Ballard v. GEO Grp., Inc.

• Decision Date: 29 May 2013
• Docket Number: CIVIL NO. 10-886 JH/LFG
• Parties: LINDA ECKERT BALLARD, Plaintiff, v. THE GEO GROUP, INC., MIKE MARTIN, NFN GRAYSON, and DEBRA VEGA-COWAN, Defendants.
• Court: U.S. District Court — District of New Mexico

LINDA ECKERT BALLARD, Plaintiff,

v.THE GEO GROUP, INC., MIKE MARTIN, NFN GRAYSON, and DEBRA VEGA-COWAN, Defendants.

CIVIL NO. 10-886 JH/LFG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: May 29, 2013

REPORT AND RECOMMENDATION¹

THIS MATTER is before the Court on an Order of Reference, filed May 14, 2013 [Doc. 197]. The trial judge, the Honorable Judith C. Herrera, requested that the undersigned Magistrate Judge issue a report and recommendation on Defendants' "Amended Joint Motion for Summary Judgment" ("amended motion"). [Doc. 156.]

Summary of Amended Complaint

Pro Se Plaintiff Linda Eckert Ballard's ("Ballard") Amended Complaint against Defendants primarily alleges civil rights violations. [Doc. 10.] The Amended Complaint sets out the following claims: (1) Gross Negligence against all Defendants [Doc. 10, at 10-12]; (2) Failure to Train againstDefendants The GEO Group, Inc. ("GEO"), and Warden Mike Martin ("Martin") [Doc. 10, at 12-13]; (3) Violation to Right of Privacy against Defendant Debra Vega-Cowan ("Vega-Cowan") [Doc. 10, at 13-14]; (4) Failure to Accommodate Known Disability against all Defendants [Doc. 10, at 14-17]; (5) False Imprisonment against "all those who participated, known or unknown" [Doc. 10, at 17-18]; (6) Cruel and Unusual Punishment against "all those who participated, known and unknown" [Doc. 10, at 18-19]; (7) "Intentional Malicious Infliction of Physical and Mental Duress" against "all those who participated, known and unknown" [Doc. 10, at 19-20]; and (8) Den[ial of] Right to Practice Religious Freedom against Defendants GEO, Martin and Lieutenant Grayson ("Grayson") [Doc. 10, at 20-21.] Some of the claims overlap with others; some claims are not entirely clear.

Ballard seeks declaratory relief "in the form of exact guidelines which must be followed in each case when allegations of mental illness are involved" and "to keep The GEO Group, Inc. and any of their employees, past and in the future from molesting [] Plaintiff now and in the future." [Doc. 10, at 21, 22.] She further requests awards of punitive damages, "actual damages, consequential damages, and compensatory damages." [Doc. 10, at 22.]

In the Amended Complaint, Ballard noted that she filed another case in federal district court, No. CIV 10-1161 JAP/LFG, that was related to this case, and arose out of the same underlying arrest. [Doc. 10, ¶ 71.] On January 31, 2011, the District Court dismissed that case without prejudice under § 1915(e)(2)(B)(ii). [Doc. 5 in No. CIV 10-1161.]

In Defendants' Answer to the Amended Complaint, they generally denied Ballard's allegations and raised a number of affirmative defenses. [Doc. 19.] After discovery was completed, Defendants filed the present amended summary judgment motion.

Procedural History

Defendants' amended motion was served on January 24, 2013. Ballard's response was due no later than February 11, 2013. See D.N.M.LR-Civ 7.4(a) (setting out deadlines for responses). She failed to respond within the time provided by law. On February 25, 2013, Defendants filed a Notice of Completion of Briefing. [Doc. 168]. Their Notice states that briefing consisted only of their Amended Joint Motion for Summary Judgment filed on January 24, 2013. On March 13, 2013, Defendants filed an Amended Notice of Completion of Briefing [Doc. 172], stating that briefing consisted of their Amended Joint Motion for Summary Judgment and their Reply [Doc. 171].

