Porras v. CoreCivic, Inc., et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD PORRAS,
Plaintiff,
Case No. 1:19-CV-00367-MV-KK
v.
CORECIVIC, INC., et al,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendants’ Motion to Dismiss the Second
Amended Complaint [Doc. 38] and Plaintiff’s Motion to Amend the Complaint [Doc. 124]. The
Court, having considered the motion, briefs, and relevant law, and being otherwise fully
informed, finds that Plaintiff’s Motion to Amend is not well-taken and will be denied and
Defendants’ Motion to Dismiss is well-taken and will be granted, although Mr. Porras will be
given an opportunity to file a new motion seeking leave to amend, consistent with this Opinion.
BACKGROUND
The relevant facts as alleged in the Second Amended Complaint are as follows. Richard
Porras (“Plaintiff”) was a federal detainee in custody at the Torrance County Detention Facility
(TCDF) in Estancia, New Mexico. Doc. 37 ¶¶ 3-4 (characterizing him as an inmate but noting
that the facility held “federal and state detainees”); c.f. Doc. 38 at 2, n.3 (characterizing him as a
federal pre-trial detainee). TCDF is a private prison facility operated by CoreCivic, Inc., one of
the defendants in this case. Doc. 37 ¶ 4. At the time of the incident, CoreCivic housed federal
and state detainees at TCDF pursuant to correctional services agreements with various
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government entities. Id. The Second Amended Complaint divides the other defendants into two
categories. Defendants Freeman, Troglin, Viramontes, Lewis, Flores, Honeycutt, Lopez, Gardea,
Miller, and Gonzales are “Officer Defendants.” Id. ¶ 5. Defendants Gallegos, Perry, and Trujillo
are “Nurse Defendants.” Id. ¶ 6. At all relevant times, CoreCivic “employed, retained, trained,
and exercised direct supervisory control over” Officer Defendants and Nurse Defendants, id. ¶ 4,
and they were acting “within the scope of their duties and employment.” Id. ¶¶ 5-6. Plaintiff
alleges that Defendants were acting “under the color of law” but does not specify in the Second
Amended Complaint whether that refers to state or federal law. Id.
On May 17, 2017, at approximately 8:18 PM, Plaintiff was in Section 7, Block C (“7C”)
speaking with someone on the phone as he prepared to end his day. Id. ¶¶ 7-8. While he was on
the phone, roughly 20 inmates were nearby in the 7C dayroom without supervision by any
CoreCivic employee. Id. ¶ 9. Roughly one minute later, while Plaintiff was still on the phone,
two inmates came over and attacked Plaintiff. Id. ¶ 10. “Both inmates tackled [him], threw him
to the ground, and punched, kicked, and stabbed him in the face and head with a makeshift
weapon apparently crafted from a pen.” Id. Two other inmates came over, id. ¶ 11, and joined in
the attack, which ultimately lasted for “nearly two minutes” and resulted in Plaintiff being left
“under a flight of stairs near the phone.” Id. ¶ 12. No CoreCivic employee entered the area until
“almost half an hour after the attack.” Id. ¶ 13. Plaintiff alleges that Defendant Freeman was
“supposed to be monitoring 7C during the relevant time,” id. ¶ 14, and that Defendant Troglin
was “responsible for conducting safety and security checks in 7C,” but that neither of them did
what they were supposed to do and thus left the area of the attack unsupervised and unmonitored
when the incident occurred. Id. ¶ 15. Meanwhile, the “hallway cameras were not operating at the
time of the attack.” Id. ¶ 14. He further alleges that none of the other Officer Defendants “took
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any action to supervise or guard the inmates in 7C or to respond to or prevent the attack.” Id. ¶
16.
