extensive blood work was done, as was a CT Scan of the abdomen and pelvis. Medications were also administered and prescribed. Thus, Mr. Matamoros’ implication that he had suffered from the condition for an extensive period of time before getting treatment is belied by the medical records. In addition, in light of the extensive testing which was done, the complaint of not being tested for certain conditions is the kind of disagreement with medical decisions that does not rise to the level of a constitutional deprivation. Perkins, 165 F.3d at 811.
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Response at 10. 16. The Defendants also point to attached medical records from a hospital visit on
September 24, 2015. See Response at 10. According to the Defendants, the “History of Present Illness” notes “Rectal Bleeding” and states: “Pt also present with affidavit stating ongoing problems with penile lesions. Pt presently states that he does not have ‘any problems with that’ at this time.” Response at 10. The Defendants argue that, with respect to Matamoros’ penis problem that the Motion outlines, it had been resolved by the time doctors saw Matamoros on September 24, 2015, before the Plaintiffs filed the Motion with the Court. See Motion at 10-11. The Defendants contend that, because the problem was resolved, the Plaintiffs cannot show that Matamoros will suffer irreparable harm if the Court denies the Motion. See Response at 11. Additionally, the Defendants maintain that the requested injunctive relief is unnecessary to address the alleged harm, because the condition is being or has been treated. See Response at 11.
17. The Defendants further argue that the Court must also consider Matamoros’ specific claims in the Second Amended Complaint to determine whether he is likely to succeed on the merits. See Response at 11. According to the Defendants, in the Second Amended Complaint, Matamoros “complains that he wanted different pain medication than what was being administered for his alleged back problems.” Response at 11. The Defendants maintain that such alleged harm would “not even meet the objective component of the test for deliberate indifference, as it is not sufficiently serious to be a cognizable claim.” Response at 11 (citing Curran v. Aleshire, 67 F. Supp. 3d 741, 766 (E.D. La. 2014)). According to the Defendants, Matamoros also complains in the Second Amended Complaint of not being sent to a neurosurgeon. See Response at 11. The Defendants assert that the medical records directly undermine this assertion in that they reflect that Matamoros saw Dr. Koijan Kainth on April 3,
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2015. See Response at 11. According to the Defendants, Dr. Kainth stated that it was not a life-
threatening problem and that Matamoros was currently neurologically intact; she did not
recommend treatment or medications different from those that the San Juan County Detention
Center was administering. See Response at 11. The Defendants argue that, even if Matamoros
“was denied treatment by a specialist, such denial does not rise to the level of a constitutional
violation.” Response at 11 (citing Woodson v. Barlow, 2012 U.S. Dist. LEXIS 73952 (W.D.
Okla. 2012)).
18. The Defendants conclude their argument why Matamoros is unlikely to succeed
on the merits of his Eighth Amendment claim by explaining:
Thus, the fact that Mr. Matamoros has seen a specialist and has been treated on numerous occasions for complaints of back pain and other complaints shows that the SJCDC was anything but indifferent to his needs. In addition to hospital visits, Mr. Matamoros was frequently treated at the SJCDC. To give the Court an idea of how frequently the SJCDC responded to Mr. Matamoros’ complaints, County Defendants have attached medical records generated from July 1, 2015, to August 31, 2015. Mr. Matamoros filed seventeen Inmate Health Service Request Forms, ranging from diet requests (7/1/15) to nail fungus complaints (7/1/15, 7/4/15) to headaches (7/6/15, 8/5/15) to back pain (7/10/15) to constipation (7/11/15, 8/3/15) to surgery requests (7/18/15) to spider bites (8/17/15). The Responses to the Requests, which appear at the bottom of each Request, show that Mr. Matamoros’ concerns were consistently addressed. Progress Notes and Physician Order Sheets show that Mr. Matamoros was seen in the SJCDC clinic, was treated, and was prescribed medications. Again, this type of scenario defeats any claim of deliberate indifference. Thus, Mr. Matamoros’ Eighth Amendment claim asserted in the Second Amended Complaint fails as a matter of law. As Mr. Matamoros cannot show irreparable harm and cannot succeed on the merits of his claim, the MotInjunc should be denied.
Response at 11-12.
19. The Defendants next argue that Matamoros cannot show a likelihood of success
on the merits of his other claims, including his claims of negligence, violations of the ADA, and
intentional infliction of emotional distress. See Response at 13. Regarding the ADA claim, the
Defendants argue that there is no allegation that Matamoros is being discriminated against
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because of a qualifying disability under the ADA. See Response at 13-14. Further, the Defendants assert that to the extent that the Court finds that Matamoros received inadequate treatment -- an allegation that the Defendants contest -- the Defendants assert that Matamoros does not state that any alleged inadequacy was a result of a qualifying disability as the ADA defines that term. See Response at 14. The Defendants contend that Matamoros is also unlikely to succeed on the state law claims of negligence and intentional infliction of emotional distress. See Response at 14. The Defendants maintain that the New Mexico Tort Claims Act (“NMTCA”), N.M. Stat. Ann. § 41-4-2, governs state law tort claims against governmental entities, but according to the Defendants, the Plaintiffs cannot point to any waiver of immunity under the NMTCA for the asserted claims. See Response at 14-15. The Defendants contend that the only potentially applicable waivers are the waiver in § 41-4-9 for operation of certain medial facilities and the waiver in § 41-4-12 for certain law enforcement acts. See Response at 14. The Defendants assert, however, that the legislature did not waive immunity in § Section 41-4-12 for negligence standing alone and § 41-4-12 also does not waive immunity for a claim of intentional infliction of emotional distress. See Response at 14-15. Additionally, the Defendants argue that the Court of Appeals of New Mexico’s decision in Lessen v. City of Albuquerque, 2008-NMCA085, 187 P.3d 179, forecloses reliance on § 41-4-9. See Response at 15.
20. The Defendants next argue that the other equitable factors weigh against the Court issuing a preliminary injunction, including the balance of harms to the parties and whether the issuance of a preliminary injunction would serve the public interest. See Response at 15. According to the Defendants, these two factors merge when the United States is the opposing party. See Response at 15. The Defendants assert that the Plaintiffs’ argument that there is a likelihood of future deaths is unsupported and purely speculative. See Response at 17. Further,
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the Defendants contend that Matamoros’ medical records show that he is not in danger of immediate death from any of his medical conditions or treatments he has received or will receive. The Defendants argue that there is no evidence that the three deaths at the San Juan County Detention Center “were the result of any systemic constitutionally inadequate medical treatment.” Response at 17. The Defendants also point out that the San Juan County spends a substantial amount of money on medical care for inmates at the San Juan County Detention Center, which they contend should be taken into account in balancing of harms. See Response at 17-18. The Defendants cite to Citizens for Rational Coastal Development v. United States FHA, 2008 U.S. Dist. LEXIS 43260, at *21-22 (D.N.J. May 29, 2008), for the proposition that “the cost of compliance with a preliminary injunction is a factor to be considered in weighing the balance of harms.” Response at 18. The Defendants assert that the Plaintiffs have not offered any estimates of the cost of hiring an independent medical doctor and that they believe the costs would be substantial. See Response at 18. The Defendants further state that, if the San Juan County Detention Center were to succeed on the merits, it would have no way of recouping the expenditure. See Response at 18. Moreover, given these circumstances, the Defendants assert that the balance of harms and public interest favors the San Juan County Detention Center and that a preliminary injunction is improper. See Response at 18-19.
21. Last, the Defendants argue that “[t]he broad scope of the requested relief in the MotInjunc is wholly improper.” Response at 19. According to the Defendants, the requested relief’s scope is not “narrowly drawn,” extends far beyond what would be “necessary to correct the [alleged] harm” against Matamoros, and is not the “least intrusive means necessary to correct that [alleged] harm.” Response at 19-20 (quoting 18 U.S.C.S. § 3636)(brackets in Response)). Moreover, the Defendants assert that the relief sought might be appropriate after the Court has
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sufficient evidence to make findings of constitutional violations, but the scant evidence offered by the Plaintiffs is insufficient. See Response at 20.
4. The Reply. 22. The Plaintiffs did not file a reply to the Defendants’ Response. 5. The Hearing on the Motion. 23. The Court held a hearing on the Motion on November 24, 2015. The hearing consisted of both oral argument and witness testimony. See Tr. at 1. 24. The Plaintiffs first briefly re-asserted their arguments from their briefing and clarified that they are not asking the Court to continually supervise the San Juan County Detention Center. See Tr. at 5:1-6:2 (Hatfield). Rather, the Plaintiffs asked that the Court appoint a special master to advise and to inform the Court. See Tr. at 6:2-7 (Hatfield). The Defendants made two preliminary observations. See Tr. at 6:14-9:3 (Childress). The Defendants explained that the Motion is directed solely at San Juan County, but that San Juan County contracts with the San Juan Regional Medical Center to provide medical care for inmates at the San Juan County Detention Center. See Tr. at 6:14-24 (Childress). Moreover, the Defendants asked the Court to keep in mind that the Plaintiffs are asking for relief for problems in which San Juan County is not involved in. See Tr. at 6:24-7:1 (Childress). According to the Defendants, the Motion seeks two forms of alternative relief: (i) that the inmates at the San Juan County Detention Center be provided medical care, which they already receive; or in the alternative (ii) that some kind of medical director, which already exists, be appointed to oversee the medical treatment at the San Juan County Detention Center. See Tr. at 7:2-14 (Childress). The Defendants then re-asserted some of their arguments from their briefing. See Tr. at 7:11-9:3 (Childress).
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25. The Plaintiffs called five witnesses who presented testimony -- Veneno, Matamoros, non-party Christopher Yarnell, Dominguez, and Dr. Jonathan Rudolf. The Defendants cross-examined each witness, and the Plaintiffs redirected. The Defendants did not present any witnesses, See Tr. at 116:5-13 (Childress, Court), but the Court admitted four of the Defendants’ exhibits into evidence, see Exhibit C; Exhibit B; San Juan Regional Medical Center Medical Records As to Marvin Veneno (dated October 5, 2015)(entered into evidence as Exhibit A at the November 24, 2015 hearing)(“Exhibit A”); San Juan Regional Medical Center Medical Records As to James Dominguez (dated August 21, 2015)(entered into evidence as Exhibit D at the November 24, 2015 hearing)(“Exhibit D”).
26. The parties then presented brief closing arguments. See Tr. at 116:23-25 (Court). The Plaintiffs asserted that they had provided the Court with a “sampling that gives an idea of the different kinds of inadequacies in medical care that overall lead to in the aggregate a systemic injury . . . In the aggregate the systemic injury constitutes deliberate indifference.” Tr. at 117:715 (Hatfield). The Plaintiffs maintained that they have met all four prongs of the test for injunctive relief in that: (i) irreparable harm is clear; (ii) there is a likelihood of success on the merits; (iii) there is no public interest problem here; and (iv) the balance of harms favors injunctive relief. See Tr. at 117:17-119:14 (Hatfield).
27. The Court pressed the Plaintiffs on what exactly an opinion granting a preliminary injunction would look like. See Tr. at 119:15-17 (Court). The Plaintiffs responded that the Court can make it as minimal as possible and that they do not want the Court to be involved in overall supervision for a long period of time. See Tr. at 119:18-22 (Hatfield). The Plaintiffs suggested that the Court could appoint a special master -- presumably a doctor -- who could have access to the records, and the policies and procedures, of the San Juan County Detention Center.
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See Tr. at 119:22-120:2 (Hatfield). The special master could make suggestions to the Court on a preliminary basis, and then produce a report and recommendations to the Court that would prevent future systemic injury to incarcerated individuals. See Tr. at 120:3-7 (Hatfield). The Plaintiffs stated that they are open to suggestions or modification, but that the special master might, for example, recommend that a doctor should be present at the San Juan County Detention Center on a more regular basis to evaluate complaints from inmates and refer those in need of emergency care to the hospital. See Tr. at 120:7-121:4 (Hatfield).
28. The Court observed that this relief is more in the nature of final injunctive relief -that the proposed injunction is not trying to maintain the status quo until trial, but rather, to change the status quo and protect people, forever. See Tr. at 122:5-13 (Court). The Plaintiffs responded that the relief would be preliminary in so far as the special master would be appointed only for a short period of time, and that he or she would make recommendations, but that they would carry on into the future without the Court’s supervision. See Tr. at 122:14-22 (Hatfield). The Court then asked whether Matamoros has been convicted and is serving a sentence. See Tr. at 123:5-10 (Court, Hatfield). The Plaintiffs responded: “I don’t even know at this stage, Your Honor, I think he’s still a pretrial detainee, but he does manage to get out and go back sometimes.” Tr. at 123:11-14 (Hatfield). The Court then observed that the Eighth Amendment certainly applies to convicted individuals, but it was not sure whether it and the deliberate indifference standard applies to pre-trial detainees. See Tr. at 123:15-21 (Court). The Plaintiffs stated: “Yes, your Honor in the case law I’ve read I believe that the Supreme Court has held that the Eighth Amendment standard of pretrial detainees is the same as for prisoners.” Tr. at 123:2225 (Hatfield).
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29. The Court then asked whether the complaints regarding medical care might be more in the nature of a malpractice suit against the doctors for not diagnosing properly or for the level of care, rather than a constitutional case involving deliberate indifference. See Tr. at 124:19 (Court). The Plaintiffs responded that they do not think it is medical malpractice, because when doctors see people, they tend to receive good care. See Tr. at 124:10-13 (Hatfield). The Plaintiffs contended that the problem is access to the doctors, follow-up care, and nonmedical professionals making decisions that doctors should make. See Tr. at 124:13-17 (Hatfield). The Plaintiffs agreed with the Court that the problem is not the level of care which the contracted health care providers provide, but rather, that the problem is “the interaction of the people who are involved . . . the guards, the nurses, the medical staff at the jail actually getting them out of jail to medical care, getting follow-up afterward.” Tr. at 124:18-125:12 (Court, Hatfield). The Plaintiffs confirmed that the problem is that the San Juan County Detention Center is not getting inmates over to the medical center promptly or adequately. See Tr. at 125:13-16 (Court, Hatfield). The Plaintiffs further agreed that any appointed special master would not be so much reviewing what doctors do, but rather, would have the authority to review everything concerning the inmates’ medical care, and would also review “kites” or complaint forms, to determine whether inmates need to be sent to the hospital. See Tr. at 125:17-13 (Court, Hatfield).
30. The Court then asked whether the problem is with the nurses, and the Plaintiffs responded that the nurses are a huge problem. See Tr. at 128:24-25 (Court, Tucker). The Court observed that it seems that the nurses are or were seeing inmates daily and sometimes twice daily, and asked whether the problem is that they “are gatekeepers and not allowing the inmates to see doctors.” Tr. at 129:1-5 (Court). The Plaintiffs confirmed that, in the case of Marquez, for example, the inmates were yelling at the nurse telling her that he needed to be treated and
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that, without an ambulance, he would die. See Tr. at 129:6-12 (Tucker). The Plaintiffs explained that an inmate or jail guard eventually called the ambulance, and that the nurses refused to treat him the entire time. See Tr. at 129:12-16 (Tucker). The Plaintiffs confirmed that it does appear that there is a problem with the medical side of inmate care -- given that the problem is associated with the nurses -- but asserted that there are also problems with the guards refusing to transfer people to the medical units or to provide medication to inmates. See Tr. at 129:17-130:7 (Court, Tucker).
31. The Court then stated that the Plaintiffs are not bringing a class action and are not representing everybody in the facility; rather, they are representing approximately twenty-seven individuals and estates. See Tr. at 130:11-16 (Court). The Court then asked, given that the Plaintiffs only have one person that is still in the facility, why it needs to enter preliminary injunctive relief as to the entire facility. See Tr. at 130:16-20 (Court). The Court further inquired whether it should not simply be evaluating the Motion on the basis of Matamoros’ circumstances alone, to make sure that he gets good medical care, rather than providing facility wide relief. See Tr. at 130:20-24 (Court). The Plaintiffs responded that such limited relief
would affect the end of justice . . . . Otherwise we’ll be in this position every six months forever. . . . If we take long enough and don’t get injunctive relief some of these people will die some of them will be released and Mr. Childress will have the same argument when we file the next lawsuit each time and just will be denied forever . . . . See Tr. at 130:25-131:7 (Hatfield). 32. The Defendants then presented their closing argument. See Tr. at 131:10-140:10 (Childress, Court). The Defendants largely stuck to arguments from their briefing, but they emphasized that the medical care at the San Juan County Detention Center is completely contracted out to the San Juan Regional Medical Center and that “they provide all of the medical
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treatment at the facility.” Tr. at 131:15-20 (Childress). According to the Defendants, if the Court were to appoint someone to oversee medical treatment, the San Juan County Medical Center would say “we weren’t even involved in this motion” and “did not have a chance to respond to it.” Tr. at 131:20-1132:8 (Childress). They further emphasized that Matamoros is the only person that has standing to request an injunction and that, on the basis of the evidence regarding his medical treatment, the Court should not issue an injunction. See Tr. at 133:1136:16 (Childress, Court). The Court pushed back and asked whether, if it was concerned about Matamoros and his medical care, what kind of injunction it could issue. See Tr. at 136:17-137:2 (Childress, Court). The Defendants responded that Matamoros already sees a nurse every day, and that the only thing they could propose, is to enjoin the San Juan County Detention Center to take Matamoros to the emergency room anytime he wants to go. See Tr. at 137:3-138:9 (Childress). The Defendants also maintained that, on the basis of the evidence that the Court has heard as to Matamoros, it is evident that he received a tremendous amount of treatment and the records indicate that his problem is basically resolved. See Tr. at 139:11-140:9 (Childress). Finally, the Court asked the Defendants about the size of the San Juan County Detention Center. See Tr. at 139:7-10 (Court). The Defendants responded that the facility averages over 600 prisoners on a daily basis and that it is quite large for what one would expect in San Juan County. See Tr. at 139:11-14 (Childress). The Defendants further stated that they believe the facility has some holding cells, about six or seven pods, and a medical unit that has about eight or nine places for people to be housed. See Tr. at 139:16-20 (Childress).
33. The Court then gave the Plaintiffs the last word on the Motion. See Tr. at 140:1012 (Court). The Plaintiffs asserted that Matamoros’ penis problem is not resolved, but that they were supportive of the Court imposing narrowly tailored injunctive relief. See Tr. at 140:13-20
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(Hatfield). The emphasized, however, that it would be “in the end of justice if that spilled over from any named plaintiff to systemic changes that would improve the world of the jail’s population overall. . . .” Tr. at 140:20-25 (Hatfield). The Court then explained that it would take the Motion under advisement, and would produce an opinion with findings of fact and conclusions of law. See Tr. at 141:1-10 (Court). The Court also stated that it would examine the medical record exhibits filed with the Defendants’ Memorandum in Support of Motion for Summary Judgment as to Paul Matamoros’ Section 1983 Claim, filed November 11, 2015 (Doc. 102 in Salazar v. San Juan), in its consideration of the Motion requesting injunctive relief. See Tr. 146:2-17 (Childress, Clerk, Court).
6. The First Supplemental Response. 34. The Defendants filed a supplemental response on January 7, 2016. See First Supplemental Response at 1. The Defendants first explain that they have now obtained releases for Veneno and Dominguez -- two non-parties that gave testimony at the hearing on the motion. See First Supplemental Response at 2. The Defendants state that they have attached medical records for Veneno and Dominguez to the First Supplemental Response as Exhibits 1 and 2, but that they are still waiting for a release from Yarnell -- another non-party who presented testimony at the hearing. See First Supplemental Response at 2. The Defendants assert that the records for Veneno and Dominguez “belie their testimony that there was no deliberate indifference to their medical needs[,]” First Supplemental Response at 2, and they spend the next two pages explaining why that is the case, see First Supplemental Response at 3-4. 35. The Defendants conclude their First Supplemental Response by asserting that “the case at bar seeks the extraordinary remedy of a disfavored Preliminary Injunction.” First Supplemental Response at 4. According to the Defendants, such disfavored injunctions must be
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more closely examined, see First Supplemental Response at 4-5 (quoting Schrier v. Univ. of Colo., 427 F.3d at 1258-59), and here, “[t]he medical records of the witnesses establish that Plaintiffs simply cannot make the required ‘strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms,” First Supplemental Response at 4-5 (quoting Navajo Health Found. v. Burwell, 2015 U.S. Dist. LEXIS 56242, at *112).
7. The Second Supplemental Response. 36. The Defendants filed a second supplemental response on January 12, 2016. See Second Supplemental Response to Motion for Injunctive Relief, filed January 12, 2016 (Doc. 166 in Salazar v. San Juan)(“Second Supplemental Response”). In the Second Supplemental Response, the Defendants attach additional medical records for Matamoros that San Juan Regional Medical Center produced on December 11, 2015. See Second Supplemental Response at 2.
CONCLUSIONS OF LAW The Court will outline generally the applicable law surrounding preliminary injunctions. It will then describe the applicable law related to the Eighth Amendment. It will then analyze the Motion. I. LAW REGARDING PRELIMINARY INJUNCTIONS. 1. “It is well settled that a preliminary injunction is an extraordinary remedy, and that it should not be issued unless the movant’s right to relief is clear and unequivocal.” Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001)(internal quotation marks omitted). To show that the extreme remedy of a preliminary injunction should issue, “[a] party seeking an injunction from a federal court must invariably show that it does not have an adequate remedy at law.” N. Cal. Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306 (1984). Before a
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district court may issue a preliminary injunction pursuant to rule 65 of the Federal Rules of Civil
Procedure, the movant must make four showings: (i) that the movant is likely to “suffer
irreparable injury unless the injunction issues”; (ii) that “the threatened injury” to the movant if
the court does not issue the preliminary injunction “outweighs whatever damage the proposed
injunction may cause the opposing party”; (iii) that “the injunction, if issued, would not be
adverse to the public interest”; and (iv) that “there is a substantial likelihood [of success] on the
merits.”22 Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992). See Winter v.
22The requirement that the movant show a mere “substantial likelihood” of prevailing on the merits is the only prong of the preliminary-injunction analysis that is easier to satisfy than its analogous prong in the permanent-injunction analysis; permanent injunctions, obviously, require full success on the merits. 43A C.J.S. Injunctions § 55 (“In general, the standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that, for a preliminary injunction, the plaintiff must show a likelihood of success on the merits rather than actual success.”). It is not entirely clear what a preliminary-injunction movant’s burden of proof is vis-à-vis the case’s merits, as “[t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success -- the most common being that plaintiff must demonstrate a reasonable probability of success.” 11A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure § 2948.3 (footnotes omitted). The Tenth Circuit, however, has provided more guidance than most Courts of Appeals have, stating on three occasions -- albeit in old cases -that the movant must make “a prima facie case showing a reasonable probability that he will ultimately be entitled to the relief sought.” Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972); Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969); Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781 (10th Cir. 1964).
At a trial on the merits, a plaintiff bears two burdens of proof. The first burden is the burden of production, which is sometimes called the burden of going forward. If the plaintiff fails to carry the burden of production during his or her case-in-chief, then the court will decide the case in the defendant’s favor, and the case will not go to the jury. Second is the burden of persuasion, which refers to convincing the factfinder -- typically a jury -- that he or she has satisfied the ultimate standard of proof -- usually the preponderance-of-the-evidence standard. There is also a third, even higher quantum of evidence, sometimes called the “third burden of proof,” which a plaintiff carries when he or she presented evidence of such great extent and onesidedness that he or she is entitled to a verdict as a matter of law. Anderson Living Trust v. WPX Energy Prod., LLC, 27 F. Supp. 3d 1188, 1236 n.27 (D.N.M. 2014)(Browning, J.). The third burden and the beginning burden of production are also the relevant standards applicable to summary-judgment motions by the plaintiff and by the defendant.
Moreover, satisfying the initial burden of production is known as presenting a “prima facie case.” Black’s Law Dictionary 1310 (9th ed. 2009)(defining “prima facie case” as “[a]
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Natural Res. Def. Council, Inc., 555 U.S. 7, 19 (2008)(“Winter”)(“A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” (citing Munaf v. Geren, 553 U.S. 674,
688-89 (2008))). The movant bears the burden of demonstrating all four prongs’ satisfaction.
See Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972).
2. “[T]he limited purpose of a preliminary injunction ‘is merely to preserve the
relative positions of the parties until a trial on the merits can be held . . . .’” Schrier v. Univ. of
Colo., 427 F.3d at 1258 (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). In that
vein, the Tenth Circuit has identified the following three specifically disfavored preliminary
party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor”). The best way to interpret the Tenth Circuit’s dictate that the movant must make “a prima facie case showing a reasonable probability that he will ultimately [prevail]” is by requiring that the movant put forth enough evidence to both (i) satisfy the burden of production -- meaning that if the same evidence were presented at trial, it would be sufficient for a reasonable factfinder to find in the movant’s favor; and (ii) make it reasonably likely -- beyond just being “not unreasonable” -- that the factfinder would in fact find for the movant, i.e., that the movant would satisfy the burden of persuasion. See 11A Wright & Miller, supra § 2948.3 (“All courts agree that plaintiff must present a prima facie case but need not show a certainty of winning.” (footnotes omitted)). The movant need not show a greater-than-fifty-percent probability of satisfying the burden of persuasion, as to require such a showing would be to convert the substantial-likelihood-of-success standard into the ultimate trial standard, which the case law makes clear is not the intended result. See Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)(“The court is not required to find that ultimate success by the movant is a mathematical probability, and indeed, as in this case, may grant a stay even though its own approach may be contrary to movant’s view of the merits.”).
The Court will require preliminary-injunction movants to carry the burden of production at the preliminary-injunction stage in all cases, and it will never require the movant to carry the full burden of persuasion at that stage. As for where in between those two quanta of proof the Court will set the standard, it will vary in different cases, depending upon the strength of the movant’s showing on the other three prongs: the irreparability of the movant’s harm, the balance of harms as between the movant and the nonmovant, and the public interest. Cf. Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d at 843 (“The necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s assessment of the other factors.”).
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injunctions: (i) “preliminary injunctions that alter the status quo”; (ii) “mandatory preliminary injunctions,” meaning injunctions that compel, rather than prohibit, activity on the part of the enjoined party; and (iii) “preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004))(internal quotation marks omitted). Accord Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009)(citing O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975). With respect to preliminary injunctions that will change the status quo, “the movant has an even heavier burden of showing that the four factors listed above weigh heavily and compellingly in movant’s favor before such an injunction can be issued.” Salt Lake Tribune Publ’g Co. v. AT&T Corp., 320 F.3d 1081, 1099 (10th Cir. 2003)(quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991))(internal quotation marks omitted).
3. “[I]n an action for money damages, the district court does not have the power to issue a preliminary injunction . . . .” United States ex rel. Rahman v. Oncology Assocs., 198 F.3d 489, 495-96 (4th Cir. 1999)(citing Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 324-25 (1999)). See Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418-20 (8th Cir. 1987)(finding that a preliminary injunction should not issue where a remedy of money damages was available). Federal courts have the inherent equitable power to issue a preliminary injunction only when it is necessary to protect a movant’s entitlement to a final equitable remedy. See, e.g., De Beers Consol. Mines v. United States, 325 U.S. 212, 219-23 (1945); Reebok Int’l, Ltd. v. Marnatech Enter., Inc., 970 F.2d 552, 559-60 (9th Cir. 1992).
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II. LAW REGARDING THE EIGHTH AMENDMENT. 4. When a prisoner is incarcerated after being indicted, the Eighth Amendment
protects him from “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm,” as well as the intentional use of excessive force. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners,” but “[t]hey are . . . responsible for taking reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the “denial of the minimal civilized measure of life’s necessities”; and (ii) the official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation marks omitted). The second condition represents the functional application of the deliberate indifference standard. See Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006)(“To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm], the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm[,] the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component.” (quoting Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003))).
5. Analyzing whether the plaintiff has satisfied the first element, the objective element, “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Courts should also consider “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36
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(emphasis in original). “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36. The Eighth Amendment does not protect against “de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)(internal quotation marks omitted)(“That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action.”). The Tenth Circuit has noted that, “in Hudson, the Supreme Court evidenced its ‘commit[ment] to an Eighth Amendment which protects against cruel and unusual force, not merely cruel and unusual force that results in sufficient injury.’” United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). Were it otherwise, the Tenth Circuit reasoned, “a prisoner could constitutionally be attacked for the sole purpose of causing pain as long as the blows were inflicted in a manner that resulted in visible (or palpable or diagnosable) injuries that were de minimis.” United States v. LaVallee, 439 F.3d at 688. See also Hudson v. McMillian, 503 U.S. at 13 (Blackmun, J., concurring)(“The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with ‘significant injury,’ e.g., injury that requires medical attention or leaves permanent marks.”). Thus, to establish excessive force in violation of the Eight Amendment, the plaintiff need not establish that he or she “suffered a certain level or type of injury.” United States v. LaVallee, 439 F.3d at 688.
6. Where a security measure involving the use of force is undertaken to resolve a prison disturbance, the Supreme Court has held that “the question whether the measure taken inflicted unnecessary and wanton pain and suffering [in violation of the Eighth Amendment] ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore
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discipline or maliciously and sadistically for the very purpose of causing harm.’” Whitley v. Albers, 475 U.S. 312, 320-21 (1986)(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). In a court’s inquiry whether the use of force to resolve the disturbance violates the Eighth Amendment under this standard, “such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted, are relevant to that ultimate determination.” Whitley v. Albers, 475 U.S. at 321 (alterations omitted)(internal quotation marks omitted)(quoting Albers v. Whitley, 546 F. Supp. 726, 733 (D. Or. 1982)). These factors may be used to draw inferences whether the use of force “could plausibly have been thought necessary, or instead evinced such wantonness with respect to unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley v. Albers, 475 U.S. at 321.
7. The second element regarding the government official’s state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Courts apply this subjective inquiry to determine whether the allegations are that a “short-term” or “one-time” violation occurred, or that “continuing” or “systemic” violations occurred. Wilson v. Seiter, 501 U.S. at 299. The Supreme Court has stated: “With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S. at 836. The Supreme Court provided the following test for determining when this subjective element is met:
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement 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 exists, and he must also draw the inference.
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Farmer v. Brennan, 511 U.S. at 837. For Eighth Amendment purposes, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 F. App’x 821, 823-24 (10th Cir. 2007)(unpublished)(quoting Smith v. Cummings, 445 F.3d at 1258).
8. In Graham v. Connor, the Supreme Court addressed whether a plaintiff could assert both Eighth Amendment violations and substantive due-process violations in the same suit against government officials alleging that they engaged in physically abusive conduct. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). More specifically, it held that, when a specific constitutional amendment provides “an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct,” courts should analyze all constitutional claims under that amendment’s standards rather than under “the more generalized notion of ‘substantive due process.’” Graham v. Connor, 490 U.S. at 395. The Supreme Court gave as an example for this principle “the Eighth Amendment’s ban on cruel and unusual punishments,” because it is one of the “two primary sources of constitutional protection against physically abusive governmental conduct.” Graham v. Connor, 490 U.S. at 395. The Supreme Court later clarified that its holding in Graham v. Connor “simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). To illustrate this point, the Supreme Court has recognized that, if a search or seizure did not occur, the Fourth Amendment does not cover the situation, and the plaintiff may proceed on a substantive due-process theory. See Cty. of Sacramento v. Lewis, 523 U.S. at 842-844 (“The Fourth Amendment covers only ‘searches and seizures,’ neither of which took place here. . . . Graham’s more-specific-provision rule is therefore no bar to respondents’ suit.”).
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9. In Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), the Tenth Circuit addressed a case where the plaintiff asserted claims that they were “denied necessary medical care [in prison] in violation of their rights under the Eighth and Fourteenth Amendments.” 83 F.3d at 1202. In determining whether to apply Eighth Amendment standards or substantive dueprocess standards when reviewing the plaintiffs’ claims in Riddle v. Mondragon, the Tenth Circuit noted that, “where constitutional protection is afforded under specific constitutional provisions, alleged violations of the protection should be analyzed under those provisions and not under the more generalized provisions of substantive due process.” 83 F.3d at 1202 (citing Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990). Thus, the Tenth Circuit reviewed the plaintiffs’ claims for denial of medical care in prison under the Eighth Amendment and did not consider the plaintiffs’ substantive due-process theory. See Riddle v. Monragon, 83 F.3d at 1202 (“Accordingly, we will review plaintiffs’ claims under the Eighth Amendment as made applicable to the states through the Fourteenth Amendment.”). III. LAW REGARDING THE DUE-PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. 10. The Fourteenth Amendment's Due Process Clause provides that “no State shall . . . deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiff’s due-process rights and not for third parties’ acts. See Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008)(citing DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)). “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. at 195. The Due Process Clause is not a guarantee of a minimal level of safety and security. See
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DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. at 195. “As a general matter, . . . a state's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. at 197. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1125 (10th Cir. 2008). Generally, negligence does not trigger the Due Process Clause’s protections. See Davidson v. Cannon, 474 U.S. 344, 348 (1986).
1. Exceptions to the General Rule. 11. There are, however, two exceptions to this general rule. First, the specialrelationship doctrine arises when the state has a custodial relationship with the victim, which triggers an affirmative duty to provide protection to that individual. See Christianson v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir. 2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-995 (10th Cir. 1994). Second, the danger-creation theory provides that a state may also be liable for an individual’s safety “only when ‘a state actor affirmatively acts to create, or increases a plaintiff’s vulnerability to, or danger from private violence.’” Robbins v. Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). 2. Special-Relationship Doctrine. 12. The first exception to the general principle that a state’s negligent failure to protect an individual cannot trigger liability under the due process clause is the specialrelationship doctrine. A plaintiff must show the government’s involuntary restraint to establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir. 1996). “A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).” Uhlrig v. Harder,
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64 F.3d 567, 572 (10th Cir. 1995). A pretrial detention is one such relationship. See Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999); Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 277 (10th Cir. 1996)(“[I]t [is] clearly established that state officials had a duty to protect individuals whom they had taken involuntarily into their physical custody and control.”).
a. Pretrial Detainees’ Due Process Clause Rights. 13. The special-relationship doctrine imposes upon prison officials the responsibility to take “reasonable measures to insure the safety of the [detainees].” Lopez v. LeMaster, 172 F.3d at 759. When government officials hold an individual in confinement before the formal adjudication of that individual’s guilt, however, the Eighth Amendment does not regulate the conduct of the government official’s confining that individual. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). As the Supreme Court has explained: “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244 (quoting Ingraham v. Wright, 430 U.S. 651, 671-72, n.40 (1977)). Nevertheless, those government officials must still comply with the protections of the Due Process Clause during that individual’s confinement. See City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244 (“The Due Process Clause, however, does require the responsible government or governmental agency to provide medical care to persons, such as Kivlin, who have been injured while being apprehended by the police.”). “In fact, the due process rights of a person in [this] situation are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244. In the Tenth Circuit, a pretrial detainee’s due process clause rights parallel that of an
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inmate’s Eight Amendment rights: “Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment. In determining whether appellant's rights were violated, however, we apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.” Lopez v. LeMaster, 172 F.3d at 759 n. 2 (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)). Accord Luckert v. Dodge County, 684 F.3d 808, 817 (8th Cir. 2012)(“Under the Fourteenth Amendment, pretrial detainees are entitled to at least as great protection as that afforded convicted prisoners under the Eighth Amendment.”).23 The Tenth Circuit has stated that it is “clearly established that state officials had a duty to protect individuals whom they had taken involuntarily into their physical custody and control.” Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 277 (10th Cir. 1996).
b. Prison Officials’ Duty to Insure the Safety of Inmates and Detainees. 14. The Supreme Court has held that “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm” implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners,” but “[t]hey are . . . responsible for taking reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official
23When government officials hold an individual in confinement before the formal adjudication of that individual’s guilt, the Eighth Amendment does not regulate the conduct of the government officials confining that individual. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). As the Supreme Court has explained:
“Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions . . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244 (quoting Ingraham v. Wright, 430 U.S. 651, 671-672, n.40 (1977)).
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violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the “denial of the minimal civilized measure of life’s necessities”; and (ii) the official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation marks omitted). The second condition represents the deliberate indifference standard’s functional application. See Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)(holding that prison officials violate detainees’ due process clause rights when the officials’ “acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs”)(quoting Estelle v. Gamble, 429 U.S. 87, 106 (1976)).
15. Analyzing whether the plaintiff has satisfied the first element, the objective element, “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Courts should also consider “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36 (emphasis in original). “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36. The Eighth Amendment does not protect against “de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)(internal quotation marks omitted)(“That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action.”).
16. The second element regarding the government official’s state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Courts apply this subjective
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inquiry whether the allegations are that a “short-term” or “one-time” violation occurred, or that “continuing” or “systemic” violations occurred. Wilson v. Seiter, 501 U.S. at 299. A defendant has the requisite culpable state of mind under the subjective inquiry only where the defendant’s conduct evidences conscious disregard of a substantial risk of harm. See Self v. Crum, 439 F.3d at 1231.
A prison official cannot be 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 exists, and he must also draw the inference.” Self v. Crum, 439 F.3d at 1231 (quoting Farmer v. Brennan, 511 U.S. at 837). The Supreme Court has stated: “With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S. at 836. For the purpose of Eighth Amendment analysis, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 F. App’x 821, 823-24 (10th Cir. 2007)(unpublished)(quoting Smith v. Cummings, 445 F.3d at 1258).
c. Detainee Suicide. 17. For a detainee suicide, a plaintiff must prove the prison official was deliberately indifferent to the detainee’s risk of suicide: Claims arising from a failure to prevent prisoner suicide are considered and treated as claims based on the failure of jail officials to provide medical care for those in their custody. Thus, a plaintiff bringing such a claim must prove that his jailer was “deliberately indifferent to a substantial risk of suicide.” Gaston v. Ploeger, 229 F. App’x 702, 709-710 (10th Cir. 2007)(unpublished opinion)(quoting Barrie v. Grand County, 119 F.3d 862, 869 (10th Cir. 1997)). In Gaston v. Ploeger, the Tenth Circuit held that the objective component of the test is always satisfied in the case of suicide,
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because the harm suffered is “[o]bviously” sufficiently serious. 229 F. App’x at 710. For the subjective component to be met, however, the Tenth Circuit held that there must be evidence either that the prison official had “knowledge that an inmate is suicidal” or the inmate must have been “an obvious suicide risk.” Gaston v. Ploeger, 229 F. App’x at 712. “[T]he threshold for obviousness is very high.” Gaston v. Ploeger, 229 F. App’x at 710 (citing Perez v. Oakland County, 466 F.3d 416, 435-36 (6th Cir. 2006), and Collins v. Seaman, 462 F.3d 757, 761 (7th Cir. 2006)).
9. Danger Creation Exception. 18. The Due Process Clause protects against “deliberately wrongful government decisions rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The danger creation exception to this rule applies only when “a state actor affirmatively acts to create, or increases a plaintiff’s vulnerability to, or danger from private violence.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). Under a danger creation theory, there will be no § 1983 liability absent “an intent to harm” or “an intent to place a person unreasonably at risk of harm.” Uhlrig v. Harder, 64 F.3d at 573. To state a prima facie case, the plaintiff must show that his or her danger creation claim for due-process violations meets a six-part test: (i) the state and individual actors must have created the danger or increased plaintiff’s vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) and the defendant must have acted recklessly in conscious disregard of that risk. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir. 2008).
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19. The Tenth Circuit has focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v. City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk of the conduct and act “with an intent to place a person unreasonably at risk.” Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992). The intent to place a person unreasonably at risk is present where the defendant “is aware of a known or obvious risk” creating a high probability that serious harm will follow, and the defendant nonetheless proceeds with a “conscious and unreasonable disregard of the consequences.” Medina v. City & County of Denver, 960 F.2d at 1496.
4. What Shocks the Conscience. 20. If either the special-relationship or danger-creation exception applies, the conduct of the state actor must go beyond negligence to the point of “shocking the conscience.” Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir. 2006)(“The shocks the conscience standard applies to both types of suits”). “[A] plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Camuglia v. the City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006)(quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)). “The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Camuglia v. the City of Albuquerque, 448 F.3d at 1222-23 (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995))(internal quotations omitted). Establishing these limits advances “three basic principles highlighted by the Supreme Court in evaluating substantive due process claims: (1) the need for restraint in defining their scope; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety.”
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Camuglia v. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).
21. Whether the conduct shocks the conscience is an objective test, based on the circumstances, rather than a subjective test based on the government actor’s knowledge. See James v. Chavez, 830 F. Supp. 2d 1208, 1276 (D.N.M. 2011)(Browning, J.)(finding that the use of deadly force did not shock the conscience even if the suspect did not have intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate a [government actor’s] conduct objectively.”). Even where a government acts with sufficient culpability for tort liability, perhaps warranting even punitive damages, the Court has found that the government’s conduct still failed to rise to the level of shocking the conscience. See Schaefer v. Las Cruces Pub. Sch. Dist., 716 F. Supp. 2d 1052, 1074-1075 (D.N.M. 2010)(Browning, J.)(finding that school’s failure to act after three complaints about conduct that could “arguably be characterized as sexual assault,” and then pointing out the plaintiff as the victim at a school assembly regarding the conduct, “may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages,” but did not shock the conscience).
22. Because “the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner,” County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998)(quoting City of Revere v. Massachusetts Gen. Hospital, 463 U.S. at 244), a finding of deliberate indifference in a claim for failure to provide for a detainee’s serious medical needs shocks the conscience as a matter of law:
Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence, is a matter for closer calls. To be sure, we have
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expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239 . . . (1983), that the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner. Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, . . . it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial. Cty. of Sacramento v. Lewis, 523 U.S. at 849-50 (internal citations and quotations omitted). IV. RELEVANT NEW MEXICO LAW REGARDING NEGLIGENCE. 23. Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause of the plaintiff’s damages. See Coffey v. United States, 870 F. Supp. 2d 1202, 1225 (D.N.M. 2012)(citing Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 73 P.3d 181, 185-86 (2003)). “In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.” Ramirez v. Armstrong, 1983-NMSC-104, ¶ 8, 673 P.2d 822, 825, overruled on other grounds by Folz v. State, 1990-NMSC-075, ¶ 3, 797 P.2d 246, 249. Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm’rs, 1984-NMSC-079, ¶ 4, 672, 687 P.2d 728, 729. “A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant.” Schear v. Bd. of County Comm’rs, 1984-NMSC-079, ¶ 4, 687 P.2d at 729. “Whether a duty exists is a question of law for the courts to decide.” Schear v. Bd. of County Comm’rs, 1984-NMSC-079, ¶ 4, 687 P.2d at 729 (citation omitted). Once courts recognize that a duty exists, that duty triggers “a legal obligation to conform to a certain standard
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of conduct to reduce the risk of harm to an individual or class of persons.” Baxter v. Noce, 1988-NMSC-024, ¶ 11, 51, 752 P.2d 240, 243.
24. New Mexico courts have stated that foreseeability of a plaintiff alone does not end the inquiry into whether the defendant owed a duty to the plaintiff. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 7, 73 P.3d at 186. The New Mexico courts have recognized that, “[u]ltimately, a duty exists only if the obligation of the defendant [is] one to which the law will give recognition and effect.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 9, 73 P.3d at 187 (internal quotation marks omitted). To determine whether the defendant’s obligation is one to which the law will give recognition and effect, courts consider legal precedent, statutes, and other principles of law. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 9, 73 P.3d at 186.
25. “As a general rule, an individual has no duty to protect another from harm.” Grover v. Stechel, 2002-NMCA-049, ¶ 11, 143, 45 P.3d 80, 84. “[C]ertain relationships, however, that give rise to such a duty [include]: (1) those involving common carriers, innkeepers, possessors of land; and (2) those who voluntarily or by legal mandate take the custody of another so as to deprive the other of his normal opportunities for protection.” Grover v. Stechel, 2002-NMCA-049, ¶ 11, 45 P.3d at 84. “[W]hen a person has a duty to protect and the third party’s act is foreseeable, ‘such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the [person who has a duty to protect] from being liable for harm caused thereby.’” Reichert v. Atler, 1994-NMSC-056, ¶ 11, 626, 875 P.2d 379, 382 (1994).
26. “[T]he responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances.” Herrera v. Quality Pontiac, 2003-NMSC-
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018, ¶ 33, 73 P.3d at 194. “The finder of fact must determine whether Defendant breached the duty of ordinary care by considering what a reasonably prudent individual would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all surrounding circumstances of the present case . . . .” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 33, 73 P.3d at 195.
27. “A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 34, 73 P.3d at 195. “It need not be the only cause, nor the last nor nearest cause.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 34, 73 P.3d at 195. “It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 34, 73 P.3d at 195. V. LAW REGARDING THE ADA.
28. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Federal courts have described the ADA as “a general prohibition against discrimination by public entities, regardless of activity.” New Directions Treatment Servs. v. City of Reading, 2007 U.S. App. LEXIS 14025, at *12 (3d Cir. June 15, 2007). See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001)(“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.”). “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations
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(Title III).” PGA Tour, Inc. v. Martin, 532 U.S. at 675 (internal footnotes omitted). To prove an ADA violation, a plaintiff must establish: “(1) that he is a ‘qualified individual’ with a disability; (2) that he was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003).
29. Private entities that operate a “public accommodation” may also be liable under the ADA for discrimination against disabled individuals “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). For the purposes of applying the Act to providers of public accommodations, “discrimination” includes
failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii). Accordingly, the statute implicates three inquiries: (i) “whether the requested modification is ‘reasonable;’” (ii) “whether it is ‘necessary’ for the disabled individual;” and (iii) “whether it would ‘fundamentally alter the nature of’ the [service being provided].” PGA Tour, Inc. v. Martin, 532 U.S. at 683 n.38 (quoting 42 U.S.C. § 12182(b)(A)(ii)). VI. LAW REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 30. The following elements must be proven to establish a claim of intentional infliction of emotional distress: “[(i)] the conduct in question was extreme and outrageous; [(ii)]
