Romero v. Bd. of Cnty. Comm'rs for the Cnty. of Curry, CIV 15-0389 JB/SMV

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation202 F.Supp.3d 1223
Docket NumberNo. CIV 15-0389 JB/SMV,CIV 15-0389 JB/SMV
Parties Michelle ROMERO, as Sister and Next Friend of Alejandro Romero, Jr., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF CURRY, Gerry Billy, Tori Sandoval, and Ecipio Lucero, Correct Care Solutions, Andrew Fotopolus, and John Doe #1, Defendants.
Decision Date15 August 2016

202 F.Supp.3d 1223

Michelle ROMERO, as Sister and Next Friend of Alejandro Romero, Jr., Plaintiff,
BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF CURRY, Gerry Billy, Tori Sandoval, and Ecipio Lucero, Correct Care Solutions, Andrew Fotopolus, and John Doe #1, Defendants.

No. CIV 15-0389 JB/SMV

United States District Court, D. New Mexico.

Filed August 15, 2016

202 F.Supp.3d 1231

Matthew E. Coyte Coyte, Law P.C., Albuquerque, New Mexico, Attorney for the Plaintiff

Dennis K. Wallin, Brandon Huss, Wallin, Huss, & Mendez, LLC, Moriarty, New Mexico, Attorneys for Defendants Board of County Commissioners for the County of Curry, Tori Sandoval, and Ecipio Lucero

Luis E. Robles, Nicholas S. Autio, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorneys for Defendant Gerry Billy

Alfred A. Park, Geoffrey D. White, Kevin D. Fowler, Lawrence M. Marcus, Park & Associates, LLC, Albuquerque, New Mexico, Attorneys for Defendants Correct Care Solutions and Andrew Fotopolus



THIS MATTER comes before the Court on the Defendants' Rule 12(c) Motion for Judgment on the Pleadings, filed May 5, 2016 (Doc. 97)("Motion"). The Court held a hearing on August 8, 2016. The primary issues are: (i) whether Plaintiff Michelle Romero, as sister and next friend of Alejandro Romero, Jr., sufficiently states a claim under

202 F.Supp.3d 1232

rule 12(c) of the Federal Rules of Civil Procedure for violation of A. Romero's procedural due process rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America when she alleges that A. Romero was placed in segregation without a hearing or classification review and endured "inhumane" conditions of confinement; (ii) whether M. Romero may allege both a procedural due-process claim for confinement in segregation with no hearing and a substantive due-process claim for the Defendants' deliberate indifference to A. Romero's suffering in inhumane conditions; (iii) whether M. Romero plausibly states a claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 –12213 ("ADA"), for discrimination or failure to accommodate A. Romero's disability—paranoid schizophrenia —when the Defendants denied A. Romero access to the Curry County Curry Detention Center's services and programs; and (iv) whether M. Romero may plead as a separate count her claim that Defendants Board of County Commissioners for the County of Curry, Gerry Billy, in his official capacity, and Tori Sandoval, in her official capacity, had a custom and policy that deprived the mentally ill of adequate medical care and humane conditions under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ( "Monell "). First, M. Romero adequately alleges a procedural due-process claim by asserting that the Defendants confined A. Romero in punishing conditions that were excessive in relation to any legitimate governmental interest without providing any hearings or reviews. Second, because the procedural due-process claim asserts a different injury against different Defendants than the substantive due-process claim, the substantive due-process claim is not precluded. Third, although M. Romero alleges some factual allegations that do not constitute an ADA violation, she alleges other factual allegations which, if true, state an ADA claim. Finally, although Monell liability is not an independent, free-standing claim, the Defendants have not pointed to any law from the United States Court of Appeals for the Tenth Circuit that precludes plaintiffs from pleading it as a separate count for clarity. Accordingly, the Court denies the Motion.


M. Romero sues on behalf of her brother, A. Romero. See Amended Complaint for the Recovery of Damages Caused by the Deprivation of Civil Rights, filed March 14, 2016 (Doc. 83)("Amended Complaint").1 M. Romero alleges that A. Romero "has a long history of mental illness and has been diagnosed with paranoid schizophrenia." Amended Complaint ¶ 22, at 3. She states that, when "un-medicated, Alex has experienced psychotic episodes that have led to several arrests for misdemeanors, such as assault on a household member and criminal damage to property of a household member." Amended Complaint ¶ 23, at 3. Between 2009 and 2013, A. Romero was arrested and booked into the Curry County Detention Center four times. See Amended Complaint ¶ 24, at 4.

