Boulden v. Roark

1

DONALD ALAN BOULDEN, Plaintiff, v. JERRY ROARK, DAVID JABLONSKI, CECILIA HERNANDEZ, NEW MEXICO DEPARTMENT OF CORRECTIONS, GEO GROUP INC., GEO LEA COUNTY CORRECTIONAL FACILITY, DWAYNE SANTIESTEVAN, Warden, ALISHA TAFOYA LUCERO, Secretary of Corrections Defendants.

No. 21-cv-0440 KWR/JHR

United States District Court, D. New Mexico

September 10, 2024

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION TO GRANT GEO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC 163]

JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before me on GEO Defendants' Motion for Summary Judgment and Memorandum of Law in Support. [Doc. 163]. Pro se prisoner Donald Boulden responded [Doc. 172] and the GEO Defendants replied [Doc. 178]. U.S. District Judge Kea Riggs referred this case to me for proposed findings and a recommended disposition. [Doc. 97]. I recommend GRANTING summary judgment on Boulden's federal claims at issue, Counts X and V, and REMANDING the state claims back to state court.

I. BACKGROUND

A. Relevant Procedural and Factual History

This is the second report and recommendation (“PF&RD”) that I have submitted in this case. The Court issued a Memorandum Opinion and Order (“MOO”) on October 6, 2023, [Doc. 135], ruling on my prior set of proposed findings and recommended disposition, [Doc. 127] (recommending granting [Docs. 61, 66], denying [Docs. 76, 98], denying as moot all other pending motions, and dismissing the case without prejudice). The Court adopted the recommendations in part and noted that Boulden's claims stem from two distinct events: first, alleged denial of “two lump sum awards of good time credits for the completion of educational courses,” and second, “a prohibition on taking additional correspondence courses or receiving educational material.” [Doc. 135, p. 2]. The Court dismissed all federal claims related to denial of lump sum awards pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 4-8. However, the Court declined to apply Heck to dismiss Counts V and X alleging First and Fourteenth Amendment violations, respectively, from the alleged deprivation of educational materials. Id. at 8-12. The Court also declined to apply Heck to bar Boulden's state law claims because Defendants did not provide authority for that result. Id. at 12.

The Court found that a Martinez report was necessary to aid resolution of the remaining claims. Id. at 13. The GEO Defendants filed their Martinez report and Statement of Undisputed Material Facts (“UMF”) on January 26, 2024. [Doc. 162]. They concurrently filed a Motion for Summary Judgment, the subject of this PF&RD. [Doc. 163].

B. Parties' Arguments

1. GEO Defendants' Motion for Summary Judgment [163].

Boulden's remaining claims relate to his alleged lack of access to educational materials in violation of the First and Fourteenth Amendment. [Doc. 163, p. 7-14]. The GEO Defendants (“Defendants”) generally argue that summary judgment is proper because the undisputed material facts in the Martinez report show that Boulden lacks evidence on essential elements of his claims. [Doc. 163]; [Doc. 164] (Martinez Report).

Defendants assert that Boulden's claims against individual Defendants Hernandez and Santisevan fail because they did not personally stop Boulden from registering for additional correspondence courses. Id. Defendants emphasize that Hernandez only refused to recommend Boulden's lump sum award and those claims have been dismissed. Id. at 5. Nor did Santistevan personally deny Boulden additional correspondence course enrollment. Id. Thus, Defendants contend that Boulden cannot “establish the requisite personal involvement of Santistevan [and Hernandez] to sustain his remaining claims unrelated to the lump sum award.” Id.

Defendants also argue that Boulden's claims against Defendant GEO fail as a matter of law. They say Boulden cannot show that an individual employee violated his rights, which section 1983 requires since it does not allow respondeat superior liability. Id. at 6. Defendants urge that Count V alleging First Amendment violations and Count X alleging Fourteenth Amendment violations both fail under this analysis. Id. at 6-14.

In their First Amendment analysis, Defendants assess NMCD's policy directive temporarily suspending independent study correspondence courses under the four Turner factors governing the reasonableness and legitimacy of a prison regulation. Id. at 9; see Turner, 482 U.S. at 78. Defendants defend their “policy directive [as] appropriate under Turner.” Id. at 10. Furthermore, Defendants cite the undisputed material facts to show that no GEO employee “prevent[ed] Boulden from corresponding or communicating with anyone at any time [or] from pursuing his postsecondary education at any time.” Id. at 11. Defendants acknowledge a twomonth de minimus delay between Boulden finishing his paralegal course and enrolling in a criminal law course but deny that a GEO employee caused it. Id. Therefore, Defendants ask for summary judgment on Count V because of “a complete lack of evidentiary support for Boulden's claim” that the policy violated the First Amendment. Id.