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the conduct of the defendant was intentional or in reckless disregard of the plaintiff; [(iii)] the plaintiff’s mental distress was extreme and severe; and [(iv)] there is a causal connection between the defendant’s conduct and the claimant’s mental distress.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d 333, 342 (2001). For purposes of the tort of intentional infliction of emotional distress, New Mexico law adopts the Restatement (Second) of Torts’ definition of extreme and outrageous conduct. See Trujillo v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d at 342. According to the Restatement (Second) of Torts, extreme and outrageous conduct is that which is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d (1965). See UJI 13-1628 NMRA (“Extreme and outrageous conduct is that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person.”). The Restatement (Second) of Torts § 46 states:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts § 46 cmt. d (1965). 31. Extreme and “[s]evere emotional distress means that a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d at 343 (internal quotation marks and citations omitted). “The law intervenes only where the distress is so severe that no reasonable person could be expected to endure it.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d at 343 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)). The extreme
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and severe emotional distress element of intentional infliction of emotional distress was not met, for example, where a plaintiff felt “lousy,” was depressed, was prescribed Prozac, slept long hours, and displayed erratic eating habits. Trujillo v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d at 343.
ANALYSIS 1. The Court will deny the Motion. First, the requested injunction falls into all three of the Tenth Circuit’s three categories of disfavored injunctions -- it is a mandatory injunction, it alters the status quo, and it would afford the Plaintiffs all the relief that they could recover at the conclusion of a full trial on the merits. Nonetheless, the Plaintiffs have shown a likelihood of irreparable harm, that the balance of harms weighs in their favor, and that the requested injunction is not adverse to the public interest. The Plaintiffs, however, have not shown a likelihood of success on the merits. I. THE REQUESTED INJUNCTION FALLS INTO ALL THREE CATEGORIES OF DISFAVORED PRELIMINARY INJUNCTIONS. 2. The Tenth Circuit has identified three categories of disfavored preliminary injunctions -- mandatory injunctions, injunctions that alter the status quo, and injunctions that give the movant all the relief to which he or she would be entitled if he or she won at trial -- and the Court concludes that the requested injunction is a mandatory injunction that alters the status quo and provides the Plaintiffs all the relief to which they would be entitled if they won at trial. See Schrier v. Univ. of Colo., 427 F.3d at 1258. A district court can determine whether a requested injunction is disfavored by looking at the relief it seeks. See Schrier v. Univ. of Colo., 427 F.3d at 1258. The strength of the movant’s case or of the nonmovant’s defenses, the peril that the movant faces if the request is denied, and the burden that the requested injunction would impose on the enjoined party -- considerations of central importance in deciding whether to grant
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a preliminary injunction -- have no effect on this analysis. The analytical effect of branding a requested preliminary injunction as “disfavored” is that it “warrants a heightened standard of proof,” Schrier v. Univ. of Colo., 427 F.3d at 1259, and that it “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course,” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975. A request for a disfavored injunction must thus make a stronger holistic showing in the four-prong analysis.24 See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975.
3. The first disfavored category is “mandatory preliminary injunctions.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 977)(internal quotation marks omitted). The Tenth Circuit “characterize[s] an injunction as mandatory if the requested relief ‘affirmatively require[s] the nonmovant to act in a particular way, and as a result . . . place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.’” Schrier v. Univ. of Colorado, 427 F.3d at 1261 (all alterations but first in Schrier v. Univ. of Colo.) (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 979). The Tenth Circuit has thus disclaimed -- or at least augmented -- the simpler and more intuitive way of defining these terms, i.e., that a prohibitory injunction is one in which the court orders the
24A request for a disfavored preliminary injunction is also not entitled to the Tenth Circuit’s relaxed or “modified” substantial-likelihood-of-success standard, which reduces the plaintiff’s required showing of that prong to raising “questions going to the merits [that] are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002). See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975-76 (“[B]ecause a historically disfavored preliminary injunction operates outside of the normal parameters for interim relief, movants seeking such an injunction are not entitled to rely on this Circuit’s modified-likelihood-of-success-on-the-merits standard.”).
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enjoined party not to do something, and a mandatory injunction is one in which the court orders the enjoined party to do something. It does so because a creative enough lawyer can present any injunction in either prohibitory or mandatory terms, depending on whether the lawyer is requesting or opposing it. Cf. Nat’l Fed’n of Indep. Business v. Sebelius, 132 S. Ct. 2566, 2589 (2012)(“To an economist, perhaps, there is no difference between activity and inactivity . . . .”); O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 1006 (Seymour, J., dissenting)(“There is no doubt that determining whether an injunction is mandatory as opposed to prohibitory can be vexing.”). An injunction directing a party to do something is not the biggest deal in the world -- and not fundamentally different from an injunction prohibiting something -- if everyone can agree on and understand exactly what the court is ordering and exactly what conduct would violate the injunction. On the other hand, necessarily vague injunctions enjoining parties to “depopulate the jail system to constitutionally compliant levels,” or to “perform on its promise to continue manufacturing and delivering conforming goods to the buyer,” are a recipe for bogging the court down into the role of monitor.
4. Here, the requested injunction is mandatory. The Court recognizes that the requested injunction could take many forms. On the one hand, the Motion generally asks the Court to require the San Juan County Detention Center to provide immediate emergency care to those Plaintiffs suffering from severe medical conditions or, in the alternative, to appoint a special master to oversee medical treatment at the San Juan County Detention Center. If the Court were to grant such broad, non-specific injunctive relief, the injunction would be mandatory. It is unclear what “requiring the San Juan Detention Center to provide immediate emergency care to those Plaintiffs suffering from severe medical conditions,” as the Plaintiffs request in their Motion, would specifically entail and ascertaining San Juan County Detention
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Center’s compliance with such an injunction would require the Court to do significant work -- it would not be a matter of the Plaintiffs simply alerting the Court of any infractions. The Court appointing a special master to oversee treatment at the San Juan County Detention Center would similarly require significant Court oversight. The Court is hesitant to use the power of the federal judiciary to take on the task of running and managing medical care at the San Juan County Detention Center. On the other hand, the Plaintiffs suggested that they support narrowly tailored injunctive relief, although they did not provide the Court with much guidance. The Court could, for example, order the San Juan County Detention Center to transport Matamoros to the emergency room every time he makes such a request. Such an injunction would not be mandatory because: (i) it would be clear what the Court is ordering -- that Matamoros be taken to the emergency room every time he makes such a request; and (ii) it would be clear what conduct would violate the injunction -- the San Juan County Detention Center refusing to take Matamoros to the emergency room. The goal of such an injunction would be to keep Matamoros in good health until a trial on the merits. In other words, there is a range or spectrum of possible injunctive remedies, some of which should be scrutinized more severely than others. In the end, it does not matter, because the Court concludes that injunctive relief is not appropriate in this case, regardless of the standard used or the specific relief requested.
5. The second disfavored category is “preliminary injunctions that alter the status quo.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 977)(internal quotation marks omitted). The status quo is “the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.” Stemple v. Bd. of Educ. of Prince George’s Cty., 623 F.2d 893 (4th Cir. 1980). When evaluating whether the issuance of a requested injunction would alter the
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status quo between the parties, the court should look at “the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties’ legal rights.” SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100 (10th Cir. 1991), overruled on other grounds by O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975. If a court instead looks at the parties’ legal rights, then a preliminary injunction will always change the status quo. As the Court has stated, injunctive relief could take a variety of forms here, ranging from the Court appointing a special master to oversee medical treatment at the San Juan County Detention Center to the Court ordering the San Juan County Detention Center to take Matamoros to the emergency room any time he requests. Unlike where a Court orders that a death row inmate not be executed or requires an auction house to not sell an antique arm chair, however, here any preliminary injunction would alter the reality of the existing status and relationships between the San Juan County Detention Center and its inmates. The Court therefore concludes that, the requested preliminary injunction would alter the status quo.
6. The third and final disfavored category is “preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” Schrier v. Univ. of Colo., 427 F.3d at 1258 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 977)(internal quotation marks omitted). The meaning of this category is self-evident, and the requested injunction -- or at least some form of the requested relief -- likely falls into this category. Again, this determination is largely dependent on the injunction that the Court could choose to impose. If the Court were to appoint a special master to oversee medical care and referrals to the emergency room at the San Juan County Detention Center, the injunction’s effect -- both legally and practically -- would not necessarily be temporally limited
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to the case’s pendency. On the other hand, if the Court were to order that Matamoros be transported to the emergency room every time he makes a request between now and any trial on the merits, the injunction’s effect would be temporally limited to the pendency of this case. As stated above, the Court could impose a range of injunctive remedies, some of which must be scrutinized more severely than others. In the end, however, what the precise relief sought is or what precise standard of review the Court uses, does not matter, because the Court concludes that injunctive relief is not appropriate here.
7. Parts of the requested injunction are thus disfavored at law, while other parts are not disfavored. Accordingly, the Court will scrutinize some parts of the requested injunction more closely than others. Either way, the Plaintiffs must still satisfy all four prongs of the standard preliminary-injunction analysis, and, as explained in the subsequent portions of this Memorandum Opinion and Order, they have failed to satisfy all but one of them. II. THE PLAINTIFFS HAVE NOT ESTABLISHED THAT THERE IS A
SUBSTANTIAL LIKELIHOOD THAT THEY WILL SUCCEED ON THE MERITS. 8. The Plaintiffs have not established that there is a substantial likelihood that they will succeed on the merits25 of their Eighth Amendment, negligence, ADA, and intentionalinfliction-of-emotional-distress claims. First, the Plaintiffs have not alleged that any of the named Plaintiffs are anything other than pre-trial detainees held in confinement before the formal adjudication of their guilt. While the Fourteenth Amendment’s Due Process Clause applies to pre-trial detainees, the Plaintiffs explicitly asserted their 42 U.S.C. § 1983 claims under the
25The Plaintiffs filed the Motion only against Defendant San Juan County Detention Center. For the purposes of this Motion, the Court will examine the Plaintiffs’ likelihood of success on the merits of their claims against San Juan County Detention Center. This Memorandum Opinion and Order does not address the Plaintiffs’ likelihood of success on the merits of their claims against other Defendants in this case.
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Eighth Amendment. It is correct that the standard under both the Eighth Amendment and the Fourteenth Amendment is deliberate indifference; however, even if the Court granted the Plaintiffs leave to amend their Complaints, it would still conclude that there is insufficient evidence that the Defendants acted with deliberate indifference as to Matamoros, and given the record, thus, as to all Plaintiffs. Second, the Court concludes that the Plaintiffs have not established that there is a substantial likelihood that they will succeed on the merits of their negligence, ADA, and intentional infliction of emotional distress claims.
A. THE PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THEIR EIGHTH AMENDMENT CLAIM.
9. All of the Plaintiffs appear to be pre-trial detainees, to which the Eighth Amendment does not apply. While it is correct that “deliberate indifference” is the standard for both the Eighth Amendment and the Fourteenth Amendment, even if the Plaintiffs were to amend their Complaints to correctly plead the Due Process Clause of the Fourteenth Amendment, it would not make a difference, because the Court concludes that the Plaintiffs have not produced sufficient evidence for the Court to conclude that they have shown it is likely that the Defendants acted with deliberate indifference to their medical needs.
1. All of the Plaintiffs Appear to be Pre-Trial Detainees, to Which the Eighth Amendment Does Not Apply.
10. When government officials hold an individual in confinement before the formal adjudication of that individual’s guilt, the Eighth Amendment does not regulate the conduct of the government official’s confining that individual. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). The Supreme Court has explained:
Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is
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concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244 (quoting Ingraham v. Wright, 430 U.S. 651, 671-72, n.40 (1977)). Nevertheless, those government officials must still comply with the Due Process Clause’s protections during that individual’s confinement. See City of Revere v. Mass. Gen. Hosp., 463 U.S. at 244 (“The Due Process Clause, however, does require the responsible government or governmental agency to provide medical care to persons, such as Kivlin, who have been injured while being apprehended by the police.”). In other words, it is established that “the Eighth Amendment . . . . serves as the primary source of substantive protection to convicted prisoners,” or inmates, Whitley v. Albers, 475 U.S. at 327, while the Fourteenth Amendment’s Due Process Clause provides Matamoros’ and the other Plaintiffs’ protections and their right to be provided adequate medical care as a detainee: The rights of pretrial detainees, “those persons who have been charged with a crime but who have not yet been tried on the charge,” are not controlled by the . . . Eighth Amendment because the Fifth and Fourteenth Amendments prohibit punishment “prior to an adjudication of guilt in accordance with due process of law. The critical juncture is conviction, either after trial . . . or by plea, at which point the state acquires the power to punish and the Eighth Amendment is implicated.” Berry v. City of Muskogee, 900 F.2d at 1493 (quoting Bell v. Wolfish, 441 U.S. at 535). 11. Here, the Plaintiffs brought their 42 U.S.C. § 1983 claim explicitly under the Eighth Amendment and not pursuant to the Fourteenth Amendment’s Due Process Clause. Each of the Complaints in the four consolidated case, state: “COUNT I: Violation of 42 U.S.C. § 1983 Eighth Amendment Prohibition Against Cruel and Unusual Punishment.” Salazar Complaint ¶¶ 73-82, at 9-10; Carter Complaint ¶¶ 38-47, at 6-7; Jones Complaint ¶¶ 34-43, at 5-6; Burkee Complaint ¶¶ 154-164, at 21-22. Count I of each complaint is identically worded except that the Salazar Complaint, Carter Complaint, and Jones Complaint are each worded so as to apply to a
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single plaintiff, while the Burkee Complaint is worded so as to apply to twenty-seven plaintiffs. See Salazar Complaint ¶¶ 73-82, at 9-10; Carter Complaint ¶¶ 38-47, at 6-7; Jones Complaint ¶¶ 34-43, at 5-6; Burkee Complaint ¶¶ 154-164, at 21-22. After stating that the Court has jurisdiction pursuant to 42 U.S.C. § 1983, the Burkee Complaint, for example, states:
157. Plaintiffs had a clearly established right under the Eighth Amendment to be free from deliberate indifference and reckless disregard for known serious medical needs. . . . .
159. Havel acted with deliberate indifference to Plaintiffs’ serious medical needs and constitutional rights by willfully ignoring plaintiffs’ repeated requests for medical attention and intentionally deprived plaintiffs of care.
160. On information and belief, Havel instructed SJCDC staff to intentionally deprived [sic] plaintiffs of constitutional rights and violated SJCDC’s internal policies in order to save money. . . . .
164. Plaintiffs also seek appropriate declaratory and injunctive relied pursuant to 42 U.S.C. § 1983 to redress the ongoing deliberate indifference in policies, training and supervision with respect to the serious medical needs of patients and inmates in violation of the Eighth Amendment of the Constitution. Burkee Complaint ¶¶ 154-164, at 21-22 (emphasis added). 12. Moreover, the Plaintiffs do not refer to the Fourteenth Amendment in any of the Complaints. See Salazar Complaint ¶¶ 73-82, at 9-10; Carter Complaint ¶¶ 38-47, at 6-7; Jones Complaint ¶¶ 34-43, at 5-6; Burkee Complaint ¶¶ 154-164, at 21-22. Instead, they cite exclusively and unequivocally to the Eighth Amendment. See Salazar Complaint ¶¶ 73-82, at 910; Carter Complaint ¶¶ 38-47, at 6-7; Jones Complaint ¶¶ 34-43, at 5-6; Burkee Complaint ¶¶ 154-164, at 21-22. As explained above, the Eighth Amendment applies only to individuals held in confinement after the formal adjudication of that individual’s guilt, while the Fourteenth
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Amendment’s Due Process Clause applies to pre-trial detainees. None of the four Complaints allege that any of the Plaintiffs are or were individuals held in confinement after the formal adjudication of guilt at the San Juan County Detention Center. For example, as to Plaintiff Gordon Derrick, the Burkee Complaint alleges that he was “incarcerated in SJCDC in February 2013 for misdemeanor charges that were eventually dismissed.” Burkee Complaint ¶ 51, at 8. Regarding Plaintiff Debbie Nez, the Burkee Complaint states that she “was incarcerated in the San Juan County Detention Center in 2013; when she was arrested . . . .” Burkee Complaint ¶ 115, at 16. Further, at the hearing, the Plaintiffs indicated that they believe Matamoros is still a pre-trial detainee:
THE COURT: Is he convicted and serving a sentence. MR. HATFIELD: I don’t even know at this stage, Your Honor, I think he’s still a pretrial detainee, but he does manage to get out and go back sometimes. Tr. at 123: 9-14 (Court, Hatfield). 13. It is the Court’s understanding that the San Juan County Detention Center is a jail -- where individuals are often held after arrest or before trial -- and not a prison -- where individuals are incarcerated after the formal adjudication of guilt. Nonetheless, it may be that some people serve their incarceration for misdemeanors at the San Juan County Detention Center or are otherwise not moved to state prison. The facility may contain a mixture of pre-trial detainees and people convicted of crimes and the Plaintiffs may be a mixture.26 The Plaintiffs, however, have not advised the Court precisely of each Plaintiffs’ status, nor have they alleged or
26Veneno’s testimony at the November 24, 2015, hearing on the Motion supports the view that the San Juan County Detention Center is a mixed facility. Veneno stated that at some point he was moved from cell block B1 to C1, and explained: “C1 is regular inmates that are serving like six to two years. And I had no business being in that population at all. I was not a criminal. I just had a little misdemeanor that I was trying to straighten out. And I was treated like a criminal.” Tr. at 22:19-23 (Veneno).
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informed the Court in their pleadings, briefs, or at the hearing on the Motion, that the Plaintiffs are anything other than pre-trial detainees. The Court, in the past, has dismissed Complaints because pre-trial detainees insufficiently plead Eighth Amendment violations, see, e.g., Chavez v. Bd. of Cty. Com’rs of Sierra Cty., 899 F. Supp. 2d 1163, 1185-87 (D.N.M. 2012)(Browning, J.), and it would be inequitable to not apply the same standard here, where experienced counsel represents the Plaintiffs. Moreover, the Supreme Court has made clear that a plaintiff must plead the correct constitutional provision underlying the § 1983 claim to state a valid claim:
As we have said many times, § 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” In addressing a[ ] . . . claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed. . . . The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right. . . .” Chavez v. Bd. of Cty. Com’rs of Sierra Cty., 899 F. Supp. 2d at 1185 (quoting Graham v. Connor, 490 U.S. at 393-94). 14. In sum, because the Plaintiffs have pled the Eighth Amendment -- and not the Fourteenth Amendment -- they are unlikely to succeed on the merits on all pre-trial detainees, including Matamoros. It is correct that the “deliberate indifference” is the standard for both the Eighth Amendment and the Fourteenth Amendment, but as subsequently explained, even if the Plaintiffs were to amend their Complaints to correctly plead the Fourteenth Amendment for pretrial detainees, and, specifically for Matamoros, it would not make a difference. In the end, the Plaintiffs have not produced sufficient evidence that the Defendants acted deliberately indifferent to their medical needs.
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2. Even if the Plaintiffs had Correctly Pled the Due Process Clause of the Fourteenth Amendment -- Rather than the Eighth Amendment -- the Plaintiffs have Not Produced Sufficient Evidence for the Court to Conclude that They Have Shown it is Likely that the Defendants Acted with Deliberate Indifference to the Plaintiffs’ Medical Needs.
15. Regardless whether the Plaintiffs plead their 42 U.S.C. § 1983 claim under the Eighth Amendment or the Fourteenth Amendment, the Court concludes that the Plaintiffs are unlikely to succeed on the merits of their claim that the Defendants acted deliberately indifferent to their medical needs. The Court cannot meaningfully grant injunctive relief for the benefit of Plaintiffs who are dead, see Salazar Complaint; Carter Complaint; Jones Complaint, or are no longer incarcerated at the San Juan County Detention Center. The Court also agrees with the Defendants that the Plaintiffs lack standing to seek relief for individuals who are not parties to this lawsuit. The Motion refers to Matamoros, Yarnell, and Dominguez, and Veneno also testified at the hearing. Yarnell, Dominguez, and Veneno are not parties to this lawsuit. Further, Dominguez and Veneno are no longer incarcerated at the San Juan County Detention Center. The Court is concerned by the facts surrounding Veneno’s incarceration at the San Juan County Detention Center. If he were a party to this lawsuit, and if he were currently incarcerated at the San Juan County Detention Center, the Court would, on the record before it, find that the Defendants were deliberately indifferent to his medical needs.
16. Without Yarnell, Dominguez, and Veneno, however, the Court is ultimately left with Matamoros and the other Plaintiffs named in the Burkee Complaint that are currently incarcerated at the San Juan County Detention Center. Matamoros is the only Plaintiff that testified at the hearing or submitted an affidavit with the Motion, and the Court assumes that he is the Plaintiff with the strongest case. In other words, the injunction rises and falls with Matamoros, and if he is not entitled to injunctive relief, none of the Plaintiffs are, even if the
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Court takes into account -- as it does -- the other hearing witnesses’ stories in support of Matamoros’ claims. Even so, and assuming that Matamoros’ experience is a “representative sampling” of all the Plaintiffs, the Court concludes that he is unlikely to succeed on the merits of his claim that the Defendants were deliberately indifferent to his medical needs.
17. A claim for inadequate medical attention will be successful if the plaintiff shows “deliberate indifference to serious medical needs.” Martinez v. Beggs, 563 F.3d at 1088. As explained above, the test for deliberate indifference is both objective and subjective. See Martinez v. Beggs, 563 F.3d at 1088. The objective component of the test if satisfied if the official causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the “denial of the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation marks omitted). Analyzing whether the plaintiff has satisfied the first element, the objective element, “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney, 509 U.S. at 36. Courts should also consider “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36 (emphasis in original). “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36. The Eighth Amendment does not protect against “de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. at 9-10.
18. The second element regarding the government official’s state of mind is a subjective inquiry. See Wilson v. Seiter, 501 U.S. at 298. The subjective component of the test
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is met if the official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834 (internal quotation marks omitted). The Tenth Circuit has noted, with regard to the subjective component, that, “[t]o prevail on the subjective component, the prisoner must show that the defendants knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it . . . .” Martinez v. Beggs, 563 F.3d at 1089. The Supreme Court has stated: “With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.” Farmer v. Brennan, 511 U.S. at 836. For the purpose of Eighth Amendment analysis, the Tenth Circuit has equated deliberate indifference with recklessness. See Belcher v. United States, 216 F. App’x 821, 823-24 (10th Cir. 2007)(unpublished)(quoting Smith v. Cummings, 445 F.3d at 1258). Further, evidence of medical treatment also undercuts any claim of deliberate indifference. See Randall v. Bd. of Cty. Comm’rs, 184 F. App’x at 727 (concluding that there was no deliberate indifference where the jail log indicated that the plaintiff was administered daily medication and was transported to the hospital on various occasions); Clemmons v. Bohannon, 956 F.2d 1523, 1529 (10th Cir. 1992)(finding no deliberate indifference where plaintiff was consistently given medications and was examined after complaints). Finally, “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 811 (10th Cir. 1999)(citing Estelle v. Gamble, 429 U.S. at 107).
19. Here, Matamoros has received medical treatment specifically for the injury set forth in the Motion. In this opinion’s Factual Background section, the Court found that: (i) Matamoros developed a severe rash on his groin and penis; (ii) that seven days before August 26, 2015, he began experiencing the problem; (iii) that he repeatedly told the nurses about the
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problem; (iv) that three days before August 28, 2015, he began feeling pain in his penis; (v) that a doctor then examined Matamoros’ penis and told him to fill out a kite; (vi) that on August 26, 2015, and August 27, 2015, Matamoros filled out kites; (vii) that on August 28, 2015, he was transported to the emergency room where blood work was done, an STD test was administered, an IV was administered, a CT scan of his abdomen and pelvis was performed, a doctor looked at his penis and diagnosed him with a yeast infection; (viii) that he was prescribed cream and antibiotics; (ix) that his penis got worse after returning to the San Juan County Detention Center; (x) that he was then informed that he had experienced an allergic reaction to the medications; (xi) that he was eventually put on Prednisone, at which point his penis started to improve; (xii) that he was then taken back to the hospital on September 24, 2015, after filing kites on September 6, 2015, September 11, 2015, and September 20, 2015; (xiii) that by September 24, 2015, his penis was three-fourths of the way healed, and during his visit to the hospital on September 24, 2015, he informed the doctors that it was fine; (xiv) that the skin on his penis is now black and has open wounds, and is still partially numb; (xv) that he has been informed that they are going to take him to see a urologist; and (xvi) that he is currently in fear of losing his penis and of his infection spreading.
20. Based on these findings, the Court concludes that the Defendants were not deliberately indifferent to Matamoros’ medical needs. Matamoros began experiencing penis pen seven days before August 26, 2015. While it may have been negligent to not attend to his needs until he started experiencing pain three days before August 28, 2015, the Defendants did not act with deliberate indifference. Once Matamoros started experiencing pain, he met with a doctor who instructed him to file a kite. Moreover, after filing kites on August 26, 2015, and August 27, 2015, Matamoros was taken to the hospital on August 28, 2015, where he was given a CT
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scan, an IV, and an STD test; saw a doctor who diagnosed him with a yeast infection; and was provided with medications. After an allergic reaction, the course of treatment was changed, and Matamoros was taken to the hospital for a second time on September 24, 2015. Again, the delay between Matamoros filing a second round of kites on September 6, 2015, September 11, 2015, and September 20, 2015, may have been negligent, but it does not cross the threshold into deliberate indifference. Moreover, the evidence of medical treatment -- two emergency room treatments, tests, medication, and alterations in a course of treatment -- undercut any claim of deliberate indifference. See Randall v. Bd. of Cty. Comm’rs, 184 F. App’x at 727 (concluding that there was no deliberate indifference where the jail log indicated that the plaintiff was administered daily medication and was transported to the hospital on various occasions); Clemmons v. Bohannon, 956 F.2d 1523, 1529 (10th Cir. 1992)(finding no deliberate indifference where plaintiff was consistently given medications and was examined after complaints).
21. Finally, as explained above, “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kansas Dep’t of Corrections, 165 F.3d at 811 (10th Cir. 1999)(citing Estelle v. Gamble, 429 U.S. at 107). That the initial round of medications produced an allergic reaction is not that unusual, and Matamoros cannot say that the Defendants acted with deliberate indifference with that occurrence. Maybe Matamoros will be able to establish that providing that prescription or medicine was negligent, but without more, the prescription does not look like deliberate indifference at this preliminary stage. Further, that Matamoros was not swabbed or tested for serious, life-threatening illnesses, such as MRSA, does not evidence deliberate indifference under the Federal Constitution -- maybe not under state law either. Decisions about course of treatment and whether such tests should be administered are best left to medical professionals.
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The Court is reluctant to second-guess such decisions, at least under constitutional law. Moreover, for similar reasons, the Court also concludes that Matamoros has not set forth sufficient evidence of deliberate indifference regarding his back pain or his complaint of not being sent to a neurosurgeon. The Court agrees with the Defendants that back pain alone, and particularly of short-term detainees, “would not even meet the objective component of the test for deliberate indifference, as it is not sufficiently serious to be a cognizable claim.” Response at 11 (citing Curran v. Aleshire, 67 F. Supp. 3d at 766)(finding that neck and back pain are not serious medical needs). Even if back pain alone is sufficiently serious, however, Matamoros’ medical records demonstrate that he received extensive medical attention: (i) he received medications and other treatment for his back pain at the San Juan County Detention Center, see Exhibit 2; Exhibit 6; Exhibit 8; Exhibit 11, (ii) he received a Lumbar spine MRI on September 11, 2014, see Exhibit 3; (iii) he received additional diagnostic testing on September 30, 2014, see Exhibit 4; (iv) he was evaluated by a physical therapist at the San Juan Regional Medical Center on November 4, 2014, see Exhibit 7; (v) he completed eight physical therapy sessions between November 10, 2014, and December 4, 2014, see Exhibit 7; (vi) he underwent a second round of diagnostic testing on December 17, 2014, see Exhibit 9; and (vii) he received an injection from Dr. Jones at the San Juan Regional Medical Center on February 13, 2015, see Exhibit 12; Exhibit 14. As to Matamoros’ complaint about not being sent to a neurosurgeon, the Court credits the medical records submitted by the Defendants demonstrating that Matamoros saw Dr. Kainth, who stated that “[t]his is not a life-threatening problem and he is currently neurologically intact.” Exhibit 17 at 1. Moreover, even if Matamoros was denied treatment by a specialist neurosurgeon, the Defendants are correct that, such a denial would not rise to the level of a constitutional violation. See Response at 12 (citing Woodson v. Barlow, 2012 U.S. Dist. LEXIS
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73952 (finding that a prisoner’s contention that he was denied treatment by a back specialist insufficient to establish a constitutional violation)).
22. The Court has spent many hours reading and digesting the substantial medical records submitted regarding Matamoros’ treatment while incarcerated at the San Juan County Detention Center, which belie any assertion of deliberate indifference. The Court has thoroughly examined a total of approximately three-hundred-and-two pages of medical records generated regarding Matamoros from the period of July 30, 2014 to the present. In the end, the Court concludes that Matamoros has failed to produce sufficient evidence that the Defendants acted with deliberate indifference as to his medical needs. Whether pled under the Eighth Amendment or the Fourteenth Amendment, the Plaintiffs’ request for an injunction fails as a matter of law, because they are unlikely to succeed on the merits.
B. THE PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS OF THEIR OTHER CLAIMS.
23. The Plaintiffs also assert claims for negligence, violations of the ADA, and intentional infliction of emotional distress. The Court concludes, however, that the Plaintiffs cannot show “a substantial likelihood of success on the merits” with respect to their negligence, ADA, and intentional-infliction-of-emotional-distress claims. Regarding their ADA claims, the Defendants correctly note that the Plaintiffs do not allege that Matamoros or any other Plaintiff are being “discriminated against because of a qualifying disability.” Response at 13-14. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132. To prove an ADA violation, a plaintiff must establish: “(1) that he is a ‘qualified individual’ with a disability; (2) that he was excluded from participation in a public entity’s services, programs or activities or
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was otherwise discriminated against by a public entity; and (3) that such exclusion or
discrimination was due to his disability.” Hargrave v. Vermont, 340 F.3d at 34-35. On their
ADA claims, the Plaintiffs allege only that:
172. Defendants herein were required by law to observe and adhere to common law and statutory laws and civil rights laws and guarantees in the performance of their duties to or for those who are disable [sic] and are detained at the San Juan County Detention Center.
173. Defendants violated their duties under the ADA to make accommodations to plaintiffs with known, obvious, and disclosed disabilities.
174. As a result of defendants’ actions, plaintiffs suffered damages as described herein and in an amount to be proven at trial and are entitled to damages, attorneys’ fees and costs.
Burkee Complaint ¶¶ 172-74, at 24. The Court agrees with the Defendants that none of the
Plaintiffs have alleged that they are individuals with a “qualified disability,” and that they were
“excluded from participation in a public entity’s services, programs, or activities or were
otherwise discriminated against by a public entity” on the basis of that disability. See Hargrave
v. Vermont, 340 F.3d at 34-35. While the Plaintiffs assert that they received inadequate medical
treatment at the San Juan County Detention Center, they do not allege that “the alleged
inadequacy was due to any qualifying disability.” Response at 14.
24. The ADA also provides, however, that for the purposes of applying the Act to
providers of public accommodations, “discrimination” includes
failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii). Accordingly, the statute implicates three inquiries: (i) “whether
the requested modification is ‘reasonable;’” (ii) “whether it is ‘necessary’ for the disabled
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individual;” and (iii) “whether it would ‘fundamentally alter the nature of’ the [service being provided].” PGA Tour, Inc. v. Martin, 532 U.S. at 683 n.38 (quoting 42 U.S.C. § 12182(b)(A)(ii)). The Plaintiffs’ allegations, however, again fall short. None of the Complaints in this consolidated case allege that any of the Plaintiffs have a qualifying disability, that they requested a modification in policies, practices, or procedures, or that such a request was reasonable. The Court therefore concludes that the Plaintiffs are unlikely to succeed on the merits of their ADA claims.
25. The Plaintiffs are also unlikely to succeed on their state law claims of negligence and intentional infliction of emotional distress. The Defendants correctly note that “[s]tate law tort claims against governmental entities are governed by the New Mexico Tort Claims Act (NMTCA).” Response at 14 (citing N.M. Stat. Ann. 1978 § 41-4-2). The New Mexico Legislature enacted the NMTCA “in response to the New Mexico Supreme Court’s decision to abolish state sovereign immunity in Hicks v. State.” Brenneman v. Bd. of Regents of University of New Mexico, 2004-NMCA-003, ¶ 5, 84 P.3d 685, 686 (citing Hicks v. State, 1975-NMSC056, 544 P.2d 1153, superseded by statute as stated in Electro-Jet Tool Mfg. Co. v. City of Albuquerque, 1992-NMSC-060, 845 P.2d 770). The NMTCA provides: “[G]overnmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.” N.M. Stat. Ann. 1978 § 41-4-5. See Upton v. Clovis Municipal Sch. Dist., 2006-NMSC-040, ¶ 8, 141 P.3d 1259, 1261 (“The TCA grants all government entities and their employees general immunity from actions in tort, but waives that immunity in certain specified circumstances.”). Thus, the Plaintiffs’ claims for negligence and intentional infliction of emotional distress, as against a governmental entity or a
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public employee, must fit within one of the exceptions to the immunity set forth in §§ 41-4-5 to 41-4-12 of the NMTCA. See Pemberton v. Cordova, 1987-NMCA-020, ¶ 4, 734 P.2d 254, 255.
26. Here, the Plaintiffs do not point to a waiver of immunity for their negligence and intentional infliction of emotional distress claims. Moreover, the Defendants assert that the Plaintiffs “cannot point to a waiver of immunity for the asserted claims.” Response at 14 (emphasis added). The Court has reviewed the waivers of immunity set forth in Sections 41-4-5 to 41-4-12 of the NMTCA and agrees with the Defendants that the only potentially applicable waivers are § 41-4-9 -- for operation of certain medical facilities -- and § 41-4-12 for certain acts of law enforcement. Section 41-4-9 provides:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any hospital, infirmary, mental institution, clinic, dispensary, medical care home or like facilities. N.M. Stat. Ann. 1978 § 41-4-9. The Defendants are correct, however, that the New Mexico Court of Appeals decision in Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d at 179, forecloses the Plaintiffs’ reliance on § 41-4-9. See Response at 15. There, an inmate was arrested and booked into the Metropolitan Detention Center (“MDC”). 2008-NMCA-085, ¶ 3, 187 P.3d at 180. He was then subjected to a medical and mental health intake by Correctional Medical Services, Inc. (“CMS”), which had contracted with the City of Albuquerque to provide medical services at the MDC. See 2008-NMCA-085, ¶ 3, 187 P.3d at 180. During the intake, the inmate disclosed that he was a heroin user, and that he had prescriptions for Valium and hydrocodone. See 2008-NMCA-085, ¶ 3, 187 P.3d at 180. He was referred to the MDC detoxification unit, where his vital signs were regularly monitored and he received several medications. See 2008-NMCA-085, ¶ 3, 187 P.3d at 180. “Over the ensuing eleven hours,
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medical personnel noted that Decedent exhibited tremors, nausea, vomiting, and muscle aches
and that he complained of sleeplessness,” symptoms consistent with heroin withdrawal. 2008-
NMCA-085, ¶ 3, 187 P.3d at 180. Personnel also noted “bizarre behavior.” 2008-NMCA-085, ¶
3, 187 P.3d at 180. The inmate was subsequently released from jail, at which point he wandered
off from the jail parking lot into the nearby desert where he died of hypothermia. See 2008-
NMCA-085, ¶¶ 4-8, 187 P.3d at 180-81.
27. The Court of Appeals of New Mexico rejected the plaintiff’s argument that § 41-
4-9 applied, holding that liability against a jail cannot be based on § 41-4-9 when the jail has
contracted with a private entity to provide medical services. See 2008-NMCA-085, ¶¶ 28-30,
187 P.3d at 185. The Court of Appeals of New Mexico explained:
We agree with the general proposition stated in Estelle and Ancata that governmental entities must provide appropriate medical care to persons they incarcerate. See Estelle, 429 U.S. at 103; Ancata 769 F.2d at 705. Such governmental entities cannot escape that duty by contracting with third parties to provide the medical care, and a governmental entity “remains liable for any constitutional deprivations caused by the policies or customs of the [third party].” Ancata, 769 F.2d at 705. This is not to say, however, that a governmental entity’s constitutional obligation equates with waiver of immunity for negligent operation of an infirmary under New Mexico’s TCA. If Plaintiff had alleged and could prove that the City’s inadequate medical care deprived Decedent of a constitutional right, Plaintiff might be entitled to recover under the waiver of immunity provided in Section 41-4-12. But, as discussed in the next section of this opinion, Plaintiff’s allegations of conduct that is merely negligent are insufficient to establish such a constitutional violation. See Ancata 769 F.2d at 703 (indicating that claim of constitutional deprivation in the context of inadequate medical care requires a showing of “deliberate indifference to serious medical needs”).
Because it was CMS that operated the infirmary or like facility at MDC, we affirm the district court’s summary judgment in favor of the City under Section 41-4-9.
2008-NMCA-085, ¶¶ 30-31, 187 P.3d at 185. Here, it is undisputed that, like in Lessen v. City
of Albuquerque, San Juan County contracted with Correctional Healthcare and San Juan
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Regional Medical Center to provide healthcare at the San Juan County Detention Center. Accordingly, the Defendants cannot be held liable under § 41-4-9 for negligence and for intentional infliction of emotional distress. In sum, the Plaintiffs are unlikely to succeed on the merits of their negligence and intentional infliction of emotional distress claims pursuant to the waiver of immunity set forth in § 41-4-9.
28. The Court now turns to § 41-4-12 of the NMTCA, which “provides a waiver of immunity for certain torts that law enforcement officers commit and for negligence that causes a specified tort.” Williams v. Bd. of Regents of University of New Mexico, 20 F. Supp. 1177, 1189-90 (D.N.M. 2014)(Browning, J.)(citing Oliveros v. Mitchell, 449 F.3d 1091, 1096 (10th Cir. 2006). Section 41-4-12 provides:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. N.M. Stat. Ann. 1978 § 41-4-12. Thus, in order to state a tort claim under the waiver of immunity set out in Section 41-4-12, a plaintiff must demonstrate that the defendants were law enforcement officers acting within the scope of their duties, and that the plaintiff’s injuries arose out of either a tort enumerated in this section or a deprivation of a right secured by law. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶ 7, 916 P.2d 1313, 1316. 29. As the statutory definition of “law enforcement officer” includes “any full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense,” N.M. Stat. Ann. § 41-4-3(D), correctional
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officers are law enforcement officers if and only if the facility in which they work holds primarily inmates awaiting trial rather than convicts. See Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1269 (D.N.M. 2010)(Browning, J.); Davis v. Bd. of Cty. Comm’rs of Dona Ana Cty., 1999-NMCA-110, ¶ 35, 987 P.2d at 1183. Compare Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶¶ 9-12, 875 P.2d 393, 397 (holding that correctional officers who work at facilities that principally house individuals already convicted of crimes are not law enforcement officers), with Abalos v. Bernalillo Cty. Dist. Attorney’s Office, 1987-NMCA-026, ¶¶ 26-30, 734 P.2d 794, 800 (holding that the director of a jail that housed primarily inmates awaiting trial was a law enforcement officer for the purposes of § 41-4-12). Based on the available evidence, the San Juan County Detention Center appears to be a facility whose inmates are primarily individuals awaiting trial. It may, however, be a mixed facility, containing pre-trial detainees and people incarcerated for misdemeanor or lessor offenses. The Defendants have not asserted otherwise or presented evidence to the contrary. Once the appropriate section is identified, the analysis is straightforward.
30. Section 41-4-12 “simply does not -- either on its face or through its construction by the New Mexico courts -- set forth a waiver of immunity for negligence.” Williams v. Bd. of Regents of University of New Mexico, 20 F. Supp. at 1193. Moreover, the Court addressed this precise issue in Williams v. Bd. of Regents of University of New Mexico where it explained:
Plaintiffs’ confusion stems from the literal manner in which the New Mexico courts have interpreted the language of the statute, which waives immunity from liability for “injury . . . resulting from assault, battery, false imprisonment . . . .” N.M. Stat. Ann. § 41-4-12 (emphasis added). The courts interpret this waiver as encompassing any situation in which a law enforcement officer’s actions “result” in injury from one of the enumerated intentional torts, even if the officer himself was not the one who committed the tort. See Dickson v. City of Clovis, 2010-NMCA-058, ¶ 20, 242 P.3d at 403-04 (“[A]llegations of negligence based on one of the torts specified in Section 41-4-12 are appropriate only when a law enforcement officer’s negligence allegedly caused a third party
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to commit one of the enumerated intentional acts.”); Methola v. Eddy Cty., 1980-NMSC-145, 622 P.2d 234; Weinstein v. City of Santa Fe, 1996-NMSC-021, 916 P.2d 1313. If a law enforcement officer’s negligence causes an inmate to be thrown to the wolves -- attacked, raped, or subjected to any of the other torts enumerated in the statute by people the officer should have known not to allow around the inmate -- the officer cannot hide behind the general rule of immunity against negligence claims. See, e.g., 1980-NMSC-145, ¶¶ 2-4, 26, 622 P.2d at 235, 239.
It is upon these cases, Methola v. Eddy County and Weinstein v. City of Santa Fe, that the Plaintiffs rely, but the cases stand for what Bernalillo County says they do: one of § 41-4-12’s enumerated torts must be the direct cause of the Plaintiff’s injury, which in this case means that, “without demonstrating that Defendant CHC engaged in a specific tort found under that particular subsection of the NMTCA, Plaintiffs’ claim of alleged negligent supervision against Defendant County fails and should be dismissed.” Reply at 7. As none of the six claims alleged in the SAC -- medical negligence, negligence per se based on the Emergency Medical Treatment and Active Labor Act, simple negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, or loss of consortium -- is on the list of torts enumerated in § 41-4-12, the Plaintiffs’ claim of negligence is subject to immunity under § 41-4-4, and fails as a matter of law.
20 F. Supp. at 1193-94. Similarly, here none of the claims alleged in any of the Complaints is on
the list of torts that § 41-4-12 enumerates. Accordingly, for the reasons stated in Williams v. Bd.
of Regents of University of New Mexico, the Court concludes that the Plaintiffs are unlikely to
succeed on their negligence claim. Moreover, this same analysis applies to the Plaintiffs’
intentional-infliction-of-emotional-distress claim, and the Court likewise concludes that they are
unlikely to succeed on the merits of that claim. In so far as the requested injunction is conceived
of as mandatory, it follows that the Plaintiffs cannot meet a “heightened standard” or make a
“strong showing” with regard to the likelihood of success on the merits of their ADA,
negligence, and intentional infliction of emotional distress claims. See Schrier v. University Of
Colo., 427 F.3d at 1260-61; Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010).
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III. THE HARMS THAT THE REQUESTED PRELIMINARY INJUNCTION SEEKS TO AVOID WOULD BE IRREPARABLE. 31. The Court concludes that the Plaintiffs have succeeded in showing that they will
suffer irreparable injury if no preliminary injunction is entered in this action. A showing of irreparable injury is a necessary condition for the issuance of a preliminary injunction. See Vega v. Wiley, 259 F. App’x 104, 105 (10th Cir. 2007)(unpublished). Regarding irreparable harm, the Tenth Circuit has explained:
Case law has provided some guidance, however, noting for example that injury “must be both certain and great,” id.; and it must not be “merely serious or substantial.” A.O. Smith Corp. v. FTC, 530 F.2d 515, 525 (3d Cir. 1976). Cases have also noted that irreparable harm is often suffered when “the injury can[not] be adequately atoned for in money,” id.; or when “the district court cannot remedy [the injury] following a final determination on the merits.” American Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (1980). Prarie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). Moreover, “[w]hen an alleged constitutional right is involved, most courts hold no further showing of irreparable injury is necessary.” McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1259 (D.N.M. 2003)(Vasquez, J.)(citing Kikumura v. Hurley, 242 F.3d at 963). 32. The substance of the Plaintiffs’ Motion focuses on the irreparable harm being the likelihood of future deaths, pain and suffering, and the fear of illness, and death at the San Juan County Detention Center. See Motion ¶ 32, at 7. Each of the complaints also states that declaratory relief is “necessary to prevent immediate and irreparable harm, including constitutional and statutory violations, policy violations, serious injury and death.” Salazar Complaint at 13; Carter Complaint at 10-11; Jones Complaint at 9; Burkee Complaint at 25. In other words, the Plaintiffs contend that there are two fundamental senses in which the requested injunction seeks to avoid irreparable harm: (i) the injunction seeks to avoid serious injury, death, pain, and suffering; and (ii) it seeks to avoid constitutional, statutory, and other violations.
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33. The Court agrees with the Defendants that “[o]nce a petitioner is no longer affected by the alleged conduct, any attempt at injunctive relief is inappropriate as moot.” Response at 5 (citing Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir. 1974)). Here, the San Juan County Detention Center’s alleged failure to provide for inmates’ medical needs does not continue to affect Dominguez or Veneno. Further, many of the other Plaintiffs named in the Burkee Complaint are no longer incarcerated at the San Juan County Detention Center, see Burkee Complaint, and three of the Plaintiffs are dead, see Salazar Complaint at 13; Carter Complaint at 10-11; Jones Complaint at 9. The Court concludes, however, that the Plaintiffs have demonstrated that Matamoros and the other named Plaintiffs in Burkee v. San Juan have sufficiently demonstrated that the harm which the requested injunction seeks to avoid -violations of their constitutional rights -- would be irreparable. See McClendon v. City of Albuquerque, 272 F. Supp. 2d at 1259 (citing Kikumura v. Hurley, 242 F.3d at 963). In sum, the denial of the Plaintiffs’ Eighth Amendment rights is a harm that cannot fully and adequately be compensated monetarily and, for that reason, the Court concludes that the Plaintiffs have succeeded in showing that they will suffer irreparable injury if no preliminary injunction is issued in this action. IV. THE BALACE OF HARMS WEIGHS IN THE PLAINTIFFS’ FAVOR AND THE
REQUESTED INJUNCTION WOULD NOT BE ADVERSE TO PUBLIC INTEREST. 34. To be entitled to entry of a preliminary injunction, the Plaintiffs must also demonstrate that “the threatened injury . . . outweighs whatever damage the proposed injunction may cause the opposing party” and that “the injunction, if issued would not be adverse to the public interest.” Schrier v. University Of Colo., 427 F.3d at 1258. While the Plaintiffs address the balance of harms in their Motion, they do not address whether the requested injunction would
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be adverse to the public interest. See Motion ¶¶ 34-38, at 7-9. On the balance of harms prong, the Plaintiffs assert that “the only detriment to the defendants of injunctive relief (in assigning an independent doctor to review all inmate medical issues on a weekly or bi-weekly basis, for example), would be merely monetary,” while the harm to the Plaintiffs would be the likelihood of future deaths, injury, pain, and suffering. Motion ¶¶ 32-34, at 7. As described above, there is a spectrum of injunctive relief that the Court could grant, ranging from the Court appointing a special master, to the Court ordering San Juan County Detention Center “to provide immediate medical care to inmates whose medical needs are not being met,” to the Court ordering San Juan County Detention Center to transport Matamoros to the emergency room every time he makes such a request. Regardless what injunctive relief the Court were to impose along this spectrum, the Court agrees that the only detriment to the Defendants would be monetary. The potential harm to the Plaintiffs is indeed the likelihood of future injuries and deaths, but more importantly, potential constitutional violations.
35. The Defendants maintain that the County spends a substantial amount of money on medical care for inmates of the San Juan County Detention Center. See Response at 17. The Defendants explain:
For fiscal year 6/30/2012 to 6/20/2013, the County spent $3,347,340.39 on inmate care. [Exhibits “7” and “8.”] This number includes the annual amount paid to the entity with whom the County contracted to provide medical care and the amounts paid for additional services. For the fiscal year ending 6/30/2014, the County spent $3,632,712.51 and for the fiscal year ending 6/30/2015, the County spent $3,184,857.48. [Exhibits “7” and “8.”]. Response at 17-18. The spreadsheet included with Kristi Galloway’s affidavit, see Affidavit of Kristi Galloway, filed October 26, 2015 (Doc. 73-7 in Salazar v. San Juan), which is attached to the Response, also notes that, for fiscal year 6/30/2015 to 6/30/2016, the County spent $2,962,735.64 on inmate care, see Spending Spreadsheet, filed October 26, 2015 (Doc. 73-8 in
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Salazar v. San Juan). While cost is certainly a consideration, the San Juan County Detention Center must provide sufficient inmate medical care to comply with the Constitution. The Court also notes that the San Juan County Detention Center is quote large, averaging over 600 prisoners on a daily basis. See Tr. at 139:11-14 (Childress). Moreover, the cost of the injunction would depend on whether the Court were to issue limited injunctive relief specifically for Matamoros, or whether it would, for example, appoint a special master to oversee medical care at the San Juan County Detention Center. In sum, the Court concludes that the risk of deaths or injuries, and the risk of constitutional violations, outweighs the economic damage a wrongful preliminary injunction would inflict upon the San Juan County Detention Center.
36. For the same reasons that the Court concludes that the requested preliminary injunction succeeds on the balance-of-harms prong, the Court concludes that it also succeeds on the public-interest prong. In sum, the Court concludes that the Plaintiffs have failed to make one out of the four showings required to warrant the grant of preliminary injunction. The Court therefore denies the Motion.
IT IS ORDERED that the Plaintiff’s Motion for Injunctive Relief Against Defendant San Juan County Detention Center, filed September 28, 2015 (Doc. 48 in Salazar v. San Juan), is denied.
________________________________ UNITED STATES DISTRICT JUDGE
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Counsel:
Gregory M. Tucker Mitchel S. Burns Jennifer D. Yoder Christian A. Hatfield Tucker Burns Yoder & Hatfield Law Firm Farmington, New Mexico
--and--
John Holland Erica Grossman Anna Holland Edwards Holland, Holland Edwards & Grossman, PC Denver, Colorado
Attorneys for the Plaintiffs
Ronald K. Childress Elaine D. Dailey Uvashi Parkhani Childress Law Firm Albuquerque, New Mexico
Attorneys for Defendants San Juan County Detention Center, San Juan County, and Thomas C. Havel
Robert J. Curtis Ellen M. Kelly Civerolo Gralow Hill & Curtis PA Albuquerque, New Mexico
Attorneys for Defendants San Juan Regional Medical Center, Eric Ketcham, and Cindy Ketcham
Brett C. Eaton W. Ann Maggiore Butt Thornton & Baehr, PC Albuquerque, New Mexico
Attorneys for Defendant Katie Moore
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Case 1:15-cv-00417-JB-LF Document 174 Filed 01/15/16 Page 109 of 109 Alfred A. Park Kevin D. Fowler Lawrence M. Marcus Park & Associates LLC Albuquerque, New Mexico
Attorneys for Defendant Correctional Healthcare Companies Inc. W. Mark Mowery Jessica R. Terrazas Rodey, Dickason, Sloan, Akin & Robb Santa Fe, New Mexico
Attorneys for Presbyterian Medical Services
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 Case 1:15-cv-00417-JB-LF Document 249 Filed 02/25/16 Page 1 of 4