Around 8:47 PM, Defendant Troglin located Plaintiff, who had to be identified by his
tattoos, in a “pool of blood, unrecognizable and unresponsive.” Id. ¶ 17. Around 8:48 PM,
“Defendant Gardea entered and began to clear the pod of inmates.” Id. ¶ 18. Around 8:49 PM,
Defendants Viramontes, Lewis, Flores, and Lopez arrived, followed a minute later by Defendant
Honeycutt and all three Nurse Defendants. Id. ¶ 19. Plaintiff was placed on a gurney around 9:01
PM, id. ¶ 20, and transported by helicopter “directly to the University of New Mexico Hospital
in Albuquerque,” where he arrived at approximately 10:31 PM. Id. ¶ 22. He alleges that the
“need for specialized care was obvious” since his “injuries were so obvious that even a layperson
would recognize them.” Id. ¶ 21. He claims that his “transportation for emergency medical
treatment” was delayed by Officer and Nurse Defendants “such that he did not arrive at the
hospital for approximately two hours after the attack ended.” Id.
Plaintiff suffered “severe physical injuries” as a result of the attack, including “head
trauma, bleeding of the brain, broken bones, severe abrasions and swelling on his face and head,
blood loss, eye damage, and other serious physical injuries.” Id. ¶¶ 23-24. He also alleges
“serious and ongoing pain and suffering, including emotional distress, fear, and trauma.” Id. ¶
24.
As memorialized in records possessed by CoreCivic, Plaintiff had cooperated with the
authorities prior to his detention. Id. ¶ 25. According to Plaintiff, either that information had been
shared with other inmates by CoreCivic employees, or other inmates had impermissibly been
allowed to access it. Id. He claims that Defendant Officers knew inmates had that knowledge and
thus knew but ignored the “grave danger of violence or retaliation” that he faced by being placed
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in the general-population pod. Id. ¶¶ 26-27. According to Plaintiff, Defendant Officers “knew he
was in substantial and imminent risk of injury or death from other inmates,” and the four inmates
attacked him in retaliation for his cooperation. Id. ¶¶ 27-28. Finally, Plaintiff alleges that
CoreCivic “had a practice, custom, or policy of short-staffing its facilities and/or leaving inmates
unguarded and unsupervised for prolonged periods in common areas,” including inmates at high
risk of victimization. Id. ¶ 29. He claims that all Defendants were aware of these “systemic
deficiencies.” Id.
Plaintiff filed his original complaint pro se on April 22, 2019. Doc. 1. He acquired
counsel and filed a First Amended Complaint on January 7, 2021. Doc. 31. He filed the Second
Amended Complaint two months later, on March 22, 2021. Doc. 37. The Second Amended
Complaint raises five claims, two under federal law and three under New Mexico law. First, he
alleges that CoreCivic and Officer Defendants failed to protect him from the attack in violation
of the Eighth and/or Fourteenth Amendments. Id. at 6-7.1 Second, he alleges that all Defendants
exhibited “deliberate indifference to [his] medical needs,” in violation of the Eighth and/or
Fourteenth Amendments. Id. at 7-8. For each federal claim alleging violations of his
constitutional rights, he seeks relief pursuant to 42 U.S.C. § 1983. Id. Third, he brings a medical
negligence claim under New Mexico law against CoreCivic and Nurse Defendants. Id. at 8-9.
Fourth, he brings a claim for negligent operation of medical facilities against all Defendants
under New Mexico law. Id. at 10. Fifth, he brings a tort action against Officer Defendants under
New Mexico law for what he alleges to be assault and battery. Id. at 11. He requests a jury trial
pursuant to Federal Rule of Civil Procedure 38(b). Id.
1 The paragraph numeration continues from the facts section through Count I, but then restarts
beginning at Count II. To avoid confusion, beginning with the legal claims, the Court cites to the
page rather than paragraph numbers in the Second Amended Complaint.
