Ortiz v. New Mexico, CIV 18-0028 JB/LF

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
• Citation: 550 F.Supp.3d 1020
• Parties: Raymond ORTIZ, Plaintiff, v. State of NEW MEXICO, Intervenor, v. John Bearden, Defendant.
• Decision Date: 22 July 2021
• Docket Number: CIV 18-0028 JB/LF

550 F.Supp.3d 1020

Raymond ORTIZ, Plaintiff,
v.
State of NEW MEXICO, Intervenor,
v.
John Bearden, Defendant.¹

No. CIV 18-0028 JB/LF

United States District Court, D. New Mexico.

Filed July 22, 2021

550 F.Supp.3d 1041

Elias Barela, Lauren L. Zabicki, Elias Barela Attorney at Law, L.L.C., Los Lunas, New Mexico, Attorneys for the Plaintiff.

Michael Dickman, Law Office of Michael Dickman, Santa Fe, New Mexico, Attorney for Defendants Lucero-Ortega, Perez, Baca, Trujillo, Nunez, and Gonzales Attorney for Intervenor.

Douglas Gardner, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorney for Defendant John Bearden.

MEMORANDUM OPINION AND AMENDED ORDER ²

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

550 F.Supp.3d 1042

THIS MATTER comes before the Court on: (i) the State of New Mexico Risk Management Division's Opposed Motion to Intervene, filed November 6, 2018 (Doc. 36)("Motion to Intervene"); (ii) the Defendants’ Motion for Summary Judgment as to Second Amended Complaint Based on Qualified Immunity, filed December 7, 2018 (Doc. 49)("MSJ"); and (iii) Defendant John Bearden's Notice of Joinder in the Motion for Summary Judgment as to Second Amended Complaint, filed December 18, 2018 (Doc. 53)("Bearden Joinder"). The Court held hearings on January 16, 2019, and September 13, 2019. Clerk's Minutes Before the Court at 1, (taken January 16, 2019), filed January 16, 2019 (Doc. 58); Clerk's Minutes Before the Court at 1 (taken September 13, 2019), filed September 13, 2019 (Doc. 76). The primary issues are: (i) whether the Court should permit the State of New Mexico Risk Management Division ("Risk Management") to intervene in this suit under Rule 24 of the Federal Rules of Civil Procedure because, under state law, Risk Management is tasked with covering liability for torts and civil-rights violations committed by state employees; (ii) whether the Court should permit Bearden's to join the Defendants’ MSJ in seeking the dismissal of Counts 1-4 of Ortiz’ Second Amended Complaint to Remedy Civil Rights, filed October 31, 2018 (Doc. 30), pursuant to Fed. R. Civ. 10(c); (iii) whether Ortiz’ complaint states valid claims for relief under the Fourth Amendment to the Constitution of the United States of America, the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Constitution, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution; (iv) if the sexual contact between Ortiz and Bearden was not consensual, whether a reasonable jury could conclude that, by drawing an inference that Bearden was raping Ortiz and doing nothing about it, Perez, Baca, Trujillo, Nunez, and Gonzales acted with deliberate indifference, in violation of the Fourth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment; and (v) whether Perez, Baca, Trujillo, Nunez, and Gonzales are entitled to qualified immunity with respect to Ortiz’ constitutional claims.

The Court concludes that: (i) Risk Management may intervene because it meets its burden of satisfying rule 24(a) ’s requirements, in that its obligation to pay damages as required by New Mexico law depends on whether Bearden was acting within the scope of duty; (ii) Bearden is entitled to adopt by reference the Defendants’ MSJ under Rule 7.1(a) of the District of New Mexico Local Rules of Civil Procedure; (iii) although Ortiz’ complaint does not violate rule 8's notice-pleading requirement, the claims under the Due Process Clause, Equal Protection Clause,

550 F.Supp.3d 1043

and Fourth Amendment should be dismissed because claims of rape and sexual assault in prison are properly analyzed under the Eighth Amendment; (iv) no reasonable jury could conclude that Perez, Baca, and Trujillo acted with deliberate indifference, but a reasonable jury could conclude that Nunez, Gonzales, and Bearden acted with deliberate indifference; (v) Perez, Baca, and Trujillo are entitled to qualified immunity because no reasonable jury could conclude that they acted with deliberate indifference, but Nunez, Gonzales, and Bearden are not entitled to qualified immunity for the Eighth Amendment cruel-and-unusual punishment claim, because Ortiz has met his burden of demonstrating that right to be free from sexual assault in prison was clearly established at the time of the alleged incident, and because prison rape -- or deliberate indifference to it -- is particularly egregious such that no reasonable officer could conclude it does not offend the Constitution. Accordingly, the Court will grant the Motion to Intervene and the MSJ with respect to Perez, Baca, Trujillo, but deny the MSJ with respect to Nunez, Gonzales, and Bearden.