/?rt lt./) Utvtt.
IN THE UNITED STATES DISTRICT COURT /lL.sZD 8!/lt.#

FOR THE DISTRICT OF NEW MEXICO OLGA SALAZAR, Personal Representative

OuE:R E:s D1.
c F"£B OuE:'lvE10.):'tAvAv,tlel1I~ OuR!

of the Estate of JESUS MARQUEZ, et al.,

fVl

2 S la

)(J.

Plaintiff,

'A.l)-1-ff2lo/ J

v.

Case No. I: 15-cv-00417 m8t:ll~ DYI(M"'tv

Consolidated with: Case No. 1: 15-cv-00439 JB/LF Case No. 1:15-cv-00497 JB/LF Case No. 1:15-cv-00526 JBILF

SAN JUAN COUNTY DETENTION CENTER ("SJCDC"), SAN JUAN COUNTY ("SJC"), SAN JUAN REGIONAL MEDICAL CENTER ("SJRMC"), THOMAS C. HAVEL, individually and as ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, individually, CINDY KETCHAM, individually, and KATIE (Unknown Surname), RN,

Defendants.

ORDER OF PARTIAL DISMISSAL OF PLAINTIFF'S CLAIMS AGAINST ALL DEFENDANTS Case No. 1:15-cv-00417 JBILF

This matter having come before the Court on Joint Motion for Partial Dismissal ofPlaintiff's

Claims Against All Defendants in Case No. 1:15-cv-00417 JBILF, the Court having reviewed the

pleadings and being otherwise advised in the premises, fmds the Joint Motion is well-taken.

IT IS THEREFORE ORDERED:

1. All claims against all Defendants under the Americans with Disabilities Act of 1990

(ADA), as amended, are hereby dismissed with prejudice in Case No. 1: 15-cv-00417 JBILF.

~s~der 2. All

both state or federal law] for declaratory and injunctive relief are

hereby dismissed with prejudice in Case No. 1: 15-cv-00417 JB/LF.

ith the dismissed claims.

Case 1:15-cv-00417-JB-LF Document 249 Filed 02/25/16 Page 2 of 4
APPROVED BY:
CIVEROLO, GRALOW, HILL & CURTIS, P.A. Counsel for San Juan Regional Medical Center, Eric Ketcham and Cindy Ketcham
By: __=-~~~~--------Robert J. Curtis Ellen M. Kelly P.O. Drawer 887 Albuquerque, NM 87103-0887 (505) 842-8255 EMAIL: curtisr@civerolo.com EMAIL: kellye@civerolo.com
TUCKER, BURNS, YODER & HATFIELD Counsel for Plaintiffs
By: ____________________ Gregory M. Tucker Mitchel Bums Jennifer Yoder Christian Hatfield 105 North Orchard Ave. Farmington, NM 87401 (505) 325-78755 Greg@tbylaw.com Mitch@tbylaw .com J ennifer@tbylaw .com Christian@tbylaw.com
HOLLAND, HOLLAND EDWARDS & GROSSMAN, P.C. Counsel for PlaintiffsGordon Douglas Derrick, Corey Jones, Olga Salazar and Charles Carter
By: --A-n-n-a-H-o-l-la-n-d-E-d-w-a-rd-s-, -E-sq.
Erica Grossman, Esq. John Holland, Esq. 1437 High Street Denver, CO 80218 (303) 860-1331 (303) 832-6506- FAX Anna @hheglaw.com Erica@hheglaw .com john@hheglaw.com

Case 1:15-cv-00417-JB-LF Document 249 Filed 02/25/16 Page 3 of 4
CHILDRESS LAW FIRM, LLC Counsel for Defendants San Juan County Detention Center, San Juan County and Thomas C. Havel
By: Ronald Childress Elaine R. Dailey Urvashi Parkhani 6000 Uptown Blvd. NE Suite 305 Albuquerque, NM 87110 (505) 883-8555 ron@childresslawfirm.com edailey@childresslawfirm.com urvashi@childresslawfirm.com
PARK & ASSOCIATES LLC Counsel for Defendant Correctional Healthcare Companies, Inc.
By: _____________________ Alfred A. Park Lawrence M. Marcus 6100 Uptown Blvd NE, Suite 350 Albuquerque, NM 87110 (505) 246-2805 apark@parklawnm .com lmarcus@parklawnm.com
RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A. Counsel for Defendant Presbyterian Medical Services
By: -------------------W. Mark Mowery Jessica Terrazas PO Box 1357 Santa Fe, NM 87504 (505) 954-3907 mmowery@rodey.com jterrazas@rodey.com

Case 1:15-cv-00417-JB-LF Document 249 Filed 02/25/16 Page 4 of 4
BUTT, THORNTON & BAEHR, P.C. Counsel for Defendant Katie Moore
By: W. Ann Maggiore Brett C. Eaton PO Box 3170 Albuquerque, NM 87190-3170 (505) 884-0777 wamaggiore@btblaw .com bceaton@btblaw.com

 
 Case 1:15-cv-00417-JB-LF Document 255 Filed 02/29/16 Page 1 of 51
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
Civil Action No. 1:15-cv-00417 JB/LF
OLGA SALAZAR, Personal Representative of the Estate of JESUS MARQUEZ and INDIVIDUALLY,
Plaintiffs, v.
BOARD OF COUNTY COMMISSIONERS FOR SAN JUAN COUNTY, a/k/a San Juan County and San Juan County Detention Center, SAN JUAN REGIONAL MEDICAL CENTER, THOMAS C. HAVEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY, KATIE MOORE, RN, INDIVIDUALLY, YVONNE VALLES, RN, INDIVIDUALLY, RAMONA HOWARD, RN, INDIVIDUALLY, COURTNEY NYMAN, LPN, INDIVIDUALLY,
Defendants. ______________________________________________________________________________
FIRST AMENDED COMPLAINT
COME NOW the Plaintiffs, by and through their attorneys, and complain as follows:
I. INTRODUCTION
1. Jesus Marquez was an inmate at the San Juan County Detention Center who
suffered injuries and death on March 3, 2015 as a result of the deliberate indifference of
Defendants.
2. Mr. Marquez died of strep throat, a treatable infection, which was allowed to
ravage his body until it shut down.

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3. Mr. Marquez suffered for over 30 hours, struggling to breathe and begging to go to the Emergency Room. He was so ill that he was observed repeatedly in and out of consciousness.
4. As can be seen through many correctional officer incident reports, quoted in part below, involved correctional officers were sure something was seriously wrong with Mr. Marquez and they fought for medical staff’s attention, insisting over their objections that an ambulance be called.
5. Tragically, it was too late. 6. Mr. Marquez finally succumbed to this egregious disregard of his medical crisis, coding just after the ambulance left the jail and was pronounced dead at the hospital.
II. JURISDICTION AND VENUE 7. This action arises under the Constitution and laws of the United States and is being brought pursuant 42 U.S.C. § 1983. 8. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, 1343 and 1367. Jurisdiction supporting Plaintiffs’ claim for attorneys’ fees and costs is conferred by 42 U.S.C. § 1988. 9. Venue is proper in the District of New Mexico pursuant to 28 U.S.C. § 1391(b). All of the events alleged herein occurred within the State of New Mexico, and all of the parties were residents of the State at the time of the events giving rise to this litigation. 10. Supplemental pendent jurisdiction is based on 28 U.S.C. § 1367 because the violations of federal law alleged are substantial and the pendent causes of action derive from a common nucleus of operative facts.
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11. Notice was given to the County under the Tort Claims Act. III. PARTIES
12. At all times pertinent hereto, the decedent, Jesus Marquez was a citizen of the United States of America and a resident of San Juan County, New Mexico. He was the father to a young son named Omar Marquez.
13. At all times relevant hereto, Plaintiff Olga Salazar was a citizen of the United States of America and a resident of the State of New Mexico. Ms. Salazar is the mother of Mr. Marquez, and is suing individually and as personal representative of his estate.
14. Defendant San Juan Regional Medical Center (“SJRMC”) is a New Mexico corporation doing business in New Mexico pursuant to a contract with San Juan County to provide incarcerated inmates with in house medical care at the San Juan County Detention Center since February 17, 2014 to present. This Defendant’s principal place of business is 801 W. Maple Street, Farmington, New Mexico.
15. SJRMC is a proper entity to be sued under 42 U.S.C. § 1983 for its deliberately indifferent policies, practices, habits, customs, procedures, training and supervision of staff, including of individual nursing Defendants, with respect to the provision of medical care and treatment for inmates.
16. At all relevant times, SJRMC and its staff were acting under color of state law and performing a central function of the County.
17. SJRMC is also properly sued for negligence, as it is a private corporation and not entitled to immunity under the Torts Claims Act.
18. SJRMC is sued directly and vicariously for negligence, negligent supervision,
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negligent training of their staff, for failing to ensure the provision of appropriate care in the treatment of Mr. Marquez, and for the acts and omissions of their agents and/or employees while acting within the scope and course of their employment.
19. At all times relevant hereto, Defendant Eric Ketcham, M.D. was a citizen of the United States and a resident of New Mexico. Dr. Ketcham was the medical director for the medical care provided at the jail, employed by SJRMC and acting under color of state law.
20. At all times relevant hereto Defendant Cindy Ketcham, R.N. was a citizen of the United States and a resident of New Mexico. Defendant Ketcham was the Health Services Administrator for SJRMC and the Director of Nursing for the jail’s medical care, employed by SJRMC and acting under color of state law.
21. At all times relevant hereto, Defendant Katie Moore, R.N., was a citizen of the United States and a resident of New Mexico. Defendant Nurse Moore was an employee of SJRMC and acting under color of state law.
22. At all times relevant hereto, Defendant Yvonne Valles, R.N. was a citizen of the United States and a resident of New Mexico. Defendant Nurse Valles was an employee of SJRMC and acting under color of state law.
23. At all times relevant hereto, Defendant Ramona Howard, R.N. was a citizen of the United States and a resident of New Mexico. Defendant Nurse Howard was an employee of SJRMC and acting under color of state law.
24. At all times relevant hereto, Defendant Courtney Nyman, L.P.N., was a citizen of the United States and a resident of New Mexico. Defendant Nurse Nyman, was an employee of SJRMC and acting under color of state law.
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25. Defendant Board of County Commissioners for San Juan County (“San Juan

County”) is the public entity responsible for the San Juan County Detention Center (“SJCDC” or

“the jail”) and a proper party to be sued under §1983. This Defendant is also known as, and has

been identified thus far in the litigation as, San Juan County and San Juan County Detention

Facility.

26. Defendant Thomas Havel is the Administrator of SJCDC and the proper

individual to be sued under 42 U.S.C. § 1983 for customs, practices, policies and ratification of

deliberate indifference and reckless disregard for inmates’ care. He is sued in his official

capacity as the final decision maker responsible for the administration of the jail, and in his

individual capacity for deliberately indifferent policies, practices, customs, habit and training.

27. Defendant San Juan County, San Juan County Detention Facility and Defendant

Havel are collectively referred to as “San Juan County” or the “County Defendants.”

28. The County Defendants are properly sued under 42 U.S.C. § 1983 with respect to

the hereinafter challenged deliberately indifferent policies and practices for the care and

treatment of persons detained at the SJCDF, as well as for the policies and practices of SJRMC

Defendants acting as the contractual final delegated decision makers.

29. San Juan County is liable under the non-delegable duty doctrine for the deliberately

indifferent policies of SJRMC.

30. 2015.
31.

IV. STATEMENT OF FACTS Jesus Marquez was a 35-year-old inmate at San Juan County Detention Center in
He had been previously treated for an infection in early February 2015.

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32. At some prior to March 2015, Mr. Marquez developed strep throat. 33. This infection was untreated and as a result became very serious, developing into chest pain, trouble breathing, changes in level of consciousness and eventually death. 34. Mr. Marquez died on March 3, 2015 at 3:00 p.m. 35. The Office of the Medical Examiner determined that Mr. Marquez died of necrotizing tracheitis and bronchopneumonia, caused by untreated strep throat. 36. Dr. Ross Zumwalt, Chief Medical Investigator for the Office of the Medical Investigator found: “Mr. Marquez had evidence of a severe pharyngitis (ie: “Strep throat”, colloquially), which untreated exacerbated into pneumonia, and likely sepsis … Severe infection and sepsis causes end organ failure, and ultimately death.” 37. Medical staff were made aware many times on March 2nd and March 3rd of the seriousness of Mr. Marquez’s condition, yet consciously chose to withhold known needed medical attention, refusing to transfer him to a higher level of acuity. 38. At some point on March 2, 2015, Mr. Marquez was seen by mental health services. His therapist referred him to medical for evaluation because he was having chest pains and she was concerned about him. 39. Also on March 2nd, Mr. Marquez called his mother, Olga Salazar, asking her to help him get medical care and telling her he was very sick. 40. As can be heard on the call, he was terrified and having serious trouble breathing. 41. Mr. Marquez described his intense pain, telling his mother that the nurses refused to take him seriously or do anything other than give him cold medicine and ibuprofen. 42. He begged his mother to call the nurses and get them to take him seriously.
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43. An alarmed Ms. Salazar called the medical area, pleading with them to take her obviously very ill son who she told them was struggling to breathe to the Emergency Room.
44. A nurse named Courtney told Ms. Salazar that they couldn’t talk to her without a medical release.
45. This nurse is believed to be Courtney Nyman based on record review, SJRMC’s initial disclosures, and conferral with Counsel for SJRMC.
46. Ms. Salazar responded that she didn’t need them to tell her any private health information about her son, but rather, she needed them to take seriously the critical information about his serious medical condition she was giving them, which they actually knew themselves.
47. Ms. Salazar heard Defendant Nyman and another nurse in the background laughing as they refused to talk to her.
48. They again told Ms. Salazar she would need a release, callously refusing to acknowledge the information she was giving them about her son.
49. In another phone conversation on March 2, 2015, Ms. Salazar told her son that she was working on getting a release to him so she could try to help him.
50. In this recorded call, Mr. Marquez, who can be heard having labored breathing, coughing, and clearly struggling to get adequate air, told his mother: “my chest hurts so bad;” “when I lay down it hurts worse,” asking to go to the hospital, saying repeatedly “I can’t breathe.”
51. Mr. Marquez also told his mother that the nurses “don’t do shit.” 52. Shortly before he got off the phone, he said: “I feel like I am going to die” and told his mother that he loved her.
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53. That day (March 2nd), Mr. Marquez signed a release authorizing his mother to

receive his medical information and asked them to fax it to her office.

54. Despite having a signed release and knowing of Ms. Salazar’s desperate attempts

to help her son, Defendant Nyman intentionally chose not to send the release.

55. No one communicated with Ms. Salazar again until notifying her that her son was

dead a few hours after he died. 56. Also on March 2nd, Mr. Marquez sent an Inmate Health Service Request form

stating: “I am real sick having bad cough which also my chest hurts real bad and having trouble

breathing.” 57.

At 14:00 on March 2nd, Mr. Marquez was seen in response to this Request by a

member of the nursing staff, whose signature is illegible, but may be Courtney Nyman, LPN.

She notes that he has a cough, chest pain, and that nursing will perform an assessment on a form

called a Problem Oriented Record.

58. At 14:29, the Correctional Officers’ log states that Mr. Marquez was

“complaining about chest pain & fucking dizzy like he’s going to pass out. Medical was

informed & they said Medical Mona and Medical Courtney both said they each saw him & said

he has to wait to be seen later, his medical kite is in Medical Office & he’s just going to have to

wait.” 59.

At around 15:00 on March 2nd, Mr. Marquez was seen by Ramona Howard, RN

for a “sore throat.”