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On April 21, 2021, Defendants timely moved to dismiss the Second Amended Complaint
for failure to state a claim. Doc. 38. They raise the following seven arguments in support of the
Motion to Dismiss. First, relief under § 1983 is unavailable because, since Plaintiff was in their
custody pursuant to an agreement with the United States Marshals Service (USMS), a federal
agency, Defendants were not acting under color of state law. Id. at 5-6. Second, amendment of
the complaint to add requests for relief under Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971), should be disallowed as futile, since Bivens actions cannot be taken against
federal contractors. Id. at 6-7. Third, insufficient facts are alleged to establish deliberate
indifference under the Eighth Amendment as to Officer Defendants, and insufficient facts are
alleged to show that CoreCivic had a policy, custom, or practice that was the moving force
behind any potential Eighth Amendment violations by its employees. Id. at 7-10. Fourth,
Plaintiff failed to go beyond conclusory allegations of deliberate indifference to his medical
needs in violation of the Eighth Amendment. Id. at 10-13. Fifth, the medical professional
negligence claim against CoreCivic and Nurse Defendants fails because Plaintiff does not allege
any particular way in which he was not provided timely and appropriate medical care such that
those Defendants breached a duty of care. Id. at 13-14. Sixth, the claim for negligent operation of
public medical facilities fails because that cause of action under New Mexico law applies only to
public employees operating public facilities. Id. at 14. Seventh, the tort claim for assault and
battery fails because Plaintiff specifically alleges that he was attacked by four inmates and does
not allege any physical contact or attempt at physical contact by Defendants. Id. at 15.
Two years later, on May 18, 2023, Plaintiff filed a Motion to Amend the Complaint and
attached the proposed Third Amended Complaint. Doc. 124 (Motion to Amend the Complaint);
Doc. 124-1 (proposed Third Amended Complaint). The proposed Third Amended Complaint
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would drop all Nurse Defendants and all Officer Defendants other than Rhonda Gonzales, Paul
Miller, and Sheila Freeman. Doc. 124-1 at 1. It would also drop three of the five claims in the
Second Amended Complaint while adding an additional claim under the New Mexico
Constitution. Specifically, the three remaining claims would be: (1) § 1983 claim for failure-to-
protect violations of the Eighth and Fourteenth Amendments; (2) New Mexico constitutional
claim for violations of Plaintiff’s state-derived rights to due process and to be free from cruel and
unusual punishment; and (3) negligence claim under New Mexico state law. Id. at 16-31.
Defendants’ Motion to Dismiss the Second Amended Complaint and Plaintiff’s Motion
to Amend the Complaint, both of which are contested, are now before the Court for decision.
LEGAL STANDARD
I. 	Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes dismissal of all or part
of a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). A claim has not been stated for purposes of Rule 8 of the Federal Rules of Civil
Procedure, and thus succumbs to a motion to dismiss under Rule 12(b)(6), when the pleading
fails to go beyond “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (1986)). Plausibility does not
require that it be more probable than not that relief would be granted. Iqbal, 556 U.S. at 678.
Instead, to be plausible a claim must “plead[] factual conduct that allows the Court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard
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does not require the Court to be “bound by conclusory allegations, unwarranted inferences, or
legal conclusions.” Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994).
II. 	Motion to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that courts “should freely
give leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to
amend should be granted “[i]n the absence of any apparent or declared reason,” such as “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178 (1962) (quoting
Fed. R. Civ. P. 15(a)). In the Tenth Circuit, the “most important[] factor in deciding a motion to
amend the pleadings[] is whether the amendment would prejudice the nonmoving party.” Minter
v. Prime Equipment Co., 451 F.3d 1196, 1207 (10th Cir. 2006). Undue prejudice most often
occurs “when the amended claims arise out of a subject matter different from what was set forth
in the complaint and raise significant new factual issues.” Id. at 1208 (emphasis added).
Importantly, some or even an extended delay in seeking leave to amend is not fatal:
“Lateness does not of itself justify the denial of the amendment.” Id. at 1205 (quoting R.E.B.,
Inc. v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir. 1975)). Rather, the focus is on whether
delay places “an unwarranted burden on the court” or places “an unfair burden on the opposing
party.” Minter, 451 F.3d at 1205. The longer the delay, the more likely it will become undue. Id.
(citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)). Similarly, the more “it
appears that the plaintiff is using Rule 15 to make the complaint a ‘moving target,’” the more
justified it is for a court to deny leave to amend. Minter, 451 F.3d at 1206 (quoting Viernow v.
Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998)).
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Further, leave to amend should not be granted where doing so would be futile, i.e., where
the amended complaint would nonetheless be “subject to dismissal for any reason.” Bauchman
for Bauchman v. West High School, 132 F.3d 542, 562 (10th Cir. 1997). The “futility question is
functionally equivalent to the question of whether a complaint [as amended] may be dismissed
for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999) (citations
omitted).
