Fawley v. Geo Grp., Inc.

• Decision Date: 18 March 2013
• Docket Number: CIV 11-0181 LH/KBM
• Parties: BENJAMIN WILLIAM FAWLEY, Plaintiff, v. GEO GROUP, INC., GREGG MARCANTEL, in his official capacity as Secretary for the New Mexico Department of Corrections, DWAYNE BURRIS, Correctional Officer, and FNU WIGGINS, Correctional Officer. Defendants.
• Court: U.S. District Court — District of New Mexico

BENJAMIN WILLIAM FAWLEY, Plaintiff, v. GEO GROUP, INC., GREGG MARCANTEL,in his official capacity as Secretary for the New Mexico Department of Corrections,DWAYNE BURRIS, Correctional Officer, and FNU WIGGINS,Correctional Officer. Defendants.

CIV 11-0181 LH/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 18, 2013

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Defendants' Joint Martinez Report, Bounds/Lewis Supplement, see Docs. 63, 70, Plaintiff's responses to the same, see Docs. 71-72, and Defendants' reply, see Doc. 73. Plaintiff has also filed a number of other motions, only two of which predated the Court's briefing schedule. See Docs. 57, 58, 68. Some of these motions reiterate, or elaborate on, Plaintiff's arguments in support of his claims, some of raise new matters, and some received a response from Defendants. See Docs. 69, 75, 76, 79. 80, 81, 84.

For the reasons below, the Court recommends that all pending motions be denied, filing restrictions be imposed if Plaintiff fails to abide by requirements mentioned herein, summary judgment enter in favor of Defendants, and this action be dismissed with prejudice.

I. General Factual & Procedural Background

After his Alford Plea to murder in second degree, Plaintiff was sentenced in 2006 to forty years incarceration in the Virginia Department of Corrections. See, e.g., Doc. 11 at 5-6. Virginia transferred him to New Mexico under the Interstate Corrections Compact ("ICC") in March 2009. See Doc. 63 at 1-2; see also Fawley v. Johnson, et al., Civil Action No. 7:09-cv-0041, 2011 WL 3240537, at *3 (W.D. Va. Jul. 28, 2011), aff'd, 466 F. App'x 187 (4^th Cir. 2012); Fawley v. Williams, CIV 11-0061 BB-CG (Doc. 35 at 5-6). In May 2009, he was transferred again but remained in New Mexico. See Doc. 63 at 2.

Plaintiff has filed many lawsuits, most of which are available on PACER. A West Virginia case discusses Plaintiff's state post-conviction proceedings. See Fawley v. Johnson, et al., Civil Action No. 7:09-cv-0041, 2011 WL 3240537, at **1-2 (W.D. Va. Jul. 28, 2011), aff'd, 466 F. App'x 187 (4^th Cir. 2012); see also Fawley v. Janecka, CIV 0900892 WJ/RHS (Doc. 20). The Court takes take judicial notice of these prior suits, because they have bearing on the instant case. The analysis sections of this opinion discuss them in more detail. See, e.g., St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10^th Cir. 1979); Fawley v. Williams, CIV 11-0061 BB-CG (Doc. 35 at 6, n.2); Doc. 63 at 2.

The instant matter is Plaintiff's second suit in this District where his primary complaint is that New Mexico's policies on legal materials and photocopying deny him access to the courts.

II. Initial Considerations

A. Note On Different Versions Of Policies

The Department revised its legal access and photocopying policies on the same dates - July 30, 2008, June 24, 2009, May 26, 2010, April 27, 2011 and March 30, 2012. The Court is aware of these amendments because the earlier versions were submitted with the Martinez Report in the earlier suit, and two latest versions were submitted with the Martinez Report in this case. See Doc. 63-3 at 4-24; Doc. 63-4 at 1-40; Fawley v. Williams, et al., CIV 11-0061 BB/CG (Docs. 34-5 through 34-10); see also Doc. 26 at 19-21 (flyer noting policy change effective May 9, 2011). Some of the events in late 2012 in this case predate the latest two versions, however, the regulations discussed below have remained unchanged from early 2010 through 2012.

B. Note On "Denial" Of Documents 22 And 26 Submitted By Plaintiff

In Documents 22 and 26, Plaintiff attached materials ranging from his requests for copies, responses to grievances, and his submissions and correspondence with Virginia courts. In the Court order that allows Plaintiff to proceed with original and amended claims in this suit past the screening stage, Judge Hansen "denied" Plaintiff's attempt to file those two documents, but qualifiedly did so. Defendants rely on the documents Plaintiff submitted and so does the Court.¹

C. Res Judicata Inapplicable

Plaintiff filed the first such action on January 18, 2011, and it has since concluded. See Fawley v. Williams, CIV 11-0061 BB-CG (Doc. 1). Defendants refer to Judge Black's case as the "Ancillary Case." See, e.g., Doc. 63 at 2. Plaintiff filed the instant action on February 22, 2011. See Doc. 1 .