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60. Nurse Howard completed a Problem Oriented Record for Mr. Marquez, charting that he had a sore throat, a cough, an earache, fever and chills, muscle pain, and what appears to be redness in his throat. She noted that he was wearing four shirts.
61. At this visit, Nurse Howard gave Mr. Marquez a Rapid Strep Test, which was positive.
62. It is well known and obvious to lay people, as well as registered nurses, that strep throat is a serious bacterial infection requiring antibiotics.
63. Despite this positive strep test and accompanying serious symptoms, Nurse Howard consciously disregarded the known and obvious risk of harm and refused to secure treatment or call a doctor.
64. Instead, Nurse Howard recklessly followed the standing orders on the Problem Oriented Record for mere non-bacterial colds, giving him cold medicine, salt-water gargles, and Tylenol, all unrelated interventions that don’t require doctor approval.
65. She also uselessly recommended that Mr. Marquez wash his hands frequently and wear fewer shirts.
66. In engaging in the deliberate indifference and negligence complained of herein, Defendants were also consciously aware of Jesus Marquez’s diabetic condition, which made him more susceptible to serious problems from untreated infection. Further, Defendants had a history of recklessly mismanaging and acting with deliberate indifference with respect to Mr. Marquez’s diabetic needs.
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67. In engaging in the deliberate indifference and negligence complained of herein, Defendants were also consciously aware that Mr. Marquez had recently been treated for an infection.
68. At 16:08, Mr. Marquez was prescribed ibuprofen by Nurse Practitioner Ann Palmer, again not a treatment for bacterial Strep infection known to be causing emergent symptoms.
69. At 16:45, correctional officers note that Mr. Marquez was asking to see medical again, expressing pain.
70. According to correctional officers’ logs, “Medical Courtney” saw Mr. Marquez. 71. LPN Nyman told him to rest and that “he has already been given medications for his complaints.” Nurse Nyman decided to not even bother making a nursing note about this contact or his complaints. 72. According to correctional officers’ logs, at 19:15, “Medical Yvonne” came to see Mr. Marquez, gave him “some more cold medication,” and told him to relax and rest. 73. Later on the 2nd, Mr. Marquez completed another Inmate Health Service Request Form, this time pleading, “my chest hurts really really bad.” 74. Yvonne Valles, RN saw Mr. Marquez in response to this request at 19:25. Presumably this is the same visit as was logged by correctional officers at 19:15. 75. Nurse Valles charted that Mr. Marquez was “clutching chest,” had a cough, and that he groans when he coughs. 76. She charted on the 2nd that Mr. Marquez told her that “he needs to go to the E.R. ‘right fucking now.’”
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77. She also charted him saying “I am fucking sick,” and “I have never been this sick before.”
78. Nurse Valles also falsely charted that he was negative for strep throat, despite his known recent positive strep throat test.
79. Despite these serious complaints, a known positive strep throat test, and multiple attempts from correction officers to secure effective medical intervention, Nurse Valles again gave him only ibuprofen, completely failing to advocate for his urgent transfer for medical care or the provision of antibiotics.
80. Correctional officers made a log entry at 21:00 on March 2nd, reporting that Mr. Marquez is stating that he is “having a heart attack.”
81. Also at 21:00, Nurse Valles saw Mr. Marquez again because, as she recorded it, a correctional officer contacted her and reported that “IM is c/o severe chest pain + SOB [shortness of breath]. IM able to speak in full sentences. Begging to go to ER. Unable to auscultate breath sounds due to pain.”
82. Despite these very serious complaints and known obvious risk to Mr. Marquez’s health and well being, these involved nurses refuse to call a doctor or make a plan for emergency care.
83. Mr. Marquez was sent back to his cell. 84. At 21:17 on March 2nd, correctional officers report that, according to Nurse Valles, there “is no medical reason to send him to the hospital.”
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85. On March 3rd at 3:51 a.m., Officer W. Jackson found Mr. Marquez rubbing his chest, still saying “I can’t breathe.” He noticed that Mr. Marquez’s voice was slurred and hard to understand. He issued a Medical Response.
86. A Medical Response is an emergency procedure correctional officers can use which causes medical personnel to respond to the inmate at his location, rather than in the Medical Unit.
87. According to various officer reports, these Medical Responses are filmed. 88. Mr. Marquez was seen in response to the Medical Response between 3:51 and 4:30 am on the morning of March 3, 2015. 89. Nurse Valles charted that she was called to the cell because Mr. Marquez was complaining of difficulty breathing. 90. According to Nurse Valles’s notes, when she arrived he would not “answer to verbal stimuli.” She had to use “noxious stimuli” to “arouse” Mr. Marquez. 91. Noxious stimuli are used in a neurological assessment when a patient is not responding to verbal stimuli to assess whether they are arousal. 92. Nurses are all trained and aware that not being arousal without noxious stimuli is a serious sign of a medical emergency, the evaluation and treatment plan for which is outside the scope of practice for nurses, requiring emergency treatment. 93. This decrease in consciousness is an obvious sign of medical emergency, even to lay people, as evidenced by the numerous correctional officers’ futile attempts to get medical to help their patient.
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94. In response to the noxious stimulus, Mr. Marquez opened his eyes, reported trouble breathing and inability to take a deep breath because of pain.
95. Nothing was done in response to these serious complaints. 96. Again, Nurse Valles did not call an ambulance or even a doctor to assess why his level of consciousness had decreased to the point of having to be aroused through noxious stimulus. 97. He was given insulin because he had a very high blood sugar of 437 and given ice chips. 98. A high blood sugar reading can be a sign of infection in a diabetic person. 99. According to correctional officers, Mr. Marquez was told he could have ice to eat, but that he was “maxed out on meds.” 100. Nurse Valles obviously understood the urgent seriousness of this medical emergency as she looked in on him at 5:00 am and 5:30 am on March 3, 2015, charting that she can still see that his chest is rising and falling. 101. Essentially, she was looking in on him to see if he was dead. 102. At 9:10 a.m. on March 3rd, Mr. Marquez is seen by a nurse, believed to be LPN Carlene O’Hara. 103. According to Officer Lansing’s Incident Report, Mr. Marquez seemed ill so she brought the Med Pass nurse in to look at him. He was slurring his words and was not understandable.
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104. Nurse O’Hara notes that Mr. Marquez had a respiratory rate of 24 and slightly labored breathing. She notes that his skin was pale, his heart rate was irregular, and that he was moaning.
105. Nurse O’Hara stopped her medication pass and talked to the ‘charge nurse’ [Defendant Moore], who instructed her to bring medical for evaluation. The correctional officers brought him for evaluation by wheelchair.
106. Officer Lansing “yelled for Bougeant to help Officer Arviso and [her] lift Marquez into the wheelchair.”
107. At 9:30 a.m. on March 3rd, Defendant Nurse Moore charted that she was notified by LPN Carly of concerns over Mr. Marquez’s condition, which prompted him to be brought to the procedure hallway by wheelchair.
108. Defendant Nurse Moore assessed Mr. Marquez. 109. Officer Brandon Crockett and Officer Robert Arviso were present during this assessment. 110. Defendant Nurse Moore charted that Mr. Marquez was “slightly pale on first observation.” 111. Officer Crockett observed that Mr. Marquez’s “lips and eyelids (as his eyes were closed) were light blue in color.” 112. She noted that Mr. Marquez’s speech was “garbled” and “mumbling” and that she was “unable to make out any reply beyond ‘my breathing.’” 113. Officer Crockett also observed that Mr. Marquez was “very lethargic and unable to communicate verbally.”
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114. Defendant Nurse Moore took Mr. Marquez’s vitals. 115. According to Officer Crockett’s Incident Report, he observed that Mr. Marquez’s vitals included a low oxygen level of 75 and a high pulse rate of 125, however, during this same assessment, Defendant Nurse Moore charted that Mr. Marquez’s oxygen level was 96% and he had a pulse rate of 116. 116. Defendant Nurse Moore changed Mr. Marquez’s abnormal and much worse readings which needed evaluation and diagnosis by a doctor to much more normal numbers. 117. Officer Crockett also reported that Defendant Nurse Moore tried several times, seven that he counted, to get a blood pressure reading, before she falsely announced that it was 130/90. 118. Defendant Nurse Moore actually admitted her conscious shocking deliberate indifference to Mr. Marquez’s serious medical needs by revealing her reckless improper diagnosis that he was faking his illness. 119. Thus, according to Officer Crockett’s Incident Report, she actually said to Officer Crockett during this interaction things like “[h]e’s acting, he is a good actor.” 120. Throughout her own nursing notes, Defendant Moore frequently implies that Mr. Marquez is faking his illness. 121. For example, in charting that Mr. Marquez stated that he couldn’t breathe, she skeptically charted that Mr. Marquez was not grabbing his chest or giving other indication of pain.
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122. Defendant Nurse Moore also charted that Mr. Marquez is “displaying decreased LOC [level of consciousness] by slouching posture, hanging head, closed eyes, reluctant responses to verbal stimuli.” [Emphasis supplied.]
123. Nurse Moore again used noxious stimulus in the form of ammonia salts to arouse this very sick Mr. Marquez, to which she noted that he “became very alert, pushed this RN’s hands away, and covered his mouth [and] nose [with] his hands saying, ‘No.’”
124. When Defendant Nurse Moore used the ammonia inhalant on Mr. Moore, Officer Crockett observed: “Inmate Marquez then attempted to move the inhalant away from his face with his hand, however there was not any strength behind this movement.”
125. According to Officer Crockett, Defendant Moore then stated: “That’s what I want, that was a positive purposeful reaction.” Nurse Moore further stated: “inmate Marquez was stable and could go back, there was not [sic] medical reason for her to keep him there.”
126. Rather than calling a doctor or ambulance, she practiced outside her nursing scope and recklessly diagnosed him with faking his illness, telling correctional officers that he could return to his cell and go to Court.
127. When Officer Crockett suggested that Officer Juan Marquez (the transporting officer) “utilize the wheelchair to assist in transporting inmate Marquez to the sally port, due to him not being able to walk,” Defendant Nurse Moore “interrupted stating ‘[t]here is no medical reason for him to have a wheelchair, he could walk.’”
128. Officer Marquez determined that this seriously ill inmate needed a wheelchair, regardless of Defendant Nurse Moore’s callous instruction that everyone should continue to refuse to help her dying patient.
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129. Officer Arviso and Officer Crockett then decided to detailedly document what they were witnessing from medical staff.
130. Officer Crockett told Defendant Nurse Moore that he was very familiar with Mr. Marquez and that he was “very concerned because he was not acting normal.”
131. He further “expressed to her that [he] felt like he should be sent to the ER.” 132. Defendant Nurse Moore responded, “once again that inmate Marquez was stable, and there was no medical reason for him to go to the ER.” 133. Defendant Nurse Moore told Officer T. Lansing that Marquez was “fine and that he just needed to try and drink lots of water due to believing he was dehydrated.” 134. On March 3rd at 10:00 a.m., while Mr. Marquez was being transported to the van for Court, Defendant Nurse Moore informed Defendant Dr. Ketcham of Mr. Marquez’s condition. 135. According to her nursing notes, Defendant Nurse Moore told Dr. Ketcham of Mr. Marquez’s “hx [history] of status over past 12 hours” and sent him the EKG taken the night before. 136. Mr. Marquez’s history included a positive strep test, passing out and twice having to be aroused by noxious stimuli, repeatedly stating and demonstrating he couldn’t properly breathe, being unable to walk, having abnormal vitals, was incoherent, begging to go to the E.R. and all of the other above alleged serious symptoms, but Dr. Ketcham recklessly and with deliberate indifference did not act on such information, instead ordering Defendant Nurse Moore to repeat vital signs and assessment after court.
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137. To the extent that Defendant Nurse Moore didn’t relay all of this critical information about Mr. Marquez’s worsening condition and medical crisis to Dr. Ketcham, it was yet another false reporting and outrageous and egregious abandonment of Mr. Marquez by Nurse Moore in this medical crisis.
138. Officer Marquez also completed a report about his observations. 139. According to Officer Marquez’s report, when he arrived at 09:52 to take Mr. Marquez to Court: Medical Mona and Katie were checking his vitals. Medical Katie said that he was able to go to Court. I then brought Inmate Marquez out in a wheelchair because the inmate couldn’t walk. I got Inmate Marquez to transport and secured him with restraints. Officer Gonzalez helped me help Inmate Marquez into the transport Unit, after Inmate was in transport unit Inmate Marquez was being incoherent and [illegible] Officer Gonzales went into booking to have Inmate Marquez Sugar level check out. Medical Katie came out and check his sugar level and Medical Katie state that it was at 97 and he was ok. I then called Gina [illegible] and told her that Inmate Marquez was not going to be able to go so myself and Officer Castillo got Inmate Marquez back into the wheelchair and took him back to Medical Cell #5 … Officer Arviso then helped me get Inmate Marquez out of the wheelchair and into his bed. 140. Mr. Marquez was so weak that when officers tried to get him in the van to go to Court, he “could hardly crawl into the transport truck” and fell between the seats. 141. Officers took his restraints off and dragged him out of the van. 142. After being called to the transport van to see Mr. Marquez again, Defendant Nurse Moore charted that correctional officers were stating that: “Jesus is acting nutty.” 143. Despite officers describing Mr. Marquez as “incoherent” and “unable to walk”, Defendant Nurse Moore continued to treat Mr. Marquez as though he were faking. 144. She intentionally continued to under-chart his condition, further revealing her reckless ongoing faking diagnosis.
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145. Thus, she charted that he was: “alert and responding to commands, though continues appearance of lethargy by slumping shoulders dragging feet, yet able to spontaneously take off outer orange shirt without prompting or assistance. Able to promptly put shirt back on when advised by officer to do so.” [Emphases supplied.]
146. Defendant Nurse Moore sent him back to his cell. 147. Around 11:00 am, Officer T. Lansing, as stated in her Incident Report, observed that Mr. Marquez was slurring and incomprehensible and was rubbing his chest area. He was “extremely pale, his eye lids and all around his eyes were a dark grey/blue color and his lip area was the same color, his whole body was pale and I was very worried.” 148. Officer T. Lansing told Defendant Nurse Moore that she was concerned about Mr. Marquez because he “didn’t look well and he says that his chest really hurts.” 149. She also told Defendant Nurse Moore “that Marquez said something is wrong with him but I can’t understand what he is saying because he keeps slurring.” 150. Defendant Nurse Moore continued her egregious and reckless disregard of these known serious medical signs, stating “oh! He’s fine. We will check on him every 30 minutes,” and closed the office door on Officer Lansing. 151. Officer Lansing “was bothered by her attitude and response to me when I was very worried about Marquez’s health.” 152. For the next hour, Officer Lansing waited for someone to check on Marquez but all she saw was a med pass nurse peek in his cell “for no more than two seconds and turn right back around.”
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153. At some point around these medical contacts, Officer R. Ham reports that he was told by “medical Carlie” something to the effect of “Marquez is faking it so he don’t have to go to court.”
154. At around noon on March 3, 2015, Officer Marable, Officer Bougeant, and Officer Fonseca entered Mr. Marquez’s cell.
155. Officer Lansing, who was already in the area with Mr. Marquez, reported that by noon Mr. Marquez was looking worse, he “was paler than earlier and his lips and eyes were getting greyer … There was clearly something no [sic] ok with Marquez.”
156. As soon as Officer Marable entered the cell, she also “quickly noticed Marquez was in a very abnormal state.”
157. As Officer Marable reported: Mr. Marquez “was very pale and grey in color; his skin was cold and clammy. He was drooling with gray/pale lips and the color of his tongue was a grey-ish white color, there was dark coloring around his eyes and eye lids.”
158. Officer Lansing stated that “I have notified medical all day multiple times and they don’t seem to be checking on him thoroughly.”
159. According to Officer Lansing, medical staff repeatedly responded that they would come in thirty minutes, but thirty minutes came and went many times without intervention.
160. As recorded in their Incident Reports, Officer Marable exclaimed to the other officers: “No! This is bullshit and something is wrong. Call a medical response then they have to show up!!”
161. The Officers called a Medical Response to force medical staff to attend to Mr. Marquez.
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162. Thus, Officer R. Ham reported at this point, there “was clearly something not ok with Marquez … [w]e all then decided to call a Medical Response at 1216 to ‘make’ medical come check on Marquez.”
163. At 12:30 p.m. on March 3, 2015, Defendant Nurse Moore assessed Mr. Marquez in response to the correctional officers forcing her hand.
164. Defendant Nurse Moore actually appeared irritated to be emergently called by correctional officers to help Mr. Marquez.
165. Officer Ham reported that when Defendant Nurse Moore responded to the Medical Response, she “rolled her eyes.”
166. Officer Marable observed that Mr. Marquez was “in a serious state of discomfort and seem [sic] to be getting worse.”
167. She heard him keep saying: ‘I can’t breathe!’” during the assessment by Defendant Nurse Moore.
168. Officer Ham observed that Mr. Marquez was “white as a ghost and his lips and tongue were gray and I could not understand him clearly. He was complaining he couldn’t breathe.”
169. As Officer R. Ham reported, “Medical Katie, Medical Andrea and Medical Carlie” were “ignoring the fact that Marquez kept saying he can’t breathe and his chest was hurting.”
170. Defendant Nurse Moore told these desperate officers that Mr. Marquez just needed some water, however, Mr. Marquez was unable to even find his mouth with a cup.
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171. Mr. Marquez was so out of control from raging illness and being near death that while Nurse Moore was with him, Officers had to: “continuously keep control of him from falling back and hitting his head or falling forward off of the boat. He kept trying to lie down then sit up over and over again. He was in and out of it and couldn’t put his cup of water to his mouth in order to take a drink.”
172. Defendant Moore falsely charted that he is “alert and able to answer questions”. 173. Officer Marable heard a nurse informing Nurse Moore that Mr. Marquez’s blood pressure was 60/40, which is dangerously low. 174. Defendant Nurse Moore stated that she wanted to take the blood pressure herself. 175. Officer Ham similarly to Officer Marable heard a very low number for Mr. Marquez’s blood pressure. 176. Officer Ham and Officer Marable observed that Defendant Nurse Moore: “had inmate Marquez cough, which he could not do until ammonia was put under nose then barely, because she could not get a reading on oximeter. When he coughed it went to 81 and then went blank again. Katie said he was stable.” 177. Defendant Nurse Moore again intentionally falsely charted that Mr. Marquez had only slightly declining vital signs, reporting he was complaining of difficulty breathing with O2 sats of 90-91%, blood pressure of 96/60, and pale skin. 178. She also again outrageously tried to use ammonia salts to arouse him. 179. Ammonia salts had by then been used at least three times on Mr. Marquez.
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180. Using noxious stimuli over and over to try to prove Mr. Marquez was faking, and to prop him up enough to abandon him again in his cell instead of getting him obviously urgently required medical care so callous, reckless, and deliberately indifferent.
181. Defendant Moore continued to refuse to do anything to help this obviously dying man and would not send him to the hospital to save his life.
182. Correctional officers tried to save his life by insisting an ambulance be called. 183. Thus, Officer Marable reported: “Medical staff didn’t think his condition and state was enough to send him on transport to the ER. Sergeant Martinez over-ruled it and called for an ambulance so that Marquez could be taken to the Hospital. We all felt and knew something was wrong and serious. The medical response was cleared …. Medical (all of the medical staff) then retreated to their office.” 184. Even after being overruled by correctional staff that an ambulance was necessary, Defendant Moore reported in her notes that after being over-ruled by Sergeant Martinez she and Dr. Ketcham decided to send Mr. Marquez to the hospital only by non-emergent transport during his profound medical crisis in which his death had become an imminent danger. 185. She specifically and outrageously told dispatch that Mr. Marquez was “not emergent but not stable enough to go by squad car to the hospital.” 186. She also falsely and outrageously said to them that he was “awake,” “breathing normally,” “completely alert,” and that he had “no pain.” 187. Mr. Marquez next began bleeding from his mouth while officers waited with him for the transport. 188. Blood was actually observed dripping from him onto the floor.
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189. According to officers, he was then fading in and out and “was trying to force his body to stay alert to his surroundings.”
190. Officer Marable reported: “Marquez slumped forward and lightly bumped his head on the wall then blood (quite a bit) starting coming out of his mouth. Leaving 3 big blood droplets on the cell room floor and a strain of blood from his mouth down his orange shirt. I immediately asked where the hell medical staff was and that they need to be present to monitor him and brief the medics for any other changes.”
191. Officers called Defendant Nurse Moore back again when he started bleeding from his mouth.
192. Officer Marable heard Mr. Marquez speaking in a garbled, slurred, faint voice saying “are they coming? Please hurry.”
193. Nurse Moore outrageously and depravedly told correctional officers she didn’t need to be there since it was “non-emergent.”
194. She also told officers that he probably just bit his tongue as the reason for why there was blood dripping from his mouth.
195. Finally Emergency Medical Services arrived. Mr. Marquez had to be dragged to the gurney.
196. It was too late, however, and he ‘coded’ minutes into the ambulance transport, i.e. his heart stopped.
197. Because Nurse Moore falsely reported to dispatch that Mr. Marquez’s condition was “non-emergent”, only Medic 7 responded instead of an Emergency Medical Services team.
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Medic 7 then had to call dispatch and have another emergency ambulance sent, causing yet further urgent skilled treatment delay.
198. Meanwhile, Officer Lee started chest compressions to resuscitate until he could be relieved by the trained EMS team.
199. Medic 7 personnel reported that Nurse Katie told them that Mr. Marquez had been complaining of “generalized malaise for 38 hours” with a “recent change in mentation within past 4 hours.”
200. To provide cover for her and the co-defendants egregious aggravated derelictions, she told emergency workers that he was suspected of drug usage and that he had been refusing medications and water.
201. Upon autopsy, no drugs were found in his system because, as Defendant Moore knew, Mr. Marquez did not die from a drug overdose. .
202. Rather, he died from her and individual Defendants’ imposed death sentence and barbaric treatment of Mr. Marquez.
203. The complained of conduct is so shocking, it offends not only the Constitution – it offends basic human decency.
204. All resuscitation efforts were unsuccessful and Mr. Marquez was pronounced dead at 3:00 p.m. on March 3, 2015.
205. Jesus Marquez was much loved by his mother and son who along with his estate have suffered severe emotional harm and damages.
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206. Jesus Marquez had a substantial work history for various employers as a pipeliner, laborer, performing on workover rigs and other jobs including at EESI in 2010 and Electrical Energy Services, Inc before that.
Allegations Relating to Monell Liability 207. It was well known by entity level Defendants prior to Mr. Marquez’s death that there was a widespread pattern of deliberately indifferent medical care in the jail, which included: refusing to let inmates see higher level medical providers, even when obviously necessary to prevent serious injury or death; hiring and retaining unqualified staff; allowing and training nurses to practice outside their nursing scope; refusing to provide medications; refusing to transfer inmates or detainees to a higher level of acuity even where necessary to prevent serious injury or death, and; a widespread custom and tolerated practice and habit of treating all inmate or detainee illnesses as faked until an inmate/detainee can prove otherwise, often to save money on providers and testing. 208. Mr. Marquez’s entirely preventable and inhumane death happened after Sheriff investigations revealed that two other inmates had recently died in the same jail after nurses and jail staff also treated their medical complaints as faked. 209. Sharon Jones died on January 5, 2015 and Billy Carter died on February 13, 2015, both after begging for medical help to no avail. 210. Mr. Carter and Ms. Jones were also openly treated as if they were faking, with nursing staff again telling jail staff that the complaints were faked and not serious and that they couldn’t take all complaints, even potentially life threatening ones like these two who were begging to go to the hospital, seriously.
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211. The Sheriff Investigation into Mr. Carter’s death revealed that Mr. Carter had been complaining of deficient medical care for his serious medical needs.
212. Correctional Officer B. Crockett told Sheriff investigators that Nurse Ramona Howard had been “dealing with Mr. Carter all morning long. She said he was faking dizziness and he attempted to fall face first towards the bunk, when she grabbed his oranges to stop him. She said he did not need not be in medical, that there was nothing they could do for him.”
213. Officer Crockett reported that when shown the stack of medical requests by Mr. Carter, Nurse Mona said “OH great!” He reported, “she just flipped through them quickly, saying she already addressed them and was not reading the requests or taking them seriously.”
214. This same officer then stated to the Sheriff Office investigators into Carter’s death: “this is an ongoing issue with the medical staff at the jail, not taking medical requests seriously and talking about inmates faking their illness … the medical staff appears bothered by the inmates, and their relentless requests.” [Emphases supplied].
215. Officer Crockett also told investigators that Mr. Carter “was not taken seriously when he was complaining about medical matters.”
216. Nurse Ramona Howard told investigators that Mr. Carter, who died of an untreated Chronic Obstructive Pulmonary Disorder, “does not have a problem breathing.”
217. Sheriff investigators into the January 2015 death of Sharon Jones revealed that Ms. Jones was likewise told she was pretending, and that she was unable to get meaningful medical attention, even as inmates in her pod tried to get medical staff to pay attention.
218. Multiple inmates reported to Sheriff’s investigators that they pushed emergency call buttons repeatedly on the night she died to get her urgent medical care but no one responded
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and they believed the call button had actually been turned off so the inmates couldn’t call for help.
219. Even after these other two inmates died in the two months before Mr. Marquez’s death, and even after officers reported in investigations into their deaths that nurses treat the inmates as if they are faking and ignore their complaints, this pattern and practice of egregious deliberate indifference continued unchecked, leading directly to the death of Mr. Marquez.
220. Similarly, throughout the living Plaintiffs in the Berkey matter, inmates were all told again and again that they were faking their serious injuries or illnesses, that they didn’t need medical attention, and were also ultimately denied access to higher-level staff or transfer to the hospital.
221. Specifically, in the Berkey consolidated cases, and the testimony in the injunction hearing, inmate patients of SJRMC allege, inter alia, deliberately indifferent failures to respond or provide higher level assessment to serious medical complaints, and persistent and reckless disregard for inmate care, including their prescription medication needs. Thus:
a. Marvin Veneno, a retired police officer, is a diabetic who had a heart attack in October 2015 after medical staff repeatedly denied him his known prescription medications. He had suffered a previous heart attack in 2014, for which he was prescribed about 13 pills daily for his heart condition. As he testified at the Injunction hearing, while in the jail in October 2015, medical staff knew but did not give him his necessary prescription medications, which included Lisnopril, Carvedilol, Liopitor, and Brillanta and insulin. He also did not receive his insulin or diabetic meals while he was in the jail despite repeated requests and telling staff that they were urgently needed for his heart condition. He “begged” for these medications. His son even brought his medicines to jail but they would not give them to Mr. Veneno. He testified he was just repeatedly “ignored.” He developed major chest pain and reported that his chest was “really hurting.” His arms and forearms “were turning black and blue.” When he finally saw a nurse, they gave him a TB shot. He was “begging for his life.” They made him work without medications, which made him feel “much worse.” He got so dizzy he
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fainted and fell and woke up in the hospital in a pool of blood. He had a “severe massive heart attack” that required “five stints in my right artery”;
b. Joseph Gutierrez was not given his medications for his serious medical needs causing advancement of disease and significant suffering. Mr. Gutierrez also alleges that he needed oral surgery but the medical team refused to provide it or arrange for it despite many requests, resulting in his teeth falling out, ultimately requiring him to get dentures;
c. Paul Matamoros was in the jail in the summer of 2015. He testified at the injunction hearing that he filed multiple health requests regarding medical issues with his penis, complaining orally and in writing to medical staff “that he had a problem down there.” The skin on his penis was coming off and he had pain and burning sensations. While the nurses promised to assess him, they would not even look at his penis for days, irrelevantly defending their deliberate indifference by saying they were females, despite his telling several nurses it was “getting serious.” When he was finally seen by a doctor at the jail on August 26th, the doctor actually asked him “how could you let this get this bad.” The doctor told him to fill out a kite and he would send him to the emergency room. His send out was delayed after that. At the hospital on August 28th, after his condition had gotten “dramatically worse from within them eight days”, going from a blister to the point where it was “starting to eat my flesh”, and he could “pretty much see my urethra”, he was given antibiotics and a cream. Mr. Matamoros was brought back to the jail where his condition worsened. Because his skin was not properly healing, he sought further care. Many days later, he spoke again with his doctor and Defendant Havel who stated he would be taken to a urologist for deformation and numbness and leaking urine out of his urethra. He repeatedly told medical staff in September that the skin under his penis was not healing correctly, begging to be seen. He made numerous oral complaints as well, mostly to DON and SJRMC HSA Ketcham, and is continuing to suffering from preventable sequelae of this extreme deliberate indifference including deformity and numbness in his penis;
d. Jesse Ray Berkey alleges that he was denied seriously needed anti anxiety medications, causing extreme anxiety and a major seizure with physical injuries including broken teeth. He specifically informed medical staff that he felt he would have a seizure without receiving consistent medication and treatment. Medical staff then refused to treat his broken teeth for over 48 hours;
e. Aaron Eaton alleges that he had an appendicitis, that he complained repeatedly to medical and jail staff of pain in the right side of his stomach which was ignored and that his mother had to come down to the jail and beg for medical attention twice before he was sent to the hospital and had surgery for appendicitis with perforation. This is alleged to have caused a more serious status of the
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appendicitis, adhesions and infection, requiring more extensive surgery and risk of complications;
f. Aurelio Marquez alleges that he had a known and serious ear infection that raged untreated, including a significant delay in obtaining appropriate treatment and, even when finally an order for antibiotics was made, he was not given them timely and usually only given 1 of 3 doses a day. His multiple kites were not taken seriously in a timely fashion. This led to a grave cellulitis infection and deformity and permanent hearing loss in one of his ears. Mr. Marquez also repeatedly sent inmate requests requesting to be seen by psych and given his anti anxiety meds, but it took over a month of requests to get medications causing increased anxiety;
g. Calvin Finch’s upper dentures were lost in a shake down raid of his cell and as a result he couldn’t eat very much. His multiple kites were not taken seriously in a timely fashion. He lost weight and begged for new teeth through repeated inmate requests, yet it took over six months for him to receive a new pair of teeth;
h. Rudy Martinez alleges that he got a terrible rash on his body and that was blown off resulting in significant delay in treatment, that nurses repeatedly downplayed the seriousness of the situation, and that he now has scaring and repeat outbreaks as a result;
i. Mark Hinojos alleges that he had a broken thumb for which medical treatment was significantly delayed despite repeated requests finally requiring him to splint his thumb himself causing avoidable permanent deformity;
j. Jason Trujillo alleges that he came into jail with a post surgical boot on his foot, which was taken away, causing him to have to sit in a wheelchair rather than be able to walk. He further alleges that he suffered major pain because his surgical wound was not properly taken care of despite repeated requests, that he was denied proper follow up, and that he was actually told when he requested to go to the hospital initially to “tough it out” because it “cost too much”;
k. David Page alleges that he had a fracture to his thumb, which was not timely treated, causing preventable infection and deformity as his requests for care were blown off. He also alleges that he made multiple requests for anxiety medications but was unable to obtain any medication or treatment for over a month;
l. Gordon Douglas Derrick alleges ongoing significant problems of not giving him his medications despite repeated requests for medical intervention causing significant damaging side effects;
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m. Angelo Martinez alleges that he told repeatedly booking officers and caregivers that he had a condition that required him to have frequent water and his medication because of an inability to produce saliva and that he was cruelly and recklessly denied both for 24 hours until he was able to bond out;
n. Like Mr. Carter, Adam Schuessler alleges that he was denied his inhalers or given them sporadically for his COPD causing significant difficulty breathing and distress;
o. Steve Valerio was put in solitary confinement for refusing to take medication that turned out ultimately to be prescribed for a different inmate with a similar name.
222. That these and many other inmates have alleged that their serious medical needs were ignored and the risk to them consciously disregarded supports the claim that there is a pattern and practice of deliberate indifference to serious medical needs here causing serious injury and death.
223. Cindy Ketcham as the HSA and Director of Nurses for the jail medical unit was responsible for discipline and training of nurses in the jail and for ensuring adequate qualified staffing patterns with proper licensures.
224. Her ongoing toleration of the recklessly substandard and deliberately indifferent care through failing to provide obviously needed training on not dismissing patient complaints as faked, on not providing medical diagnoses outside nursing scope, on involving higher level providers when assessment findings are abnormal, and on responding appropriately to emergency symptoms was a proximate cause of the injuries complained of herein.
225. Her ongoing toleration of recklessly substandard staffing was deliberately indifferent.
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226. This knowledge is all especially egregious against the backdrop of recklessly underfunding the medical services at the jail in such a way as to practically guarantee the unconstitutional treatment of the serious medical needs of inmates.
227. At all times relevant hereto, with deliberate indifference, the San Juan County Detention Center was knowingly underfunded and understaffed with unqualified health professionals by both the County Defendant and SJRMC.
228. Prior to these deaths from deliberate indifference, the former jail correctional care company, CHC, pulled out of its contract.
229. CHC, who has itself been repeatedly sued for providing inadequate including fatal deliberately indifferent care to inmates in jails, told the County that it would require at least 2.4 million dollars to continue and to be able to provide adequate health services to the jail’s inmate population.
230. Preceding their termination notice on November 18, 2013, CHC, through Don Houston, advised San Juan County that it was willing to continue if a new contract could be negotiated “on mutually acceptable terms,” however the only way the company could continue providing inmate medical care was to charge at least 2.4 million dollars.
231. Thus, to the conscious awareness of final County decision makers, including County Commissioners, Thomas C. Havel, and, around the same time, of the heads of San Juan Regional Medical Center including Chief Administrative Officer, Tom Dean, CHC pulled out of its contract because the County was so insufficiently funding medical care that the company did not believe it could safely serve the County’s inmate health care needs.
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232. Knowing that health care was underfunded, and without demanding a substantial increased in the contract budget, SJRMC determined to take over this program for around the same amount that CHC reported was insufficient, but which was all the Defendant County Defendants were willing to provide.
233. County related Defendants determined to hire SJRMC, as the “lowest bidder” to replace CHC, contracting for somewhere between $1.3 to $1.5 million at all times relevant hereto.
234. At all times relevant hereto, SJRMC was consciously aware that it was not able to provide sufficient services to inmates because of the low ball bid they submitted which was knowingly offered, approved, tolerated, ratified and acquiesced in by the County.
235. On information and belief, SJRMC kept many of the former CHC staff to run the jail.
236. SJRMC thus continued to operate this jail on this knowingly grossly substandard, underfunded, and deliberately indifferent basis from February 2014 to July 2015 when a new contract for much more money was negotiated.
237. Subsequent to the three deaths described herein, and the revelation of the existence of a routine and deliberately indifferent unconstitutional widespread habit, practice and custom, which had the force of an unwritten jail law to treat inmates as faking their illnesses and thereby avoid the costs of providing them with timely medical care to meet their serious medical needs by avoiding hospitalizations or even access to on call physicians or nurse practitioners, SJRMC and the County Defendant announced in June 2015 that the contract would almost double from the $1.3 million dollar contract it had in fiscal year 2014.
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238. SJRMC’s Thomas Dean told county officials in 2015 that the vast majority of the increase was necessary because “CHC was using unqualified staff to perform services that New Mexico requires nurses to perform.”
239. Thomas Dean further publicly stated, and further shockingly admitted in a letter he wrote in January 2015 to County Chief Operations Officer Mike Stark that the Defendant “hospital discovered in February 2014” that the jail was using “uncertified medical assistants” and “emergency medical technicians” to “perform duties at the jail that, by state law, only nurses are qualified to perform.” (Emphases supplied.)
240. Mr. Dean further stated that those personnel had to be replaced with “qualified staff”.
241. On June 9, 2015, despite the foregoing actual knowledge of woefully insufficient budgeting, SJRMC asked the County Commissioners for the first time to approve “an increase of more than $600,000 in its contract” so that, in its own words, it could begin “to hire qualified individuals, including a registered nurse to work nights at the jail.”
242. Minutes for the San Juan County Regular Meeting of June 9, 2015 document that Defendant SJRMC asked for “an increase of $2.1 million effective July 1, 2015.”
243. This request was made “to ensure appropriate licensure for medical staff”, additional call expenses for a Nurse Practitioner and to have a Registered Nurse at night.
244. At all times relevant hereto, SJRMC, the County, and Tom Havel were all consciously aware and deliberately indifferent to the fact that they were jointly allowing medical staff to unlawfully perform tasks they were not qualified to perform.
245. The County approved this request on or about June 9, 2015.
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246. The County exerts pressure on contractors to save money. For example, County RFPs for its jail health care contractors including CHC and SJRMC expressly included requiring these contractors to describe how they will save the County money through “proposed staffing initiatives that would result in cost containment for the County. . .”
247. Thus, the contractual agreement between the County and SJRMC provides multiple financial and other disincentives to the timely provision of medical care to meet the serious medical needs of inmates, including decedent.
248. Section 1.7 of the contract between SJRMC and the County provides that on call doctor coverage is limited to $25,000 dollars a year.
249. The Contract also expressly requires that nurses who transfer patients to the hospital shall have each and every such occurrence retrospectively assessed for appropriateness by the Medical Director and Director of Nursing as follows:
ON-CALL AVAILABILITY: Professional on-call coverage shall be provided by StatDoctors, an online provider contracted by the County. In the event that the County is unable to obtain services through Stat Doctors, SJRMC will provide on-call coverage with a physician assistant or other midlevel provider and will bill the County at actual cost, not to exceed Twenty-Five Thousand Dollars and No Cents ($25,000) per year. San Juan County will contract directly with Stat Doctors. If the RN on duty assesses an inmate and determines the need for life-saving, emergency intervention in the local emergency room or urgent care center, the RN shall have the authority to have the inmate transported and contact the on-call physician afterwards to relay information. Each occurrence shall be assessed retrospectively by the Medical Director and Director of Nursing to determine the appropriateness of the assessment and to evaluate whether additional training may be indicated or other follow-up action necessary. 250. Nurses with the temerity to transfer a patient are subject to mandatory second guessing which puts out a clear system wide message that avoiding hospital care for inmates prevents reviews of nurse decision making on pain of being subjected to additional training or other follow-up action, thereby discouraging hospitalizations for serious medical needs, exactly
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as occurred in this case to save the County money since the County must pay for all such hospitalizations.
251. The long standing culture of fakery described herein by numerous medical staff was also in full blown operation at all times relevant hereto, was also well known to top officials.
252. There is a pronounced tendency of medical professionals in correctional settings to be on the lookout and often overly suspicious that an inmate is faking a medical problem. This is fostered because of cost containment concerns as faked complaints are expensive.
253. Chronic deliberately indifferent understaffing like that at this jail is also well known to lead to worker burn out and increased levels of apathy toward patients, as it did here.
254. Entity Defendants dealt with this issue by knowingly and/or recklessly tolerating, and ratifying such understaffing and encouraging nurses to presume faking before calling a medical provider or hospitalizing, dismissing entirely those symptoms that are subjectively reported, or those that could be faked, as insufficient to even trigger a call to a provider, and to thereby save the County money which it was obviously loathe to spend despite actual notice of the need to do so.
255. The lack of qualified and sufficient staffing explains the kind of overwhelmed indifference described by the deputies in these cases as overworked nurses threw inmate kites in the air and rejected them as unworthy of consideration.
256. Instead Defendants’ nurses adopted a reckless, deliberately indifferent wait and see approach for inmate after inmate without even obtaining meaningful evaluations by high level medical providers as were mandatory.
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257. Financial and other motivations to keep costs down, for nurses to avoid being second guessed together with an equally deliberately indifferent widespread habit and custom of treating inmates as faking their symptoms, played a causal role in Defendants not providing timely health that would have prevented the deaths of Mr. Marquez, Ms. Jones and Mr. Carter.
258. In addition to the express policies in place, Defendants failed to adequately train and supervise their nursing staff, amounting to deliberate indifference to the serious medical needs of inmates presenting with medical crises like these.
259. Defendants also ratified the constitutional violations by individual Defendants by consciously deciding to not discipline, re-train or provide any meaningful response to address these utter unconstitutional failures in care.
IV. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Violation of 42 U.S.C. § 1983
Deliberately Indifferent Medical Care (Plaintiff Estate against All Individual Defendants) 260. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. 261. 42 U.S.C. § 1983 provides that: Every person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the constitution and law shall be liable to the party injured in an action at law, suit in equity, or other appropriate proceeding for redress . . . 262. Jesus Marquez was a citizen of the United States and Defendants to this claim are persons for the purposes of for purposes of 42 U.S.C. § 1983.
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263. Mr. Marquez had a clearly established right under the Fourteenth or Eighth Amendment to be free from deliberate indifference and reckless disregard for known serious medical needs.
264. Mr. Marquez was a pre-trial detainee and thus protected from deliberate indifference to his known serious medical needs by the Fourteenth Amendment. To the extent he was under any conviction, he had a co-equal protection under the Eighth Amendment.
265. All individual Defendants to this claim, at all times relevant hereto, were acting under color of state law.
266. Individual Defendants as willful participants in a joint activity actually knew of Mr. Marquez’s serious medical needs and deteriorating condition and nonetheless, with deliberate indifference, decided not to report the symptoms or provide him with obviously necessary urgent medical care. They did so despite being expressly aware of Plaintiff’s known serious medical needs and recklessly disregarding a substantial risk of physical harm and death to Plaintiff.
267. Individual Defendants continued to act in bad faith and with deliberate indifference to Mr. Marquez’s serious medical needs and constitutional rights when they willfully ignored his repeated requests for medical attention and intentionally denied and/or delayed his access to medical care.
268. Individual Defendants are not entitled to qualified immunity. 269. Each of the individual Defendants is liable to the Plaintiff for violation of 42 U.S.C. § 1983.
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270. The acts or omissions of Defendants as described herein intentionally deprived Mr. Marquez of his constitutional rights and were moving forces and substantial significant contributing proximate causes of Mr. Marquez’s death.
271. As a direct result of Defendants’ unlawful conduct, Mr. Marquez suffered extreme physical and mental pain and suffering while he was in Defendants’ custody for over 36 hours until his death.
272. These intentional actions and inactions of each individual Defendant as described herein intentionally deprived Mr. Marquez of due process and of rights, privileges and liberties secured by the Constitution of the United States of America causing him and his estate damages.
273. As a proximate result of Defendant’s unlawful conduct, Plaintiff Estate has suffered injuries and losses, including the death of Mr. Marquez, entitling it to recover his compensatory and special damages, including for loss of constitutional rights, loss of enjoyment of life, and his herein described horrific and terrifying pain and suffering during and leading up this fatal event, permanent lost earnings and earnings capacity for the expected productive working lifetime of Mr. Marquez under the mortality tables and other special damages, all in amounts to be proven at trial.
274. Plaintiffs are entitled to attorneys’ fees and costs pursuant to 42 U.S.C.§1988, prejudgment interest and costs as allowable by federal law.
275. In addition to compensatory, economic, consequential and special damages, Plaintiffs are entitled to punitive damages against individual Defendants, in that the actions were taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of Plaintiff.
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SECOND CLAIM FOR RELIEF Violation of 42 U.S.C. § 1983
Deliberately Indifferent Policies (Plaintiff Estate against County Defendants and SJRMC) 276. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. 277. 42 U.S.C. § 1983 provides that: Every person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the constitution and law shall be liable to the party injured in an action at law, suit in equity, or other appropriate proceeding for redress . . . 278. Mr. Marquez was a citizen of the United States and the Defendants to this claim are persons for the purposes of 42 U.S.C. §1983. 279. Mr. Marquez had a clearly established right under the Fourteenth or Eighth Amendment to be free from deliberate indifference to his known serious medical needs. 280. Mr. Marquez was a pre-trial detainee and thus protected from deliberate indifference to his known serious medical needs by the Fourteenth Amendment. To the extent he was under any conviction, he had a co-equal protection under the Eighth Amendment. 281. SJRMC, at all times relevant hereto, was acting under color of state law, as the functional equivalent of a municipality providing medical care to inmates. 282. County Defendants, at all times relevant hereto, were acting under the color of state law and had a non-delegable duty to provide constitutionally adequate medical care for inmates.
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283. County Defendants are directly liable for their own policies that were moving forces in this constitutional injury under the contract between the County and the private Defendant, their own ongoing toleration and/or ratification of the widespread pattern and practice of deliberate indifference, and are non-delgably liable for the deliberately indifferent failures in training and supervising of medical care providers in the jail.
284. Defendants are sued herein for their deliberately indifferent policies, practices, habits, customs and widespread usages as described with particularity above with respect to the serious medical needs of inmates like Mr. Marquez and their deliberately indifferent failures in training and supervising its employees, including individual Defendants.
285. The contract between these Defendants constitutes a policy action for § 1983 analysis as it reflects a written understanding for a fixed plan to provide medical care for all inmates at the jail.
286. The policy decision to grossly underfund medical care in the jail despite actual knowledge that such underfunding deprived inmates of adequate qualified medical staff violates the County’s constitutional obligation to provide medical care under the Eighth Amendment and was a moving force in the deliberate indifference complained of herein.
287. Defendants’ hereto deliberately indifferent failures to train, supervise, or create coherent relevant policies, are all actionable policy decisions and moving forces and substantial significantly contributing proximate causes of the violation of Mr. Marquez’s constitutional rights.
288. It was well known by Defendants prior to Mr. Marquez’s death that there was a widespread pattern of deliberately indifferent medical care in the jail, which included: refusing to
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let inmates see higher level medical providers, even when obviously necessary to prevent serious injury or death; hiring and retaining unqualified staff; allowing and training nurses to practice outside their nursing scope; refusing to provide medications; refusing to transfer inmates or detainees to a higher level of acuity even where necessary to prevent serious injury or death, and; a widespread custom and tolerated practice and habit of treating all inmate or detainee illnesses as faked until an inmate/detainee can prove otherwise, often to save money on providers and testing.
289. Defendants hereto were on actual notice that their deliberately indifferent policies, which include the deliberately indifferent failures to train and supervise, would result and had resulted in a pattern of not providing desperately needed care to inmates with serious medical needs causing injury and death.
290. The failures in training and supervision were so obvious that the failure to provide the same was deliberately indifferent to the rights of the relevant public and a moving force in the complained of injuries.
291. Defendants, through policy makers and final delegated decision-makers, ratified the employees and subordinates unconstitutional conduct by approving their decisions and the basis for them, including ongoing toleration of the known widespread culture of treating inmates as faking to save money and decision to not sufficiently fund jail medical care or provide staffing by qualified personnel.
292. Defendants were willful participants in a joint activity. 293. These Defendants knew that potentially serious or fatal consequences could be suffered by such individuals (including Mr. Marquez) by their challenged policies and practices
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and by their failures to properly train and supervise medical care and/or develop adequate policies.
294. Defendants’ actions were moving forces in individual Defendants’ and other staffs’ repeated decisions to deny and delay treatment and hospitalization of Mr. Marquez during a medical crisis.
295. As a proximate result of Defendant’s unlawful conduct, Plaintiff Estate has suffered injuries and losses, including the death of Mr. Marquez and his horrific and terrifying experience in the events leading up to and during his death, entitling it to recover his compensatory and special damages, including loss of constitutional rights, loss of enjoyment of life, pain and suffering during this event, permanent lost earnings and earnings capacity for the expected productive working lifetime of Mr. Marquez under the mortality tables and other special damages, all in amounts to be proven at trial.
296. Plaintiffs are entitled to attorneys’ fees and costs pursuant to 42 U.S.C.§1988, prejudgment interest and costs as allowable by federal law.
297. Plaintiffs are entitled to punitive damages against the private entity Defendant SJRMC, in that its actions were taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of Plaintiff.
THIRD CLAIM FOR RELIEF Violation of 42 U.S.C. § 1983
Fourteenth Amendment Due Process Right to Familial Association (Plaintiff Olga Salazar against Courtney Nyman)
298. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein.
299. 42 U.S.C. § 1983 provides that:
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Case 1:15-cv-00417-JB-LF Document 255 Filed 02/29/16 Page 44 of 51
Every person, who under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the constitution and law shall be liable to the party injured in an action at law, suit in equity, or other appropriate proceeding for redress . . . 300. Plaintiff is a citizen of the United States and the Defendant is a person for purposes of 42 U.S.C. § 1983. 301. Plaintiff had a clearly established right under the Fourteenth Amendment to familial association. 302. Defendant, at all times relevant hereto, was acting under the color of state law. 303. Defendant hereto is sued herein for her deliberately indifferent actions with respect to the rights of Ms. Salazar to her intimate family relationship. 304. Plaintiff tried desperately to give emergency medical information to Courtney Nyman to save her son, and was not allowed to even give that information. 305. Mr. Marquez executed a release so that nurses would communicate and update Ms. Salazar with respect to his condition, but Defendant intentionally refused to send her that release or act on their expressed wishes to involve her in his medical care. 306. Other medical staff may have been involved in refusing to provide this release to Ms. Salazar. 307. Instead, she was laughed at and ignored while her son died. 308. Plaintiff was not even contacted until hours after her son died, preventing her from further knowing about her son’s condition, acting, and advocating on his behalf. 309. As a result of Defendant’s deliberate indifference, Plaintiff Salazar was intentionally and specifically denied her right of continuing intimate family association and to
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participate in securing care for that family member in an emergency and to advocate and act on his behalf while he was in a medical crisis.
310. Jesus Marquez was denied the right to have his intimate family members be allowed to assist in medical decision making and participate in his care, when he was unable to do so fully on his own behalf.
311. This intentional interference with their familial relationship has caused Ms. Salazar significant emotional distress in amounts to be determined at trial.
312. She has lost much weight, lives in a state of emotional upset, can’t stop crying and can’t sleep or concentrate. She lives in a state of upset and anger at nurses that just let him die and accused him of faking instead of getting him to the hospital as she begged them for help.
313. As a direct result of Defendant’s, unlawful conduct, Plaintiff has suffered injuries, damages and losses as described herein entitling her to compensatory and special damages in amounts to be determined at trial.
314. Plaintiff is entitled to punitive damages in that these actions were taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of Plaintiff.
315. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C.§1988, prejudgment interest and costs as allowable by federal law.
FOURTH CLAIM FOR RELIEF Negligence Resulting in Wrongful Death with Loss of Consortium (Plaintiff Salazar, individually and on behalf of the Estate, against SJRMC, Katie Moore,
Yvonne Valles, Ramona Howard, and Cindy Ketchum) 316. Plaintiffs incorporate all other paragraphs of this Complaint as if fully set forth herein.
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317. Defendants to this claim are private companies and individuals, none of whom is entitled to immunities under the New Mexico Tort Claim Act.
318. At all times relevant hereto, Mr. Marquez was under the care and treatment of SJRMC and its staff, including individual Defendants, through their contractual relationship with the County.
319. SJRMC is vicariously liable for the negligent acts and omissions of its agents and/or employees, and directly liable for their own negligent failures in training, policies, and practices.
320. Defendants hereto had a duty to provide reasonable medical care and treatment to inmates at the jail, including Mr. Marquez, and to exercise reasonable care in the training and supervision of their employees.
321. These duties of care are informed by state law. 322. These duties are also informed by the relevant practice standards and the NCCHC standards. 323. Individual Defendants and other employees, including other involved LPNs and RNs, while acting within the scope of their employment, variously committed negligent acts and omissions with respect to the care and treatment of Mr. Marquez. 324. Individual Nursing Defendants hereto all had nurse-patient relationships with Mr. Marquez and all owed a duty of due care to Mr. Marquez. 325. Individual Defendants hereto and other caregivers were acting within the scope of their employment with SJRMC at the times pertinent to this complaint and breached their duty of care and were negligent in their treatment of Mr. Marquez, causing his death.
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326. SJRMC owed a duty of care to Mr. Marquez to establish appropriate protocols in the management and assessment of inmates presenting with serious medical conditions.
327. Involved caregivers at the jail grossly deviated and breached their duties to properly care for and treat Mr. Marquez’ by inter alia: negligently and recklessly failing to properly assess Mr. Marquez, in recklessly and negligently treating him as though he was faking his conditions, in knowingly acting outside the scope of their licenses and making medical diagnoses, in recklessly and negligently treating his condition as non-emergent, and denying and delaying access to necessary medical care, causing his death.
328. Defendants, directly, and/or through their agents and employees had at least a tacit understanding and consciously conspired and deliberately pursued a common plan or design to commit a tortious act.
329. This negligence caused Mr. Marquez’s death and losses and damages to him and his Estate, all damages permitted and listed by New Mexico’s Wrongful Death Statute and jury instructions pertaining thereto, which are incorporated by this reference, including but by no means limited to: Jesus Marquez’s own horrific and terrifying pain and suffering experiences before and leading up to his death; pain and suffering and emotional distress of his child and mother; loss of consortium and companionship; lost future earnings and earning capacities for the useful working life of Mr. Marquez who had a substantial work history and history of earnings and support; as well as funeral and burial related expenses; and other special damages, including all charges for his final illness and death; all in amounts to be proven at trial.
330. As a result of the aforementioned negligence and breach of duties on the part of Defendants, Plaintiff has suffered the loss of consortium of her son and is also individually
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entitled to all such damages as are permissible by New Mexico consortium common law due to the loss of companionship resulting from the death of Mr. Marquez.
331. Plaintiff Salazar enjoyed a close, life long and intimate familial relationship of son and mother with Mr. Marquez.
332. Ms. Salazar visited Mr. Marquez frequently and was in frequent phone contact with him during his incarceration as well.
333. Ms. Salazar and Mr. Marquez were dependent on each other and made contributions to each others’ lives and emotionally relied on each other.
334. So too has Mr. Marquez’s young son, Omar, who he loved very much and with whom he was very close and had been very involved in his care prior to his incarceration.
335. These defendants are jointly and severaly liable for all compensatory and also punitive damages for this egregious conduct.
FIFTH CLAIM FOR RELIEF Intentional Infliction of Emotional Distress (Plaintiff Salazar individually against SJRMC, Katie Moore, Yvonne Valles, Ramona Howard,
and Courtney Nyman)
336. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein.
337. Defendants to this claim, by extreme and outrageous conduct, recklessly caused severe emotional distress to Plaintiff Salazar.
338. The nursing conduct toward Mr. Marquez was so reckless and unconscionable as to be outrageous.
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339. This conduct was undertaken in reckless disregard of Plaintiff as a close family member of Mr. Marquez.
340. The conduct was reckless in that the acts were done with utter indifference to the consequences.
341. This conduct caused severe emotional distress to his mother, Olga Salazar. 342. The extreme and outrageous character of Defendants’ conduct arises from the identified abuse by these actors of their positions of power, which gave them all actual or apparent authority over Jesus Marquez, and abuse of their power to affect the vital rights and interests of Jesus Marquez and Ms. Salazar. 343. The extreme and outrageous character of Defendant Neyman’s conduct also arises from her communications and relationship with Olga Salazar, which gave her power to affect the vital rights and interests Ms. Salazar. 344. Plaintiff Olga Salazar is entitled to recover damage for severe emotional distress and punitive damages against defendants. 345. These defendants are jointly and severaly liable for all compensatory and also punitive damages for this egregious conduct.
PRAYER FOR RELIEF Plaintiffs pray that this Court enter judgment for the Plaintiffs and against each of the Defendants and enter the following relief: (a) All appropriate relief at law and equity; (b) Economic losses on all claims allowed by law;
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(c) Compensatory and consequential damages, including damages for emotional
distress, humiliation, loss of enjoyment of life, and other pain and suffering on all claims
allowed by law in an amount to be determined at trial;
(d) Punitive damages on all claims allowed by law and in an amount to be determined
at trial;
(e) Attorneys’ fees and costs associated with this action, including expert witness
fees, on all claims allowed by law;
(f) Pre- and post-judgment interest at the highest lawful rate; and
(g) Any further relief that this Court deems just and proper.
PLAINTIFFS RESPECTFULLY REQUEST TRIAL BY JURY. Respectfully submitted this 29th day of February, 2016.
HOLLAND, HOLLAND EDWARDS & GROSSMAN, P.C.
/s/ Anna Holland Edwards ANNA HOLLAND EDWARDS ERICA T. GROSSMAN JOHN R. HOLLAND Attorneys for Plaintiffs 1437 High Street Denver, Colorado 80218 Telephone: (303) 860-1331 Fax: (303) 832-6506
TUCKER, BURNS, YODER & HATFIELD
/s/Gregory M. Tucker GREGORY M. TUCKER MITCHEL S. BURNS CHRISTIAN A. HATFIELD JENNIFER D. YODER Attorney for Plaintiffs 105 North Orchard Avenue Farmington, New Mexico 87401
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Case 1:15-cv-00417-JB-LF Document 255 Filed 02/29/16 Page 51 of 51 Telephone: (505) 325-7755 Fax: (505) 325-6239
51

 
 Case 1:15-cv-00417-JB-LF Document 382 Filed 09/30/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

OLGA SALAZAR, Personal Representative of the Estate of JESUS MARQUEZ,

Plaintiff,

vs.

No. CIV 15-0417 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY, KATIE (Unknown Surname), RN,

Defendants.

FINAL JUDGMENT

THIS MATTER comes before the Court on (i) the Stipulation of Dismissal of All

Claims Against Thomas C. Havel, individually, and as Administrator of the San Juan County

Detention Center, and Caroline Conner, in Cause No. 1:15-cv-00417 JB/LF, filed on September

30, 2016 (Doc. 373)(“Salazar-Havel Dismissal”); (ii) the Court’s Order of Partial Dismissal of

Plaintiff’s Claims Against All Defendants, filed on February 25, 2016 (Doc. 249)(“SJRMC

Federal Claims Dismissal”); (iii) the Court’s Order Granting Stipulated Motion for Dismissal

with Prejudice of Defendants Dr. Eric Ketcham and Cindy Ketcham, filed on September 30,

2016 (Doc. 381)(“Ketcham Dismissal”); (iv) in the Court’s Order Granting Stipulated Motion for

Dismissal with Prejudice of Defendants Yvonne Valles, RN and Ramona Howard, RN, filed on

September 20, 2016 (Doc. 380)(“Valles-Howard Dismissal”); (v) the Stipulation of Dismissal

with Prejudice, filed on September 30, 2016 (Doc. 377)(“Nyman Dismissal”); and (vi) the

Court’s Order Approving Settlement (Doc. 361 )(“Salazar Settlement Order”). In the Salazar-

Case 1:15-cv-00417-JB-LF Document 382 Filed 09/30/16 Page 2 of 4

Havel Dismissal, the parties stipulated to the dismissal with prejudice of all claims made against Defendant Thomas C. Havel, individually, and as Administrator of the San Juan County Detention Center, and Caroline Conner, in Plaintiff’s Complaint and in Plaintiff’s First Amended Complaint. See Salazar-Havel Dismissal at 2. In the SJRMC Federal Claims Dismissal, the Court ordered that all asserted claims against all Defendants under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, and all asserted claims for declaratory and injunctive relief were dismissed with prejudice. See SJRMC Federal Claims Dismissal ¶¶ 1-2, at 1. In the Ketcham Dismissal, the Court ordered that all claims asserted against Defendant Dr. Eric Ketcham and Defendant Cindy Ketcham were dismissed with prejudice. See Ketcham Dismissal at 1. In the Valles-Howard Dismissal, the Court ordered all claims asserted against Defendants Yvonne Valles and Ramona Howard as dismissed with prejudice. See VallesHoward Dismissal ¶¶ 1-2, at 1. In the Nyman Dismissal, the Court ordered all claims asserted against Defendant Courtney Nyman as dismissed with prejudice. See Nyman Dismissal at 1. In the Salazar Settlement Order, the Court approved the settlement reached between Plaintiff Olga Salazar and the Defendants.
IT IS ORDERED that: (i) final judgment is entered; and (ii) the case is hereby dismissed with prejudice.

Counsel:
Gregory M. Tucker Mitchel S. Burns Jennifer D. Yoder Christian A. Hatfield Tucker Burns Yoder & Hatfield Law Firm Farmington, New Mexico

________________________________ UNITED STATES DISTRICT JUDGE

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Case 1:15-cv-00417-JB-LF Document 382 Filed 09/30/16 Page 3 of 4
--and--
John Holland Erica Grossman Anna Holland Edwards Holland, Holland Edwards & Grossman, P.C. Denver, Colorado
Attorneys for the Plaintiffs
Ronald K. Childress Elaine D. Dailey Uvashi Parkhani Childress Law Firm Albuquerque, New Mexico
Attorneys for Defendants San Juan County Detention Center, San Juan County, and Thomas C. Havel
Robert J. Curtis Ellen M. Kelly Civerolo Gralow Hill & Curtis P.A. Albuquerque, New Mexico
Attorneys for Defendant San Juan Regional Medical Center
Kevin J. Kuhn Andrew Myers Wheeler Trigg O’Donnell, LLP Denver, Colorado
Attorneys for Defendants Eric Ketcham, and Cindy Ketcham
Brett C. Eaton W. Ann Maggiore Butt Thornton & Baehr, P.C. Albuquerque, New Mexico
Attorneys for Defendant Katie Moore
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Case 1:15-cv-00417-JB-LF Document 382 Filed 09/30/16 Page 4 of 4 Alfred A. Park Kevin D. Fowler Lawrence M. Marcus Park & Associates LLC Albuquerque, New Mexico
Attorneys for Defendant Correctional Healthcare Companies Inc. W. Mark Mowery Jessica R. Terrazas Rodey, Dickason, Sloan, Akin & Robb Santa Fe, New Mexico
Attorneys for Presbyterian Medical Services
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Salazar v. San Juan County Detention Center ("SJCDC"), et al., Docket No. 1:15-cv-00417 (D.N.M. May 15, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the District of New Mexico; United States District Court for the District of New Mexico
Civil Rights - Other[440]
1:15-cv-00417
Closed

© 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 5

 
 Case 1:15-cv-00417-JB-LF Document 363 Filed 09/20/16 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

OLGA SALAZAR, Personal Representative of the Estate of JESUS MARQUEZ,

Plaintiff,

vs.

No. CIV 15-0417 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY, KATIE (Unknown Surname), RN,

Defendants.

consolidated with

JESSE BURKEE, EARL CALLAHAN, LARIET CHARLES, GORDON DOUGLAS DERRICK, AARON EATON, CALVIN FINCH, PAUL GOULD, JOSEPH GUTIERREZ, MARK HINOJOS, THOMAS KNIGHT, AURELIO MARQUEZ, ANGELO MARTINEZ, MARK MARTINEZ, RUDY MARTINEZ, VICTORIA MARTINEZ, PAUL MATAMOROS, RICHARD MCDONALD, DEBBIE NEZ, DAVID PAGE, STEVE PARRISH, CLIFFORD ROGERS, ADAM SCHUESSLER, JASON TRUJILLO, FRANKLIN TSO, STEVE VALERIO, JIMMY WEAHKEE and HARRY WILLIAMS,

Plaintiffs,

vs.

No. CIV 15-0439 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”) SAN JUAN COUNTY, CORRECTIONAL HEALTHCARE COMPANIES, INC. (“CHC”), SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), PRESBYTERIAN MEDICAL SERVICES (“PRESBYTERIAN”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR, SAN JUAN COUNTY DETENTION CENTER,

Defendants.

Case 1:15-cv-00417-JB-LF Document 363 Filed 09/20/16 Page 2 of 30

consolidated with

CHARLES CARTER, Personal Representative of the Estate of WILLIAM “BILLY” CARTER,

Plaintiff,

vs.

No. CIV 15-0497 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY,

Defendants.

consolidated with

COREY JONES, Personal Representative of the Estate of Sharon Jones

Plaintiff,

vs.

No. CIV 15-0526 JB/LF

SAN JUAN COUNTY DETENTION CENTER (“SJCDC”), SAN JUAN COUNTY, SAN JUAN REGIONAL MEDICAL CENTER (“SJRMC”), THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC, DR. ERIC KETCHAM, INDIVIDUALLY, CINDY KETCHAM, INDIVIDUALLY,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendants San Juan County Detention

Center, San Juan County, and Thomas C. Havel’s (collectively, “the County Defendants”)

Motion to Dismiss Americans with Disabilities Act Claim and State Law Claims, filed December

2, 2015 (Doc. 116)(“Motion”). The Court held a hearing on February 18, 2016. The primary

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issues are: (i) whether the Plaintiffs’1 claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12131-134 (“ADA”), fails to allege with sufficient particularity conduct that violates the ADA; and (ii) whether state sovereign immunity shields Defendants San Juan County Detention Center, San Juan County, and Thomas C. Havel, the County Defendants, from the Plaintiffs’ New Mexico state law claims of negligence and intentional infliction of emotional distress.
FACTUAL BACKGROUND This case arises from the Plaintiffs’ incarcerations at the San Juan County Detention Center in San Juan County, New Mexico. See Burkee v. San Juan, No. CV 15-00439, Second Amended Complaint ¶1, at 2, filed on July 8, 2015, (Doc 27). San Juan County is the public entity responsible for the San Juan County Detention Center. See Burkee Complaint ¶ 11, at 3. Defendant Thomas Havel is the San Juan County Detention Center Administrator. See Burkee Complaint ¶ 8, at 3. Plaintiffs are individual residents of San Juan County who were and are incarcerated in the San Juan County Detention Center between 2013 and the present. See Burkee Complaint ¶ 1, at 2. The Plaintiffs assert that the twenty-six named Plaintiffs suffered various injuries while incarcerated at the San Juan County Detention Center as a result of the County Defendants’ violations of federal and New Mexico law. See Burkee Complaint ¶¶ 18-153, at 4-20. There are five types of injuries common among the Plaintiffs, including: (i) denial of necessary prescription medication; (ii) denial of access to medical professionals or outside medical
1“The Plaintiffs” refers to the plaintiffs listed in Jesse Burkee, et al. vs. San Juan County Detention Center, et al., No. CIV 15-0439 JB/LF, at 1 (D.N.M., filed on May 26, 2015)(“Burkee Complaint”). The list of Plaintiffs in the Burkee Complaint: Jesse Burkee, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, and Harry Williams.
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Case 1:15-cv-00417-JB-LF Document 363 Filed 09/20/16 Page 4 of 30

facilities; (iii) refusal to transport the Plaintiffs with life threatening conditions to outside

emergency room or hospital facilities; (iv) injuries San Juan County Detention Center staff

directly inflicted upon the Plaintiffs; and (v) forced consumption of non-prescribed prescription

medication. The Court summarizes the Plaintiffs by their asserted injuries in the chart below: Categorization of the Plaintiffs Based on Asserted Injury2

Refused

Refused

Prescription Medical

Medication Treatment

1 Jesse Burkee Jesse Burkee

(¶¶ 18-27)

(¶¶ 18-27)

2 Earl Calahann Earl Calahann

(¶¶ 28-46)

(¶¶ 28-46)

3 Gordon

Lariet Charles

Douglas

(¶¶ 47-50)

Derrick

(¶¶ 51-53)

4 Paul Gould

Gordon

(¶¶ 65-66)

Douglas

Derrick

(¶¶ 51-53)

5 Thomas Knight Aaron Eaton

(¶¶ 74-79)

(¶¶ 54-60)

6 Aurelio

Calvin Finch

Marquez

(¶¶ 61-64)

(¶¶ 80-84)

7 Angelo

Joseph

Martinez

Gutierrez

(¶¶ 85-88)

(¶¶ 67-70)

8 Mark Martinez Mark Hinojos

(¶¶ 89-90)

(¶¶ 71-73)

9 Victoria

Thomas

Martinez

Knight

(¶¶ 94-96)

(¶¶ 74-79)

10 Paul

Aurelio

Matamoros

Marquez

Refused Hospital Transport Earl Calahann (¶¶ 28-46) Thomas Knight (¶¶ 74-79)
Aurelio Marquez (¶¶ 80-84)

Direct Injuries
Mark Hinojos (¶¶ 71-73) Richard McDonald (¶¶ 107-114) Steve Valerio (¶¶ 141-147)

Jimmy Weahkee (¶¶ 148-150)

Forced Ingestion of Prescriptions Steve Valerio (¶¶ 141-147)

2 The Court based its categorization on the injuries that the Plaintiffs assert they incurred as a result of the County Defendants’ actions. The numbers in parentheses adjacent to the Plaintiffs’ names refer to the paragraphs where the assertion is located in the Burkee Complaint. See Burkee Complaint ¶¶ 18-153, at 4-20.
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(¶¶ 97-106) (¶¶ 80-84)

11 Debbie Nez Rudy Martinez

(¶¶ 115-119) (¶¶ 91-93)

12 Steve Parrish Debbie Nez

(¶¶ 124-125) (¶¶ 115-119)

13 Clifford

David Page

Rogers

(¶¶ 120-123)

(¶¶ 126-131)

14 Adam

Steve Parrish

Schuessler

(¶¶ 124-125)

(¶¶ 132-135)

15 Jason Trujillo Clifford

(¶¶ 136-137) Rogers

(¶¶ 126-131)

16 Franklin Tso Adam

(¶¶ 138-140) Schuessler

(¶¶ 132-135)

17 Jimmy

Jason Trujillo

Weahkee

(¶¶ 136-137)

(¶¶ 148-150)

18 Harry Williams Steve Valerio

(¶¶ 151-153) (¶¶ 141-147)

19

Harry

Williams

(¶¶ 151-153)