FACTUAL BACKGROUND

The MSJ states that "Defendants have chosen to file a single motion asserting and combining all of the grounds for dismissal and/or summary judgment." MSJ at 2. Rule 12(b)(6) and rule 56(a) use different factual standards, however. See Fed. R. Civ. P. 12(b)(6) ; Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Because the Court must separately address arguments under rule 12(b)(6) and rule 56(a), the Court includes two separate factual sections, one for rule 12(b)(6) purposes, the other for rule 56(a) purposes.

1. Facts for the Purpose of Rule 12(b)(6).

Beginning in late-September, 2015, Ortiz was an inmate housed at Western New Mexico Correctional Facility in Grants, New Mexico ("Western NM"). Ortiz’ Second Amended Complaint to Remedy Civil Rights ¶ 9, at 3, filed October 31, 2018 (Doc. 30)("Second Amended Complaint"); id. ¶ 3, at 2. Ortiz was housed in Housing Unit #2, Upper Level ("H-Unit"). See Second Amended Complaint ¶ 9, at 3. Bearden was a forty-eight year-old male corrections officer who worked at Western NM. See Second Amended Complaint ¶ 10, at 3. Bearden was assigned to the H-Unit. See Second Amended Complaint ¶ 10, at 3. Bearden became "intensely interested" in Ortiz "shortly after Mr. Ortiz began his detention" at Western NM near the end of September, 2015. Second Amended Complaint ¶ 14, at 4. Bearden's interest began with "an intense and inappropriate physical attraction to Mr. Ortiz" that "would have been very difficult to conceal from" other inmates and guards at the prison, including Jason Baca, Gary Trujillo, Warden Lucero-Ortega, and Deputy Warden Pete Perez. Second Amended Complaint ¶ 14, at 4. Bearden's conversations with Ortiz began to revolve "mostly around Bearden's homosexuality and his intense and inappropriate sexual interest toward" Ortiz. Second Amended Complaint ¶ 15, at 4-5. As the interaction between Ortiz and Bearden increased, Bearden "emphasized his authority and control over" Ortiz, and made known his "intent and inappropriate interest in having a sexual relationship with" Ortiz. Second Amended Complaint ¶ 16, at 5. In view of Baca, Trujillo, Lucero-Ortega, Perez, and others, Ortiz protested that he was not interested in a sexual relationship with Bearden. Second

550 F.Supp.3d 1044

Amended Complaint ¶ 16, at 5. Baca, Trujillo, Lucero-Ortega, Perez, and other employees and officers at Western NM knew that Bearden's actions violated Ortiz’ rights, including those the Prison Rape Elimination Act, 34 U.S.C. §§ 30301 - 30309, protects. See Second Amended Complaint ¶ 17, at 5; id. ¶ 11, at 4.

During the next "approximately two weeks,"³ Bearden's advances towards Ortiz "increased in frequency." Second Amended Complaint ¶ 17, at 5. Bearden's advances included "flirting and unwanted kissing," and then "unwanted touching and groping Mr. Ortiz’ body, including his buttocks and genitalia." Second Amended Complaint ¶ 18, at 5. The advances were so frequent that "it would have been impossible to conceal" them from "anyone who was observant." Second Amended Complaint ¶ 19, at 5-6. Bearden's behavior drew enough attention from the other inmates for the other inmates to label Ortiz "Officer Bearden's favorite." Second Amended Complaint ¶ 19, at 6. Other inmates saw Bearden's sexual interest in Ortiz as an opportunity to acquire "contraband items such as drugs and cigarettes." Second Amended Complaint ¶ 20, at 6. Other inmates tried to manipulate Ortiz by threatening, intimidating, harassing, and coercing him into reciprocating Bearden's advances. See Second Amended Complaint ¶ 20, at 6. Bearden's behavior created an opportunity for other inmates to demand that Ortiz " ‘take one for the team’ " and submit to Bearden's sexual advances, or else risk harm. Second Amended Complaint ¶ 20, at 6 (no citation for quotation).

Ortiz was terrified of Bearden's power as a corrections officer and of the other inmates’ threats. See Second Amended Complaint ¶ 21, at 6. As a result, even though Ortiz was "a heterosexual male" and had no interest in reciprocating Bearden's advances, he "had no choice but to concede," "hoping and praying the behavior would at least be limited to the flirting and touching he was already subjected to," but would eventually stop. Second...