Ortega v. Edgman

1

MAX ORTEGA III, Plaintiff, v. WILLIAM EDGMAN, LOUISE LOPEZ, NEW MEXICO CORRECTIONS DEPARTMENT, and DOES (1-50), ^[1] Defendants.

No. CIV 21-0728 RB/JHR

United States District Court, D. New Mexico

March 16, 2022

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

While Plaintiff Max Ortega III was awaiting trial on a criminal charge, a state court district judge placed him into the custody of the New Mexico Corrections Department (NMCD) on a “safekeeping” order pursuant to N.M. Stat. Ann § 33-3-15. According to NMCD policy, Ortega was housed in a “Restrictive Housing Unit” (RHU), a unit akin to solitary confinement. Ortega was kept in the RHU for almost a year without having his placement reviewed.

Ortega filed a lawsuit in state court bringing four state claims against Defendants Luis Lopez, ^[2] the NMCD, and John Doe guards. Lopez and the NMCD moved to dismiss, and the state court granted the motion, dismissing the four claims with prejudice but allowing Ortega to file an amended complaint. Ortega filed a First Amended Complaint, bringing the same four state law claims and adding one federal law claim. Lopez and the NMCD removed the lawsuit to this Court and now move for dismissal. The Court will grant the motion to dismiss in part.

I. Statement of Facts

A. Ortega's placement in the RHU and the conditions of his confinement

Ortega was in a county jail awaiting trial on a criminal charge in state court. (Doc. 1-3 (FAC) ¶¶ 2, 28.) On October 29, 2018, pursuant to N.M. Stat. Ann. § 33-3-15 and allegedly without holding a hearing, a state district court judge found that Ortega should be placed in NMCD custody for safekeeping. (Id. ¶¶ 2, 29.) As a result, Ortega was transferred to the Central New Mexico Correctional Facility (CNMCF) and placed into the RHU in December 2018. (Id. ¶¶ 2, 4, 41.)

From December 2018 through late October 2019, Ortega was confined to his cell in the RHU, alone, for 23 hours per day on weekdays and 24 hours on weekends. (Id. ¶¶ 7, 17, 41.) Ortega's cell contained a stool, a desk, and a “hard bed with a thin mattress.” (Id. ¶ 45.) Ortega asserts that Defendants neither cleaned his cell nor reliably provided for his personal hygiene needs. (Id. ¶ 46.) Nor did they “provide effective medical treatment.” (Id. ¶ 47.) For example, Defendants provided ineffective hydrocortisone cream to treat a severe rash and on one occasion gave Ortega the wrong diabetes medication, resulting in a severe reaction. (Id. ¶¶ 47, 49.) Ortega also developed severe back pain and high blood pressure during his confinement. (Id. ¶¶ 45, 48.) Moreover, although Defendants knew that Ortega is mentally ill and takes anti-psychotic medication, they kept him in the RHU despite the known and obvious risks inherent in extended solitary confinement. (See Id. ¶¶ 18-19, 50.) Ortega's mental health was also negatively affected by the fact that he was denied contact with his family. (Id. ¶ 53.)

B. Relevant NMCD policies and state statutes

Ortega was housed in the RHU pursuant to NMCD Policy CD-143500.^[3] (Id. ¶ 63.) This policy provides that county jail inmates transferred to the NMCD for safekeeping will be segregated and placed in the RHU. (Id.) Under NMCD Policy CD-083101, ^[4] Lopez was obligated to “[c]onduct interviews with all inmates who are placed in Restrictive Housing[ or] Pre-Hearing Detention” units.^[5] (Id. ¶ 56.)

C. Defendants' conduct and Ortega's removal from the RHU

Edgman was NMCD's interim warden. (Id. ¶ 8.) Lopez, an NMCD employee, managed the RHU. (Id. ¶ 9.) Lopez regularly interacted with Ortega in the RHU. (Id. ¶ 54.) “Lopez personally acknowledged . . . that [Ortega] was not being treated fairly and [stated] that he would work on ‘getting him out.'” (Id.) “Lopez's job duties included acting [as] a jailor for all pretrial detainees placed in NMCD's custody. These duties included but were not limited to maintaining public order and holding persons accused of a criminal offense in custody.” (Id. ¶ 55.) Lopez also made “rounds in the [RHU], [spoke] with inmates, and personally participat[ed] in the day to day operation of the [RHU].” (Id.) Lopez knew that Ortega had been in the RHU “for an exceptionally long time and a longer period of time than NMCD policy permitted.” (Id. ¶ 57.) Lopez never arranged for a review of Ortega's placement or for his removal. (Id.)