The Court identifies eighteen instances in the Burkee Complaint where the Plaintiffs assert that County Defendants refused the Plaintiffs’ requests for necessary prescription medication. The Plaintiffs assert that the County Defendants not only denied the Plaintiffs’ requests for prescription medication, see Complaint ¶ 20, at 4, but also the requests that medical professionals treating the Plaintiffs gave the Plaintiffs, see Burkee Complaint ¶ 66, at 10. The Court identifies nineteen instances in the Burkee Complaint where the Plaintiffs assert that the County Defendants denied the Plaintiffs access to necessary medical treatment, including doctor and medical staff consultations. See Burkee Complaint ¶ 25, at 5.
The Court identifies three instances in the Burkee Complaint where the Plaintiffs assert that the County Defendants refused to transport the Plaintiffs with life threatening medical
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conditions to a hospital or emergency room. See Burkee Complaint ¶ 80, at 12. The Court identifies four instances where the Plaintiffs assert that the County Defendants’ actions directly injured the Plaintiffs. The Plaintiffs assert various injuries resulting from the County Defendants including the intentional poisoning with prescription medications, see Burkee Complaint ¶¶ 108113, at 15, and the intentional exposure to tuberculosis, see Burkee Complaint ¶ 147, at 19-20. Finally, the court identifies one instance in the Burkee Complaint where the Plaintiffs assert that the County Defendants forced the Plaintiffs to ingest a non-prescribed prescription medication. See Burkee Complaint ¶¶ 141-15, at 19.
The Plaintiffs assert that the County Defendants’ actions resulted in permanent injuries and disfigurement, see Burkee Complaint ¶ 48, at 8; see also Burkee Complaint ¶ 84, at 12; severe emotional distress, see Burkee Complaint ¶ 22, at 5; and severe physical pain, see Burkee Complaint ¶¶ 54-60, at 9. The Plaintiffs contend that the County Defendants’ actions violated the ADA by failing to make accommodations to plaintiffs with known, obvious, and disclosed disabilities. See Burkee Complaint ¶ 173, at 24. The Plaintiffs contend that the County Defendants violated New Mexico state negligence law by acting, or failing to act, in bad faith and with deliberate indifference to the patients and inmates’ medical needs and by failing to provide reasonable medical care to citizens while incarcerated. See Burkee Complaint ¶¶ 166-8, at 23. The Plaintiffs contend that the County Defendants violated New Mexico state law regarding the intentional infliction of emotional distress through the County Defendants outrageous behavior which was the direct and proximate cause of the Plaintiffs’ injuries, including severe psychological and physical injury and harm to Plaintiffs. See Burkee Complaint ¶ 175-7, at 24.
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PROCEDURAL BACKGROUND The Court will briefly outline this case’s progress and summarize the parties’ arguments for and against the Motion. The Court will first describe what has happened in the case besides the Motion. It will then describe, in turn, the Plaintiffs’ and the Defendants’ arguments vis-à-vis the Motion. 1. The Case’s Pre-Motion Background. On May 15, 2015, Salazar, as the personal representative of the Estate of Marquez, filed a complaint in the United States District Court for the District of New Mexico in Salazar v. San Juan County Detention Center, et al., No. CIV 15-0417 JB/LF, at 1 (D.N.M., filed on May 15, 2015)(“Salazar Complaint”). On June 12, 2015, C. Carter, as the personal representative of the Estate of W. Carter, filed a complaint in the District Court for the District of New Mexico in Carter v. San Juan County Detention Center, et al., No. CIV 15-0497 JB/LF, at 1(D.N.M., filed on June 12, 2015)(“Carter Complaint”). On June 22, 2015, C. Jones, as the personal representative of the Estate of S. Jones, filed a complaint in the District of New Mexico in Jones v. San Juan County Detention Center, et al., No. CIV 15-0526 JB/LF, at 1 (D.N.M., filed on June 22, 2015) (“Jones Complaint”). See Jones Complaint at 1. Each of the three individual plaintiffs assert causes of action for: (i) violations of the Eighth Amendment’s prohibition on cruel and unusual punishment under 42 U.S.C. § 1983; (ii) negligence; (iii) violations of the Americans With Disabilities Act, 42 U.S.C. §§ 12131-12134 (“ADA”); and (iv) wrongful death. See Salazar Complaint ¶¶ 73-97, at 9-13; Carter Complaint ¶¶ 38-64, at 6-10; Jones Complaint ¶¶ 3460, at 5-9. On July 8, 2015, twenty-seven plaintiffs filed their Second Amended Complaint in the District of New Mexico in Burkee v. San Juan. The twenty-seven plaintiffs in Burkee v. San
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Juan assert causes of action for: (i) violations of the Eighth Amendment’s prohibition of cruel and unusual punishment under 42 U.S.C. § 1983; (ii) negligence; (iii) ADA violations; and (iv) intentional infliction of emotional distress. See Burkee Complaint ¶¶ 154-178, at 21-25. They also request the same declaratory relief as the individual plaintiffs in Salazar v. San Juan, Carter v. San Juan, Jones v. San Juan. See Burkee Complaint ¶¶ 179-182, at 25.
The four cases -- Salazar v. San Juan, Carter v. San Juan, Jones v. San Juan, and Burkee v. San Juan -- were subsequently consolidated before the Court for the purposes of discovery and motions, but the parties agree that they will be tried separately. See Transcript of Hearing at 3:18-9:4 (taken September 24, 2105)(Court)(“Sept. 24th Tr.”);3 See Transcript of Hearing at 13:7-22 (Childress, Court, Hatfield, Kelly, Mowery, Park).
2. County Defendants’ Motion. The County Defendants request that the Court dismiss the Plaintiffs’ claim under the ADA, see Motion at 5, and the Plaintiffs’ state law claims for negligence and intentional infliction of emotional distress, see Motion at 3, in the Burkee Complaint. In seeking a dismissal of the Plaintiffs’ state law claims, the County Defendants assert that that the Plaintiffs’ “[s]tate law tort claims against governmental entities are governed by the New Mexico Torts Claims Act.” Motion at 3.; See NMSA § 41-4-2 (providing that “governmental entities and public employees shall only be liable within the limitations of the [NMTCA.]”) The County Defendants assert that the Plaintiffs “cannot point to a waiver of immunity for the asserted [state law] claims,” immunity applies to the County Defendants, and, as a result of the immunity for
3The Court’s citations to the transcript for this hearing refer to the court reporter’s original, unedited version. Any final version may contain slightly different page and/or line numbers.
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the County Defendants being intact, the Plaintiffs’ state law claims should be dismissed. See Motion 3-4.
The County Defendants request that the Court dismiss the Plaintiffs’ ADA claim. In seeking a dismissal of the Plaintiffs’ ADA claim, the County Defendants assert that the ADA claim does not meet the pleading requirements of Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 692 (2009), and is merely an insufficient, “thedefendant-unlawfully-harmed-me” accusation, that fails as a matter of law. Motion at 5. The County Defendants also assert that the Plaintiffs fail to “‘isolate the allegedly unconstitutional acts of each defendant, and thereby [do] not provide adequate notice as to the nature of their claims against [them.]’” See Motion at 5 (quoting Robbins v. Okla. Ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249-50 (10th Cir. 2008)).
3. The Response in Opposition to the Motion. In response to the County Defendants’ Motion, the Plaintiffs responded with the
Plaintiffs’ Response to Defendant San Juan County Detention Center’s Motion to Dismiss Americans with Disabilities Act Claim and State Law Claims, filed on January 12, 2016 (Doc. 168)(“Response”). To counter the County Defendants’ Motion, the Plaintiffs assert that “a dismissal under Rule 12(b)(6) is only appropriate when it is apparent that a Plaintiff” can prove no set of facts which would entitle him to relief. See Response at 3-4. The Plaintiffs assert that the County Defendants’ actions resulted in constitutional violations rising to the level of deliberate indifference, are actionable under New Mexico state tort law as well as under federal law, and therefore should survive County Defendants’ Motion. See Response at 3-4.
In response to the County Defendants’ Motion to dismiss the ADA claim, the Plaintiffs agree that some of the ADA violations asserted “will be more difficult to prove” and sought
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leave to amend to include additional detail, and stipulated to the dismissal of all ADA claims against the County Defendants for all Plaintiffs with the exception of: (i) Derrick; (ii) Gutierrez; (iii) Williams; (iv) Martinez; (v) Page; and (vi) Trujillo. See Response at 6. The Plaintiffs assert that “each of the plaintiffs listed in 1-5 above has a clear ADA claim as set forth in the Second Amended Complaint.” 4 Response at 6.
4. The Reply. In reply to the Plaintiffs’ Response, the County Defendants filed their Reply on Motion to
Dismiss Americans with Disabilities Act Claim and State Law Claims on January 20, 2016 (Doc. 187)(“Reply”). In the Reply, the County Defendants reiterate that the Plaintiffs fail to present a viable state law claim that will remove the NMTCA’s statutory immunity, see Reply at 2-3, and that the Plaintiffs’ contentions for the remaining six Plaintiffs for the ADA claim are still insufficient, see Reply at 3-4.
5. The Hearing on the Motion. The Court held a hearing on the Motion and other pending matters on February 18, 2016.
See Transcript of Hearing at 54:21-57:10, No. CV 15-0439. The County Defendants briefly reasserted their arguments from their briefing that the Plaintiffs’ ADA claim was insufficient and that the New Mexico state law claims of negligence and intentional infliction of emotional distress were barred because, under the New Mexico Tort Claims Act, the County Defendants
4 The Plaintiffs’ Response lists six Plaintiffs for whom it will maintain the ADA claim: (i) Derrick; (ii) Gutierrez; (iii) Williams; (iv) Martinez; (v) Page; and (vi) Trujillo. See Response at 6. This statement, however, is contradicted by the subsequent sentence in the Plaintiffs’ Response, which states that “each of the plaintiffs listed in 1-5 above has a clear ADA claim as set forth in the Second Amended Complaint.” Response at 6. The Court recognizes the discrepancy between listing six Plaintiffs for the ADA complaint, and then immediately referring to them as “1-5.” The Court treats this discrepancy as an error, and interprets the Plaintiffs’ Response to dismiss the ADA Claim for all Plaintiffs except for the six enumerated Plaintiffs listed in the Response.
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maintained sovereign immunity from suit. See Tr. at 55:2-56:18. The County Defendants reiterated their arguments from their Motion and Reply brief that NMTCA § 41-4-9 did not waive state sovereign immunity in instances where state actors contracted with a private company to provide medical care. See Tr. at 55:14-56:1. The County Defendants reiterated from their Motion and Reply that sovereign immunity is not waived under the NMTCA when state law enforcement officers act negligently and that there must be a showing of intentional conduct, and that the intentional tortious conduct alleged must be enumerated under NMTCA § 41-4-12. See Tr. at 56:1-56:18. When the Court asked if the Plaintiffs had anything further, the Plaintiffs responded that they did not. See Tr. at 57:5-57:7. The Court indicated that it was inclined to grant the Motion. See Tr. at 57:8-57:9.
LAW REGARDING RULE 12(B)(6) MOTIONS To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 677–78 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 570). Under Rule 12(b)(6), the Court accepts as true all well-pled factual allegations in the complaint and draws all reasonable inferences from those facts in the Plaintiffs’ favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006). “The allegations must be enough that, if assumed to be true, the Plaintiffs plausibly (not just speculatively) ha[ve] a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). A complaint fails to state a claim when it makes conclusory allegations of liability without supporting factual content. See Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. at 678-79. A complaint must set forth sufficient facts to raise a plausible inference that the defendant is liable for the misconduct alleged. See Ashcroft v. Iqbal,
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556 U.S. at 677-78. “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555-56. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555-56).
Furthermore, while the court must accept all the factual allegations in the complaint as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. at 678. Dismissal should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).
LAW REGARDING THE ADA The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
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12132. 42 U.S.C. § 12102 provides that the term “disability” means, with respect to an individual:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Major-life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sleeping, sitting, standing, lifting, reaching, and working. See Poindexter v. Atchison, Topeka and Santa Fe Ry. Co., 168 F.3d 1228, 1231 (10th Cir. 1999). Federal courts have described the ADA as “a general prohibition against discrimination by public entities, regardless of activity.” New Directions Treatment Servs. v. City of Reading, 2007 U.S. App. LEXIS 14025, at *12 (3d Cir. 2007). See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001)(“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.”). “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III).” PGA Tour, Inc. v. Martin, 532 U.S. at 675 (internal footnotes omitted). To prove an ADA violation, a plaintiff must establish: “(1) that he is a ‘qualified individual’ with a disability; (2) that he was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003).
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Private entities that operate a “public accommodation” may also be liable under the ADA for discrimination against disabled individuals “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). For the purposes of applying the Act to providers of public accommodations, “discrimination” includes
failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii). Accordingly, the statute implicates three inquiries: (i) “whether the requested modification is ‘reasonable;’” (ii) “whether it is ‘necessary’ for the disabled individual;” and (iii) “whether it would ‘fundamentally alter the nature of’ the [service being provided].” PGA Tour, Inc. v. Martin, 532 U.S. at 683, n.38 (quoting 42 U.S.C. § 12182(b)(A)(ii)).
NEW MEXICO LAW REGARDING NEGLIGENCE Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact of the plaintiff’s damages. See Coffey v. United States, 870 F. Supp. 2d 1202, 1225 (D.N.M. 2012)(Browning, J.)(citing Herrera v. Quality Pontiac, 2003NMSC-018, ¶ 6, 73 P.3d 181, 185-86. “In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.” Ramirez v. Armstrong, 1983-NMSC-104, ¶ 8, 673 P.2d 822, 825, overruled on other grounds by Folz v. State, 1990-NMSC-075, ¶ 3, 797 P.2d 246, 249. Generally, negligence is a question of fact for the jury. See Schear v. Bd. of Cty Comm’rs, 1984-NMSC-079, ¶ 4, 672, 687 P.2d 728,
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729. “A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant.” Schear v. Bd. of Cty Comm’rs, 1984-NMSC-079, ¶ 4, 687 P.2d at 729. “Whether a duty exists is a question of law for the courts to decide.” Schear v. Bd. of Cty Comm’rs, 1984-NMSC-079, ¶ 4, 687 P.2d at 729 (citation omitted). Once courts recognize that a duty exists, that duty triggers “a legal obligation to conform to a certain standard of conduct to reduce the risk of harm to an individual or class of persons.” Baxter v. Noce, 1988-NMSC-024, ¶ 11, 51, 752 P.2d 240, 243.
New Mexico courts have stated that foreseeability of a plaintiff alone does not end the inquiry into whether the defendant owed a duty to the plaintiff. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 7, 73 P.3d at 186. New Mexico courts have recognized that, “[u]ltimately, a duty exists only if the obligation of the defendant [is] one to which the law will give recognition and effect.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 9, 73 P.3d at 187 (internal quotation marks omitted). To determine whether the defendant’s obligation is one to which the law will give recognition and effect, courts consider legal precedent, statutes, and other principles of law. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 9, 73 P.3d at 186.
“As a general rule, an individual has no duty to protect another from harm.” Grover v. Stechel, 2002-NMCA-049, ¶ 11, 143, 45 P.3d 80, 84. “[C]ertain relationships, however, that give rise to such a duty [include]: (1) those involving common carriers, innkeepers, possessors of land; and (2) those who voluntarily or by legal mandate take the custody of another so as to deprive the other of his normal opportunities for protection.” Grover v. Stechel, 2002-NMCA049, ¶ 11, 45 P.3d at 84. “[W]hen a person has a duty to protect and the third party’s act is foreseeable, ‘such an act whether innocent, negligent, intentionally tortious, or criminal does not
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prevent the [person who has a duty to protect] from being liable for harm caused thereby.’” Reichert v. Atler, 1994-NMSC-056, ¶ 11, 626, 875 P.2d 379, 382.
“[T]he responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 33, 73 P.3d at 194. “The finder of fact must determine whether Defendant breached the duty of ordinary care by considering what a reasonably prudent individual would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all surrounding circumstances of the present case . . . .” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 33, 73 P.3d at 195.
“A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 34, 73 P.3d at 195. “It need not be the only cause, nor the last nor nearest cause.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 34, 73 P.3d at 195. “It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 34, 73 P.3d at 195.
NEW MEXICO LAW REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The following elements must be proven to establish a claim of intentional infliction of emotional distress: “[(i)] the conduct in question was extreme and outrageous; [(ii)] the conduct of the defendant was intentional or in reckless disregard of the plaintiff; [(iii)] the plaintiff’s mental distress was extreme and severe; and [(iv)] there is a causal connection between the
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defendant’s conduct and the claimant’s mental distress.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 25, 41 P.3d 333, 342. For purposes of the tort of intentional infliction of emotional distress, New Mexico law adopts the Restatement (Second) of Torts’ definition of extreme and outrageous conduct. See Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC004, ¶ 25, 41 P.3d at 342. See UJI 13-1628 NMRA (“Extreme and outrageous conduct is that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person.”). The Restatement (Second) of Torts § 46 states:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts § 46 cmt. d (1965). Extreme and “[s]evere emotional distress means that a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 28, 41 P.3d at 343 (internal quotation marks and citations omitted). “The law intervenes only where the distress is so severe that no reasonable person could be expected to endure it.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 28, 41 P.3d at 343 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)). The extreme and severe emotional distress element of intentional infliction of emotional distress was not met, for example, where a plaintiff felt “lousy,” was depressed, was prescribed Prozac, slept long hours, and displayed erratic eating habits. Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 28, 41 P.3d at 343.
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LAW REGARDING THE NEW MEXICO TORT CLAIMS ACT The New Mexico Tort Claims Act (“NMTCA”) was enacted in recognition of “the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.” NMSA 1978, § 41-4-2(A). The New Mexico Legislature also recognized “that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.” NMSA 1978 § 41-4-2(A). As a result, it was “declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.” NMSA § 41-4-2(A). The NMTCA is also “based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.” NMSA § 414-2(C). The NMTCA is the “exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act . . . .” NMSA § 414-17(A). A governmental entity of New Mexico may not be sued unless the plaintiff’s cause of action fits within one of the exceptions granted to governmental entities and public employees in the NMTCA. See Begay v. State, 1985-NMCA-117, ¶ 8, 723 P.2d 252, 255, rev’d on other grounds by Smialek v. Begay, 1986-NMSC-049, 721 P.2d 1306. “Consent to be sued may not be implied, but must come within one of the exceptions to immunity under the Tort Claims Act.” Begay v. State, 1985- NMCA-117, ¶ 10, 723 P.2d 252 (internal quotation marks omitted). Thus, if the court cannot find a specific waiver in the NMTCA, the court must dismiss the plaintiff's complaint. See Begay v. State,1985- NMCA-117, ¶ 10, 723 P.2d 252.
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A plaintiff may not sue a governmental entity or its employees for a damage claim arising out of violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of immunity. “In the absence of affirmative legislation, the courts of this state have consistently declined to permit individuals to bring private lawsuits for damages to enforce rights guaranteed by the New Mexico Constitution, based on the absence of an express waiver of immunity under the Tort Claims Act.” Barreras v. N.M. Corr. Dep’t, 2003-NMCA-027, ¶ 24, 62 P.3d 770, 776. See Chavez v. City of Albuquerque, 1998-NMCA-004, ¶ 13, 952 P.2d 474, 477 (noting that a plaintiff cannot seek damages for violations of rights under the New Mexico Constitution unless immunity is waived under the NMTCA); Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 449, 744 P.2d 919, 922 (Ct.App.1987)(holding that no waiver of immunity exists for damages arising out of alleged educational malpractice claim against a school board.); Begay v. State, 1985- NMCA-117, ¶ 13, 723 P.2d at 257 (finding that no waiver existed in NMTCA for suits for damages under Article II, § 11 of the New Mexico Constitution). Those waivers are, however, relatively broad:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 [granting immunity from liability for torts committed within the scope of duty], does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. NMSA § 41-4-12. Thus, an officer can be held liable for most intentional torts committed while in the course and scope of the officer’s duties.
ANALYSIS The Court will grant the County Defendants’ Motion. First, the Plaintiffs’ ADA claim in the Burkee Complaint fails to state a claim upon which relief can be granted. The Plaintiffs do
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not allege that any of the six remaining Plaintiffs in their ADA claim: (i) are “qualified” individuals with a disability discriminated; (ii) are excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated by such entity; or (iii) that such exclusion or discrimination was due to their disability. Second, the Plaintiffs’ New Mexico state law claims of negligence and intentional infliction of emotional distress in the Burkee Complaint do not present the Court with a claim upon which relief could be granted, because under NMTCA, the County Defendants’ immunity from suit remains intact. I. THE PLAINTIFFS’ ADA CLAIM DOES NOT ALLEGE DISCRIMINATORY
CONDUCT ON THE BASIS OF A QUALIFYING DISABILITY AND THEREFORE FAILS TO STATE A CLAIM UPON WHICH RELEIF CAN BE GRANTED. Regarding their ADA claim, the County Defendants correctly note that the Plaintiffs do not allege that the Plaintiffs are being “discriminated against because of a qualifying disability.” Reply at 4-5. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132. To prove an ADA violation, a plaintiff must establish: “(1) that he is a ‘qualified individual’ with a disability; (2) that he was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont, 340 F.3d at 34-35. On their ADA claims, the Plaintiffs allege only that: 172. Defendants herein were required by law to observe and adhere to common law and statutory laws and civil rights laws and guarantees in the performance of their duties to or for those who are disable [sic] and are detained at the San Juan County Detention Center. 173. Defendants violated their duties under the ADA to make accommodations to plaintiffs with known, obvious, and disclosed disabilities.
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174. As a result of defendants’ actions, plaintiffs suffered damages as described herein and in an amount to be proven at trial and are entitled to damages, attorneys’ fees and costs. Burkee Complaint ¶¶ 172-74, at 24. In response to the County Defendants’ Motion, the Plaintiffs stipulate to the dismissal of all ADA claims against the County Defendants with the exception of (i) Derrick; (ii) Gutierrez; (iii) Williams; (iv) Martinez; (v) Page; and (vi) Trujillo and that “each of the plaintiffs listed in 1-5 above has a clear ADA claim as set forth in the Second Amended Complaint.” 5 See Response at 6. The Court agrees with the County Defendants that none of the six remaining Plaintiffs in the Burkee Complaint whom the Plaintiffs allege “ha[ve] a clear ADA claim as set forth in the Second Amended Complaint,” see Response at 6, are individuals with a “qualified disability,” or that they were “excluded from participation in a public entity’s services, programs, or activities or were otherwise discriminated against by a public entity” on the basis of that disability. See Hargrave v. Vermont, 340 F.3d at 34-35. While the remaining six ADA Plaintiffs assert that they received inadequate medical treatment at the San Juan County Detention Center, they do not allege that “the alleged inadequacy was due to any qualifying disability.” Reply at 4-5. The ADA also provides, however, that for the purposes of applying the ADA to providers of public accommodations, “discrimination” includes: failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.

5 See footnote 4.

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42 U.S.C. § 12182(b)(2)(A)(ii). Accordingly, the statute implicates three inquiries: (i) “whether the requested modification is ‘reasonable;’” (ii) “whether it is ‘necessary’ for the disabled individual;” and (iii) “whether it would ‘fundamentally alter the nature of’ the [service being provided].” PGA Tour, Inc. v. Martin, 532 U.S. at 683, n.38 (quoting 42 U.S.C. § 12182(b)(A)(ii)). The Plaintiffs’ allegations again, however, fall short. The Plaintiffs in the Burkee Complaint do not allege that any of the six remaining Plaintiffs asserting ADA violations have a qualifying disability; that they requested a modification in policies, practices, or procedures; or that such a request was reasonable. Because the Plaintiffs “fail to set forth sufficient facts to raise a plausible inference,” Ashcroft v. Iqbal, 556 U.S. at 677-78, that the County Defendants are liable for the alleged ADA violations, the Court concludes that their ADA claim is insufficient and fails to state a claim upon which relief can be granted. II. THE PLAINTIFFS’ NEW MEXICO STATE LAW CLAIMS OF NEGLIGENCE
AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DO NOT TRIGGER A WAIVER OF THE COUNTY DEFENDANTS’ IMMUNITY UNDER NEW MEXICO LAW. The New Mexico Legislature enacted the NMTCA “in response to the New Mexico Supreme Court’s decision to abolish state sovereign immunity in Hicks v. State.” Brenneman v. Bd. of Regents of University of N.M., 2004-NMCA-003, ¶ 5, 84 P.3d 685, 686 (citing Hicks v. State, 1975-NMSC-056, 544 P.2d 1153, superseded by statute as stated in Electro-Jet Tool Mfg. Co. v. City of Albuquerque, 1992-NMSC-060, 845 P.2d 770). The NMTCA provides: “[G]overnmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.” NMSA § 41-4-5. See Upton v. Clovis Municipal Sch. Dist., 2006-NMSC-040, ¶ 8, 141 P.3d 1259, 1261 (“The TCA grants all government entities and their employees general immunity from actions in tort, but waives that immunity in certain specified circumstances.”). Thus, the Plaintiffs’ claims for
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negligence and intentional infliction of emotional distress, as against a governmental entity or a public employee, must fit within one of the exceptions to the immunity set forth in §§ 41-4-5 to 41-4-12 of the NMTCA. See Pemberton v. Cordova, 1987-NMCA-020, ¶ 4, 734 P.2d 254, 255.
Here, the Plaintiffs do not point to a waiver of immunity for their negligence and intentional infliction of emotional distress claims. Rather, the Plaintiffs, in their Response to the Motion, state that they “have specifically alleged [] constitutional violations.” Response at 5. The Plaintiffs argue that the “lesson of Lessen6 is that allegations of serious constitutional violations rising to the level of deliberate indifference to inmates’ medical needs -- indeed, a pattern and practice of such deliberate indifference -- is actionable in state tort as well as under federal law.” Response at 5. This argument is not persuasive, as the Court must determine whether the Plaintiffs’ claims in the Burkee Complaint waive the County Defendants’ immunity. The Plaintiffs’ claims are for negligence and intentional infliction of emotional distress, and not deliberate indifference. The Court analyzes whether the New Mexico law waives sovereign immunity for Plaintiffs’ claims of negligence and intentional infliction of emotional distress under the NMTCA.
The Defendants highlight this fact and assert that the Plaintiffs “cannot point to a waiver of immunity for the asserted claims.” Motion at 4. The Court has reviewed the waivers of immunity set forth in Sections 41-4-5 to 41-4-12 of the NMTCA and agrees with the Defendants that the only potentially applicable waivers the Plaintiffs can claim are § 41-4-9 -- for operation of certain medical facilities -- and § 41-4-12 for certain acts of law enforcement. Section 41-4-9 provides:
6 The Plaintiffs refer to the New Mexico Court of Appeals decision in Lessen v. City of Albuquerque, 2008-NMCA-085, 187 P.3d at 179
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The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any hospital, infirmary, mental institution, clinic, dispensary, medical care home or like facilities. NMSA § 41-4-9. The Defendants are correct, however, that the Court of Appeals of New Mexico decision in Lessen forecloses the Plaintiffs’ reliance on § 41-4-9. See Motion at 4. There, an inmate was arrested and booked into the Metropolitan Detention Center (“MDC”). 2008-NMCA-085, ¶ 3, 187 P.3d at 180. The City of Albuquerque contracted with Correctional Medical Services, Inc. (“CMS”), to provide the inmate a medical and mental health intake. See 2008-NMCA-085, ¶ 3, 187 P.3d at 180. During the intake, the inmate disclosed that he was a heroin user, and that he had prescriptions for Valium and hydrocodone. See 2008-NMCA-085, ¶ 3, 187 P.3d at 180. He was referred to the MDC detoxification unit, where his vital signs were regularly monitored and he received several medications. See 2008-NMCA-085, ¶ 3, 187 P.3d at 180. “Over the ensuing eleven hours, medical personnel noted that Decedent exhibited tremors, nausea, vomiting, and muscle aches and that he complained of sleeplessness,” symptoms consistent with heroin withdrawal. 2008-NMCA-085, ¶ 3, 187 P.3d at 180. Personnel also noted “bizarre behavior.” 2008-NMCA-085, ¶ 3, 187 P.3d at 180. The inmate was subsequently released from jail, at which point he wandered off from the jail parking lot into the nearby desert where he died of hypothermia. See 2008-NMCA-085, ¶¶ 4-8, 187 P.3d at 180-81. The Court of Appeals of New Mexico rejected the plaintiff’s argument that § 41-4-9 applied, holding that liability against a jail cannot be based on § 41-4-9 when the jail has contracted with a private entity to provide medical services. See 2008-NMCA-085, ¶¶ 28-30, 187 P.3d at 185. The Court of Appeals of New Mexico explained:
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We agree with the general proposition stated in Estelle7 and Ancata8 that governmental entities must provide appropriate medical care to persons they incarcerate. See Estelle, 429 U.S. at 103; Ancata, 769 F.2d at 705. Such governmental entities cannot escape that duty by contracting with third parties to provide the medical care, and a governmental entity “remains liable for any constitutional deprivations caused by the policies or customs of the [third party].” Ancata, 769 F.2d at 705. This is not to say, however, that a governmental entity’s constitutional obligation equates with waiver of immunity for negligent operation of an infirmary under New Mexico’s TCA. If Plaintiff had alleged and could prove that the City’s inadequate medical care deprived Decedent of a constitutional right, Plaintiff might be entitled to recover under the waiver of immunity provided in Section 41-4-12. But, as discussed in the next section of this opinion, Plaintiff’s allegations of conduct that is merely negligent are insufficient to establish such a constitutional violation. See Ancata 769 F.2d at 703 (indicating that claim of constitutional deprivation in the context of inadequate medical care requires a showing of “deliberate indifference to serious medical needs”). Because it was CMS that operated the infirmary or like facility at MDC, we affirm the district court’s summary judgment in favor of the City under Section 41-4-9.
2008-NMCA-085, ¶¶ 30-31, 187 P.3d at 185. Here, it is undisputed that, like in Lessen v. City
of Albuquerque, San Juan County contracted with Correctional Healthcare and San Juan
Regional Medical Center to provide healthcare at the San Juan County Detention Center.
Accordingly, the County Defendants cannot be held liable under § 41-4-9 for negligence and for
intentional infliction of emotional distress. In sum, the Plaintiffs cannot use § 41-4-9 to waive
the County Defendants’ immunity from suit for their negligence and intentional infliction of
emotional distress claims.9
7 Estelle v. Gamble, 429 U.S. 97 (1976).
8 Ancata v. Prison Health Servs., 769 F.2d 700 (1985).
9 The Supreme Court of New Mexico, as predicted by the Court, did not find that NMTCA § 41-4-9 would waive the County Defendants’ sovereign immunity for the Plaintiffs’ negligence and intentional infliction of emotional distress claims.
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The Court now turns to § 41-4-12 of the NMTCA, which “provides a waiver of immunity for certain torts that law enforcement officers commit and for negligence that causes a specified tort.” Williams v. Bd. of Regents of University of New Mexico, 20 F. Supp. 1177, 1189-90 (D.N.M. 2014)(Browning, J.)(citing Oliveros v. Mitchell, 449 F.3d 1091, 1096 (10th Cir. 2006). Section 41-4-12 provides:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. NMSA § 41-4-12. Thus, in order to state a tort claim under the waiver of immunity set out in Section 41-4-12, a plaintiff must demonstrate that the defendants were law enforcement officers acting within the scope of their duties, and that the plaintiff’s injuries arose out of either a tort enumerated in this section or a deprivation of a right secured by law. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶ 7, 916 P.2d 1313, 1316. As the statutory definition of “law enforcement officer” includes “any full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense,” NMSA § 41-4-3(D), correctional officers are law enforcement officers if and only if the facility in which they work primarily holds inmates awaiting trial rather than convicts, see Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1269 (D.N.M. 2010)(Browning, J.); Davis v. Bd. of Cty. Comm’rs of Dona Ana Cty., 1999-NMCA-110, ¶ 35, 987 P.2d at 1183. Compare Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶¶ 9-12, 875 P.2d 393, 397 (holding that correctional officers who work at
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facilities that principally house individuals already convicted of crimes are not law enforcement officers), with Abalos v. Bernalillo Cty. Dist. Attorney’s Office, 1987-NMCA-026, ¶¶ 26-30, 734 P.2d 794, 800 (holding that the director of a jail that housed primarily inmates awaiting trial was a law enforcement officer for the purposes of § 41-4-12). The Plaintiffs do not specify whether the Plaintiffs were already convicted of crimes or whether they were awaiting trial. The Plaintiffs refer to some of the Plaintiffs as “incarcerated,” see Burkee Complaint ¶ 89, at 13, and assert that other Plaintiffs, after they allege were denied necessary medication, had to undergo medical tests to determine the extent of the injuries they incurred, see Burkee Complaint ¶ 96, at 14. Based on these assertions, the San Juan County Detention Center appears to be a mixed facility, containing pre-trial detainees and people incarcerated for misdemeanor or lesser offenses. The County Defendants have not asserted otherwise or presented evidence to the contrary. Because the Plaintiffs have not alleged enough in the Burkee Complaint for the Court to determine the nature of the San Juan County Detention Center, under the standards set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Plaintiffs’ claims fail.
Section 41-4-12 “simply does not -- either on its face or through its construction by the New Mexico courts -- set forth a waiver of immunity for negligence.” Williams v. Bd. of Regents of University of New Mexico, 20 F. Supp. at 1193. Moreover, the Court addressed this precise issue in Williams where it explained:
Plaintiffs’ confusion stems from the literal manner in which the New Mexico courts have interpreted the language of the statute, which waives immunity from liability for “injury . . . resulting from assault, battery, false imprisonment . . . .” N.M. Stat. Ann. § 41-4-12 (emphasis added). The courts interpret this waiver as encompassing any situation in which a law enforcement officer’s actions “result” in injury from one of the enumerated intentional torts, even if the officer himself was not the one who committed the tort. See Dickson v. City of Clovis, 2010-NMCA-058, ¶ 20, 242 P.3d at 403-04 (“[A]llegations of negligence based on one of the torts specified in Section 41-4-12 are appropriate only when a law enforcement officer’s negligence allegedly caused a third party
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to commit one of the enumerated intentional acts.”); Methola v. Eddy Cty., 1980-NMSC-145, 622 P.2d 234; Weinstein v. City of Santa Fe, 1996-NMSC-021, 916 P.2d 1313. If a law enforcement officer’s negligence causes an inmate to be thrown to the wolves -- attacked, raped, or subjected to any of the other torts enumerated in the statute by people the officer should have known not to allow around the inmate -- the officer cannot hide behind the general rule of immunity against negligence claims. See, e.g., 1980-NMSC-145, ¶¶ 2-4, 26, 622 P.2d at 235, 239.
It is upon these cases, Methola v. Eddy County and Weinstein v. City of Santa Fe, that the Plaintiffs rely, but the cases stand for what Bernalillo County says they do: one of § 41-4-12’s enumerated torts must be the direct cause of the Plaintiff’s injury, which in this case means that, “without demonstrating that Defendant CHC engaged in a specific tort found under that particular subsection of the NMTCA, Plaintiffs’ claim of alleged negligent supervision against Defendant County fails and should be dismissed.” Reply at 7. As none of the six claims alleged in the SAC -- medical negligence, negligence per se based on the Emergency Medical Treatment and Active Labor Act, simple negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, or loss of consortium -- is on the list of torts enumerated in § 41-4-12, the Plaintiffs’ claim of negligence is subject to immunity under § 41-4-4, and fails as a matter of law.
Williams, 20 F. Supp. at 1193-94. Similarly, here neither the negligence nor intentional
infliction of emotional distress claims in the Burkee Complaint are on the list of torts that
§ 41-4-12 enumerates. Accordingly, for the reasons stated in Williams v. Bd. of Regents of
University of New Mexico, the Court concludes that § 41-4-12 does not waive the County
Defendants’ immunity in the instant case.
Absent a waiver of the County Defendants’ immunity for the Plaintiffs’ state law claims
of negligence and intentional infliction of emotional distress, the Plaintiffs are “unable to set
forth sufficient facts to raise a plausible inference,” Ashcroft v. Iqbal, 556 U.S. at 677-78, that
the County Defendants are liable for the alleged negligence and intentional infliction of
emotional distress. The Court concludes that the Plaintiffs’ New Mexico state law claims of
negligence and intentional infliction of emotional distress fail to state a claim upon which relief
can be granted.
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In sum, the Court concludes that the Plaintiffs’ ADA claim, and New Mexico state law
claims of negligence and intentional infliction of emotional distress, in the Burkee Complaint fail
to state a claim upon which relief can be granted. The Court therefore grants the County
Defendants’ Motion.
IT IS ORDERED that the County Defendants, San Juan County Detention Center, San
Juan County, and Thomas Havel’s Motion to Dismiss Americans with Disabilities Act Claim and
State Law Claims, filed December 2, 2015 (Doc. 116 in Burkee v. San Juan), is granted.
________________________________ UNITED STATES DISTRICT JUDGE
Counsel:
Gregory M. Tucker Mitchel S. Burns Jennifer D. Yoder Christian A. Hatfield Tucker Burns Yoder & Hatfield Law Firm Farmington, New Mexico
--and--
John Holland Erica Grossman Anna Holland Edwards Holland, Holland Edwards & Grossman, P.C. Denver, Colorado
Attorneys for the Plaintiffs
Ronald K. Childress Elaine D. Dailey Uvashi Parkhani Childress Law Firm Albuquerque, New Mexico
Attorneys for Defendants San Juan County Detention Center, San Juan County, and Thomas C. Havel - 29 -

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Robert J. Curtis Ellen M. Kelly Civerolo Gralow Hill & Curtis P.A. Albuquerque, New Mexico
Attorneys for Defendants San Juan Regional Medical Center, Eric Ketcham, and Cindy Ketcham
Brett C. Eaton W. Ann Maggiore Butt Thornton & Baehr, P.C. Albuquerque, New Mexico
Attorneys for Defendant Katie Moore Alfred A. Park Kevin D. Fowler Lawrence M. Marcus Park & Associates LLC Albuquerque, New Mexico
Attorneys for Defendant Correctional Healthcare Companies Inc. W. Mark Mowery Jessica R. Terrazas Rodey, Dickason, Sloan, Akin & Robb Santa Fe, New Mexico
Attorneys for Presbyterian Medical Services
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 Case 1:15-cv-00417-JB-LF Document 438 Filed 10/13/17 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

OLGA SALAZAR, Personal Representative of the Estate of JESUS MARQUEZ,

Plaintiff,

vs.

No. CIV 15-0417 JB/LF

SAN JUAN COUNTY DETENTION CENTER; SAN JUAN COUNTY; SAN JUAN REGIONAL MEDICAL CENTER; THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC; DR. ERIC KETCHAM, INDIVIDUALLY; CINDY KETCHAM, INDIVIDUALLY, and KATIE (Unknown Surname), RN,

Defendants,

Consolidated with

JESSE BERKEY; EARL CALLAHAN; LARIET CHARLES; GORDON DOUGLAS DERRICK; AARON EATON; CALVIN FINCH; PAUL GOULD; JOSEPH GUTIERREZ; MARK HINOJOS; THOMAS KNIGHT; AURELIO MARQUEZ; ANGELO MARTINEZ; MARK MARTINEZ; RUDY MARTINEZ; VICTORIA MARTINEZ; PAUL MATAMOROS; RICHARD MCDONALD; DEBBIE NEZ; DAVID PAGE; STEVE PARRISH; CLIFFORD ROGERS; ADAM SCHUESSLER; JASON TRUJILLO; FRANKLIN TSO; STEVE VALERIO; JIMMY WEAHKEE, and HARRY WILLIAMS,

Plaintiffs,

vs.

No. CIV 15-0439 JB/LF

SAN JUAN COUNTY DETENTION CENTER; SAN JUAN COUNTY; CORRECTIONAL HEALTHCARE COMPANIES, INC.; SAN JUAN REGIONAL MEDICAL CENTER; PRESBYTERIAN MEDICAL SERVICES; THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR, and SAN JUAN COUNTY DETENTION CENTER,

Defendants,

Case 1:15-cv-00417-JB-LF Document 438 Filed 10/13/17 Page 2 of 29

Consolidated with

CHARLES CARTER, Personal Representative of the Estate of WILLIAM “BILLY” CARTER,

Plaintiff,

vs.

No. CIV 15-0497 JB/LF

SAN JUAN COUNTY DETENTION CENTER; SAN JUAN COUNTY; SAN JUAN REGIONAL MEDICAL CENTER; THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC; DR. ERIC KETCHAM, INDIVIDUALLY, and CINDY KETCHAM, INDIVIDUALLY,

Defendants,

Consolidated with

COREY JONES, Personal Representative of the Estate of Sharon Jones,

Plaintiff,

vs.

No. CIV 15-0526 JB/LF

SAN JUAN COUNTY DETENTION CENTER; SAN JUAN COUNTY; SAN JUAN REGIONAL MEDICAL CENTER; THOMAS C. HAVEL, INDIVIDUALLY AND AS ADMINISTRATOR OF SJCDC; DR. ERIC KETCHAM, INDIVIDUALLY, and CINDY KETCHAM, INDIVIDUALLY,