Subsequent to the Notice of Completion of Briefing and without seeking leave of Court for filing an out-of-time response, Ballard ultimately filed a Response on March 4, 2013. [Doc. 169.] Defendants thereafter filed a Reply [Doc. 171], and Ballard filed a Motion for Leave to File Surreply [Doc. 180]. The Court disregarded Ballard's untimely response [Doc. 199], and denied her motion to file a surreply [Doc. 202]. Thus, there was no need to consider Defendants' reply in evaluating the amended summary judgment motion.

This district's local rules provide that the failure to respond to a motion constitutes consent to grant the motion. D.N.M.LR-Civ. 7.1(b). However, our circuit court indicated that it is improper to grant a motion for summary judgment simply because a party fails to respond. See Murray v. City of Tahlequah, 312 F.3d 1196, 1200 (10th Cir. 2002) (holding that "[i]f the nonmoving party fails to respond, the district court may not grant the [summary judgment] motion without first examining the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and the moving party is entitled to judgment as a matter of law"). Dismissal, under those circumstances, would serve as a sanction, and sanctions should onlybe entered after consideration of the requirements of Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992).

Therefore, even though the local rule contemplates consent due to a failure to respond, the Court declines to grant the motion for that reason. Instead, it will consider Defendants' amended motion on the merits. However, Ballard's failure to timely respond constitutes a waiver of factual challenges. Therefore, the Statement of Undisputed Facts submitted by Defendants, which was not challenged by Ballard, is accepted as uncontested. D.N.M.LR-Civ. 56-1(b) ("All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.").

Ballard's failure to file a timely response that properly challenges Defendants' Undisputed Facts precludes her from presenting evidence sufficient to show the existence of a genuine issue of material fact for trial.² See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Notwithstanding this failure, the Court analyzes whether Defendants' Undisputed Facts demonstrate an entitlement to summary judgment on each of Ballard's claims.

Summary Judgment Standard

Summary judgment provides courts with a means by which "factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Rule 56(a) requires the court to grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a) (2012). The party seeking summary judgment has an initial burden to show that there is an absence of evidence to support the non-moving party's case. See Kannady v. City of Kiowa, 590 F.3d 1161, 1168-1169 (10th Cir. 2010) ("moving party has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.") (internal quotation marks removed).

Upon meeting that burden, the non-moving party must identify specific facts that show the existence of a genuine issue of material fact. Id. The non-moving party may not rest upon mere conjecture, allegations, or denials, nor may a party rely solely on argument or contentions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 834 (10th Cir. 1986) ("Conclusory allegations, general denials, or mere argument of an opposing party's case cannot be utilized to avoid summary judgment.") (citation omitted). See also Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) ("in response to a properly supported motion for summary judgment, a non-movant must produce sufficient evidence for a reasonable trier of fact to find in its favor at trial on the claim or defense under consideration"). The evidence produced must be competent and legally admissible. See Celotex, 477 U.S. at 323 n.3.

The Court further observes that the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). Stated differently, "the movant need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim." Kannady, 590 F.3d at 1169 (citation omitted). See also Celotex, 477 U.S. at 323 (Rule 56 standard requires the court to enter summary judgment "against a party who fails to make a showing sufficient to establish theexistence of an element to prove that party's case, and on which that party will bear the burden of proof at trial.")

As recently explained by the federal Utah District Court, in Wilcox v. Career Step, LLC, ____ F. Supp. 2d _, 2013 WL 839936, at *4 (D. Utah Mar. 6, 2013) (unpublished) -

. . . . now as before the 2010 amendments to Rule 56, the court must perform "the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. "When applying this standard, we examine the factual record in the light most favorable to the party opposing summary judgment." Kannady, 590 F.3d at 1168 (quoting Belhomme v. Widnall, 127 F.3d 1214, 1216 (10th Cir. 1997)).

Thus, while the Court examines the factual record in the light most favorable to Plaintiff, mere assertions, conjecture, or the existence of a scintilla of evidence in support of his position will not demonstrate a genuine issue of material fact for trial. Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006) (citations and quotations omitted).

Present Motion

In support of their Motion for Summary Judgment, Defendants submit the following material facts that the Court deems uncontested.

1. Plaintiff Linda Ballard was arrested on September 20, 2008 and charged with one count of violating an order of protection granted by a court under the

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