The Curry Detention Center administrators,2 including Billy, the Administrator of the Curry Detention Center until January, 2013, and Sandoval, the current Curry Detention Center Administrator, "routinely

202 F.Supp.3d 1233

complete [ ] an ‘Initial Classification & Custody Assessment Scale’ form when an inmate is booked that asks a series of questions about the inmate, and results in a scale score that indicates where the inmate should be placed." Amended Complaint ¶ 117, at 12. For A. Romero, however, the "Defendants failed [to] complete the initial assessment form, failed to meaningfully classify Alex, and arbitrarily placed him into solitary confinement based solely on his mental health problems." Amended Complaint ¶ 118, at 12. Moreover, the Defendants "failed to have any classification review thereafter." Amended Complaint ¶ 118, at 12. Instead, the Defendants "placed Alex in a steel segregation cell due to his ‘mental problems.’ " Amended Complaint ¶ 25, at 4. See Amended Complaint ¶¶ 4-7, at 2. "Alex spent eight months in solitary confinement without a hearing or reassessment." Amended Complaint ¶ 121, at 12-13. A. Romero "had no access to the ordinary services provided to inmates in the jail" because of "his mental illness," including "visitation, group therapy, religious services and recreation." Amended Complaint ¶ 129, at 13.

M. Romero also sues Defendant Correct Care Solutions, the purchaser and successor in interest to Correctional Healthcare Companies, L.L.C. See Amended Complaint ¶ 20, at 3. Correct Care provided health care to inmates at the Curry Detention Center during the events material to the Amended Complaint. Amended Complaint ¶ 21, at 3. Correct Care employed Defendant John Doe # 1, who "was in charge of medical care at CCDC." Amended Complaint ¶ 17, at 3. Defendant Andrew Fotopolus3 was "in charge of providing mental health counseling" at the Curry Detention Center. Amended Complaint ¶ 14, at 3. During A. Romero's incarceration, the "Defendants failed to ensure Alex was consistently taking his antipsychotic medication," even though they "knew how important it was for Alex to take his antipsychotic medication." Amended Complaint ¶¶ 37-39, at 4. The "Defendants accepted Alex's refusal to take his medication because it was ‘pink.’ " Amended Complaint ¶ 40, at 5. M. Romero notes that courts have previously declared A. Romero "incompetent to stand trial due to his mental illness." Amended Complaint ¶ 27, at 4. She explains that, when unmedicated, "Alex's mental health deteriorated in his segregation cell." Amended Complaint ¶ 42, at 5.

A. Romero "spent hours on the floor under his bed ‘rocking’, talking to himself, and naked," and would "tear his bed mattress to pieces." Amended Complaint ¶¶ 42-44, at 5. M. Romero describes how the Defendants "denied Alex access to a mattress, forcing Alex to sleep on the metal bed frame or on the floor under the bed." Amended Complaint ¶ 45, at 5. Jail documents indicate that A. Romero "smeared his feces in the cell on February 8, 2013, and again on February 16, 2013," and "was forcibly restrained" on February 27, 2013. Amended Complaint ¶¶ 49-50, at 6. Sergeant Mary Lujan, who worked in the segregation pod where A. Romero was housed, described A. Romero "as being confined in a foul smelling cell for long periods of time without recreation, visitation, phone calls or other activities for long periods of time." Amended Complaint ¶ 112, at 12. She described his "conditions of confinement as being inhumane." Amended Complaint ¶ 113, at 12. One inmate "described how the whole segregation unit would fill with a disgusting odor whenever Alex's door was opened." Amended Complaint ¶ 101, at 11. Another inmate "remembers Alex being sprayed down with a water hose like a dog" and

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"seeing Alex lose a great deal of weight while he was incarcerated." Amended Complaint ¶¶ 104-105, at 11. Curry Detention Center officers "would not let Alex out of his cell for recreation," and "his cell would only be cleaned when the smell became so bad the guards could not take it anymore." Amended Complaint ¶ 107, at 11. His cell was filled with "feces on the ceiling and urine everywhere." Amended Complaint ¶ 109, at 11.

After Lucero asked a court to transfer A. Romero to the Department of Corrections, the court "ordered a thirty-day commitment to the New Mexico Behavioral Health Institute (NMBHI)"4 in Las Vegas, New Mexico. Amended Complaint ¶¶ 53-55, at 6. A. Romero "spent seven months in the segregation cell under inhumane conditions" before being transferred to the NMBHI. Amended Complaint ¶ 56, at 6. In his first two days at NMBHI, A....

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