Defendants. MEMORANDUM OPINION AND ORDER1

THIS MATTER comes before the Court on the Plaintiffs Jesse Berkey, Aaron Eaton,

1The Court previously issued an Order that granted the Motion. See Order, filed March 31, 2017 (Doc. 427)(“Order”). In that Order, the Court stated “[a]t a later date, the Court will issue a Memorandum Opinion detailing its rationale for its decision.” Order at 2 n.1. This Memorandum Opinion and Order is the promised opinion, and details the Court’s rationale for the previous Order, and enters an order remanding the case to state court.
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Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams and Calvin Finch’s Motion for Remand to State Court, filed August 15, 2016 (Doc. 329)(“Motion”). The Court held a hearing on October 3, 2016. The primary issue issues are: (i) whether the Court should decline to exercise its supplemental jurisdiction and remand to the Eleventh Judicial District Court, County of San Juan, State of New Mexico, the remaining statelaw claims of Plaintiffs Jesse Berkey, Aaron Eaton, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Clifford Rogers, Harry Williams, and Calvin Finch (“Remaining Plaintiffs”) against Defendants San Juan Regional Medical Center, San Juan County, the San Juan County Detention Center, and Thomas C. Havel, as well as Plaintiff Jesse Berkey’s remaining state claims against Defendant Presbyterian Medical Services, in No. CIV 15-0439; and (ii) whether the Court should remand Plaintiff Paul Matamoros’ claims with the rest of the case. The Court concludes that: (i) the remaining Plaintiffs’ federal claims in Burkee, et al. v. San Juan County Detention Center, et al., No. CIV 15-0439, have been dismissed and, therefore, the Court declines to exercise its supplemental jurisdiction over the remaining Plaintiffs’ remaining state-law claims; and (ii) the Court should remand Matamoros’ claims with the rest of the case, even though he was not a named party until after the case was removed to federal court. Accordingly, the Court grants the Motion.
FACTUAL BACKGROUND This case arises from the Plaintiffs’ incarcerations at the San Juan County Detention Center in San Juan County, New Mexico. See Burkee, et al. v. San Juan County Detention Center, et al., No. CIV 15-00439, Second Amended Complaint ¶ 1, at 2, filed on July 8, 2015, (Doc. 27)(“Burkee Complaint”). Defendant San Juan County is the public entity responsible for Defendant San Juan County Detention Center. See Burkee Complaint ¶ 11, at 3. Defendant
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Thomas Havel is the San Juan County Detention Center Administrator. See Burkee Complaint ¶ 8, at 3 (collectively “The County Defendants”). Defendant San Juan Regional Medical Center (“San Juan Regional”) provides medical care to inmates at the San Juan Detention Center. Burkee Complaint ¶ 6, at 2.
The Plaintiffs are individual residents of San Juan County who were and are incarcerated in the San Juan Detention Center between 2013 and the present. See Burkee Complaint ¶ 1, at 2. The Plaintiffs assert that they suffered various injuries while incarcerated at the San Juan Detention Center as a result of the County Defendants’ violations of federal and New Mexico law. See Burkee Complaint ¶¶ 18-153, at 4-20.
PROCEDURAL BACKGROUND The parties have litigated this case for two years. According to the Plaintiffs, the parties have stipulated to the dismissal of all of the Plaintiffs’ federal claims. See Motion at 1; Plaintiffs Eaton, Gould, Hinojos, McDonald, Parrish and A. Martinez’ Stipulation of Dismissal for Correctional Healthcare Companies, Inc. with prejudice at 2, filed September 11, 2015 (Doc. 38); Plaintiffs Finch, Gutierrez, Marquez, R. Martinez & Tso’s Stipulation of Dismissal for Correctional Healthcare Companies, Inc. with Prejudice at 2, filed September 22, 2015 (Doc. 41); Plaintiffs Valerio and Nez’ Stipulation of Dismissal for Correctional Healthcare Companies, Inc. without prejudice at 2, filed October 12, 2015 (Doc. 58); Stipulation of Voluntary Dismissal of Plaintiff Derrick’s Claims Against SJRMC in Case No. 1:15-cv-00439 at 1, filed October 13, 2015 (Doc. 60); Stipulation of Voluntary Dismissal of Plaintiff McDonald’s Claims Against SJRMC in Case No. 1:15-cv-00439 at 1, filed October 13, 2015 (Doc. 61); Stipulation of Voluntary Dismissal of Plaintiff Derrick’s Claims Against SJRMC in Case No. 1:15-cv-00439 at 1, filed October 13, 2015 (Doc. 62); Stipulation of Voluntary Dismissal of Plaintiff Nez’s Claims
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Against SJRMC in Case No. 1:15-cv-00439 at 1, filed October 13, 2015 (Doc. 63); Stipulation of Voluntary Partial Dismissal of Plaintiff Knight’s Claims Against SJRMC in Case No. 1:15-cv00439 at 1, filed October 13, 2015 (Doc. 64); Stipulation of Voluntary Dismissal of Plaintiff Valerio’s Claims Against SJRMC in Case No. 1:15-cv-00439 at 1, filed October 13, 2015 (Doc. 66); Stipulation of Voluntary Dismissal of Plaintiff Victoria Martinez’s Claims Against SJRMC in Case No. 1:15-cv-00439 at 1, filed October 14, 2015 (Doc. 69); Stipulation of Dismissal With Prejudice of Claims by Plaintiffs Derrick, Eaton, Knight, Marquez, A. Martinez, V. Martinez, Matamoras, McDonald, Nez, Parrish, Valerio, Weahkee, & Williams Against Defendant Presbyterian Medical Services at 1, filed October 26, 2015 (Doc. 74); Stipulation of Dismissal Without Prejudice of Claims by Plaintiffs Callahan, Finch, Gutierrez and Rogers Against Defendant Presbyterian Medical Services at 2, filed October 26, 2015 (Doc. 75); Stipulation of Partial Dismissal Without Prejudice of Claims by Plaintiff Berkey Against Defendant Presbyterian Medical Services at 2, filed October 26, 2015 (Doc. 76); Stipulation of Dismissal With Prejudice of Claims by Plaintiffs Gould, R. Martinez, Schuessler, and Tso Against Defendant Presbyterian Medical Services at 2, filed November 4, 2015 (Doc. 80); Stipulation of Voluntary Dismissal of Claims of Plaintiffs Nez and Weakhee Against San Juan County, San Juan County Detention Center and Thomas C. Havel at 2, filed November 12, 2015 (Doc. 89); Stipulation of Voluntary Dismissal of Claims of Plaintiffs Paul Gould, Rudy Martinez, Richard McDonald, Adam Schuessler, and Harry Williams Against San Juan County, San Juan County Detention Center and Thomas C. Havel at 2, filed November 16, 2015 (Doc. 95); Plaintiff Jimmy Weakhee’s Stipulation of Dismissal For Correctional Healthcare Companies, Inc. Without Prejudice at 2, filed November 18, 2015 (Doc. 99); Stipulation of Voluntary Dismissal of Plaintiff Weakhee’s Claims Against SJRMC in Case No. 1:15-cv-00439 at 1, filed January 7,
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2016 (Doc. 159); Stipulated Dismissal With Prejudice of All Federal Claims Against San Juan County, San Juan County Detention Center, and Thomas Havel in Burkey, et al., v. San Juan County Detention Center, et al., in Cause No. 1:15-cv-00439 JB/LF at 2, filed May 26, 2016 (Doc. 312); Stipulated Dismissal With Prejudice of All Federal Claims Against San Juan County, San Juan County Detention Center, and Thomas Havel in Berkey, et al., v. San Juan County Detention Center, et al., in Cause No. 1:15-cv-00439 JB/LF at 2, filed May 26, 2016 (Doc. 313); Stipulation of Dismissal with Prejudice of any Dental Claims by Plaintiffs Earl Callahan, Calvin Finch, Joseph Gutierrez and Clifford Douglas Rogers Against Defendant Presbyterian Medical Services at 1-2, filed June 6, 2016 (Doc. 318); Stipulation of Dismissal with Prejudice of the Claims of Plaintiffs Lariat Charles, Mark Ryan Hinojos, David Lee Page and Jason Trujillo Against Defendant Presbyterian Medical Services at 1, filed June 9, 2016 (Doc. 319); Stipulated Dismissal with Prejudice of the Claims of Thomas Knight, David Page, Earl Callahan, Adam Schuessler, Mark Hinojos, Steve Parrish, Paul Gould, Angelo Martinez, Mark Martinez, Franklin Tso, Jason Trujillo, Lariat Charles, Against Defendant San Juan Regional Medical Center at 1-2, filed August 3, 2016 (Doc. 325)(hereinafter collectively “Stipulated Dismissals”). The Plaintiffs now move to remand the case to state court.
1. The Motion. The Plaintiffs argue that, because they have stipulated to the dismissal of all of their federal claims, the Court should remand the case to state court. See Motion at 1. The Plaintiffs indicate that they have agreed with San Juan Regional and with the County Defendants that the Plaintiffs “will not move for leave to amend their complaint and to re-allege their federal claims and that the dismissals entered by the Court shall be considered by the parties to be dismissal with prejudice.” Motion at 1. The Plaintiffs argue that “‘[t]he Tenth Circuit has held that district
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courts should presume to decline jurisdiction over state claims when federal claims no longer remain.’” Motion at 3 (quoting Young v. City of Albuquerque, 77 F. Supp. 3d 1154, 1185 (D.N.M. 2014)(Browning, J.)). The Plaintiffs argue that their “federal claims have all been dismissed and the only remaining claims are state claims.” Motion at 4. They note that “quasirelated death cases that were combined for purposes of discovery were mediated in June and July of 2016, with one having settled. Those death cases continue to assert federal claims, whereas these remaining . . . plaintiffs do not assert similar federal claims.” Motion at 4.
For these reasons, the Remaining Plaintiffs move the Court to remand their remaining state claims against San Juan Regional and the County Defendants, and Berkey’s remaining state claims against Presbyterian Medical, to state court. They also note that Matamoros was not named as a plaintiff until after the case was removed to federal court. See Motion at 4-5. Accordingly, the Plaintiffs ask that, if the Court cannot remand Matamoros’ claims to state court, the Court dismiss his claims without prejudice so that he may re-file them in state court. Motion at 5.
2. The County Defendants’ Response. The County Defendants respond to the Motion. See Response to Motion for Remand for State Court, filed August 25, 2016 (Doc. 338)(“Response 1”). The County Defendants ask the Court to “retain jurisdiction and dismiss the state law claims against the County Defendants with prejudice.” Response 1 at 1. The County Defendants argue that “district courts should seek to exercise supplemental jurisdiction in an effort to vindicate values of economy, convenience, fairness, and comity.” Response 1 at 3 (quoting OneBeacon Am. Ins. Co. v. San Juan Cty., 2013 WL 5934351, at *2 (D.N.M. 2013)(Browning, J.)). The County Defendants assert that “the exercise of jurisdiction is especially appropriate in cases where the parties have expended a great
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deal of time and energy on the state law claims.” Response 1 at 4 (citing Anglemyer v. Hamilton Cty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995)). The County Defendants contend that, because they have litigated multiple state issues before the Court, the Court should retain jurisdiction. See Response 1 at 5. They add that “the state law claims do not raise any complex issues under state law.” Response 1 at 5.
3. San Juan Regional’s Response. San Juan Regional filed a separate response. See Defendant SJRMC’s Response to Plaintiffs’ Motion to Remand to State Court, filed August 30, 2016 (Doc. 339)(“Response 2”). San Juan Regional asserts that the “parties have not reached any agreement about a motion to amend Plaintiffs’ Second Amended Complaint.” Response 2 at 1. San Juan Regional notes that the “Plaintiffs have not [filed] a motion to amend, even though Plaintiffs’ planned amendment of their Second Amended Complaint has been one of the major themes of their case.” Response 2 at 2. San Juan Regional contends that the Plaintiffs’ assertion that the parties “‘have agreed that Plaintiffs will not move for leave to amend their complaint to re-allege their federal claims and that the dismissal entered by the Court shall be considered by the parties to be dismissal with prejudice’” is not true. Response 2 at 3 (quoting Motion at 1). San Juan Regional argues that the parties “cannot agree on what language would make the dismissal permanent if this Court remands any portion of Berkey.” Response 2 at 3. “SJRMC cannot be assured that Plaintiffs will not be allowed to re-allege their federal claims in state or federal court, should they choose to try.” Response 2 at 3. San Juan Regional posits that “the Order of Dismissal of the federal claims against SJRMC is an interlocutory order that this Court can reconsider at any time.” Response 2 at 3. San Juan Regional also argues that, “[g]iven the Court’s familiarity with the procedural history and facts of Berkey, remanding any portion of this case to the state courts,
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even if only the claims of Plaintiff Matamoros are remanded, would be unduly expensive, inconvenient and unfair to SJRMC.” Response 2 at 5.
4. The Reply. The Plaintiffs reply to the Responses. See Reply to Defendant SJRMC’s Response to Plaintiff’s Motion to Remand to State Court, filed September 9, 2016 (Doc. 352)(“Reply”). The Plaintiffs argue that “the dismissal of the federal claims against SJRMC with prejudice by Court order . . . and subsequent withdrawal of Plaintiffs’ Motion to Amend Order of Dismissal of All Federal Claims Against San Juan Regional Medical Center . . . moots the issue of whether Plaintiffs will further move to amend.” Reply at 1 (citing Order Dismissing All Federal Claims Against Defendant San Juan Regional Center with Prejudice in 1:15-cv-00439 JB/LF, filed November 17, 2015 (Doc. 97)). They argue that “[t]he dismissal of the federal claims with prejudice is an order of the Court.” Reply at 1. The Plaintiffs contend that the only reason they have not stipulated not to amend their Complaint to re-allege federal claims is because “counsel could not agree on the language of the stipulated dismissal.” Reply at 2. The Plaintiffs assert that they “have repeatedly agreed to dismissal with prejudice as a final order.” Reply at 2. The Plaintiffs argue that “the only remaining question is not whether plaintiffs should further amend the complaint, but whether the state law claims should be remanded, which was the point of the Motion.” Reply at 2. 5. The Hearing. The Court held a hearing on October 3, 2016. See Draft Transcript of Motion Proceeding (taken October 3, 2016)(“Tr.”).2 The Plaintiffs began by saying “we’ve effectively now dismissed all federal claims against all of the defendants.” Tr. at 3:21-23 (Hatfield). The County 2 The Court’s citations to the hearing’s transcript refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
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Defendants noted that, “they never did file the motion to amend and of course that was one of our arguments that they should not be allowed to amend it at this time.” Tr. at 7:4-7 (Childress). The County Defendants continued: “[B]ut we don’t think it would be proper to allow the plaintiffs to remand to state court and start this process all over again of attempting to bring the County Defendant[s] back in after they’ve missed the time limit to amend.” Tr. at 8:11-16 (Childress). The Court then asked the Plaintiffs: “[A]s far as Mr. Childress’ clients, can you represent that you’re not going to try to bring him back in with any sort of state or federal claims?” Tr. at 8:18-21 (Court). The Plaintiffs responded: “[W]e do not intend to do that.” Tr. at 8:22 (Hatfield). The Court asked the County Defendants: “I think you’re pretty protected, don’t you?” Tr. at 8:5-6 (Court). The County Defendants indicated that they were satisfied with that response. See Tr. at 8:7-8 (Childress).
San Juan Regional then argued that the Plaintiffs have never made an effort “to disentangle the factual basis for the state claims that are in their complaint . . . from the federal constitutional claims against the hospital.” Tr. at 9:15-17, 10:18-19 (Kelly). San Juan Regional continued that it was concerned about the status of the federal claims against it. See Tr. at 13:610 (Kelly). Specifically, it noted that the Court issued an “order last year that the Plaintiffs had agreed to dismissing the federal claims against [San Juan Regional] with prejudice . . . so we now have an interlocutory order dismissing the claims . . . actually all the federal claims against the hospital with prejudice.” Tr. at 14:11-19 (Kelly). San Juan Regional continued that “it is very unclear what the status of that interlocutory order is if the remaining state claims get remanded. Because it’s not a final judgment that the Court would be entering to remand.” Tr. 14:21-25 (Kelly). The Court then asked the Plaintiffs if they had “any intention of bringing federal claims if this case were remanded . . . against the San Juan Regional Medical Center.”
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Tr. at 15:22-24 (Court). The Plaintiffs responded: “No, Your Honor.” Tr. at 15:25 (Hatfield). The Plaintiffs added: “[W]hen we withdrew our objection to the dismissal with prejudice that the Court entered last year, I assumed that to be final, and that’s the positon we’ve taken with Ms. Kelly.” Tr. at 15:1-5 (Hatfield).
The Court then stated: The federal claims are out. I think we’ve done our work, we’ve done a lot of other work, including on state claims . . . but there [is a] fair amount of work left to be done here, so I think we’re at a point where it should go to state court. And so I am going to grant the motion for remand to state court . . . . Tr. at 17:12-18 (Court).
LAW REGARDING SUPPLEMENTAL JURISDICTION The federal courts are “courts of limited jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Federal courts “possess only that power authorized by [the] Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Among the powers that Congress has bestowed upon the courts is the power to hear controversies arising under federal law -- federal-question jurisdiction -- and controversies arising between citizens of different states -- diversity jurisdiction. See 28 U.S.C. §§ 1331-32. Section 1367 additionally grants the federal courts power to hear claims over which the court otherwise lacks original jurisdiction, if those claims are part of the same constitutional case as claims over which the court has original jurisdiction. See 28 U.S.C. § 1367(a). 1. Congressional Authority to Exercise Supplemental Jurisdiction. Although a statutory basis is necessary for federal courts to exercise jurisdiction over a controversy, “it is well established -- in certain classes of cases -- that, once a court has original jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over additional claims that are part of the same case or controversy.” Exxon Mobil Corp. v.
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Allapattah Servs., Inc., 545 U.S. at 552. The Supreme Court of the United States has long subscribed to the concept of supplemental jurisdiction recognized in two common-law doctrines, pendent jurisdiction and ancillary jurisdiction; § 1367’s passage codified those forms of jurisdiction, and additionally permitted courts to hear cases under pendent-party jurisdiction,3 which the Supreme Court had previously disallowed in Finley v. United States, 490 U.S. 545 (1989). Federal courts may exercise pendent jurisdiction over state law claims when “state and federal claims . . . derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Supplemental jurisdiction gives federal courts the flexibility to hear a cause of action after the introduction of third parties, whose insertion into the litigation does not have the support of any independent grounds for federal jurisdiction, when those parties share a common interest in the outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375 n.18 (1978).
In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the United States, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez, No. CIV 09–0540, 2011 WL 6013547, at *5 (D.N.M. Nov. 21, 2011)(Browning, J.). In response to the Committee’s findings regarding pendent, ancillary, and pendent-party jurisdiction, Congress codified the doctrines when it passed the Judicial Improvements Act of 1990:
3Pendant-party jurisdiction occurs when “a plaintiff with a federal claim against one defendant appends a state law claim, arising from a common nucleus of facts, against another defendant, who could not otherwise be sued in a federal court.” Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer, & David L. Shapiro, Hart and Wechsler’s The Federal Courts and The Federal System 867 (7th ed. 2015)(emphasis in original)(“Hart and Wechsler”). Ancillary jurisdiction refers to supplemental jurisdiction in diversity cases. See Hart and Wechsler at 1447. Pendent jurisdiction refers to supplemental jurisdiction in federal question cases. See Hart and Wechsler at 861.
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[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction . . . [that] enable them to take full advantage of the rules on claim and party joinder to deal economically -- in single rather than multiple litigation -with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990). 2. The District Courts’ Discretion to Exercise Supplemental Jurisdiction. The United States Court of Appeals for the Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726. Similarly, the supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
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(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity . . . .” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir. 1998)(“[S]ection 1367 has indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994)(“The statute plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein.”); Exec. Software N. Am. v. U.S. Dist. Ct., 24 F.3d 1545, 1557 (9th Cir. 1994)(“By codifying preexisting applications of Gibbs in subsections (c)(1)(3), however, it is clear that Congress intended the exercise of discretion to be triggered by the court’s identification of a factual predicate that corresponds to one of the section 1367(c) categories.”), overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir. 1994)(“[S]upplemental jurisdiction must be exercised in the absence of any of the four factors of section 1367(c) . . . .”); Bonadeo v. Lujan, No. CIV 08-0812, 2009 WL 1324119, at *8 (D.N.M. Apr. 30, 2009)(Browning, J.)(“28 U.S.C. § 1367(c) changed the district courts’ supplemental jurisdiction discretion analysis to prohibit courts from declining jurisdiction unless one of the conditions of 28 U.S.C. § 1367(c) exists.”).
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The Tenth Circuit has held that district courts should presume to decline jurisdiction over state claims when federal claims no longer remain: “When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)(quoting Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)). This proclamation is consistent with the Supreme Court’s statement that
[n]eedless 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. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. United Mine Workers of Amer. v. Gibbs, 383 U.S. at 726 (footnote omitted). The Court has previously stated that a district court should usually decline to exercise supplemental jurisdiction when 28 U.S.C. § 1367(c) applies. See Armijo v. New Mexico, No. CIV 08-0336, 2009 WL 3672828, at *4 (D.N.M. Sept. 30, 2009)(Browning, J.)(“The Supreme Court and the Tenth Circuit have not only acknowledged such a result, they have encouraged it.”). The Tenth Circuit has recognized that a district court does not “abuse [its] discretion” when it declines to exercise supplemental jurisdiction over a claim “under 28 U.S.C. § 1367(c)(3) . . . where it has dismissed all claims over which it has original jurisdiction.” Muller v. Culbertson, 408 F. App’x 194, 197 (10th Cir. 2011)(unpublished)4(internal quotation marks omitted).
4Muller v. Culbertson is an unpublished opinion, but the Court can rely on an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value
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ANALYSIS The Court concludes that: (i) the remaining Plaintiffs’ federal claims in Burkee, et al. v. San Juan County Detention Center, et al., No. CIV 15-0439, have been dismissed and, therefore, the Court declines to exercise its supplemental jurisdiction over the remaining Plaintiffs’ remaining state-law claims; and (ii) the Court will remand Matamoros’ claims with the rest of the case, even though he was not a named party until after the case was removed to federal court. Accordingly, the Court grants the Motion. I. THE COURT DECLINES TO EXERCISE SUPPLEMENTAL JURISDICTION OVER THE REMAINING STATE-LAW CLAIMS. The Court concludes that the Remaining Plaintiffs’ federal claims in Burkee, et al. v. San Juan County Detention Center, et al., No. CIV 15-0439, have been dismissed. Accordingly, the Court declines to exercise its supplemental jurisdiction over the Remaining Plaintiffs’ remaining state-law claims. The Court therefore grants the Motion. The Court will not exercise supplemental jurisdiction over the remaining state-law claims. The supplemental jurisdiction statute enumerates four factors that the Court should consider in determining whether to exercise supplemental jurisdiction: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original
jurisdiction, or
_________________________ with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court concludes that Muller v. Culbertson has persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion and Order.
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(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). The Tenth Circuit has held that district courts should presumptively decline jurisdiction over state claims when federal claims no longer remain in a case: “When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.” Koch v. City of Del City, 660 F.3d at 1248. The Tenth Circuit has recognized that a district court does not “abuse [its] discretion” when it declines to exercise supplemental jurisdiction over a claim “under 28 U.S.C. § 1367(c)(3) . . . where it has dismissed all claims over which it has original jurisdiction.” Muller v. Culbertson, 408 F. App’x at 197 (internal quotation marks omitted).
Here, all of the federal claims have been dismissed pursuant to the Stipulated Dismissals. See Stipulated Dismissals, supra at 4-6. Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining state-law claims. See Koch v. City of Del City, 660 F.3d at 1248 (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
The Court understands that the Plaintiffs have repeatedly discussed the possibility of amending their Complaint, which theoretically, could introduce new federal claims. In fact, “the Court heard arguments . . . regarding whether an amendment would be allowed in light of the fact that the deadline for amendments had passed,” though the Court chose not to rule on the issue until a motion was before it. Response 1 at 3-4. The County Defendants note, however, that “we are now six months past the . . . hearing, and the Plaintiffs have not filed a motion to amend the Complaint.” Response 1 at 4. To date, the Plaintiffs have not filed such a motion. The Court cannot consider a motion that is not before it.
The Court also understands that San Juan Regional alleges that “[t]he parties have not
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reached any agreement about a motion to amend Plaintiffs’ Second Amended Complaint.” Response 2 at 1. Specifically, they have not agreed on language that would make permanent the dismissal with prejudice of the federal claims in Berkey. See Response 2 at 3. The Court understands that the Order Dismissing All Federal Claims Against Defendant San Juan Regional Center with Prejudice in 1:15-CV-00439 JB/LF, filed November 17, 2015 (Doc. 97), is an interlocutory order. The Court has no plans, however, to alter this order. Further, at the hearing, the Court asked the Plaintiffs if they had “any intention of bringing federal claims if this case were remanded . . . against the San Juan Regional Medical Center.” Tr. at 15:22-24 (Court). The Plaintiffs responded: “No, Your Honor.” Tr. at 15:25 (Hatfield). The Plaintiffs added: “[W]hen we withdrew our objection to the dismissal with prejudice that the Court entered last year, I assumed that to be final, and that’s the positon we’ve taken with Ms. Kelly.” Tr. at 15:1-5 (Hatfield). Further, the Court also asked the Plaintiffs: “[A]s far as [the County Defendants], can you represent that you’re not going to try to bring [them] back in with any sort of state or federal claims?” Tr. at 8:18-21 (Court). The Plaintiffs responded: “[W]e do not intend to do that.” Tr. at 8:22 (Hatfield). The Court asked the County Defendants: “I think you’re pretty protected, don’t you?” Tr. at 8:5-6 (Court). The County Defendants indicated that they were satisfied. See Tr. at 8:7-8 (Childress). Given these counsel’s representations, the Court concludes that there is no concern about the Plaintiffs re-alleging federal claims in state court. The Court has to take as true counsel’s representations on a host of issues. The Plaintiffs’ counsel has given the Court no reason not to trust them. The Court is confident that the federal claims are now gone from this case, whether the case remains in federal court or is remanded to state court.
It is true that the Court and the parties have put a lot of work into this case. There is, however, a lot of work left to be done. There is no guarantee that the Court can, even with its
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experience in the case, do the work better or faster than the state court. All that remains are state law claims. The state court, when possible, should decide these claims. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995)(“Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.”). The Plaintiffs’ counsel has assured the Court that he will not attempt to re-allege federal claims in state court. The Court is confident that it and the parties can rely on these representations. The Defendants are as protected as they can be from federal claims. The state court is the more appropriate forum to conduct the rest of this case. II. THE COURT WILL REMAND MATAMOROS’ CLAIMS WITH THE REST OF
THE CASE. Finally, the Court concludes that it will remand Matamoros’ claims with the rest of the case. The Plaintiffs note that Matamoros was not named as a plaintiff until after the case was removed to federal court. See Motion at 4-5. Accordingly, the Plaintiffs ask that, if the Court cannot remand Matamoros’ claims to state court, the Court dismiss his claims without prejudice so that he may re-file them in state court. See Motion at 5. The Court did not locate a Tenth Circuit case on the issue of remanding a plaintiff to state court who became a party to the lawsuit after the case was removed to federal court. The Court concludes, however, that it has the power to remand Matamoros’ claims with the rest of the case. A. PUTTING ASIDE TEMPORARILY THE SUPREME COURT’S
PRECEDENTS, THE TEXT OF § 1447 SUGGESTS THAT IT IS THE APPLICABLE REMAND STATUTE. As an initial matter, from a plain reading of the relevant statutes, the applicable statute for remand in this case appears to be 28 U.S.C. § 1447 and not § 1367(c). Textually, § 1447 governs remand, whereas § 1367(c) governs supplemental jurisdiction. Title 28 of the United States Code governs the “Judiciary and Judicial Procedure.” Act June 25, 1948, c. 646, § 1, 62
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Stat. 869. Title 28 has six parts: (I) Organization of the Courts, (II) Department of Justice, (III) Court Officers and Employees, (IV) Jurisdiction and Venue, (V) Procedure, and (VI) Particular Proceedings.
Part IV, “Jurisdiction and Venue,” has eleven chapters, although Congress omitted one and repealed another: Ch. 81 Supreme Court, Ch. 83 Courts of Appeals, Ch. 85 District Courts; Jurisdiction, Ch. 87 District Courts; Venue, Ch. 89 District Courts; Removal of Cases from State Courts, [Ch. 90 District Courts and Bankruptcy Courts] [Omitted], Ch. 91, United States Court of Federal Claims, [Ch. 93, Repealed], Ch. 95 Court of International Trade, Ch. 97, Jurisdictional Immunities of Foreign States, [and] Ch. 99 General Provisions. Chapter 85, “District Courts; Jurisdiction,” defines the district court’s jurisdiction in §§ 1330-1369. As a general rule, the district courts are obligated to exercise the jurisdiction Congress gives them. See, e.g., Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014)(“[A] federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”); Cohens v. State of Virginia, 19 U.S. 264, 404 (1821)(“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.”).
In § 1367, Congress expressly gives the district courts supplemental jurisdiction: Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In § 1367(b), Congress takes away some supplemental jurisdiction in diversity cases:
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In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.
28 U.S.C. § 1367(b). In § 1367(c), Congress states the circumstances in which a district
court may decline supplemental jurisdiction over a claim:
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if--
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c)(1)-(4). Thus, § 1367(c), beginning in Part 4, Ch. 85, deals with the Court’s
jurisdiction -- when it must hear cases and when, in a limited number of cases, it can decline to
hear claims. It never mentions remand. Section 1367(c) repeatedly speaks of “claims” and not
“cases”:
The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the claim raises a novel or complex issue of State law, the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, the district court has dismissed all claims over which it has original jurisdiction . . . .
28 U.S.C. § 1367(c)(emphasis added).
In contrast, § 1447 -- part of Chapter 89 -- expressly discusses remand. Chapter 89 is
also in Part 4 of Title 28, but Chapter 89 is titled “District Courts; Removal of Cases from State
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Courts,” and includes §§ 1441-1445. Section 1446 gives the “Procedure for Removal of Civil Actions,” and § 1447 notes the “Procedure after Removal Generally.” Section 1447(c) states, in relevant part: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c)(emphasis added).
Section 1447 speaks of remanding “cases.” 28 U.S.C. § 1447(c)(“a motion to remand the case . . . an order remanding the case . . . .”)(emphasis added):
An order remanding the case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 . . . shall be reviewable by appeal or otherwise. 28 U.S.C. § 1447(d)(emphasis added). Thus, § 1367 appears to govern jurisdiction, whereas § 1447 appears to govern remand. When, under § 1367(c), the Court decides it should not exercise jurisdiction, then, under § 1447(c), the Court must remand the entire case, not just the claims that were there when the case was removed. Nothing in the text of § 1367(c) requires that the district court remand only claims; § 1367(c) facially does not have anything to do with remand. The Supreme Court has emphasized that “it is a ‘fundamental canon of statutory construction’ that, ‘unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.’” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014)(Scalia, J.). See Skyline Potato Co., Inc. v. Hi-Land Potato Co., Inc., 909 F. Supp. 2d 1225, 1240 (D.N.M. 2012)(Browning, J.)(explaining that, if statutory language has plain and unambiguous meaning, the inquiry ends). The word “case” refers to the entire case, whereas the word “claim” refers to individual claims within the case. Section 1367 does not tell the district court what to do with the claims over which it declines jurisdiction; it simply gives the Court the factors that it may use to decline jurisdiction. In other words, § 1447(c) appears to make it
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obligatory to remand “cases” when the Court chooses not to exercise supplemental jurisdiction and “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
It may be argued that § 1447(c) allows a remand only where there is “any defect other than lack of subject matter jurisdiction” or when the district court lacks “subject matter jurisdiction,” and that, when a district court declines to exercise supplemental jurisdiction over a claim, it does not lack subject matter jurisdiction, nor is there a “defect.” 28 U.S.C. § 1447(c). It seems, however, that when a district court declines to exercise supplemental jurisdiction after it dismisses all claims over which it had original jurisdiction, see 28 U.S.C. § 1367(c)(3), it “lacks subject matter jurisdiction.” In other words, § 1367(c)(3) determines whether the Court has jurisdiction; once the district court declines jurisdiction, it is just as much without subject matter jurisdiction as it would be if it dismissed the claims for lack of diversity or federal question jurisdiction.
B. SUPREME COURT PRECEDENT CASTS DOUBT ON THE COURT’S TEXTUAL CONSTRUCTION.
Although the above textual interpretation of § 1367(c) and § 1447 seems straightforward and correct, history and Supreme Court precedent compel another interpretation. The modern doctrine of supplemental jurisdiction originated in the common law doctrine of pendant jurisdiction, which refers to supplemental jurisdiction in federal question cases. See Hart and Wechsler at 861. Before the modern supplemental jurisdiction statute, § 1367(c), existed, the Supreme Court confronted the question “whether a federal district court has discretion under the doctrine of pendant jurisdiction to remand a properly removed case to state court when all federal-law claims in the action have been eliminated and only pendant state-law claims remain.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 345 (1988). The Supreme Court, in an
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opinion that Justice Marshall wrote, and Justices Brennan, Blackmun, Stevens, and O’Connor joined, held that “a district court has discretion to remand to state court a removed case involving pendant claims upon a proper determination that retaining jurisdiction would be inappropriate.” 484 U.S. at 357.
Justice White dissented, in an opinion that Chief Justice Rehnquist and Justice Scalia joined, arguing that “[t]he Court today discovers an inherent power in the federal judiciary to remand properly removed cases to state court . . . [b]ecause I believe that cases may be remanded only for reasons authorized by statute . . . I dissent.” 484 U.S. at 358 (White, J., dissenting). For Justice White, the Court’s holding was “inconsistent with Congress’ understanding of the federal courts’ remand authority.” 484 U.S. at 359.
Two years later, “Section 1367 was implemented . . . and codifie[d] the case-law doctrines of ‘pendant’ and ‘ancillary’ jurisdiction.” Administaff, Inc. v. Kaster, 799 F. Supp. 685, 688 (W.D.T.X. 1992)(Sparks, J.).
While Section 1367 does not specifically address remand, it does state that a district court “may decline to exercise supplemental jurisdiction over a claim . . . if (1) the claim raises a novel or complex issue of state law [or] (2) the [state law] claim substantially predominates over the claim or claims over which the district court has original jurisdiction . . . .” Administaff, Inc. v. Kaster, 799 F. Supp. at 688 (quoting 28 U.S.C. § 1367(c)(1)-(2)). “In Cohill, the Supreme Court determined that a district court could remand ‘a removed case involving pendant claims upon a proper determination that retaining jurisdiction over the case would be inappropriate,’ despite the lack of specific statutory authority to do so.” Administaff, Inc. v. Kaster, 799 F. Supp. at 688-89 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. at 357). At least one district court read into § 1367(c) the authority that the Supreme Court granted
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in Carnegie-Mellon Univ. v. Cohill to remand a case when the court declines to exercise supplemental jurisdiction:
Read in light of the Supreme Court’s expansion of its foremost case on pendant jurisdiction, United Mine Workers of America v. Gibbs, to allow remand of pendant claims as well as dismissal when a ‘a case properly belongs in state court,’ Section 1367(c) authorizes a district court to remand a case whenever it may decline to exercise supplemental jurisdiction over a state claim under Section 1367(c). Administaff, Inc. v. Kaster, 799 F. Supp. at 688. See Williams v. Huron Valley Sch. Dist., 858 F. Supp. 97, 100 (E.D. Mich. 1994)(Cook, C.J.)(explaining that “[t]he federal courts already possess the power to remand a case involving supplemental claims under 28 U.S.C. §§ 1367(c)(1) and (2) as well as Carnegie-Mellon University”). In 2009, the Supreme Court heard a case in which “[t]he District Court . . . remanded the case to state court as authorized by this Court’s decision in Carnegie-Mellon Univ. v. Cohill.” Carlsbad Tech., Inc. v. HIF Bio Inc., 556 U.S. 635, 637 (2009)(Thomas, J.). The Supreme Court, in a unanimous opinion by Justice Thomas, noted that “[t]his Court’s precedent makes clear that whether a court has subject-matter jurisdiction over a claim is distinct from whether a court chooses to exercises that jurisdiction.” 556 U.S. at 639 (citing Quackenbush v. Allstate Ins. Co, 517 U.S. 706, 712 (1996)). “With respect to supplemental jurisdiction in particular, a federal court has subject-matter jurisdiction over specified state-law claims, which it may (or may not) choose to exercise.” 556 U.S. at 639. “As a result, ‘the [district] court’s exercise of its discretion under § 1367(c) is not a jurisdictional matter.’”5 556 U.S. at 640 (quoting J. Moore et
5The issue before the Supreme Court in Carlsbad Tech., Inc. v. HIF Bio Inc. was whether a district court’s order remanding a case after declining to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) was reviewable on appeal. See Carlsbad Tech., Inc. v. HIF Bio Inc., 556 U.S. at 636. The conclusion that “‘the [district] court’s exercise of its discretion under § 1367(c) is not a jurisdictional matter,’” formed the basis for the case’s ultimate holding that “[t]he remand order, therefore, is not based on a ‘lack of subject matter jurisdiction’ for purposes
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al., Moore’s Federal Practice § 106.05[5], at 106-31 (3d ed. 2009)). The Supreme Court concluded that, “[w]hen a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction for purposes of §§ 1447(c) and (d).” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. at 641.
C. THE COURT’S POWER TO REMAND COMES FROM THE SUPREME COURT’S DECISION IN CARNEGIE-MELLON UNIVERSITY V. COHILL, AND NOT FROM § 1367(C) AND § 1447.
Thus, while the Supreme Court was not deciding the issue in this Court’s case when it decided Carlsbad Technology, Inc. v. HIF Bio, Inc., the Supreme Court indicated that a remand under § 1367(c) is not, despite the text and structure of the relevant statutes, a remand under § 1447, but rather, a remand under § 1367(c) and Carnegie-Mellon University v. Cohill. Although 1367(c)’s text speaks of “claims” and not “cases,” the text of 1367(c) is not where the remand power originates; rather, the remand power comes from Carnegie-Mellon University v. Cohill. That case -- even though it predates § 1367(c) -- held that “[t]his Court’s crafting of the pendant jurisdiction doctrine in Gibbs strongly supports the conclusion that when a district court may relinquish jurisdiction over a removed case involving pendant claims, the court has discretion to remand the case to state court.” Carnegie-Mellon Univ. Cohill, 484 U.S. at 351 (emphasis added). It also notes that “a remand may best promote the values of economy, convenience, fairness, and comity.” 484 U.S. at 353. Specifically, “[a]ny time a district court dismisses, rather than remands, a removed case involving pendant claims, the parties will have to refile their papers in state court, at some expense of time and money.” 484 U.S. at 353. “Moreover, the state court will have to reprocess the case, and this procedure will involve similar costs. Dismissal of the claim therefore will increase both the expense and the time involved in _________________________ of the bar to appellate review created by §§ 1447(c) and (d).” Carlsbad Tech., Inc. v. HIF Bio Inc., 556 U.S. at 640-41.
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enforcing state law.” 484 U.S. at 353. “This consequence, even taken alone, provides good reason to grant federal courts wide discretion to remand cases involving pendant claims when the exercise of pendant jurisdiction over such cases would be inappropriate.” 484 U.S. at 353 (emphasis added).
Indeed, the Court notes that remanding only some claims but not others would create logistical problems without any benefit for the Court or the parties. Dismissing Matamoros’ claims without prejudice would force him to re-file them in state court, pay a filing fee, and move to consolidate his claims with the rest of the case, or at least move to intervene in the state court. Such a rule would also burden the Court. Every time it declined to exercise jurisdiction on some, but not all, individual claims under § 1367(c), it would have to go through the case’s history and decide which claims to dismiss and which to remand. It would have to dismiss any claims added after remand. It would have to remand claims against defendants added after removal. The state court would receive these case fragments through remand and would have to put the case back together. It is hard to determine what policy -- federalism, efficiency or comity -- such a rule would advance. Further, nothing in § 1367(c) or Carnegie-Mellon University v. Cohill requires or suggests such an approach. In fact, Carnegie-Mellon University v. Cohill suggests the opposite approach, giving the district courts “wide discretion to remand cases involving pendant claims,” 484 U.S. at 353 (emphasis added).
Here, Matamoros has individual “claims,” but his claims are part of the whole “case.” Given the Court’s “wide discretion to remand cases involving pendant claims,” the Court concludes that it can, and should, remand Matamoros’ claims with the rest of the case. CarnegieMellon Univ. v. Cohill, 484 U.S. at 353. If the Court were to dismiss Matamoros’ claims without prejudice, he would have to “refile . . . papers in state court, at some expense of time and
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Case 1:15-cv-00417-JB-LF Document 438 Filed 10/13/17 Page 28 of 29
money.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. at 353. “Moreover, the state court [would] have to reprocess the case, and this procedure [would] involve similar costs. Dismissal of the claim therefore [would] increase both the expense and the time involved in enforcing state law.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. at 353.
IT IS ORDERED that: (i) Plaintiffs Jesse Berkey, Aaron Eaton, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams and Calvin Finch’s Motion for Remand to State Court, filed August 15, 2016 (Doc. 329), is granted; (ii) the case, No. CIV 15-0439, including Plaintiff Paul Matamoros’ claims, is remanded to the Eleventh Judicial District Court, San Juan County, State of New Mexico.

Counsel:
Gregory M. Tucker Mitchel S. Burns Jennifer D. Yoder Christian A. Hatfield Tucker Burns Yoder & Hatfield Law Firm Farmington, New Mexico
--and--
John Holland Anna Holland Edwards Erica Grossman Holland, Holland Edwards & Grossman, P.C. Denver, Colorado
Attorneys for the Plaintiffs

________________________________ UNITED STATES DISTRICT JUDGE

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Case 1:15-cv-00417-JB-LF Document 438 Filed 10/13/17 Page 29 of 29
Ronald Childress Elaine Dailey Urvashi Parkhani Childress Law Firm Albuquerque, New Mexico
Attorneys for Defendants San Juan County Detention Center, San Juan County, and Thomas C. Havel
Robert J. Curtis Ellen M. Kelly Robert Curtis Law Office P.A. Albuquerque, New Mexico
Attorneys for Defendants San Juan Regional Medical Center, Eric Ketcham, and Cindy Ketcham
Brett C. Eaton W. Ann Maggiore Butt Thornton & Baehr, P.C. Albuquerque, New Mexico
Attorneys for Defendant Katie Moore
Alfred A. Park Kevin D. Fowler Lawrence M. Marcus Park & Associates L.L.C. Albuquerque, New Mexico
Attorneys for Defendant Correctional Healthcare Companies Inc.
W. Mark Mowery Jessica R. Terrazas Rodey, Dickason, Sloan, Akin & Robb, P.A. Santa Fe, New Mexico
Attorneys for Defendant Presbyterian Medical Services
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 Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 1 of 47
CLOSED,LEADCS,STAYED
U.S. District Court District of New Mexico − Version 6.2.1 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:15−cv−00417−JB−LF

Salazar v. San Juan County Detention Center ("SJCDC"), et al. Assigned to: District Judge James O. Browning Referred to: Magistrate Judge Laura Fashing Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/15/2015 Date Terminated: 09/30/2016 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Olga Salazar Personal Representative of the estate of Jesus Marquez

represented by Gregory M Tucker Tucker, Burns & Yoder Law Firm 105 North Orchard Avenue Farmington, NM 87401 505−325−7755 Fax: 505−325−6239 Email: greg@tbylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Holland Edwards Holland, Holland Edwwrds & Grossman, PC 1437 High Street Denver, CO 80218 303−860−1331 Fax: 303−832−6506 Email: anna@hheglaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Christian A Hatfield Tucker Burns Yoder & Hatfield Law Firm 105 N. Orchard Avenue Farmington, NM 87401 505−325−7755 Fax: 505−325−6239 Email: christian@tbylaw.com ATTORNEY TO BE NOTICED

Erica Grossman Holland, Holland Edwards & Grossman, PC 1437 High Street Denver, CO 80218 303−860−1331 Fax: 303−832−6506 Email: erica@hheglaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer D. Yoder Tucker, Burns, Yoder & Hatfield 105 N. Orchard Avenue Farmington, NM 87401 505−325−7755 Fax: 505−325−6239 Email: jennifer@tbylaw.com ATTORNEY TO BE NOTICED

John Holland

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 2 of 47

Holland, Holland Edwards & Grossman, PC 1437 High Street Denver, CO 80218 303−860−1331 Fax: 303−832−6506 Email: john@hheglaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Mitchel S Burns Tucker, Burns & Yoder Law Firm 105 North Orchard Avenue Farmington, NM 87401 (505) 325−7755 Fax: (505) 325−6239 Email: mitch@tbylaw.com ATTORNEY TO BE NOTICED

Plaintiff
Charles Carter Personal Representative of the Estate of William "Billy" Carter

represented by Christian A Hatfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Corey Jones Personal Represenative of the Estate of Sharon Jones estate of Sharon Jones

represented by Christian A Hatfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Mitchel S Burns (See above for address) LEAD ATTORNEY

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 3 of 47

ATTORNEY TO BE NOTICED

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Plaintiff Jesse Berkey

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Plaintiff Lariet Charles

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 4 of 47

Plaintiff Gordon Douglas Derrick
Plaintiff Aaron Eaton
Plaintiff Calvin Finch

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 5 of 47

Plaintiff Paul Gould
Plaintiff Joseph Gutierrez
Plaintiff Mark Hinojos

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 6 of 47

Plaintiff Thomas Knight
Plaintiff Aurelio Marquez
Plaintiff Angelo Martinez

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 7 of 47

Plaintiff Mark Martinez
Plaintiff Rudy Martinez
Plaintiff Victoria Martinez

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 8 of 47

Plaintiff Richard McDonald
Plaintiff Debbie Nez
Plaintiff David Page

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 9 of 47

Plaintiff Steve Parrish
Plaintiff Clifford Rogers
Plaintiff Adam Schuessler

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 10 of 47

Plaintiff Jason Trujillo
Plaintiff Franklin Tso
Plaintiff Steve Valerio

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 11 of 47

Plaintiff Harry Williams
Plaintiff Earl Callahan
Plaintiff Paul Matamoros

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Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 12 of 47

Plaintiff Jimmy Weahkee
Plaintiff Carolyn Wojokowski

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Gregory M Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D. Yoder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchel S Burns (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anna Holland Edwards (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christian A Hatfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica Grossman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory M Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer D. Yoder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchel S Burns (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Holland (See above for address) ATTORNEY TO BE NOTICED

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 13 of 47

V. Defendant San Juan County Detention Center ("SJCDC")
Defendant San Juan County
Defendant San Juan Regional Medical Center ("SJRMC")

represented by Ronald J. Childress Childress Law Firm 6000 Uptown Blvd, NE #305 Albuquerque, NM 87110 505−883−8555 Fax: 505−883−9374 Email: ron@childresslawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elaine R. Dailey Childress Law Firm 6000 Uptown Blvd, NE #305 Albuquerque, NM 87110 (505) 883−8555 Fax: 883−9374 Email: edailey@Childresslawfirm.com ATTORNEY TO BE NOTICED
Urvashi Parkhani Childress Law Firm 6000 Uptown Blvd. Suite 305 Albuquerque, NM 87110 505−883−8555 Fax: 505−883−9374 Email: urvashi@childresslawfirm.com ATTORNEY TO BE NOTICED
represented by Ronald J. Childress (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elaine R. Dailey (See above for address) ATTORNEY TO BE NOTICED
Urvashi Parkhani (See above for address) ATTORNEY TO BE NOTICED
represented by Robert J. Curtis Robert Curtis Law Office PA 215 Central NW, Suite 200 Albuquerque, NM 87102 505−389−2030 Email: robert@rcurtislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen M. Kelly Robert Curtis Law Office PA 215 Central NW, Suite 200 Albuquerque, NM 87102

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 14 of 47

(505) 389−2030 Email: ellen@rcurtislaw.com ATTORNEY TO BE NOTICED

Defendant
Thomas C. Havel Individually and as Administrator of SJCDC

represented by Ronald J. Childress (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elaine R. Dailey (See above for address) ATTORNEY TO BE NOTICED

Urvashi Parkhani (See above for address) ATTORNEY TO BE NOTICED

Defendant
Eric Ketcham Dr., Individually

represented by Kevin J. Kuhn Wheeler Trigg O'Donnell, LLP 370 Seventeenth Street Suite 4500 Denver, CO 80202−5647 (303) 244−1841 Fax: (303) 244−1879 Email: kuhn@wtotrial.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robert J. Curtis (See above for address) TERMINATED: 02/25/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H Myers Wheeler Trigg O'Donnell LLP 370 17th Street Suite 4500 Denver, CO 80202 303−244−1800 Fax: 505−244−1879 Email: myers@wtotrial.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ellen M. Kelly (See above for address) TERMINATED: 02/25/2016 ATTORNEY TO BE NOTICED

Defendant
Cindy Ketcham Individually

represented by Kevin J. Kuhn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robert J. Curtis (See above for address) TERMINATED: 02/25/2016

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 15 of 47

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H Myers (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ellen M. Kelly (See above for address) TERMINATED: 02/25/2016 ATTORNEY TO BE NOTICED

Defendant
Katie Moore RN TERMINATED: 01/24/2017

represented by Brett C Eaton Butt Thornton & Baehr, PC 4101 Indian School Rd. NE Suite 300S Albuquerque, NM 87110 505−884−0777 Fax: 505−889−8870 Email: bceaton@btblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

W Ann Maggiore Butt Thornton & Baehr, P.C. P.O. Box 3170 4101 Indian School Road, NE, Suite 300 Albuquerque, NM 87190 505−884−0777 Fax: 505−889−8870 Email: wamaggiore@btblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Correctional Healthcare Companies Inc. CHC TERMINATED: 03/24/2016

represented by Alfred A Park Park & Associates, LLC 3840 Masthead St., N.E. Albuquerque, NM 87109 505−246−2805 Fax: 505−246−2806 Email: apark@parklawnm.com LEAD ATTORNEY

Kevin D. Fowler Park & Associates LLC 6100 Uptown Blvd. NE Suite 350 Albuquerque, NM 87110 505−246−2805 Fax: 505−246−2806 Email: kfowler@parklawnm.com LEAD ATTORNEY

Lawrence M Marcus Park & Associates, LLC 3840 Mashead St. N.E. Albuquerque, NM 87109 505−246−2805 Fax: 505−246−2806 Email: lmarcus@parklawnm.com LEAD ATTORNEY

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 16 of 47

Defendant Presbyterian Medical Services Presbyterian
Defendant Ramona Howard RN TERMINATED: 08/25/2017
Defendant Courtney Nyman RN TERMINATED: 01/24/2017
Defendant Yvonne Valles RN

represented by Jessica R. Terrazas Ortiz & Zamora 2011 Botulph Rd Suite 200 Santa Fe, NM 87501 505−986−2900 Fax: 505−986−2911 Email: jessica@ortiz−zamora.com LEAD ATTORNEY
W. Mark Mowery Rodey, Dickason, Sloan, Akin & Robb PO Box 1357 119 East Marcy, Suite 200 Santa Fe, NM 87504−1357 (505) 954−3900 Fax: (505) 954−3942 Email: wmmowery@rodey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa Elise Calderon Melendres, melendres & Harrigan P.C. 1017 5th St. NW Albuquerque, NM 87102 505−967−4961 Fax: 505−243−9271 Email: melissa@melendreslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Melendres Melendres, Melendres & Harrigan PC 1017 5th St NW Albuquerque, NM 87102 (505) 243−8310 Fax: 243−9271 Email: paul@melendreslaw.com ATTORNEY TO BE NOTICED
represented by Alfred A Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence M Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa Elise Calderon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Melendres (See above for address) ATTORNEY TO BE NOTICED

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 17 of 47

Defendant Mary Ann Brinkerhoff RN TERMINATED: 08/25/2017
Defendant Rebecca Ross RN
Defendant Caroline Conner RN Miscellaneous Feliz A. Rael Guardian ad Litem

represented by Melissa Elise Calderon (See above for address) ATTORNEY TO BE NOTICED
Paul Melendres (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Melendres (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Feliz A Rael 505 Marquette NW, suite 1300 Albuquerque, NM 87102 505−610−5991 Fax: 505−938−2301 Email: frael@swcp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/15/2015 05/15/2015 05/15/2015 05/15/2015
05/19/2015 05/19/2015

# Docket Text
1 COMPLAINT Complaint for Violation for Civil Rights and Wrongful Death against San Juan County Detention Center ( Filing Fee − Online Payment), filed by Olga Salazar. (Tucker, Gregory) (Entered: 05/15/2015)
Filing and Administrative Fees Received: $ 400 receipt number 1084−4064116 re 1 Complaint filed by Olga Salazar (Payment made via Pay.gov)(Tucker, Gregory) (Entered: 05/15/2015)
United States Magistrate Judge Karen B. Molzen and United States Magistrate Judge William P Lynch assigned. (ln) (Entered: 05/15/2015)
2 PLEASE TAKE NOTICE that this case has been randomly assigned to United States Magistrate Judge Karen B. Molzen to conduct dispositive proceedings in this matter, including motions and trial. Appeal from a judgment entered by a Magistrate Judge will be to the United States Court of Appeals for the Tenth Circuit. It is the responsibility of the case filer to serve a copy of this Notice upon all parties with the summons and complaint. Consent is strictly voluntary, and a party is free to withhold consent without adverse consequences. Should a party choose to consent, notice should be made no later than 21 days after entry of the Order setting the Rule 16 Initial Scheduling Conference. For e−filers, visit our Web site at www.nmd.uscourts.gov for more information and instructions. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ln) (Entered: 05/15/2015)
3 APPENDIX/SUPPLEMENT re 1 Complaint Civil Cover Sheet by Olga Salazar (Tucker, Gregory) (Entered: 05/19/2015)
4 APPENDIX/SUPPLEMENT re 1 Complaint AMENDED Civil Cover Sheet by Olga Salazar (Tucker, Gregory) (Entered: 05/19/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 18 of 47

07/09/2015 07/27/2015
07/27/2015
07/27/2015 08/06/2015
08/06/2015 08/06/2015 08/06/2015 08/06/2015 08/06/2015 08/07/2015 08/07/2015

Summons Issued as to All Defendants. (med) (Entered: 07/09/2015)
5 NOTICE of Appearance by Ronald J. Childress on behalf of Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 07/27/2015)
6 San Juan County Detention Center, San Juan County and Thomas C. Havel's ANSWER to 1 Complaint for Violation of Civil Rights and Wrongful Death by Thomas C. Havel, San Juan County, San Juan County Detention Center. Related document: 1 Complaint filed by Olga Salazar.(Childress, Ronald) (Entered: 07/27/2015)
7 DEMAND for Trial by Jury by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 07/27/2015)
8 NOTICE of Appearance by Robert J. Curtis and Ellen M. Kelly on behalf of Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center (Curtis, Robert) Modified text on 8/7/2015 (mr). (Entered: 08/06/2015)
9 ANSWER to 1 Complaint by San Juan Regional Medical Center. Related document: 1 Complaint filed by Olga Salazar.(Curtis, Robert) (Entered: 08/06/2015)
10 ANSWER to 1 Complaint by Eric Ketcham. Related document: 1 Complaint filed by Olga Salazar.(Curtis, Robert) (Entered: 08/06/2015)
11 ANSWER to 1 Complaint by Cindy Ketcham. Related document: 1 Complaint filed by Olga Salazar.(Curtis, Robert) (Entered: 08/06/2015)
12 DEMAND for Trial by Jury by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center (Curtis, Robert) (Entered: 08/06/2015)
13 Corporate Disclosure Statement by San Juan Regional Medical Center (Curtis, Robert) (Entered: 08/06/2015)
14 ORDER by Chief Magistrate Judge Karen B. Molzen that the Clerk reassign the above−captioned case to a district judge. (KBM) (Entered: 08/07/2015)
15 PLEASE TAKE NOTICE that this case has been reassigned to District Judge William P. Johnson as the trial judge.

Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.

Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

08/11/2015 08/11/2015 08/11/2015 08/11/2015 08/11/2015 08/11/2015

Magistrate Judge Karen B. Molzen no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (kdh) (Entered: 08/07/2015)
16 SUMMONS Returned Executed by Olga Salazar. Cindy Ketcham served on 7/16/2015, answer due 8/6/2015. (Tucker, Gregory) (Entered: 08/11/2015)
17 SUMMONS Returned Executed by Olga Salazar. Eric Ketcham served on 7/16/2015, answer due 8/6/2015. (Tucker, Gregory) (Entered: 08/11/2015)
18 SUMMONS Returned Executed by Olga Salazar. Katie LNU served on 7/22/2015, answer due 8/12/2015. (Tucker, Gregory) (Entered: 08/11/2015)
19 SUMMONS Returned Executed by Olga Salazar. San Juan County served on 7/16/2015, answer due 8/6/2015. (Tucker, Gregory) (Entered: 08/11/2015)
20 SUMMONS Returned Executed by Olga Salazar. San Juan Regional Medical Center served on 7/16/2015, answer due 8/6/2015. (Tucker, Gregory) (Entered: 08/11/2015)
21 SUMMONS Returned Executed by Olga Salazar. Thomas C. Havel served on 7/16/2015, answer due 8/6/2015. (Tucker, Gregory) (Entered: 08/11/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 19 of 47

08/11/2015 08/11/2015 08/12/2015 08/12/2015 08/13/2015 08/14/2015
08/14/2015
08/18/2015

22 SUMMONS Returned Executed by Olga Salazar. San Juan County Detention Center served on 7/16/2015, answer due 8/6/2015. (Tucker, Gregory) (Entered: 08/11/2015)
23 MOTION to Consolidate Cases Pursuant to Fed.R.Civ.P. 42(a) by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center. (Curtis, Robert) (Entered: 08/11/2015)
24 NOTICE of Appearance by W Ann Maggiore on behalf of Katie LNU (Maggiore, W) (Entered: 08/12/2015)
25 ANSWER to 1 Complaint with Jury Demand by Katie LNU. Related document: 1 Complaint filed by Olga Salazar.(Maggiore, W) (Entered: 08/12/2015)
26 NOTICE by Katie LNU Notice of Non−Availability from 12/23−1/4/16, 1/11−1/15/16 (Maggiore, W) Modified text on 8/14/2015 (kg). (Entered: 08/13/2015)
27 INITIAL SCHEDULING ORDER by Magistrate Judge William P. Lynch: Joint Status Report due by 9/29/2015. Scheduling Conference set for 10/6/2015 at 01:30 PM in Albuquerque − Telephonic Hearing/Conference before Magistrate Judge William P. Lynch. (ran) (Entered: 08/14/2015)
28 MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson denying 23 MOTION to Consolidate Cases Pursuant to Fed.R.Civ.P. 42(a) filed by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center. (rwg) (Entered: 08/14/2015)
29 PLEASE TAKE NOTICE that this case has been reassigned to Magistrate Judge Steven C. Yarbrough as the pretrial judge.

Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.

Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

08/19/2015 08/20/2015
08/24/2015 08/24/2015

Magistrate Judge William P Lynch no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (med) (Entered: 08/18/2015)
30 ORDER by Magistrate Judge William P. Lynch: The Initial Scheduling Conference set for 10/6/2015 is hereby VACATED. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ran) (Entered: 08/19/2015)
31 INITIAL SCHEDULING ORDER: by Magistrate Judge Steven C. Yarbrough Rule 16(c) Hearing set for 10/6/2015 at 01:30 PM in Albuquerque − Telephonic Hearing/Conference before Magistrate Judge Steven C. Yarbrough. The parties shall call Judge Yarbrough's Meet Me line at 505−348−2277 to connect to the proceedings. Joint Status Report due by 9/22/2015. (rlk) (Entered: 08/20/2015)
32 ORDER by District Judge William P. Johnson consolidating cases and transferring to United States District Judge James O. Browning for all discovery, pre−trial and trial purposes AS FURTHER DESCRIBED HEREIN.(mag) (Entered: 08/24/2015)
33 PLEASE TAKE NOTICE that this case has been reassigned to District Judge James O. Browning as the trial judge.

Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.

Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

District Judge William P. Johnson no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (ln) (Entered: 08/24/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 20 of 47

08/25/2015 09/04/2015

34 ORDER re 31 Initial Scheduling Order by Magistrate Judge Steven C. Yarbrough. The Initial Scheduling Order is hereby VACATED. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (rlk) (Entered: 08/25/2015)
35 PLEASE TAKE NOTICE that this case has been reassigned to Magistrate Judge Laura Fashing as the pretrial judge.

Under D.N.M.LR−Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.

Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

09/08/2015 09/11/2015
09/11/2015 09/15/2015
09/15/2015
09/22/2015 09/23/2015 09/23/2015 09/25/2015 09/25/2015
09/25/2015 09/25/2015

Magistrate Judge Steven C. Yarbrough no longer assigned to this case. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (kdh) (Entered: 09/08/2015)
36 CERTIFICATE OF SERVICE by San Juan Regional Medical Center Discovery Responses to Plaintiffs' First Requests for Production (Curtis, Robert) (Entered: 09/08/2015)
37 MOTION for Summary Judgment at to Plaintiff Seve Valerio's Claims by Correctional Healthcare Companies Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Park, Alfred) (Entered: 09/11/2015)
38 STIPULATION of Dismissal of Plaintiffs Eaton, Gould, Hinojos, McDonald, Parrish and A. Martinez' Claims against CHC by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 09/11/2015)
39 NOTICE of Status Conference scheduled for 9/24/2015 at 10:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 09/15/2015)
40 INITIAL SCHEDULING ORDER by District Judge James O. Browning scheduling the Initial Scheduling Conference for 9/24/2015 at 10:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. JSR/PDD due 9/23/2015.(kw) (Entered: 09/15/2015)
41 STIPULATION of Dismissal as to Plaintiffs Finch, Gutierrez, Marquez, R. Martinez & Tso against Correctional Healthcare Companies, Inc. by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 09/22/2015)
42 NOTICE of Appearance by Brett C Eaton on behalf of Katie LNU (Eaton, Brett) (Entered: 09/23/2015)
43 Joint Status Report and Provisional Discovery Plan by Correctional Healthcare Companies Inc. (Marcus, Lawrence) (Entered: 09/23/2015)
44 NOTICE of Appearance by Gregory M Tucker on behalf of All Plaintiffs (Tucker, Gregory) (Entered: 09/25/2015)
45 CERTIFICATE OF SERVICE by Jesse Berkey, Earl Callahan, Charles Carter, Calvin Finch, Mark Hinojos, David Page, Clifford Rogers, Jason Trujillo of answers to first set of interrogatories and responses to first request for production (Burns, Mitchel) Modified text on 9/25/2015 (dmw). (Entered: 09/25/2015)
46 STIPULATED ORDER by District Judge James O. Browning of Dismissal for Claims of Plaintiffs Eaton, Gould, Hinojos, McDonald, Parrish and A. Martinez Against Correctional Healthcare Companies, Inc. 38 (dmw) (Entered: 09/25/2015)
47 STIPULATED ORDER by District Judge James O. Browning of Dismissal for Claims of Plaintiffs Finch, Gutierrez, Marquez, R. Martinez and Tso Against Correctgional Healthcare Companies, Inc. 41 (dmw) (Entered: 09/25/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 21 of 47

09/28/2015
09/30/2015 09/30/2015
10/01/2015 10/01/2015 10/02/2015 10/05/2015 10/06/2015 10/06/2015 10/08/2015 10/12/2015 10/13/2015 10/13/2015 10/13/2015 10/13/2015 10/13/2015

48 First MOTION for Injunctive Relief by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hatfield, Christian) Modified text on 9/28/2015 (dmw). (Entered: 09/28/2015)
49 Amendment of ANSWER to Complaint by Interlineation by Presbyterian Medical Services. Related document: 1 Complaint filed by Olga Salazar.(Mowery, W.) Modified on 9/30/2015 (dmw). (Entered: 09/30/2015)
50 CERTIFICATE OF SERVICE by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams of amended initial disclosures (Burns, Mitchel) Modified text on 9/30/2015 (dmw). (Entered: 09/30/2015)
51 SCHEDULING ORDER by District Judge James O. Browning(dmw) (Entered: 10/01/2015)
52 ORDER ADOPTING JOINT STATUS REPORT AND PROVISIONAL DISCOVERY PLAN 43 by District Judge James O. Browning (dmw) (Entered: 10/01/2015)
53 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County Detention Center Rule 26 (a) (1) Initial Disclosures (Childress, Ronald) (Entered: 10/02/2015)
54 CERTIFICATE OF SERVICE by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center re Initial Disclosures (Curtis, Robert) (Entered: 10/05/2015)
55 CERTIFICATE OF SERVICE by Katie Moore for Initial Disclosures (Eaton, Brett) (Entered: 10/06/2015)
56 CERTIFICATE OF SERVICE by Correctional Healthcare Companies Inc. Initial Disclosures (Marcus, Lawrence) (Entered: 10/06/2015)
57 CERTIFICATE OF SERVICE by Jesse Berkey, Lariet Charles, Aaron Eaton, Calvin Finch, Victoria Martinez of answers and responses to firste set of interrogatories and request for production of documents (Hatfield, Christian) Modified text on 10/8/2015 (dmw). (Entered: 10/08/2015)
58 STIPULATION of Dismissal by Plaintiff's Valerio and Nez by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 10/12/2015)
59 CERTIFICATE OF SERVICE by David Page, Clifford Rogers First Set of Interrogatories and Responses to First Request for Production of Documents (Hatfield, Christian) Modified text on 10/14/2015 (kg). (Entered: 10/13/2015)
60 "FILED IN ERROR" wrong document attached, will refile. STIPULATION of Dismissal of Plaintiff Valerio's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) Modified text on 10/13/2015 (bap). (Entered: 10/13/2015)
61 STIPULATION of Dismissal of Plaintiff McDonald's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 10/13/2015)
62 STIPULATION of Dismissal of Plaintiff Derrick's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 10/13/2015)
63 STIPULATION of Dismissal of Plaintiff Nez's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 10/13/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 22 of 47

10/13/2015 10/13/2015 10/13/2015 10/14/2015 10/14/2015 10/14/2015 10/15/2015 10/16/2015 10/22/2015 10/26/2015
10/26/2015
10/26/2015 10/26/2015 10/27/2015 10/28/2015 10/28/2015

64 STIPULATION of Dismissal of Plaintiff Knight's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 10/13/2015)
65 NOTICE by San Juan County Detention Center of Agreed Extension of Time to Respond to Plaintiffs' Motion for Injunctive Relief Against San Juan County Detention Center (Childress, Ronald) (Entered: 10/13/2015)
66 STIPULATION of Dismissal of Plaintiff Valerio's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 10/13/2015)
67 CERTIFICATE OF SERVICE by Charles Carter, Corey Jones, Olga Salazar Plaintiffs' Initial Disclosures (Burns, Mitchel) Modified text on 10/15/2015 (kg). (Entered: 10/14/2015)
68 NOTICE of Status Conference scheduled for 11/24/2015 at 10:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 10/14/2015)
69 STIPULATION of Dismissal of Plaintiff Victoria Martinez's Claims against SJRMC in Case No. 1:15−cv−00439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 10/14/2015)
70 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00439 JB−LF by San Juan Regional Medical Center. (Attachments: # 1 Exhibit A)(Curtis, Robert) (Entered: 10/15/2015)
71 STIPULATED ORDER OF DISMISSAL by District Judge James O. Browning for claims of Plaintiffs Valerio and Nez Against Correctional Healthcare Companies Inc. (CHC) without prejudice. (kg) (Entered: 10/16/2015)
72 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Supplemental Response to Plaintiffs First Request for Production in Berkey Case No. 1:15−cv−439 (Curtis, Robert) Modified abbreviations on 10/22/2015 (dmw). (Entered: 10/22/2015)
73 RESPONSE to Motion re 48 First MOTION Injunctive Relief filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Attachments: # 1 Exhibit Hospital records 8/28, # 2 Exhibit Hospital Records 9/24, # 3 Exhibit Records/Neuro, # 4 Exhibit Helath Requests, # 5 Exhibit Dr. Order Sheets, # 6 Exhibit Progress Notes, # 7 Affidavit Galloway, # 8 Exhibit Spread Sheet)(Childress, Ronald) (Entered: 10/26/2015)
74 STIPULATION of Dismissal Stipulation of Dismissal with prejudice by Gordon Douglas Derrick, Aaron Eaton, Thomas Knight, Aurelio Marquez, Angelo Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, Steve Parrish, Steve Valerio, Jimmy Weahkee, Harry Williams (Burns, Mitchel) (Entered: 10/26/2015)
75 STIPULATION of Dismissal Stipulation of Dismissal without prejudice by Earl Callahan, Calvin Finch, Joseph Gutierrez, Clifford Rogers (Burns, Mitchel) (Entered: 10/26/2015)
76 STIPULATION of Dismissal Stipulation of Dismissal without prejudice by Jesse Berkey (Burns, Mitchel) (Entered: 10/26/2015)
77 MOTION to Compel Discovery Responses from Plaintiff Mark Martinez by Presbyterian Medical Services. (Mowery, W.) (Entered: 10/27/2015)
78 ERRATA re 73 Response to Motion, For Injunctive Relief by Thomas C. Havel, San Juan County, San Juan County Detention Center (Attachments: # 1 Errata Affidavit)(Childress, Ronald) (Entered: 10/28/2015)
79 CERTIFICATE OF SERVICE by Gordon Douglas Derrick, Joseph Gutierrez, Aurelio Marquez, Mark Martinez, Paul Matamoros, Debbie Nez, Steve Parrish, Jason Trujillo Certificate of Service (Hatfield, Christian) (Entered: 10/28/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 23 of 47

11/04/2015 11/04/2015 11/06/2015
11/06/2015 11/09/2015 11/11/2015 11/12/2015 11/12/2015
11/12/2015 11/12/2015 11/12/2015 11/13/2015 11/13/2015

80 STIPULATION of Dismissal Stipulation of Dismissal with prejudice by Paul Gould, Rudy Martinez, Adam Schuessler, Franklin Tso (Burns, Mitchel) (Entered: 11/04/2015)
81 NOTICE of Briefing Complete by San Juan Regional Medical Center re 70 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00439 JB−LF filed by San Juan Regional Medical Center (Kelly, Ellen) (Entered: 11/04/2015)
82 RESPONSE to Motion re 70 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00439 JB−LF Response to Motion to Dismiss filed by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Tucker, Gregory) (Entered: 11/06/2015)
83 CERTIFICATE OF SERVICE by Mark Hinojos, Thomas Knight, Steve Valerio of answers and responses to first set of interrogatories and first request for production of documents (Hatfield, Christian) Modified text on 11/6/2015 (dmw). (Entered: 11/06/2015)
84 RESPONSE to Motion re 77 MOTION to Compel Discovery Responses from Plaintiff Mark Martinez filed by Mark Martinez. (Burns, Mitchel) Modified text on 11/9/2015 (dmw). (Entered: 11/09/2015)
85 CERTIFICATE OF SERVICE by Earl Callahan, Angelo Martinez, Franklin Tso of First Set of Interrogatories and Responses to First Request for Production of Documents (Hatfield, Christian) Modified text on 11/12/2015 (bap). (Entered: 11/11/2015)
86 CERTIFICATE OF SERVICE by Correctional Healthcare Companies Inc. Second Set of Interrogatories to Plaintiff Gordon Douglas Derrick (Park, Alfred) (Entered: 11/12/2015)
87 NOTICE of motion hearing regarding 1) Correctional Healthcare Companies, Inc.'s Motion for Summary Judgment as to Plaintiff Steve Valerio's Claims 37 ; 2) Plaintiffs' Motion for Injunctive Relief Against Defendant San Juan County Detention Center 48 ; 3) Defendant San Juan Regional Medical Center's Motion to Dismiss All Federal Claims Against It 70 ; and 4) Defendant Presbyterian Medical Services' Motion to Compel Discovery Responses From Plaintiff Mark Martinez 77 scheduled for 11/24/2015 at 10:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 11/12/2015)
88 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 37 Motion for Summary Judgment, by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 11/12/2015)
89 STIPULATION of Dismissal Of Claims Of Plaintiffs Nez and Weakhee Against San Juan County, San Juan County Detention Center, and Thomas Havel by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 11/12/2015)
90 NOTICE of Briefing Complete by San Juan Regional Medical Center re 70 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00439 JB−LF filed by San Juan Regional Medical Center (Curtis, Robert) (Entered: 11/12/2015)
91 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories, Admissions and Requests for Production to Plaintiff Jesse Berkey (Curtis, Robert) Modified abbreviation on 11/13/2015 (dmw). (Entered: 11/13/2015)
92 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories and Admissions to Plaintiff Earl Callahan (Curtis, Robert) Modified abbreviation on 11/13/2015 (dmw). (Entered: 11/13/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 24 of 47

11/13/2015 11/13/2015 11/16/2015 11/17/2015 11/17/2015 11/17/2015 11/18/2015 11/18/2015 11/18/2015 11/19/2015 11/20/2015 11/20/2015
11/20/2015
11/20/2015

93 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories, Admissions and Requests for Production to Plaintiff Mark Hinojos (Curtis, Robert) Modified abbreviation on 11/13/2015 (dmw). (Entered: 11/13/2015)
94 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories and Admissions to Plaintiff Mark Martinez (Curtis, Robert) Modified abbreviation on 11/16/2015 (dmw). (Entered: 11/13/2015)
95 STIPULATION of Dismissal Of Claims Of Plaintiffs Paul Gould, Rudy Martinez, Richard McDonald, Adam Schuessler, and Harry Williams Against San Juan County, San Juan County Detention Center, and Thomas Havel by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 11/16/2015)
96 REPLY in Support re 77 MOTION to Compel Discovery Responses from Plaintiff Mark Martinez filed by Presbyterian Medical Services. (Mowery, W.) Modified text on 11/18/2015 (dmw). (Entered: 11/17/2015)
97 ORDER by District Judge James O. Browning granting 70 Motion to Dismiss All Federal Claims against San Juan Regional Center With Prejudice in 1:15−CV−00439 JB/LF (dmw) (Entered: 11/17/2015)
98 CERTIFICATE OF SERVICE by Katie Moore for First Interrogatories and Requests for Production to Olga Salazar, as Personal Representative (Eaton, Brett) Modified abbreviation on 11/18/2015 (dmw). (Entered: 11/17/2015)
99 STIPULATION of Dismissal for Jimmy Weakhee's Claims Against Correctional Healthcare Companies without Prejudice by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 11/18/2015)
100 MOTION for Summary Judgment On Paul Matamoros' Section 1983 Claim by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 11/18/2015)
101 NOTICE by Thomas C. Havel, San Juan County, San Juan County Detention Center re 100 MOTION for Summary Judgment On Paul Matamoros' Section 1983 Claim .....Notice Of Agreed Upon Extension Of Page Limitation For Exhibits (Childress, Ronald) (Entered: 11/18/2015)
103 CERTIFICATE OF SERVICE by San Juan Regional Medical Center for First Requests for Admission, Interrogatories, and Request for Production to Franklin Tso (Kelly, Ellen) (Entered: 11/19/2015)
104 STIPULATED ORDER by District Judge James O. Browning of Dismissal for Claims of Plaintiff Jimmy Weakhee Against Correctional Healthcare Companies (dmw) (Entered: 11/20/2015)
105 Witness List by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Yoder, Jennifer) (Entered: 11/20/2015)
106 First MOTION for Leave to Appear Telephonic Motion for Telephonic Appearance of Paul Matamoros by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Yoder, Jennifer) Modified text on 11/20/2015 (dmw). (Entered: 11/20/2015)
107 First MOTION for Leave to Appear Telephonic Motion for Telephonic Appearance of Christopher Yarnell by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 25 of 47

11/20/2015 11/20/2015 11/20/2015 11/20/2015 11/23/2015
11/23/2015 11/23/2015 11/23/2015
11/30/2015 12/02/2015 12/02/2015 12/04/2015 12/04/2015 12/04/2015 12/08/2015

Valerio, Jimmy Weahkee, Harry Williams. (Yoder, Jennifer) Modified text on 11/20/2015 (dmw). (Entered: 11/20/2015)
108 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County Detention Center First Set of Interrogatories and Request for Production of Documents to Charles Carter as Personal Representative of the Estate of William "Billy" Carter (Childress, Ronald) (Entered: 11/20/2015)
109 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County Detention Center First Set of Interrogatories and Request for Production of Documents to Corey Jones as Personal Representative of the Estate of Sharon Jones (Childress, Ronald) (Entered: 11/20/2015)
110 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County Detention Center First Set of Interrogatories and Request for Production of Documents to Olga Salazar as Personal Representative of the Estate of Jesus Marquez (Childress, Ronald) (Entered: 11/20/2015)
111 MOTION to Vacate 87 Notice of Hearing on Motion,, Hearing on Plaintiffs' Motion for Injunctive Relief Against Defendant San Juan County by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 11/20/2015)
112 NOTICE of motion hearing regarding the Expedited Motion to Vacate Hearing on Plaintiffs' Motion for Injunctive Relief Against Defendant San Juan County 111 scheduled for 11/23/2015 at 11:00 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. Counsel who wish to appear telephonically for the hearing, should call the Court's meet−me−conference line ((505) 348−2041) to be connected to the hearing.(kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 11/23/2015)
113 ORDER by District Judge James O. Browning granting 106 Motion for Leave for Paul Mastamoros to Appear Telephonically (dmw) (Entered: 11/23/2015)
114 ORDER by District Judge James O. Browning granting 107 Motion for Leave for Christopher Yarnell to Appear Telephonically (dmw) (Entered: 11/23/2015)
138 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 11/23/2015 re 111 MOTION to Vacate 87 Notice of Hearing on Motion for Injunctive Relief Against Defendant San Juan County filed by San Juan County Detention Center, San Juan County, Thomas C. Havel. (Court Reporter J. Bean) (dmw) (Entered: 12/14/2015)
115 MOTION for Judgment on the Pleadings as to the Federal Claims of Plaintiff Gordon Douglas Derrick and Plaintiff Victoria Martinez by Correctional Healthcare Companies Inc.. (Park, Alfred) (Entered: 11/30/2015)
116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 12/02/2015)
117 MEMORANDUM in Support re 116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 12/02/2015)
118 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00417 JB−LF by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 12/04/2015)
119 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00417 JB−LF by Cindy Ketcham. (Curtis, Robert) (Entered: 12/04/2015)
120 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00417 JB−LF by Eric Ketcham. (Curtis, Robert) (Entered: 12/04/2015)
121 RESPONSE to Motion re 100 MOTION for Summary Judgment On Paul Matamoros' Section 1983 Claim filed by Paul Matamoros. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 26 of 47

12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/08/2015 12/09/2015
12/09/2015 12/11/2015
12/11/2015

Exhibit)(Hatfield, Christian) Modified text on 12/8/2015 (dmw). (Entered: 12/08/2015)
122 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00526 JB−LF by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 12/08/2015)
123 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00497 JB−LF by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 12/08/2015)
124 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00526 JB−LF by Eric Ketcham. (Curtis, Robert) (Entered: 12/08/2015)
125 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00497 JB−LF by Eric Ketcham. (Curtis, Robert) (Entered: 12/08/2015)
126 NOTICE by Eric Ketcham re 120 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00417 JB−LF Notice of Errata (Curtis, Robert) (Entered: 12/08/2015)
127 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00526 JB−LF by Cindy Ketcham. (Curtis, Robert) (Entered: 12/08/2015)
128 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00497 JB−LF by Cindy Ketcham. (Curtis, Robert) (Entered: 12/08/2015)
129 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories, Admissions and Requests for Production to Plaintiff Thomas Knight (Curtis, Robert) Modified abbreviation on 12/9/2015 (dmw). (Entered: 12/08/2015)
130 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories, Admissions and Requests for Production to Plaintiff Harold Williams (Curtis, Robert) Modified abbreviation on 12/9/2015 (dmw). (Entered: 12/08/2015)
131 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories, Admissions and Requests for Production to Plaintiff Clifford Rogers (Curtis, Robert) Modified abbreviation on 12/9/2015 (dmw). (Entered: 12/08/2015)
132 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Interrogatories, Admissions and Requests for Production to Plaintiff Aaron Eaton (Curtis, Robert) Modified abbreviation on 12/9/2015 (dmw). (Entered: 12/08/2015)
133 CERTIFICATE OF SERVICE by San Juan Regional Medical Center First Request for Admissions to Plaintiff Paul Gould (Curtis, Robert) Modified abbreviation on 12/9/2015 (dmw). (Entered: 12/08/2015)
134 First MOTION to Amend/Correct 97 Order on Motion to Dismiss Motion to Amend Order of Dismissal of all Federal Claims against Defendant San Juan Regional Medical Center with Prejudice by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Tucker, Gregory) (Entered: 12/09/2015)
135 STIPULATION of Dismissal Stipulation of Dismissal with prejudice by Mark Martinez (Burns, Mitchel) (Entered: 12/09/2015)
136 First MOTION Status Conference Request for Forthwith Status Conference by Jesse Berkey, Earl Callahan, Charles Carter, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Corey Jones, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Olga Salazar, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Tucker, Gregory) (Entered: 12/11/2015)
137 MOTION to Dismiss by Presbyterian Medical Services. (Mowery, W.) (Entered: 12/11/2015)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 27 of 47

12/14/2015 12/14/2015 12/14/2015 12/15/2015
12/15/2015
12/15/2015
12/15/2015 12/15/2015

139 NOTICE of motion hearing regarding the Motion for Summary Judgment as to Plaintiff Paul Matamoros' Section 1983 Claim (CAUSE NO. 1:15−0417 JB/LF) 100 scheduled for 1/21/2016 at 01:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/14/2015)
140 NOTICE of motion hearing regarding the Request for Forthwith Status Conference to Discuss Pending Motions to Dismiss, Modifications to the Scheduling Order, and Schedule for Amendment of Pleadings of Hearing on Motion 136 scheduled for 12/16/2015 at 03:00 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/14/2015)
141 NOTICE OF WITHDRAWAL OF DOCUMENT re 77 Motion to Compel Discovery Responses by Presbyterian Medical Services (Mowery, W.) Modified linkage/text on 12/15/2015 (dmw). (Entered: 12/14/2015)
142 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Charles Carter, Gordon Douglas Derrick, Corey Jones, Olga Salazar by Mitchel S Burns on behalf of: Anna Holland Edwards Holland, Holland Edwards & Grossman, P.C. 1437 High Street Denver, CO 80218 303−860−1331 Fax 303−832−6506 anna@hheglaw.com (Association Dues − Online Payment) (Burns, Mitchel) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/15/2015)
143 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Charles Carter, Gordon Douglas Derrick, Corey Jones, Olga Salazar by Mitchel S Burns on behalf of: Erica Grossman Holland, Holland Edwards & Grossman, P.C. 1437 High Street Denver, CO 80218 303−860−1331 Fax 303−832−6506 erica@hheglaw.com (Association Dues − Online Payment) (Burns, Mitchel) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/15/2015)
144 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Charles Carter, Gordon Douglas Derrick, Corey Jones, Olga Salazar by Mitchel S Burns on behalf of: John Holland Holland, Holland Edwards & Grossman, P.C. 1437 High Street Denver, CO 80218 303−860−1331 Fax 303−832−6506 john@hheglaw.com (Association Dues − Online Payment) (Burns, Mitchel) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/15/2015)
145 NOTICE by Charles Carter, Gordon Douglas Derrick, Corey Jones, Olga Salazar Certification for Admission Pro Hac Vice (Burns, Mitchel) (Entered: 12/15/2015)
Association Dues Received: $ 100 receipt number 1084−4348518 re: # 142 Association of Attorney Licensed Outside the District,, filed by Corey Jones, Charles Carter, Olga Salazar, Gordon Douglas Derrick (Payment made via Pay.gov)(Burns,

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 28 of 47

12/15/2015 12/15/2015 12/16/2015 12/16/2015 12/16/2015 12/16/2015 12/16/2015 12/16/2015 12/17/2015 12/18/2015 12/18/2015
12/22/2015 12/22/2015 12/23/2015
01/06/2016

Mitchel) (Entered: 12/15/2015)
Association Dues Received: $ 100 receipt number 1084−4348540 re: # 143 Association of Attorney Licensed Outside the District,, filed by Corey Jones, Charles Carter, Olga Salazar, Gordon Douglas Derrick (Payment made via Pay.gov)(Burns, Mitchel) (Entered: 12/15/2015)
Association Dues Received: $ 100 receipt number 1084−4348559 re: # 144 Association of Attorney Licensed Outside the District,, filed by Corey Jones, Charles Carter, Olga Salazar, Gordon Douglas Derrick (Payment made via Pay.gov)(Burns, Mitchel) (Entered: 12/15/2015)
146 RESPONSE to Motion re 136 First MOTION Status Conference Request for Forthwith Status Conference filed by Correctional Healthcare Companies Inc.. (Park, Alfred) (Entered: 12/16/2015)
147 NOTICE of Briefing Complete by Correctional Healthcare Companies Inc. re 115 MOTION for Judgment on the Pleadings as to the Federal Claims of Plaintiff Gordon Douglas Derrick and Plaintiff Victoria Martinez filed by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 12/16/2015)
148 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 147 Notice of Briefing Complete, by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 12/16/2015)
149 RESPONSE to Motion re 100 MOTION for Summary Judgment On Paul Matamoros' Section 1983 Claim Supplemental Response to Motion for Summary Judgment filed by Paul Matamoros. (Attachments: # 1 Exhibit, # 2 Affidavit)(Hatfield, Christian) (Entered: 12/16/2015)
150 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, vacating the motion hearing scheduled for 1/21/2016. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kw) (Entered: 12/16/2015)
161 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 12/16/2015 re 136 First MOTION for Status Conference Request for Forthwith Status Conference (Court Reporter J. Bean) (dmw) (Entered: 01/11/2016)
151 NOTICE by Gordon Douglas Derrick, Victoria Martinez Stipulated Notice of Extension of Time (Yoder, Jennifer) (Entered: 12/17/2015)
152 CERTIFICATE OF SERVICE by Gordon Douglas Derrick of Second Set of Interrogatories (Yoder, Jennifer) Modified text on 12/18/2015 (dmw). (Entered: 12/18/2015)
153 NOTICE of motion hearing regarding Doc. Nos. 100 , 115 , 116 , 118 , 119 , 120 , 122 , 123 , 124 , 125 , 127 , 128 , 134 and 137 scheduled for 2/18/2016 at 08:30 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/18/2015)
154 NOTICE of Appearance by Kevin D. Fowler on behalf of Correctional Healthcare Companies Inc. (Fowler, Kevin) (Entered: 12/22/2015)
155 CERTIFICATE OF SERVICE by Jesse Berkey, Earl Callahan, Franklin Tso First Set of Requests for Admission, Interrogatories and Requests for Production of Documents (Tucker, Gregory) Modified text on 12/23/2015 (kg). (Entered: 12/22/2015)
156 RESPONSE to Motion re 134 First MOTION to Amend/Correct 97 Order on Motion to Dismiss Motion to Amend Order of Dismissal of all Federal Claims against Defendant San Juan Regional Medical Center with Prejudice re Case No. 1:15−cv−00439 JB/LF filed by San Juan Regional Medical Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Curtis, Robert) (Entered: 12/23/2015)
157 MOTION to Strike Testimony Of Dr. Jonathan Rudolf by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Attachments: # 1 Exhibit Excerpts From Testimony)(Childress, Ronald) (Entered: 01/06/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 29 of 47

01/07/2016 01/08/2016 01/11/2016 01/12/2016 01/12/2016 01/12/2016
01/12/2016 01/12/2016
01/13/2016 01/13/2016 01/14/2016 01/14/2016

159 STIPULATION of Dismissal of Plaintiff Weahkee's Claims Against SJRMC in Case No. 1:15−cv−439 by San Juan Regional Medical Center (Curtis, Robert) (Entered: 01/07/2016)
160 CERTIFICATE OF SERVICE by San Juan Regional Medical Center Third Supplemental Responses to Plaintiffs' First Request for Production in Case 1:15−cv−00439 (Curtis, Robert) (Entered: 01/08/2016)
162 MOTION to Compel Medical Authorization From Christopher Yarnell by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Attachments: # 1 Exhibit e−mail, # 2 Exhibit e−mail)(Childress, Ronald) (Entered: 01/11/2016)
163 REPLY to Response to Motion re 100 MOTION for Summary Judgment On Paul Matamoros' Section 1983 Claim filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 01/12/2016)
164 ***FILED IN ERROR*** RESPONSE to Motion re 48 First MOTION Injunctive Relief filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) Modified text on 1/12/2016, will refile (kg). (Entered: 01/12/2016)
165 NOTICE by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams Stipulated Notice of Extension of Time (Burns, Mitchel) (Entered: 01/12/2016)
167 NOTICE of Briefing Complete by Thomas C. Havel, San Juan County, San Juan County Detention Center re 100 MOTION for Summary Judgment On Paul Matamoros' Section 1983 Claim filed by San Juan County Detention Center, San Juan County, Thomas C. Havel (Childress, Ronald) (Entered: 01/12/2016)
168 RESPONSE to Motion re 116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims filed by Jesse Berkey, Earl Callahan, Charles Carter, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Corey Jones, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Olga Salazar, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Hatfield, Christian) Modified text on 1/12/2016 (dmw). (Entered: 01/12/2016)
169 CERTIFICATE OF SERVICE by Mark Hinojos, Thomas Knight, Mark Martinez of first set of requests for admission, interrogatories and requests for production (Tucker, Gregory) Modified text on 1/14/2016 (dmw). (Entered: 01/13/2016)
170 CERTIFICATE OF SERVICE by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center Rule 26(e) First Supplemental Initial Disclosures re Jesus Marquez (Curtis, Robert) (Entered: 01/13/2016)
171 RESPONSE to Motion re 115 MOTION for Judgment on the Pleadings as to the Federal Claims of Plaintiff Gordon Douglas Derrick and Plaintiff Victoria Martinez filed by Gordon Douglas Derrick, Victoria Martinez. (Yoder, Jennifer) Modified text on 1/14/2016 (dmw). (Entered: 01/14/2016)
172 REPLY to Response to Motion re 134 First MOTION to Amend/Correct 97 Order on Motion to Dismiss Motion to Amend Order of Dismissal of all Federal Claims against Defendant San Juan Regional Medical Center with Prejudice filed by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Tucker, Gregory) Modified text on 1/14/2016 (dmw). (Entered: 01/14/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 30 of 47

01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/15/2016 01/20/2016
01/21/2016
01/26/2016

173 RESPONSE to Motion re 137 MOTION to Dismiss Plaintiffs' Response to PMS Motion to Dismiss filed by Jesse Berkey, Lariet Charles, Mark Hinojos, David Page, Jason Trujillo. (Burns, Mitchel) (Entered: 01/15/2016)
174 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying 48 Motion for Injunctive Relief (dmw) (Entered: 01/15/2016)
175 MOTION to Amend/Correct Complaint by Olga Salazar. (Attachments: # 1 Exhibit A − Amended Complaint)(Grossman, Erica) (Entered: 01/15/2016)
176 MOTION to Amend/Correct Complaint by Corey Jones. (Attachments: # 1 Exhibit A − Amended Complaint)(Grossman, Erica) (Entered: 01/15/2016)
177 MOTION to Amend/Correct Complaint by Charles Carter. (Attachments: # 1 Exhibit A − Amended Complaint)(Grossman, Erica) (Entered: 01/15/2016)
178 RESPONSE in Opposition re 118 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00417 JB−LF filed by Olga Salazar. (Grossman, Erica) (Entered: 01/15/2016)
179 RESPONSE in Opposition re 119 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00417 JB−LF filed by Olga Salazar. (Grossman, Erica) (Entered: 01/15/2016)
180 RESPONSE in Opposition re 120 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00417 JB−LF filed by Olga Salazar. (Grossman, Erica) (Entered: 01/15/2016)
181 RESPONSE in Opposition re 122 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00526 JB−LF filed by Corey Jones. (Grossman, Erica) (Entered: 01/15/2016)
182 RESPONSE in Opposition re 127 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00526 JB−LF filed by Corey Jones. (Grossman, Erica) (Entered: 01/15/2016)
183 RESPONSE to Motion re 124 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00526 JB−LF filed by Corey Jones. (Grossman, Erica) (Entered: 01/15/2016)
184 RESPONSE in Opposition re 123 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00497 JB−LF filed by Charles Carter. (Grossman, Erica) (Entered: 01/15/2016)
185 RESPONSE in Opposition re 128 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00497 JB−LF filed by Charles Carter. (Grossman, Erica) (Entered: 01/15/2016)
186 RESPONSE to Motion re 125 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00497 JB−LF filed by Charles Carter. (Grossman, Erica) (Entered: 01/15/2016)
187 REPLY to Response to Motion re 116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 01/20/2016)
188 NOTICE of Briefing Complete by Thomas C. Havel, San Juan County, San Juan County Detention Center re 116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims filed by San Juan County Detention Center, San Juan County, Thomas C. Havel (Childress, Ronald) (Entered: 01/21/2016)
189 RESPONSE in Opposition re 177 MOTION to Amend/Correct Complaint, 176 MOTION to Amend/Correct Complaint, 175 MOTION to Amend/Correct Complaint filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Childress, Ronald) (Entered: 01/26/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 31 of 47

01/26/2016 01/26/2016
01/26/2016 01/26/2016 01/27/2016 01/27/2016 01/28/2016 01/28/2016 01/28/2016 01/28/2016 01/28/2016 01/28/2016 02/02/2016 02/02/2016 02/02/2016 02/03/2016

190 NOTICE by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center re 177 MOTION to Amend/Correct Complaint, 176 MOTION to Amend/Correct Complaint, 175 MOTION to Amend/Correct Complaint of Agreement of Extension of Time until February 3, 2016 to Respond (Curtis, Robert) (Entered: 01/26/2016)
191 NOTICE by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center re 184 Response in Opposition to Motion, 179 Response in Opposition to Motion, 185 Response in Opposition to Motion, 180 Response in Opposition to Motion, 181 Response in Opposition to Motion, 186 Response to Motion, 182 Response in Opposition to Motion, 178 Response in Opposition to Motion, 183 Response to Motion of Agreement of Extension of Time until February 3, 2016 to Reply (Curtis, Robert) (Entered: 01/26/2016)
192 CERTIFICATE OF SERVICE by Olga Salazar of responses to first set of interrogatories and requests for production (Burns, Mitchel) Modified text on 1/27/2016 (dmw). (Entered: 01/26/2016)
193 CERTIFICATE OF SERVICE by Olga Salazar of responses to firset set of interrogatories and requests for production (Burns, Mitchel) Modified text on 1/27/2016 (dmw). (Entered: 01/26/2016)
194 CERTIFICATE OF SERVICE by Corey Jones of first set of interrogatories and requests for production (Holland, John) Modified to add text on 1/27/2016 (dmw). (Entered: 01/27/2016)
195 CERTIFICATE OF SERVICE by Charles Carter of responeds to first set of interrogatories and requests for production (Burns, Mitchel) Modified to add text on 1/28/2016 (dmw). (Entered: 01/27/2016)
196 NOTICE by Katie Moore re 189 Response in Opposition to Motion, Joinder in Response (Eaton, Brett) (Entered: 01/28/2016)
197 CERTIFICATE OF SERVICE by San Juan Regional Medical Center of First Request for Admissions, Interrogatories, and Request for Production to Plaintiff Lariet Charles (Curtis, Robert) (Entered: 01/28/2016)
198 REPLY in Support re 137 MOTION to Dismiss filed by Presbyterian Medical Services. (Attachments: # 1 Exhibit A)(Terrazas, Jessica) Modified text on 1/28/2016 (dmw). (Entered: 01/28/2016)
199 REPLY to Response to Motion re 115 MOTION for Judgment on the Pleadings as to the Federal Claims of Plaintiff Gordon Douglas Derrick and Plaintiff Victoria Martinez filed by Correctional Healthcare Companies Inc.. (Marcus, Lawrence) (Entered: 01/28/2016)
200 NOTICE of Briefing Complete by Correctional Healthcare Companies Inc. re 115 MOTION for Judgment on the Pleadings as to the Federal Claims of Plaintiff Gordon Douglas Derrick and Plaintiff Victoria Martinez filed by Correctional Healthcare Companies Inc. (Marcus, Lawrence) (Entered: 01/28/2016)
201 NOTICE of Briefing Complete by Presbyterian Medical Services re 137 MOTION to Dismiss filed by Presbyterian Medical Services (Terrazas, Jessica) (Entered: 01/28/2016)
202 NOTICE by San Juan Regional Medical Center re 189 Response in Opposition to Motion, of Joinder in County Defendants' Response to Plaintiffs' Motions to Amend Complaint (Curtis, Robert) (Entered: 02/02/2016)
203 NOTICE by Cindy Ketcham re 189 Response in Opposition to Motion, of Joinder in County Defendants' Response to Plaintiffs' Motions to Amend Complaint (Curtis, Robert) (Entered: 02/02/2016)
204 NOTICE by Eric Ketcham re 189 Response in Opposition to Motion, of Joinder in County Defendants' Response to Plaintiffs' Motions to Amend Complaint (Curtis, Robert) (Entered: 02/02/2016)
205 REPLY to Response to Motion re 118 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00417 JB−LF to Plaintiff's Response 178 filed by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/03/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 32 of 47

02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016 02/03/2016

206 REPLY to Response to Motion re 119 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00417 JB−LF to Plaintiff's Response 179 filed by Cindy Ketcham. (Curtis, Robert) (Entered: 02/03/2016)
207 REPLY to Response to Motion re 120 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00417 JB−LF to Plaintiff's Response 180 filed by Eric Ketcham. (Curtis, Robert) (Entered: 02/03/2016)
208 REPLY to Response to Motion re 123 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00497 JB−LF to Plaintiff's Response 184 ] filed by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/03/2016)
209 REPLY to Response to Motion re 128 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00497 JB−LF to Plaintiff's Response 185 filed by Cindy Ketcham. (Curtis, Robert) (Entered: 02/03/2016)
210 REPLY to Response to Motion re 125 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00497 JB−LF to Plaintiff's Response 186 filed by Eric Ketcham. (Curtis, Robert) (Entered: 02/03/2016)
211 REPLY to Response to Motion re 122 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00526 JB−LF to Plaintiff's Response 181 filed by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/03/2016)
212 REPLY to Response to Motion re 127 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00526 JB−LF to Plaintiff's Response 182 filed by Cindy Ketcham. (Curtis, Robert) (Entered: 02/03/2016)
213 REPLY to Response to Motion re 124 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00526 JB−LF to Plaintiff's Response 183 filed by Eric Ketcham. (Curtis, Robert) (Entered: 02/03/2016)
214 NOTICE of Briefing Complete by San Juan Regional Medical Center re 118 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00417 JB−LF filed by San Juan Regional Medical Center (Curtis, Robert) (Entered: 02/03/2016)
215 NOTICE of Briefing Complete by Cindy Ketcham re 119 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00417 JB−LF filed by Cindy Ketcham (Curtis, Robert) (Entered: 02/03/2016)
216 NOTICE of Briefing Complete by Eric Ketcham re 120 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00417 JB−LF filed by Eric Ketcham (Curtis, Robert) (Entered: 02/03/2016)
217 NOTICE of Briefing Complete by San Juan Regional Medical Center re 123 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00497 JB−LF filed by San Juan Regional Medical Center (Curtis, Robert) (Entered: 02/03/2016)
218 NOTICE of Briefing Complete by Cindy Ketcham re 128 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00497 JB−LF filed by Cindy Ketcham (Curtis, Robert) (Entered: 02/03/2016)
219 NOTICE of Briefing Complete by Eric Ketcham re 125 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00497 JB−LF filed by Eric Ketcham (Curtis, Robert) (Entered: 02/03/2016)
220 NOTICE of Briefing Complete by San Juan Regional Medical Center re 122 MOTION to Dismiss All Federal Claims Against SJRMC in Case No. 1:15−cv−00526 JB−LF filed by San Juan Regional Medical Center (Curtis, Robert) (Entered: 02/03/2016)
221 NOTICE of Briefing Complete by Cindy Ketcham re 127 MOTION to Dismiss All Federal Claims Against Cindy Ketcham in Case No. 1:15−cv−00526 JB−LF filed by Cindy Ketcham (Curtis, Robert) (Entered: 02/03/2016)
222 NOTICE of Briefing Complete by Eric Ketcham re 124 MOTION to Dismiss All Federal Claims Against Eric Ketcham in Case No. 1:15−cv−00526 JB−LF filed by Eric Ketcham (Curtis, Robert) (Entered: 02/03/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 33 of 47

02/04/2016 02/05/2016 02/05/2016 02/17/2016 02/17/2016
02/17/2016 02/17/2016 02/17/2016 02/17/2016 02/18/2016 02/19/2016 02/19/2016 02/22/2016 02/22/2016

223 NOTICE OF WITHDRAWAL OF DOCUMENT re 162 by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 02/04/2016)
224 REPLY to Response to Motion re 177 MOTION to Amend/Correct Complaint, 176 MOTION to Amend/Correct Complaint, 175 MOTION to Amend/Correct Complaint filed by Charles Carter, Corey Jones, Olga Salazar. (Edwards, Anna) (Entered: 02/05/2016)
225 NOTICE of Briefing Complete by Charles Carter, Corey Jones, Olga Salazar re 177 MOTION to Amend/Correct Complaint filed by Charles Carter, 176 MOTION to Amend/Correct Complaint filed by Corey Jones, 175 MOTION to Amend/Correct Complaint filed by Olga Salazar (Edwards, Anna) (Entered: 02/05/2016)
226 CERTIFICATE OF SERVICE by Charles Carter, Corey Jones, Olga Salazar Plaintiffs Combined Discovery Requests to Defendants (Edwards, Anna) (Entered: 02/17/2016)
227 RESPONSE to Motion re 137 MOTION to Dismiss , 116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims, 115 MOTION for Judgment on the Pleadings as to the Federal Claims of Plaintiff Gordon Douglas Derrick and Plaintiff Victoria Martinez Supplemental Partial Proffer in Support of Alternative Request for Leave to Amend filed by Jesse Berkey, Earl Callahan, Lariet Charles, Gordon Douglas Derrick, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Victoria Martinez, Paul Matamoros, Richard McDonald, Debbie Nez, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Tucker, Gregory) (Entered: 02/17/2016)
228 Joint MOTION to Dismiss partial claims of Plaintiff Marquez by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/17/2016)
229 Joint MOTION to Dismiss partial claims of Plaintiff Jones by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/17/2016)
230 Joint MOTION to Dismiss partial claims of Plaintiff Carter by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/17/2016)
231 MOTION to Strike 227 Response to Motion, Supplemental Partial Proffer by Correctional Healthcare Companies Inc. (Marcus, Lawrence) (Entered: 02/17/2016)
232 Unopposed MOTION to Withdraw and Substitution of Counsel for Defendants Eric Ketcham and Cindy Ketcham by Cindy Ketcham, Eric Ketcham, San Juan Regional Medical Center. (Curtis, Robert) (Entered: 02/18/2016)
233 Unopposed MOTION to Withdraw and Substitution of Counsel for Defendant San Juan Regional Medical Center by San Juan Regional Medical Center. (Kelly, Ellen) (Entered: 02/19/2016)
234 NOTICE by San Juan Regional Medical Center re 233 Unopposed MOTION to Withdraw and Substitution of Counsel for Defendant San Juan Regional Medical Center of Change of Firm and Address in Case Nos. 115cv417, 439, 497 & 526 JB−LF (Kelly, Ellen) (Entered: 02/19/2016)
235 NOTICE of Appearance by Kevin J. Kuhn on behalf of Cindy Ketcham, Eric Ketcham (Kuhn, Kevin) (Entered: 02/22/2016)
236 ASSOCIATION of Attorney Licensed Outside the District for Defendants Cindy Ketcham, Eric Ketcham by Kevin J. Kuhn on behalf of: Andrew H. Myers Wheeler Trigg O'Donnell LLP 370 17th Street, Suite 4500 Denver 303−244−1800 Fax 303−244−1879 myers@wtotrial.com (Association Dues − Online Payment) (Kuhn, Kevin) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered:

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 34 of 47

02/22/2016 02/22/2016 02/24/2016

02/22/2016)
Association Dues Received: $ 100 receipt number 1084−4436784 re: # 236 Association of Attorney Licensed Outside the District, filed by Cindy Ketcham, Eric Ketcham (Payment made via Pay.gov)(Kuhn, Kevin) (Entered: 02/22/2016)
237 NOTICE by Cindy Ketcham, Eric Ketcham Certification for Admission Pro Hac Vice (Kuhn, Kevin) (Entered: 02/22/2016)
238 TRANSCRIPT of Motion Proceedings held on September 24, 2015, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Tape Number: NA. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

