Reno v. Bd. of Cnty. Comm'rs for the Cnty. of Eddy
| Citation | 577 F.Supp.3d 1204 |
| Decision Date | 03 January 2022 |
| Docket Number | Civ. No. 20-918 GJF/KRS |
| Parties | Edward RENO, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF EDDY and Darla Bannister, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Scott Zwillinger, Pro Hac Vice, Witthoft Derksen, PC, Phoenix, AZ, David Elias Idinopulos, Michael C. Ross, Ali M. Morales, Elias Law, P.C., Albuquerque, NM, Scott Griffiths, Pro Hac Vice, Law Office of Scott Griffiths PLLC, Tempe, AZ, for Plaintiff.
Brandon Huss, New Mexico Association of Counties, Santa Fe, NM, David Anthony Roman, Mark L. Drebing, New Mexico Association of Counties, Albuquerque, NM, for Defendant Board of County Commissioners for the County of Eddy.
Gregory L. Biehler, Lewis Brisbois Bisgaard & Smith LLP, Jonlyn M. Martinez, Law Firm of Jonlyn M. Martinez, Albuquerque, NM, for Defendant Darla Bannister.
THIS MATTER is before the Court upon Defendant Board of County Commissioners for the County of Eddy's ("County's") Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Rule 12(b)(6) [ECF 31] ("Motion"). The Motion is fully briefed. See ECFs 33 (response), 45 (reply). After thoroughly considering the parties’ arguments, and as explained below, the Court will GRANT IN PART the County's Motion by DISMISSING WITH PREJUDICE Count I of the Second Amended Complaint [ECF 28 at 6-10] with respect to the County. The Court will DENY the Motion in all other respects.
In May 2021, the Court dismissed without prejudice Counts I and II of Plaintiff's First Amended Complaint, which then included three counts. ECF 27. The Court dismissed Count I because it did not state a valid "§ 1983 claim for deliberate indifference under the Eighth Amendment," as that Amendment only "protects the rights of convicted prisoners "—not the rights of pretrial detainees like Plaintiff. Id. at 12-13 (first emphasis added) (quoting Strain v. Regalado , 977 F.3d 984, 989 (10th Cir. 2020) ). The Court, however, permitted Plaintiff to amend Count I, especially as he could bring an essentially identical § 1983 claim for deliberate indifference under the Fourteenth Amendment. Id. (citing Strain , 977 F.3d at 989 ).
The Court dismissed Count II because it lacked sufficient factual allegations to state a valid § 1983 claim for municipal liability. Id. at 13-15 (). The Court also permitted Plaintiff an opportunity to amend Count II, particularly as "the Court [was] unaware of, and the County [did] not address, any reason why Plaintiff should not be granted [such] leave." Id. at 15.
In June 2021, Plaintiff filed his Second Amended Complaint [ECF 28] ("SAC"). The SAC is essentially identical to its prior iteration, compare ECF 12 with ECF 28, with two important exceptions. First, Count I (§ 1983 claim for deliberate indifference) is now brought under the Fourteenth Amendment. See SAC [ECF 28] ¶¶ 40-41 (). Second, what was previously Count II (§ 1983 claim for municipal liability) has now been entirely omitted from the SAC. See id. at 10-13 ().
The SAC alleges the exact same facts as its previous iteration (minus the factual assertions in the 21 paragraphs from the omitted municipal liability claim). Compare ECF 12 with ECF 28. The SAC still alleges that Plaintiff was a 47-year-old "pretrial detainee in the custody and care of the Eddy County Detention Center [ECDC] from March 22, 2018 to July 5, 2018." SAC ¶¶ 4, 10. It also alleges that, "at the time of his incarceration," Plaintiff suffered from, inter alia , "an obvious and previous partial right foot amputation, the result of his diabetes
." ¶ 11. ECDC personnel, however, allegedly "withheld [from him] regular [and necessary] changes of socks, and shoes" and "denied [him] the use of his own orthotic device"—a device that "was to go in his shoe to protect his foot stump." ¶¶ 11-13, 21.