On “August 23, 2019, NMCD released the first quarterly report required by New Mexico's Restricted Housing Act[, N.M. Stat. Ann. §§ 33-16-1-7].”^[6] (Id. ¶ 35 (citing N.M. Stat. Ann. § 33-3-15).) The report showed that Ortega had been placed in the RHU because he was “pending transfer to another facility.” (Id. ¶ 37.) In October 2019, the Santa Fe New Mexican newspaper “published an article examining the NMCD report.” (Id. ¶ 40 (citing Phaedra Haywood, Report examines solitary confinement in New Mexico, Santa Fe New Mexican (Oct. 17, 2019), available at https://www.taosnews.com/news/crime/report-examines-solitary-confinement-in-new-mexico/ articleedb6c637-53c4-5dfc-81ea-4bb73653ab26.html).) The article discussed Ortega and quoted NMCD spokesperson Eric Harrison, who stated that the NMCD does not “have control over [Ortega's] trial date . . . .” Haywood, supra. Harrison continued, “It was ‘hopefully the trial is soon, the trial is soon,' but at certain point, [ten] months later, trial clearly is not soon. It's time to do something.” Id. Harrison concluded that “right now they are working to get him out of solitary.” Id. Shortly after the article was published, Ortega's “‘rec time' was increased to two hours each day because, according to a[n] NMCD guard, [Ortega] had been in solitary a long time and had been ‘good.'” (FAC ¶ 44.) Additionally, Ortega “was only moved from [the RHU] after his story appeared in the Santa Fe New Mexican.” (Id. ¶ 57.) Ortega “was never accused of any disciplinary violation by [the] NMCD and was never accused of committing a crime while in NMCD custody.” (Id. ¶ 34.)

D. Relevant procedural history

Ortega filed suit against Edgman, Lopez, the NMCD, and the Doe defendants in state court on June 23, 2020, alleging four state law claims. (See Doc. 1-1.) Defendants filed a motion to dismiss on September 3, 2020 (Doc. 1-4 at 6-14), which the state court granted on June 23, 2021 (id. at 46-47). Ortega filed his First Amended Complaint on July 22, 2021, and included a federal claim for the first time. (See FAC.) Lopez and the NMCD removed the lawsuit to this Court on August 4, 2021. (Doc. 1.)

II. Legal Standards

A. Motion to Dismiss

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Emps.' Ret. Sys. of R.I. v. Williams Cos., 889 F.3d 1153, 1161 (10th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quotation omitted). The Court will “accept as true ‘all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.'” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (quotation omitted).

III. Ortega has plausibly alleged a procedural due process claim under 42 U.S.C. § 1983.

In Count V, Ortega brings a claim under § 1983 and asserts that Lopez, Edgman, and the Doe defendants, in their individual capacities, ^[7] violated his rights under the Eighth and Fourteenth Amendments. (See FAC ¶¶ 106-17.) The Court will dismiss with prejudice any claim brought under the Eighth Amendment, as “[p]retrial detainees are protected under the Due Process Clause” of the Fourteenth Amendment. Glover v. Gartman, 899 F.Supp.2d 1115, 1133 (D.N.M. 2012) (quoting Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999)).

The Fourteenth Amendment Due Process Clause protects individuals from the deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause provides two types of protection: “(1) ‘substantive due process' prevents the government from engaging in action that ‘shocks the conscience' or ‘interferes with rights implicit in the concept of ordered liberty,' and (2) ‘procedural' due process ensures that government action depriving a person of liberty is implemented in a fair manner.” Cook v. Bd. of Cnty. Comm'rs for Cnty. of Curry, No. 2:16-CV-00597 JCH/CG, 2018 WL 555458, at *6 (D.N.M. Jan. 23, 2018) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). Ortega asserts a violation of his right to procedural due process. (See FAC ¶ 91; Doc. 5 at 11-12.)

“To determine generally whether a person's procedural due-process rights were violated, a court looks at whether the person (i) possesses a protected liberty interest and (ii) was afforded an appropriate level of process.” Cook, 2018 WL 555458, at *6 (citing Sandin v Conner, 515 U.S. 472, 487 (1995); Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006)). “Under the Due Process Clause, a pretrial detainee may be subject to conditions and restrictions of incarceration so long as they do not amount to punishment prior to a lawful conviction.” Id. (citing Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 (10th Cir. 2005); Littlefield v. Deland, 641 F.2d 729, 731 (10th Cir. 1981) (“[C]onstitutionality under a due process analysis of the nature or duration of pretrial detention turns on whether such detention amounts to ‘punishment' in the constitutional sense.”)); see also Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). “Conditions of pretrial detention that constitute punishment cannot be constitutionally...