In their Fourteenth Amendment analysis, Defendants challenge the claim that their policy violated Boulden's liberty interests by preventing him from receiving education material. Id. at 12. Citing the undisputed material facts, Defendants outline the trajectory of Boulden's paralegal, criminal, and torts program enrollment and coursework to conclude that “there is no factual predicate for any due process claim arising from Boulden's access to correspondence or publications transmitted by mail.” Id. at 12-13. Defendants argue in the alternative that, even assuming the two-month delay between courses constituted a liberty interest deprivation, Boulden “cannot prevail on a due process claim because he was afforded adequate opportunity to challenge the issue” through an informal grievance resolved in his favor. Id. at 13.

Defendants also contend that Boulden fails to show a policy or custom motivating the violation of his rights (i.e., he cannot show Monell liability). Id. at 14. Because the policy is valid under the Turner factors, Defendants reason that “issues surrounding a specific policy or custom are likely moot.” Id. at 14, 15. Notwithstanding, Defendants distance themselves from Monell liability because the policy was formed and announced by NMCD, not GEO; “[a]bsent evidence that a policy of GEO was the moving force,” Boulden has no constitutional claim against GEO Id.

Finally, Defendants request dismissal on Boulden's state law claims on five grounds. First, Boulden impermissibly tries to circumvent his sentence arguing state law claims relating to the “very fact of his confinement” which are “barred unless and until he has prevailed in his habeas proceeding.” Id. Second, state constitutional claims are not “self-executing” and cannot provide Boulden immediate relief. Id. at 16, 17. Third, the two mechanisms to enforce state constitutional claims, the New Mexico Tort Claims Act (“NMTCA”) and the New Mexico Civil Rights Act (“NMCRA”), only apply to public employees or public bodies and therefore do not apply to a private entity like GEO. Id. at 19, 20. Fourth, they underscore the lack of a private right of action to enforce prison policies under state law. Id. at 20. Finally, they discount Boulden's “standalone” vicarious liability claim because “no basis for derivative liability exists” without a claim against a GEO employee. Id.

2. Boulden's Response [Doc. 172]

Boulden's response contains several themes: Defendants ratified GEO's policy; the policy was valid at inception but later became unconstitutional; the policy “effectively annihilated” his rights; and there is a “supervisory link” for vicarious liability. See [Doc. 172]. He alleges that by “carrying [the policy] out over a sustained period of time . . . [Defendants] effectively adopted and promulgated” the policy and violated his rights. [Doc. 172, p. 3]. He proposes four “materially relevant” facts about NMCD policy revisions show a two-year pattern of constitutional violations. Id. at 3, 4. He also urges the Court disregard the policy applied and instead apply the old 2016 policy. Id. at 4. Boulden asserts that Defendants “purposefully mislead to the Court” by applying an “ex post facto” policy temporarily suspending independent study correspondence courses. Id.

Boulden defends his assertion of respondeat superior liability, arguing that Defendant Santisevan's job to enact the policy through subordinates creates “[t]he ‘link' for supervisory liability.” Id. at 5. He also argues that the “supervisory link” exists through Defendant Hernandez because she refused to process his lump sum recommendations but would have done so “but for the policy directive issued by her superior, Defendant Santisevan.” Id. at 6. Boulden believes both Hernandez and Santisevan should be individually liable for violating his rights. Id. at 7.

Boulden concedes that the policy directive “started out possessing a penological justification” but argues that rationale “ceased to exist” “given the extended length of time that policy was carried out (at least 954 days)” from 09/07/2018 to 11/11/2020. Id. “[At] minimum,” he says, the policy lacked justification for 843 days from 09/07/2018 to 09/09/2020. Id at 8. Boulden alleges those delays “completely barred” him from corresponding with BCI [Blackstone Career Institute] and thereby violated his right to receive mail. Id. Moreover, because neither NMCD nor “GEO's unilaterally chosen Mesalands Community College” offers paralegal training, Boulden argues that he has no alternative means of obtaining the course materials, in violation of his Fourteenth Amendment liberty interests. Id. at...