Consequently, Plaintiff was "required to walk with his bare feet on the bare floor of his cell, on his partially amputated stump
." ¶¶ 14, 29. Furthermore, such "walk[ing] as a diabetic on his bare feet" caused his feet to "crack and ulcerate." ¶ 16. And because "the floor of [his] cell ... was not cleaned or disinfected," his stump "soon bec[a]me infected"—ultimately resulting in "a below the knee amputation of [his] right foot and leg." ¶¶ 15-16, 34.
Brought pursuant to 42 U.S.C. § 1983, Count I alleges that Defendant Darla Bannister was "an independent contractor employed by [the County] as a health care provider" who "violated the Fourteenth Amendment ... [by] being deliberately indifferent to the serious medical needs of [Plaintiff]." ¶¶ 8, 41 (emphasis added). For instance, Plaintiff asserts that Defendant Bannister "failed to appropriately triage [him]," "actively ignored [his] symptoms and complaints," "failed to obtain for him timely medical care by a specialist," "refused to assess [him] for an orthotic or prosthetic device as required by ECDC Policy and Procedure 400.40," "depriv[ed] him of a referral to an orthotic doctor," and refused to provide him "clean socks and shoes." ¶¶ 22, 49, 57.
A singular paragraph in Count I alleges that ECDC Warden Billy Massingill—who is not named as a defendant but who was allegedly "responsible for the written and unwritten policies and procedures at ECDC," ¶ 7—was himself "deliberately indifferent to [Plaintiff's] constitutional rights ... [by] refus[ing] to permit [a post-amputation orthotic device
] to be ordered due to costs." ¶ 62. The Court, however, previously concluded that Count I did not state a claim against the County—but rather "only [against] Defendant Bannister." ECF 27 at 13 n. 6 (citing ECF 12 at ¶¶ 40-62). In reaching this conclusion, the Court found that Count I "[did] not sufficiently allege that [Warden Massingill's denial of a particular post-amputation orthotic] amount[ed] to ‘the existence of a municipal policy ... [and] a direct causal link between [such a policy] and the injury alleged.’ " Id. (quoting Jensen , 968 F.3d at 1204 ); see also
id. at 14 ().
Brought under the New Mexico Tort Claims Act (NMTCA), Count II generally alleges that both Defendants had a duty to exercise reasonable care in addressing Plaintiff's special medical needs (e.g., by providing socks, shoes, orthotics, prosthetics, "a medical appropriate plan," and/or "immediate transport to a hospital"), SAC ¶¶ 13, 66, 72-77, 81, 85; that they breached that duty, ¶¶ 68-69, 82, 86; and that such breaches caused physical and economic harm to Plaintiff, ¶¶ 70-71, 83-84, 87-88. In relevant part, Count II alleges that the County did not exercise reasonable care because it, inter alia , failed to follow "the clear language of ECDC Policy and Procedure 400.40 ... [to] order a consult for orthotic or prosthetic devices." ¶¶ 18, 22, 57, 65, 72, 85-86.
In June 2021, the County filed the instant Motion, which requests that the Court dismiss with prejudice both of the SAC's claims against the County because the SAC (1) "lack(s) plausible fact allegations sufficient to establish a [ § 1983 claim for deliberate indifference] against the [County]" and (2) "does not [allege] the [negligent] operation of a building" under the NMTCA. Mot. 8.
The Motion raises the primary issue of whether the SAC contains enough factual allegations to plausibly suggest that:
The County contends that "there can be no claim against the [County]" without "a claim of an official policy causing a constitutional deprivation"—as " § 1983 liability is not available under the doctrine of respondeat superior." Reply 1-2 (emphasis added) (quoting West v. Atkins , 487 U.S. 42, 54 n.12, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ) (citing Monell v. Dep't. of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). In light of this principle, the County argues that "Plaintiff has not added any...
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