In Judge Black's case, Plaintiff challenged how the policies allegedly impacted two proceedings in Virginia: (1) state appellate proceedings after the denial of one of his state habeas petitions and; and (2) his § 1983 suit in Western District of Virginia challenging the Virginia Department of Corrections' legal access policy. See Fawley v. Williams, et al., CIV 11-0061 BB-CG (Doc. 35 at 5-7). Judge Black dismissed Plaintiff's first suit failure to establish an "actual injury" in his attempts to litigate the aforementioned cases in Virginia. See id. at 8-9.

Here, the three filings at issue are: (1) attempted certiorari petitions with the Supreme Court of the United States in January and February 2011; (2) attempted "writ of error coram nobis and fraud" petition with the "Mathews County Circuit Court" Virginia Courts between May and June 2011; and (3) denial of a writ of mandamus by the Virginia Supreme Court. See Doc. 23 at 2, 3; Doc. 26 at 7-8; Doc. 27 at 2, 5; Doc. 63 at 17.

The disposition of the earlier action with this Court is not res judicata for the case at bar. See Doc. 63 at 12. First, the May and June 2011 events took place after Plaintiff filed the first suit. Thus, any preclusive effect would not result in a dismissal of this entire case. Second, while the applicable law and policies are the same and theparties overlap, the parties are not identical. See, e.g., Garcia v. Hoover, 223 F. App'x 785, 788 (10^th Cir. 2007) (parties or their privies must be same).²

Third, res judicata is one of the Court's considerations when conducting its initial review under § 1915 and Rule 16. See, e.g., id. ("Garcia filed the current lawsuit against Hoover, Shanks, Perry, Gilbert Garcia and six other current and former NMDC officials . . . The district court sua sponte dismissed Garcia's complaint under [§ 1915 and the Rule] on res judicata [and other] grounds. . . . We agree with the district court that Garcia's claims against (at least) Hoover, Shanks, Perry and Gilbert Garcia are barred by res judicata/claim preclusion."); Stewart v. Shannon, CIV 12-0560 JB/KBM (Doc. 8 at 2-3 - dismissing on basis of res judicata). Judge Hansen did not enter his order following review under 28 U.S.C. § 1915 and Fed. R. Civ. P. 12(b)(6) until September 22, 2011. See Doc. 27. This was almost two months after Judge Black allowed the first case to proceed. See Fawley v. Williams, CIV 11-0061 BB-CG (Doc. 20, filed 8/3/11).

Thus, the Court is confident that Judge Hansen was aware of the potential res judicata argument with respect to the Supreme Court case allegations at issue herewhen he issued his decision. He no doubt did not dismiss on a res judicata basis because the Supreme Court proceeding is completely distinct from the Virginia proceedings presented in the first case. The doctrine of res judicata is inapplicable when the "subject matter" and "claims" (or "cause of action") are not identical. See Garcia, 223 F. App'x at 788 ("claim is barred by res judicata when the prior action involved identical claims"); see also Mambo v. Vehar, 185 F. App'x 763, 765 (10^th Cir. 2006) (reciting elements from Myers v. Olson, 100 N.M. 745, 676 P.2d 822 (1984), including that "subject matter" and "cause of action" must be "identical").

Though the applicable law is the same for both suits, applying law to distinct facts is an entirely different endeavor. As such, "the doctrine of res judicata is inapplicable." Torres v. Village of Capitan, 92 N.M. 64, 67-68, 582 P.2d 1227, 1280-81 (N.M. 1978) (case where the first and second suits challenged annexations that occurred in separate years and based on different ordinances, "[i]t was not necessary in the first suit [to] reach the question of constitutionality of the annexation statute" because "the ultimate facts necessary for the resolution of the two suits were different," and the "the issues necessarily dispositive in the prior cause were . . . different").

D. "Three Strikes" Sanction Not Applicable & Plaintiff Has Accumulated Two Of Them To Date

Defendants make an unusual request in their Martinez Report, and ask the Court to invoke the "three strikes" provision to prevent Plaintiff "from initiating further federal lawsuits" without payment under 28 U.S.C. § 1915(g). See Doc. 63 at 40-41. That subsection provides:

In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought anaction . . . that was dismissed on the grounds that it is frivolous . . . or fails to state a claim . . . , unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). This Court enforces the "three strikes" provision. See, e.g., Mendez v. One of the Conected [sic], Wired, Members of a Big Int'l Org., CIV 12-0282 RB/ACT (Doc. 3) (denying permission to proceed in forma pauperis where three prior strikes had accumulated).

To accumulate the requisite three strikes, Defendants cite as one prior strike an Eastern District of Virginia civil rights action where the district court's dismissal expressly provided a § 1915(g) "caution." See Doc. 63 at 41. That case dismissed for failure to state a claim at the § 1915 screening stage. See also Fawley v. Johnson, Action No. 2:10cv175, 2010 WL 6797327, at **1, 2 (E.D. Va. Jun. 23, 2010), aff'd, 395 F. App'x 64 (4^th Cir. 2010). To gather two more strikes, Defendants ask this Court to consider the proposed findings that Judge Black adopted in April 2012, which stated:

It appears that Plaintiff has been less than

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