02/24/2016

Notice of Intent to Request Redaction set for 3/2/2016. Redaction Request due 3/16/2016. Redacted Transcript Deadline set for 3/28/2016. Release of Transcript Restriction set for 5/24/2016.(jab) (Entered: 02/24/2016)
239 TRANSCRIPT of Motion Proceedings held on February 18, 2016, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Tape Number: NA. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016

Notice of Intent to Request Redaction set for 3/2/2016. Redaction Request due 3/16/2016. Redacted Transcript Deadline set for 3/28/2016. Release of Transcript Restriction set for 5/24/2016.(jab) (Entered: 02/24/2016)
240 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 118 Motion to Dismiss by San Juan Regional Medical Center (Curtis, Robert) (Entered: 02/25/2016)
241 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 123 Motion to Dismiss by San Juan Regional Medical Center (Curtis, Robert) (Entered: 02/25/2016)
242 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 122 Motion to Dismiss by San Juan Regional Medical Center (Curtis, Robert) (Entered: 02/25/2016)
243 NOTICE OF WITHDRAWAL OF DOCUMENT by Eric Ketcham (Kuhn, Kevin) (Entered: 02/25/2016)
244 NOTICE OF WITHDRAWAL OF DOCUMENT as to 119 Motion to Dismiss by Cindy Ketcham (Kuhn, Kevin) Modified linkage on 2/26/2016 (dmw). (Entered: 02/25/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 35 of 47

02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/25/2016 02/29/2016
02/29/2016
02/29/2016
03/08/2016

245 NOTICE OF WITHDRAWAL OF DOCUMENT as to 124 Motion to Dismiss by Eric Ketcham (Kuhn, Kevin) Modified linkage on 2/26/2016 (dmw). (Entered: 02/25/2016)
246 NOTICE OF WITHDRAWAL OF DOCUMENT as to 127 Motion to Dismiss by Cindy Ketcham (Kuhn, Kevin) Modified linkage on 2/26/2016 (dmw). (Entered: 02/25/2016)
247 NOTICE OF WITHDRAWAL OF DOCUMENT as to 125 Motion to Dismiss by Eric Ketcham (Kuhn, Kevin) Modified linkage on 2/26/2016 (dmw). (Entered: 02/25/2016)
248 NOTICE OF WITHDRAWAL OF DOCUMENT as to 128 Motion to Dismiss by Cindy Ketcham (Kuhn, Kevin) Modified linkage on 2/26/2016 (dmw). (Entered: 02/25/2016)
249 ORDER by District Judge James O. Browning granting 228 Motion for Partial Dismissal of Claims Against All Defendants (dmw) (Entered: 02/29/2016)
250 ORDER by District Judge James O. Browning granting 229 Motion for Partial Dismissal of Claims (dmw) (Entered: 02/29/2016)
251 ORDER by District Judge James O. Browning granting 230 Motion for Partial Dismissal of Claims (dmw) (Entered: 02/29/2016)
252 ORDER by District Judge James O. Browning granting 232 Motion to Withdraw as Attorney for Eric and Cindy Ketcham. Attorneys Robert J. Curtis and Ellen M. Kelly terminated (dmw) (Entered: 02/29/2016)
253 ORDER by District Judge James O. Browning granting 233 Motion to Withdraw as Attorney for San Juan Regional Medical Center. Attorneys Robert J. Curtis and Ellen M. Kelly terminated (dmw) (Entered: 02/29/2016)
254 ORDER by District Judge James O. Browning granting 175 176 177 Motions to Amend Complaint (dmw) (Entered: 02/29/2016)
255 AMENDED COMPLAINT against San Juan County, Katie Moore, Cindy Ketcham, San Juan County Detention Center, Eric Ketcham, San Juan Regional Medical Center, Thomas C. Havel, Ramona Howard, Courtney Nyman, Yvonne Valles. adding Yvonne Valles, Ramona Howard and Courtney Nyman, Ramona Howard, Courtney Nyman and Yvonne Valles., filed by Olga Salazar. (Edwards, Anna) (Entered: 02/29/2016)
256 AMENDED COMPLAINT against San Juan County, Cindy Ketcham, San Juan County Detention Center, San Juan Regional Medical Center, Thomas C. Havel. adding Carolyn Wojokowski and Carolyn Wojokowski, Carolyn Wojokowski, Mary Ann Brinkerhoff, Rebecca Ross and Caroline Conner., filed by Corey Jones, Carolyn Wojokowski. (Holland, John) (Entered: 02/29/2016)
257 AMENDED COMPLAINT against San Juan County, Mary Ann Brinkerhoff, Ramona Howard, Cindy Ketcham, San Juan County Detention Center, San Juan Regional Medical Center, Thomas C. Havel., filed by Charles Carter. (Grossman, Erica) (Entered: 02/29/2016)
258 TRANSCRIPT of Motion Proceedings held on December 16, 2015, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Tape Number: NA. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 36 of 47

03/09/2016 03/09/2016 03/09/2016 03/09/2016 03/10/2016
03/10/2016
03/10/2016 03/14/2016 03/14/2016
03/14/2016
03/14/2016
03/15/2016 03/16/2016 03/17/2016 03/17/2016 03/17/2016 03/17/2016

Notice of Intent to Request Redaction set for 3/15/2016. Redaction Request due 3/29/2016. Redacted Transcript Deadline set for 4/8/2016. Release of Transcript Restriction set for 6/6/2016.(jab) (Entered: 03/08/2016)
259 WAIVER OF SERVICE Returned Executed by Carolyn Wojokowski, Corey Jones as to Caroline Conner. (Edwards, Anna) (Entered: 03/09/2016)
260 WAIVER OF SERVICE Returned Executed by Carolyn Wojokowski, Corey Jones, Charles Carter as to Mary Ann Brinkerhoff. (Edwards, Anna) (Entered: 03/09/2016)
261 WAIVER OF SERVICE Returned Executed by Olga Salazar, Charles Carter as to Ramona Howard. (Edwards, Anna) (Entered: 03/09/2016)
262 WAIVER OF SERVICE Returned Executed by Olga Salazar as to Yvonne Valles. (Edwards, Anna) (Entered: 03/09/2016)
263 MOTION for Extension of Time to File Answer re 257 Amended Complaint, 256 Amended Complaint, 255 Amended Complaint, or Otherwise Answer Plaintiffs Salazar, Jones & Carter's Amended Complaints by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 03/10/2016)
264 JOINDER to 263 MOTION for Extension of Time to File Answer re 257 Amended Complaint, 256 Amended Complaint, 255 Amended Complaint, or Otherwise Answer Plaintiffs Salazar, Jones & Carter's Amended Complaints (CASE NO. 15 CV 417 JB/LF and DOC NO. 255 ONLY) joined by Defendant Katie Moore. (Maggiore, W) (Entered: 03/10/2016)
265 NOTICE by Cindy Ketcham, Eric Ketcham re 257 Amended Complaint OF AGREEMENT OF EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFFS' AMENDED COMPLAINTS (Kuhn, Kevin) (Entered: 03/10/2016)
266 ORDER by District Judge James O. Browning granting Defendant Correctional Healthcare Companies' Motion to Compel Supplemental of Plaintiffs' Initial Disclosures filed 8/3/2015 doc. 70 in CV−15−0439 (bap) (Entered: 03/14/2016)
267 Board of Commissioners for San Juan County and Thomas C. Havel's (Individually and in his Offical Capacity as Administrator of San Juan County Detention Center) ANSWER to 255 Amended Complaint, by Thomas C. Havel, San Juan County, San Juan County Detention Center.(Childress, Ronald) (Entered: 03/14/2016)
268 Board of Commissioners for San Juan County, Thomas C. Havel's (Individually and in his Official Capacity as Administrator of San Juan County Detention Center) and Caroline Conner's ANSWER to 256 Amended Complaint, by Caroline Conner, Thomas C. Havel, San Juan County, San Juan County Detention Center.(Childress, Ronald) (Entered: 03/14/2016)
269 Board of Commissioners for San Juan County and Thomas C. Havel's (Individually and in his Official Capacity as Administrator of San Juan County Detention Center) ANSWER to 257 Amended Complaint by Thomas C. Havel, San Juan County, San Juan County Detention Center.(Childress, Ronald) (Entered: 03/14/2016)
270 NOTICE by San Juan Regional Medical Center of Change of Firm and Address to Robert Curtis Law Office, P.A. (Curtis, Robert) (Entered: 03/15/2016)
271 NOTICE of Appearance by Melissa Elise Calderon on behalf of Ramona Howard, Yvonne Valles (Calderon, Melissa) (Entered: 03/16/2016)
272 NOTICE of Appearance by Melissa Elise Calderon on behalf of Mary Ann Brinkerhoff (Calderon, Melissa) (Entered: 03/17/2016)
273 NOTICE of Appearance by Melissa Elise Calderon on behalf of Ramona Howard (Calderon, Melissa) (Entered: 03/17/2016)
274 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 263 Motion for Extension of Time to File Answer, by San Juan Regional Medical Center (Curtis, Robert) (Entered: 03/17/2016)
275 NOTICE by San Juan Regional Medical Center of Agreement of Extension of Time to Answer Plaintiffs' Amended Complaints (Curtis, Robert) (Entered: 03/17/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 37 of 47

03/18/2016 03/18/2016 03/18/2016
03/18/2016 03/21/2016 03/21/2016 03/21/2016 03/21/2016 03/21/2016 03/24/2016 03/28/2016
04/01/2016 04/04/2016 04/04/2016 04/04/2016 04/06/2016 04/06/2016 04/06/2016 04/06/2016 04/06/2016

276 CERTIFICATE OF SERVICE by Katie Moore Answers to Interrogatories 16, 17, 18 of Plaintiff's Combined Interrogatories (Maggiore, W) (Entered: 03/18/2016)
277 NOTICE by Katie Moore re 255 Amended Complaint, of Agreement of Extension of Time to Answer or Otherwise Respond to Plaintiffs Amended Complaint (Maggiore, W) (Entered: 03/18/2016)
278 NOTICE of Discovery Hearing scheduled for 3/21/2016 at 02:00 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. Should the parties wish to appear telephonically for this hearing they should contact the Court's CRD at (505) 348−2289 to make arrangements to do so.(kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 03/18/2016)
Summons Issued on First Amended Complaint as to Courtney Nyman, Rebecca Ross. (kdh) (Entered: 03/18/2016)
279 STIPULATION of Dismissal of Gordon Douglas Derrick and Victoria Martinez' Claims by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 03/21/2016)
280 CERTIFICATE OF SERVICE by Cindy Ketcham of responses and objections to combined discovery requests (Kuhn, Kevin) Modified to add text on 3/21/2016 (dmw). (Entered: 03/21/2016)
281 STIPULATED PROTECTIVE ORDER OF CONFIDENTIALITY by District Judge James O. Browning. (dmw) (Entered: 03/21/2016)
282 MOTION to Dismiss with Prejudice by Cindy Ketcham. (Attachments: # 1 Exhibit A − Transcript for Hearing on 2−18−16)(Kuhn, Kevin) (Entered: 03/21/2016)
283 MOTION to Dismiss with Prejudice by Eric Ketcham. (Attachments: # 1 Exhibit A − Transcript of Hearing on 2−18−16)(Kuhn, Kevin) (Entered: 03/21/2016)
284 STIPULATED ORDER by District Judge James O. Browning of Dismissal for Claims of Plaintiffs Gordon Douglas Derrick and Victoria Martinez Against Correctional Healthcare Companies, Inc. (dmw) (Entered: 03/24/2016)
285 NOTICE by Charles Carter, Corey Jones, Olga Salazar, Carolyn Wojokowski re 282 MOTION to Dismiss with Prejudice, 283 MOTION to Dismiss with Prejudice of Agreed Extension of Time to Respond to Motions of Dismiss (Holland, John) (Entered: 03/28/2016)
286 ANSWER to 255 Amended Complaint, by Katie Moore.(Maggiore, W) (Entered: 04/01/2016)
287 SJRMC's ANSWER to 255 Amended Complaint, (Salazar) by San Juan Regional Medical Center.(Curtis, Robert) (Entered: 04/04/2016)
288 SJRMC's ANSWER to 256 Amended Complaint, (Jones) by San Juan Regional Medical Center.(Curtis, Robert) (Entered: 04/04/2016)
289 SJRMC's ANSWER to 257 Amended Complaint (Carter) by San Juan Regional Medical Center.(Curtis, Robert) (Entered: 04/04/2016)
290 ANSWER to 255 Amended Complaint, by Ramona Howard.(Calderon, Melissa) (Entered: 04/06/2016)
291 ANSWER to 255 Amended Complaint, by Yvonne Valles.(Calderon, Melissa) (Entered: 04/06/2016)
292 ANSWER to 257 Amended Complaint by Mary Ann Brinkerhoff.(Calderon, Melissa) (Entered: 04/06/2016)
293 ANSWER to 257 Amended Complaint by Ramona Howard.(Calderon, Melissa) (Entered: 04/06/2016)
294 ANSWER to 256 Amended Complaint, by Mary Ann Brinkerhoff.(Calderon, Melissa) (Entered: 04/06/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 38 of 47

04/06/2016 04/06/2016 04/06/2016 04/06/2016 04/06/2016
04/08/2016 04/08/2016 04/11/2016
04/14/2016 04/14/2016 04/15/2016 04/15/2016 04/18/2016 05/06/2016 05/06/2016 05/06/2016 05/26/2016 05/26/2016
05/26/2016

295 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Yvonne Valles. (Calderon, Melissa) (Entered: 04/06/2016)
296 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Mary Ann Brinkerhoff. (Calderon, Melissa) (Entered: 04/06/2016)
297 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Mary Ann Brinkerhoff. (Calderon, Melissa) (Entered: 04/06/2016)
298 CERTIFICATE OF SERVICE by San Juan Regional Medical Center regarding SJRMC's Supplemental Rule 26(a)(1) Initial Disclosures in Case 1:15cv417 (Salazar) (Curtis, Robert) (Entered: 04/06/2016)
299 NOTICE by Mary Ann Brinkerhoff, Yvonne Valles re 295 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 296 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 297 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Calderon, Melissa) (Entered: 04/06/2016)
300 Joint MOTION to Stay in 15−cv−417 JB/LF (Salazar), 15−cv−497 JB/LF (Carter) and 15−cv−526 JB/LF (Jones) by San Juan Regional Medical Center. (Curtis, Robert) (Entered: 04/08/2016)
301 CERTIFICATE OF SERVICE by San Juan Regional Medical Center Objections, Answers & Responses to Plaintiffs' Combined Discovery Requests (Marquez, Carter & Jones) (Curtis, Robert) (Entered: 04/08/2016)
302 CERTIFICATE OF SERVICE by San Juan Regional Medical Center SUPPLEMENTAL Objections, Answers and Response to Plaintiffs' Combined Discovery re 15cv417 (Marquez) 15cv497 (Carter) and 15cv526 (Jones) (Curtis, Robert) (Entered: 04/11/2016)
303 WAIVER OF SERVICE Returned Executed by Carolyn Wojokowski, Corey Jones as to Rebecca Ross. (Hatfield, Christian) (Entered: 04/14/2016)
304 NOTICE by Charles Carter, Corey Jones, Olga Salazar, Carolyn Wojokowski Joint Notice of Agreed Extension of Time to Respond to Motions to Dismiss with Prejudice (Hatfield, Christian) (Entered: 04/14/2016)
305 ORDER by District Judge James O. Browning granting 300 Motion to Stay All Proceedings (dmw) (Entered: 04/15/2016)
306 CERTIFICATE OF SERVICE by San Juan County, San Juan County Detention Center Answers and Responses to Plaintiff's Combined Interrogatories and Requests for Production to Defendants (Childress, Ronald) (Entered: 04/15/2016)
307 CERTIFICATE OF SERVICE by San Juan County, San Juan County Detention Center Supplemental Responses to Plaintiff's Combined Requests for Production to Defendants (Childress, Ronald) (Entered: 04/18/2016)
308 NOTICE of Appearance by Alfred A Park on behalf of Courtney Nyman (Park, Alfred) (Entered: 05/06/2016)
309 NOTICE of Appearance by Lawrence M Marcus on behalf of Courtney Nyman (Marcus, Lawrence) (Entered: 05/06/2016)
310 WAIVER OF SERVICE Returned Executed by Olga Salazar as to Courtney Nyman. (Edwards, Anna) (Entered: 05/06/2016)
311 Unopposed MOTION for Appointment of Personal Representatives by Charles Carter, Olga Salazar. (Edwards, Anna) (Entered: 05/26/2016)
312 **FILED IN ERROR** STIPULATION of Dismissal With Prejudice Of All Federal Claims Against San Juan County, San Juan County Deterntion Center, And Thomas Havel in Cause No. 1:15−CV−00439 JB/LF by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) Modified on 5/26/2016 (pz). (Entered: 05/26/2016)
313 STIPULATION of Dismissal With Prejudice of All Federal Claims Against San Juan County, San Juan County Detention Center, and Thomas Havel in Burkey, et al., v. San Juan County Detention Center, et al., In Cause No. 1:15−CV−00439 JB/LF by

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 39 of 47

06/02/2016
06/02/2016
06/06/2016 06/06/2016 06/09/2016
06/09/2016
07/08/2016 07/08/2016 07/29/2016 08/01/2016 08/03/2016 08/03/2016
08/05/2016 08/15/2016
08/15/2016 08/15/2016

Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 05/26/2016)
314 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County, San Juan County Detention Center of supplemental responses to combined requests for production (Childress, Ronald) Modified to add text on 6/2/2016 (dmw). (Entered: 06/02/2016)
315 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County, San Juan County Detention Center of third supplemental responses to combined requests for production (Childress, Ronald) Modified to add text on 6/3/2016 (dmw). (Entered: 06/02/2016)
316 ORDER by District Judge James O. Browning granting 311 Motion for Appointment of Personal Representative (dmw) (Entered: 06/06/2016)
317 ORDER by District Judge James O. Browning granting 311 Motion for Appointment of Personal Representative (dmw) (Entered: 06/06/2016)
318 STIPULATION of Dismissal Stipulation of Dismissal with Prejudice of any Dental Claims by Plaintiffs Earl Callahan, Calvin Finch, Joseph Gutierrez and Clifford Rogers against Defendant PMS by Earl Callahan, Calvin Finch, Joseph Gutierrez, Clifford Rogers (Hatfield, Christian) (Entered: 06/09/2016)
319 STIPULATION of Dismissal Stipulation of Dismissal with Prejudice of the Claims of Plaintiffs Lariat Charles, Mark Hinojos, David Page and Jason Trujillo against Defendant PMS by Lariet Charles, Mark Hinojos, David Page, Jason Trujillo (Hatfield, Christian) (Entered: 06/09/2016)
320 Joint MOTION to Appoint Guardian ad Litem and Approval of Settlement by Olga Salazar. (Edwards, Anna) (Entered: 07/08/2016)
321 CERTIFICATE OF SERVICE by San Juan Regional Medical Center of second supplemental objections, answers and responses to combined discovery (Curtis, Robert) Modified to add text on 7/8/2016 (dmw). (Entered: 07/08/2016)
322 CERTIFICATE OF SERVICE by San Juan Regional Medical Center Expert Witness Disclosure (115cv439) (Kelly, Ellen) (Entered: 07/29/2016)
323 REPORT by Charles Carter, Corey Jones, Olga Salazar, Carolyn Wojokowski (Edwards, Anna) (Entered: 08/01/2016)
324 MOTION to Extend (other) TIME to ID Expert Witnesses to COMPLETE COMPLIANCE with FED.R.CIV.P. 26(A)(2) until AUGUST 5, 2016 by San Juan Regional Medical Center. (Kelly, Ellen) (Entered: 08/03/2016)
325 STIPULATION of Dismissal SJRMC Stipulation of Dismissal by Earl Callahan, Lariet Charles, Paul Gould, Mark Hinojos, Thomas Knight, Angelo Martinez, Mark Martinez, David Page, Steve Parrish, Adam Schuessler, Jason Trujillo, Franklin Tso (Yoder, Jennifer) (Entered: 08/03/2016)
326 CERTIFICATE OF SERVICE by San Juan Regional Medical Center of Spalding Expert Report (Curtis, Robert) (Entered: 08/05/2016)
327 STIPULATION of Dismissal Stipulated Dismissal with Prejudice of the Claims of Knight, Page, Callahan, Hinojos, Parrish, A. Martinez, M. Martinez, Tso, Trujillo, Charles, and Valerio against Defendant San Juan County Detention Center, San Juan Couty and thomas Havel by Earl Callahan, Lariet Charles, Mark Hinojos, Thomas Knight, Angelo Martinez, Mark Martinez, David Page, Steve Parrish, Jason Trujillo, Franklin Tso, Steve Valerio (Yoder, Jennifer) (Entered: 08/15/2016)
328 REPORT by Charles Carter, Corey Jones, Olga Salazar, Carolyn Wojokowski (Edwards, Anna) (Entered: 08/15/2016)
329 First MOTION to Remand to State Court by Jesse Berkey, Aaron Eaton, Calvin Finch, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams. (Yoder, Jennifer) Modified text on 8/16/2016 (dmw). (Entered: 08/15/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 40 of 47

08/18/2016
08/18/2016 08/19/2016 08/23/2016 08/24/2016 08/24/2016
08/25/2016 08/25/2016 08/25/2016 08/30/2016 09/06/2016 09/06/2016
09/07/2016

330 MOTION for Hearing on Status Conference Or, In The Alternative, For Entry Of Order On Motion To Dismiss State Law Claims In Cause No. 15cv439 by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Attachments: # 1 Exhibit Transcript) (Childress, Ronald) Modified on 3/20/2017 (kw). (termed on entry of Doc. 363) (Entered: 08/18/2016)
332 ORDER by District Judge James O. Browning granting 320 Joint MOTION to Appoint Guardian ad Litem and Approval of Settlement and setting confidential hearing on 9/7/2016 at 09:00 AM in Albuquerque − 460 Vermejo Courtroom (med) (Entered: 08/23/2016)
331 NOTICE of Briefing Complete by San Juan Regional Medical Center re 324 MOTION to Extend (other) TIME to ID Expert Witnesses to COMPLETE COMPLIANCE with FED.R.CIV.P. 26(A)(2) until AUGUST 5, 2016 filed by San Juan Regional Medical Center (Kelly, Ellen) (Entered: 08/19/2016)
333 NOTICE of Agreed Extension by Charles Carter re 282 MOTION to Dismiss with Prejudice, 297 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Edwards, Anna) Modified text on 8/23/2016 (dmw). (Entered: 08/23/2016)
334 NOTICE of Appearance by Feliz A Rael on behalf of Feliz A. Rael (Rael, Feliz) (Entered: 08/24/2016)
335 RESPONSE to Motion re 330 MOTION for Hearing on Status Conference Or, In The Alternative, For Entry Of Order On Motion To Dismiss State Law Claims In Cause No. 15cv439 filed by Jesse Berkey, Earl Callahan, Lariet Charles, Aaron Eaton, Calvin Finch, Paul Gould, Joseph Gutierrez, Mark Hinojos, Thomas Knight, Aurelio Marquez, Angelo Martinez, Mark Martinez, Rudy Martinez, Paul Matamoros, David Page, Steve Parrish, Clifford Rogers, Adam Schuessler, Jason Trujillo, Franklin Tso, Steve Valerio, Jimmy Weahkee, Harry Williams. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Burns, Mitchel) Modified text on 8/25/2016 (med). (Entered: 08/24/2016)
336 MOTION for Summary Judgment on the STATE LAW CLAIMS of the REMAINING NINE PLAINTIFFS in Case No. 115cv439 by San Juan Regional Medical Center. (Kelly, Ellen) (Entered: 08/25/2016)
337 MOTION to Dismiss the INTENTIONAL INFLECTION of EMOTIONAL DISTRESS CLAIMS of the NINE REMAINING PLAINTIFFS in Case No. 115cv439 by San Juan Regional Medical Center. (Attachments: # 1 attachment) (Kelly, Ellen) (Entered: 08/25/2016)
338 RESPONSE in Opposition re 329 First MOTION to Remand to State Court Motion for Remand to State Court filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Attachments: # 1 Exhibit 10th Cir. Op, # 2 Exhibit Hearing Transcript) (Childress, Ronald) (Entered: 08/25/2016)
339 RESPONSE to Motion re 329 First MOTION to Remand to State Court Motion for Remand to State Court re Case No. 115cv439 (Berkey) filed by San Juan Regional Medical Center. (Kelly, Ellen) (Entered: 08/30/2016)
340 REPORT of the Guardian Ad Litem by Feliz A. Rael (Rael, Feliz) Modified text on 9/7/2016 (med). (Entered: 09/06/2016)
341 RESPONSE to Motion re 336 MOTION for Summary Judgment on the State Law Claims of the Remaining Nine Plaintiffs in Case No. 115cv439 filed by Jesse Berkey, Aaron Eaton, Calvin Finch, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams. (Hatfield, Christian) Modified text on 9/6/2016 (dmw). (Entered: 09/06/2016)
342 REPLY to Response to Motion re 330 MOTION for Hearing on Status Conference Or, In The Alternative, For Entry Of Order On Motion To Dismiss State Law Claims In Cause No. 15cv439 filed by Thomas C. Havel, San Juan County, San Juan County Detention Center. (Attachments: # 1 Exhibit e−mail 4/26, # 2 Exhibit e−mail 4/27, # 3 Exhibit e−mail 5/2, # 4 Exhibit e−mail 6/7, # 5 Exhibit e−mail 6/20, # 6 Exhibit e−mail 8/9, # 7 Exhibit e−mail 3/23, # 8 Exhibit e−mail 4/20, # 9 Exhibit e−mail 4/25) (Childress, Ronald) (Entered: 09/07/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 41 of 47

09/08/2016 09/08/2016 09/08/2016 09/08/2016 09/08/2016 09/08/2016 09/09/2016 09/09/2016 09/09/2016
09/09/2016 09/14/2016 09/15/2016
09/15/2016 09/15/2016 09/15/2016
09/15/2016 09/16/2016

343 MOTION to Dismiss Party by Cindy Ketcham, Eric Ketcham. (Kuhn, Kevin) (Entered: 09/08/2016)
344 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 115 Motion for Judgment on the Pleadings by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 09/08/2016)
345 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 231 Motion to Strike by Correctional Healthcare Companies Inc. (Park, Alfred) (Entered: 09/08/2016)
347 NOTICE OF WITHDRAWAL OF DOCUMENT by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 09/08/2016)
348 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 100 Motion for Summary Judgment by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 09/08/2016)
349 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 157 Motion to Strike by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 09/08/2016)
350 NOTICE OF WITHDRAWAL OF DOCUMENT by Jesse Berkey, Aaron Eaton, Calvin Finch, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams (Hatfield, Christian) (Entered: 09/09/2016)
351 NOTICE OF WITHDRAWAL OF DOCUMENT by Charles Carter, Corey Jones, Olga Salazar, Carolyn Wojokowski (Edwards, Anna) (Entered: 09/09/2016)
352 REPLY to Response to Motion re 329 First MOTION to Remand to State Court filed by Jesse Berkey, Aaron Eaton, Calvin Finch, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams. (Attachments: # 1 Exhibit 1) (Hatfield, Christian) Modified text on 9/9/2016 (dmw). (Entered: 09/09/2016)
353 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 283 Motion to Dismiss by Cindy Ketcham, Eric Ketcham (Kuhn, Kevin) (Entered: 09/09/2016)
354 STIPULATION of Dismissal Without Prejudice of Cindy Ketcham by Charles Carter (Grossman, Erica) (Entered: 09/14/2016)
355 RESPONSE to Motion re 337 MOTION to Dismiss the INTENTIONAL INFLECTION of EMOTIONAL DISTRESS CLAIMS of the NINE REMAINING PLAINTIFFS in Case No. 115cv439 Response to Defendant SJRMC Motion to DIsmiss the Intentional Inflection of Emotional Distress Claims of the Nine Remaining Plaintiffs filed by Jesse Berkey, Aaron Eaton, Calvin Finch, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams. (Hatfield, Christian) (Entered: 09/15/2016)
356 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 296 Motion to Dismiss for Failure to State a Claim by Mary Ann Brinkerhoff (Calderon, Melissa) (Entered: 09/15/2016)
357 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 295 Motion to Dismiss for Failure to State a Claim by Yvonne Valles (Calderon, Melissa) (Entered: 09/15/2016)
358 NOTICE of Briefing Complete by Thomas C. Havel, San Juan County, San Juan County Detention Center re 330 MOTION for Hearing on Status Conference Or, In The Alternative, For Entry Of Order On Motion To Dismiss State Law Claims In Cause No. 15cv439 filed by San Juan County Detention Center, San Juan County, Thomas C. Havel (Childress, Ronald) (Entered: 09/15/2016)
359 RESPONSE to Motion re 297 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Charles Carter. (Grossman, Erica) (Entered: 09/15/2016)
360 TRANSCRIPT of Motion Proceedings held on September 7, 2016, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Tape Number: NA. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 42 of 47

deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

09/19/2016 09/19/2016 09/20/2016 09/20/2016 09/20/2016 09/21/2016
09/28/2016 09/28/2016 09/28/2016 09/29/2016 09/29/2016 09/29/2016

Notice of Intent to Request Redaction set for 9/23/2016. Redaction Request due 10/7/2016. Redacted Transcript Deadline set for 10/17/2016. Release of Transcript Restriction set for 12/15/2016.(jab) (Entered: 09/16/2016)
361 ORDER APPROVING SETTLEMENT by District Judge James O. Browning. (meq) (Entered: 09/19/2016)
362 NOTICE by Charles Carter re 359 Response to Motion (Edwards, Anna) (Entered: 09/19/2016)
363 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting 116 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Americans With Disabilities Act Claim and State Law Claims. (meq) (Entered: 09/20/2016)
364 REPLY to Response to Motion re 336 MOTION for Summary Judgment on the STATE LAW CLAIMS of the REMAINING NINE PLAINTIFFS in Case No. 115cv439 filed by San Juan Regional Medical Center. (Kelly, Ellen) (Entered: 09/20/2016)
365 NOTICE of Briefing Complete by San Juan Regional Medical Center re 336 MOTION for Summary Judgment on the STATE LAW CLAIMS of the REMAINING NINE PLAINTIFFS in Case No. 115cv439 filed by San Juan Regional Medical Center (Kelly, Ellen) (Entered: 09/20/2016)
366 NOTICE of motion hearing regarding the motions at the following Doc. Nos.: 282 ; 297 , 324 , 329 , 330 , 336 and 337 scheduled for 10/3/2016 at 08:30 AM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 09/21/2016)
367 SECOND SCHEDULING ORDER by District Judge James O. Browning. (dmw) (Entered: 09/28/2016)
368 SJRMC's REPLY In Support of its re 337 MOTION to Dismiss the INTENTIONAL INFLECTION of EMOTIONAL DISTRESS CLAIMS of the NINE REMAINING PLAINTIFFS in Case No. 115cv439, 355 Response to Motion, filed by San Juan Regional Medical Center. (Kelly, Ellen) (Entered: 09/28/2016)
369 NOTICE of Briefing Complete by San Juan Regional Medical Center re 337 MOTION to Dismiss the INTENTIONAL INFLECTION of EMOTIONAL DISTRESS CLAIMS of the NINE REMAINING PLAINTIFFS in Case No. 115cv439 filed by San Juan Regional Medical Center (Kelly, Ellen) (Entered: 09/28/2016)
370 REPLY to Response to Motion re 297 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mary Ann Brinkerhoff. (Calderon, Melissa) (Entered: 09/29/2016)
371 NOTICE of Briefing Complete by Mary Ann Brinkerhoff re 297 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mary Ann Brinkerhoff (Calderon, Melissa) (Entered: 09/29/2016)
372 NOTICE OF WITHDRAWAL OF DOCUMENT as to document 282 Motion to Dismiss by Cindy Ketcham (Kuhn, Kevin) (Entered: 09/29/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 43 of 47

09/30/2016
09/30/2016
09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 09/30/2016 10/03/2016 10/04/2016

373 STIPULATION of Dismissal of All Claims Against Thomas C. Havel Individually and as Administrator for the San Juan County Detention Center in Cause No. 1:15−cv−00417 JB/LF by Thomas C. Havel, San Juan County Detention Center (Childress, Ronald) (Entered: 09/30/2016)
374 STIPULATION of Dismissal of All Claims Against Thomas C. Havel Individually and as Administrator of the San Juan County Detention Center and Caroline Conner in Cause No. 1:15−cv−00526 JB/LF by Thomas C. Havel, San Juan County Detention Center (Childress, Ronald) (Entered: 09/30/2016)
375 Unopposed MOTION to Dismiss with Prejudice by Mary Ann Brinkerhoff, Rebecca Ross. (Calderon, Melissa) (Entered: 09/30/2016)
376 Unopposed MOTION to Dismiss with Prejudice by Ramona Howard, Yvonne Valles. (Calderon, Melissa) (Entered: 09/30/2016)
377 STIPULATION of Dismissal with Prejudice by Courtney Nyman (Park, Alfred) (Entered: 09/30/2016)
378 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying as moot Defendant Presbyterian Medical Services' Rule 12(B)(6) Motion to Dismiss Plaintiffs' Federal Claims Against It 137 . (kw) (Entered: 09/30/2016)
379 ORDER by District Judge James O. Browning granting the Stipulated Motion for Dismissal With Prejudice of Defendants Yvonne Valles, RN and Ramona Howard, RN (as to CIV 15−04176) 375 . (kw) (Entered: 09/30/2016)
380 ORDER by District Judge James O. Browning granting the Stipulated Motion for Dismissal With Prejudice of Defendants Yvonne Valles, RN and Ramona Howard, RN (as to CIV 15−0417) 376 . (kw) (Entered: 09/30/2016)
381 ORDER by District Judge James O. Browning granting the Stipulated Motion for Dismissal With Prejudice of Defendants Dr. Eric Ketcham and Cindy Ketcham 343 . (kw) (Entered: 09/30/2016)
382 FINAL JUDGMENT by District Judge James O. Browning. (kw) (Entered: 09/30/2016)
421 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 10/3/2016 (Court Reporter J. Bean) (meq) (Entered: 03/23/2017)
383 TRANSCRIPT of Motion Proceedings held on March 21, 2016, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Tape Number: NA. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

10/19/2016

Notice of Intent to Request Redaction set for 10/11/2016. Redaction Request due 10/25/2016. Redacted Transcript Deadline set for 11/4/2016. Release of Transcript Restriction set for 1/3/2017.(jab) (Entered: 10/04/2016)
384 **FILED IN ERROR** CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County, San Juan County Detention Center Offer of Judgment (Childress, Ronald) Modified on 10/19/2016 (dmw). (Entered: 10/19/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 44 of 47

10/19/2016 10/27/2016

385 CERTIFICATE OF SERVICE by Thomas C. Havel, San Juan County, San Juan County Detention Center Offer of Judgment (Childress, Ronald) (Entered: 10/19/2016)
386 TRANSCRIPT of Motion Proceedings held on October 3, 2016, before District Judge James O. Browning. Court Reporter/Transcriber Jennifer Bean, Telephone number 505−348−2283. Tape Number: NA. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

PLEASE TAKE NOTICE that each party now has seven (7) calendar days to file a Notice of Intent to Request Redaction of any personal identifiers from this transcript. If no notice is filed during this seven−day period, the court will assume that redaction of personal data is not necessary and will make the transcript electronically available, as is, to the public after 90 days. For additional guidance, PLEASE REVIEW the complete policy, located in the CM/ECF Administrative Procedures Manual at www.nmcourt.fed.us.

10/28/2016 10/28/2016 10/28/2016 10/28/2016 11/21/2016 11/22/2016 12/12/2016
12/12/2016
12/15/2016 12/15/2016 12/16/2016

Notice of Intent to Request Redaction set for 11/3/2016. Redaction Request due 11/17/2016. Redacted Transcript Deadline set for 11/28/2016. Release of Transcript Restriction set for 1/25/2017.(jab) (Entered: 10/27/2016)
387 CERTIFICATE OF SERVICE by Mary Ann Brinkerhoff for Defendant's First Request for Interrogatories (Calderon, Melissa) (Entered: 10/28/2016)
388 CERTIFICATE OF SERVICE by Ramona Howard for Defendant's First Request for Interrogatories (Calderon, Melissa) (Entered: 10/28/2016)
389 MOTION to Amend/Correct 382 Judgment re Defendants SJRMC and Katie Moore in case 115cv417 by San Juan Regional Medical Center. (Kelly, Ellen) Termed on 9/27/2017 (meq). (Entered: 10/28/2016)
390 MOTION to Dismiss with Prejudice Defendants SJRMC and Katie Moore RN in Case 115cv417 by San Juan Regional Medical Center. (Attachments: # 1 Exhibit A) (Kelly, Ellen) (Entered: 10/28/2016)
391 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, vacating the hearing scheduled for 11/22/2016. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (kw) (Entered: 11/21/2016)
392 CERTIFICATE OF SERVICE of Plaintiff's Answers to First Request for Interrogatories by Charles Carter (Edwards, Anna) Modified text on 11/23/2016 (meq). (Entered: 11/22/2016)
393 STIPULATION of Dismissal of All Claims Against Thomas C. Havel Individually and as Administrator of the San Juan County Detention Center in Cause No. 1:15−cv−00497 JB/LF Only by Thomas C. Havel, San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 12/12/2016)
394 STIPULATION of Dismissal of all Claims Against Board of Commissioners for San Juan County a/k/a San Juan County and San Juan County Detention Center in Cause No. 15−cv−497 JB/LF Only by San Juan County, San Juan County Detention Center (Childress, Ronald) (Entered: 12/12/2016)
395 CERTIFICATE OF SERVICE by San Juan Regional Medical Center of Third Supplemental Responses to Plaintiffs' Combined Discovery Request (Curtis, Robert) Modified abbreviations on 12/16/2016 (dmw). (Entered: 12/15/2016)
396 CERTIFICATE OF SERVICE by San Juan Regional Medical Center of Fourth Supplemental Responses to Plaintiffs' First Request for Production (Curtis, Robert) Modified abbreviations on 12/16/2016 (dmw). (Entered: 12/15/2016)
397 STIPULATION of Dismissal of Personal Claims of Charles Carter by Charles Carter (Edwards, Anna) (Entered: 12/16/2016)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 45 of 47

01/06/2017 01/06/2017 01/18/2017 01/24/2017 01/24/2017 01/24/2017 01/25/2017 01/25/2017 02/01/2017 02/01/2017 02/01/2017 02/07/2017
02/09/2017 02/17/2017 03/08/2017
03/20/2017
03/23/2017 03/23/2017

400 CERTIFICATE OF SERVICE by San Juan Regional Medical Center of 4th Supplemental Responses to Plaintiffs Combined Discovery Requests (Curtis, Robert) Modified text 1/9/2017 (meq). (Entered: 01/06/2017)
401 Joint MOTION to Amend/Correct Scheduling Order by Charles Carter. (Edwards, Anna) (Entered: 01/06/2017)
402 NOTICE by Charles Carter of Agreed Extension of Time to Respond (Edwards, Anna) (Entered: 01/18/2017)
403 ORDER by District Judge James O. Browning granting 377 Stipulation of Dismissal of Courtney Nyman (meq) (Entered: 01/24/2017)
404 ORDER by District Judge James O. Browning granting 390 MOTION to Dismiss Defendants Katie Moore RN and San Juan Regional Medical Center (meq) (Entered: 01/24/2017)
405 NOTICE by San Juan Regional Medical Center Notice of Agreed Extension of Time to Motions − Docs 398 and 399 (Kelly, Ellen) (Entered: 01/24/2017)
407 CERTIFICATE OF SERVICE by San Juan Regional Medical Center amended OFFER OF JUDGMENT (Kelly, Ellen) (Entered: 01/25/2017)
408 CERTIFICATE OF SERVICE by San Juan Regional Medical Center corrected first amended offer of Judgment (Kelly, Ellen) Modified text on 1/26/2017 (meq). (Entered: 01/25/2017)
410 ORDER by District Judge James O. Browning granting 401 MOTION to Amend Scheduling Order (meq) (Entered: 02/01/2017)
411 CERTIFICATE OF SERVICE by Charles Carter (Holland, John) (Entered: 02/01/2017)
412 Joint MOTION to Vacate Trial Setting, Joint MOTION to Reset Trial Setting, Joint MOTION for Hearing (Status Conference) by Mary Ann Brinkerhoff, Ramona Howard. (Calderon, Melissa) (Entered: 02/01/2017)
414 NOTICE of Briefing Complete by San Juan Regional Medical Center re 399 MOTION for Protective Order & Sanctions Regarding Inadvertantly Produced Documents (1:15−cv−497) filed by San Juan Regional Medical Center (Kelly, Ellen) (Entered: 02/07/2017)
416 NOTICE of Briefing Complete by Charles Carter re 398 MOTION Contesting Claim of Privilege filed by Charles Carter (Grossman, Erica) (Entered: 02/09/2017)
417 CERTIFICATE OF SERVICE by Charles Carter Plaintiffs Second Set of Discovery Requests to Defendants (Holland, John) Modified text on 2/21/2017 (meq). (Entered: 02/17/2017)
418 ORDER by District Judge James O. Browning granting 412 MOTION to Vacate Trial Setting, MOTION to Reset Trial Setting, MOTION for Hearing (Status Conference). Status Conference set for 3/23/2017 at 01:30 PM in Albuquerque − 460 Vermejo Courtroom (meq) (Entered: 03/08/2017)
419 NOTICE of motion hearing regarding the Motion Contesting Claim of Privilege Pursuant to Paragraph 4.4 of the Protective Order in 15−cv−497 JB/LF 398 and the Defendant SJRMC's Motion for Protective Order and Sanctions Regarding Inadvertently Produced Documents (1:15−cv−0497−JB−LF) 399 scheduled for 3/23/2017 at 01:30 PM in Albuquerque − 460 Vermejo Courtroom before District Judge James O. Browning. (kw) [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 03/20/2017)
420 Unopposed MOTION to Dismiss Plaintiff's First Claim of Relief against Defendant Mary Ann Brinkerhoff by Mary Ann Brinkerhoff. (Calderon, Melissa) (Entered: 03/23/2017)
422 ORDER by District Judge James O. Browning granting 420 Motion to Dismiss Plaintiff's First Claim for Relief Against Mary Ann Brinkerhoff (meq) (Entered: 03/23/2017)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 46 of 47

03/23/2017 03/23/2017 03/24/2017 03/24/2017 03/27/2017 03/31/2017
04/10/2017 04/10/2017 04/12/2017 04/13/2017 04/17/2017 04/26/2017 05/02/2017 07/31/2017 08/25/2017 10/13/2017
10/27/2017 12/27/2017

425 **FILED IN ERROR** Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing held on 3/23/2017 (Court Reporter J. Bean) (meq) Modified on 4/5/2017 (meq). (Entered: 03/27/2017)
428 Clerk's Minutes for proceedings held before District Judge James O. Browning: Motion Hearing and Status Conference held on 3/23/2017 (Court Reporter J. Bean) (meq) (Entered: 04/05/2017)
423 CERTIFICATE OF SERVICE by Charles Carter Second Supplemental Disclosure (Holland, John) Modified on 3/27/2017 (meq). (Entered: 03/24/2017)
424 NOTICE OF WITHDRAWAL OF DOCUMENT 297 Motion to Dismiss by Mary Ann Brinkerhoff (Calderon, Melissa) Modified text on 3/27/2017 (meq). (Entered: 03/24/2017)
426 SCHEDULING ORDER by District Judge James O. Browning. (meq) (Entered: 03/27/2017)
427 ORDER by District Judge James O. Browning, denying 337 MOTION to Dismiss the INTENTIONAL INFLECTION of EMOTIONAL DISTRESS CLAIMS of the NINE REMAINING PLAINTIFFS in Case No. 115cv439 filed by San Juan Regional Medical Center, granting 329 First MOTION to Remand to State Court Motion for Remand to State Court filed by Joseph Gutierrez, Calvin Finch, Paul Matamoros, Aaron Eaton, Jesse Berkey, Aurelio Marquez, Harry Williams, Rudy Martinez, Clifford Rogers, and denying 336 MOTION for Summary Judgment on the STATE LAW CLAIMS of the REMAINING NINE PLAINTIFFS in Case No. 115cv439 filed by San Juan Regional Medical Center. (meq) (Entered: 03/31/2017)
429 AFFIDAVIT of Erica Grossman, Anna Holland Edwards and John Holland regarding Inadvertently Disclosed Documents by Charles Carter (Grossman, Erica) (Entered: 04/10/2017)
430 CERTIFICATE OF SERVICE by Charles Carter Third Supplemental Disclosures (Edwards, Anna) Modified text 4/11/2017 (meq). (Entered: 04/10/2017)
431 AFFIDAVIT of Mitchel S. Burns by Charles Carter (Burns, Mitchel) (Entered: 04/12/2017)
432 Unopposed MOTION to Withdraw as Attorney for Plaintiff Charles Carter by Charles Carter. (Tucker, Gregory) (Entered: 04/13/2017)
433 STATUS REPORT by Charles Carter (Holland, John) (Entered: 04/17/2017)
434 ORDER by District Judge James O. Browning granting 432 Motion to Withdraw Jennifer Yoder as Attorney for Plaintiff Charles Carter (meq) (Entered: 04/26/2017)
435 Unopposed MOTION to Dismiss Party by Mary Ann Brinkerhoff, Ramona Howard. (Calderon, Melissa) (Entered: 05/02/2017)
436 ORDER by District Judge James O. Browning granting Stipulated Motion for Dismissal with Prejudice of Defendant San Juan Regional Medical Center (No. 1:15−cv−00497 JB/LF) (kg) (Entered: 07/31/2017)
437 ORDER by District Judge James O. Browning granting 435 Order on Motion to Dismiss Party Mary Ann Brinkerhoff (RN) and Ramona Howard (RN) terminated. (meq) (Entered: 08/25/2017)
438 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, granting 329 Plaintiffs Jesse Berkey, Aaron Eaton, Joseph Gutierrez, Aurelio Marquez, Rudy Martinez, Paul Matamoros, Clifford Rogers, Harry Williams and Calvin Finchs Motion for Remand to State Court. The case, No. CIV 15−0439, including Plaintiff Paul Matamoros' claims, is remanded to the Eleventh Judicial District Court, San Juan County, State of New Mexico. (meq) (Entered: 10/13/2017)
439 FINAL JUDGMENT by District Judge James O. Browning. (15cv439 closed) (meq) (Entered: 10/27/2017)
440 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, vacating the Pretrial Conference scheduled for 1/2/2018 and rescheduling for 12/28/2017 at 11:00 AM in Albuquerque − 460 Vermejo Courtroom. (mnb)

Case: 1:15-cv-417 As of: 08/06/2018 08:22 AM MDT 47 of 47

12/27/2017

[THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (Entered: 12/27/2017)
441 MINUTE ORDER, pursuant to District Judge James O. Browning, vacating the Pretrial Conference scheduled for 12/28/2017. [THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (mnb) (Entered: 12/27/2017)