Rule 15 is not the end of the inquiry, however, where a scheduling order has been entered
under Rule 16 of the Federal Rules of Civil Procedure that includes a deadline for amendments
to pleadings. In that situation, “parties seeking to amend their complaints after a scheduling order
deadline must establish good cause for doing so.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank
Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2012). This demonstration of “good cause” is required by
Rule 16(b)(4) and is “an arguably more stringent standard than the standards for amending a
pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009). Importantly, it
supplements rather than replaces the more lenient “when justice so requires” standard from Rule
15(a)(2). Gorsuch, 771 F.3d at 1240.
Rule 16(b)(4) good cause requires the party seeking amendment “to show the scheduling
deadlines cannot be met despite the movant’s diligent efforts.” Id. (internal marks omitted); Fed.
R. Civ. P. 16(b)(4). For example, good cause can be established “if a plaintiff learns new
information through discovery or if the underlying law has changed.” Id. (citing Pumpco, Inc. v.
Schenker Int’l, Inc., 204 F.R.D. 667, 668-69 (D. Colo. 2001)). Good cause is not established
when the movant fails to “provide an adequate explanation for any delay.” Husky Ventures, Inc.
v. B55 Invs., Ltd., 911 F.3d 1000 (10th Cir. 2018). This bears a “rough similarity … to undue
delay analysis under Rule 15.” Minter. 451 F.3d at 1205 n.4.
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DISCUSSION
Plaintiff’s Second Amended Complaint and proposed Third Amended Complaint assert
federal constitutional claims and pendent state law claims. As noted above, Defendants move to
dismiss the Second Amended Complaint, and oppose Plaintiff’s motion for leave to amend, on
several grounds. Defendants argue, inter alia, that Plaintiff’s federal constitutional claims,
brought pursuant to § 1983, fail as a matter of law because the Second Amended Complaint
includes no facts that, if proven, would establish that they were acting under color of state law
when they allegedly violated his federal constitutional rights. Defendants further argue, inter
alia, that Plaintiff’s proposed Third Amended Complaint does not remedy this defect and,
accordingly, that granting Plaintiff leave to amend would be futile. For the reasons set forth
herein, the Court agrees with these arguments and finds that dismissal of the Second Amended
Complaint and denial of Plaintiff’s Motion to Amend are warranted on these bases alone. The
Court, however, will allow Plaintiff an opportunity to move to amend to remedy the pleading
defect identified by Defendants.
As an initial matter, the Court finds that Plaintiff satisfies the “good cause” standard
under Rule 16(b)(4), and that Rule 16 thus does not foreclose the Court from granting him leave
to amend. The deadline to seek leave to amend was July 23, 2021. See Doc. 50 at 2. As
justification for filing his motion after the operative case management deadline had elapsed,
Plaintiff notes that “[d]iscovery in this case was slow-going in light of COVID-19” and that his
neuropsychologist expert was denied entry for a scheduled visit in late 2022 to the Bureau of
Prisons medical facility in Florida where Plaintiff was being held during his recovery from the
incident out of which this action arose. Doc. 124 at 3. Plaintiff also notes that his initial pro se
status and logistical challenges locating and coordinating with deponents who were later
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terminated by CoreCivic contributed to the delay. Id. at 8. He alleges that those terminations
were connected to TCDF ceasing to be a “USMS facility” shortly after the incident, for
presumably unrelated reasons, and that each individual whom he wished to depose was among
those terminated. Id.
Together, the Court finds these explanations sufficient to establish good cause, even
given the nearly two years that elapsed between the applicable deadline and Plaintiff’s request to
amend. Discovery in this case overlapped with some of the most significant surges in COVID-19
cases, which threw a wrench into many litigation logistics. He specifically cites an instance
where a neuropsychologist whom his counsel obtained was denied access to the BOP facility
where Plaintiff was in custody, despite having an appointment. Furthermore, he notes that
locating deponents and coordinating depositions was a challenge because all the scheduled
deponents had been terminated by CoreCivic.
Moreover, despite the discovery delays, it does appear that Plaintiff uncovered new
information through discovery. The proposed Third Amended Complaint contains considerably
more factual specificity than the Second Amended Complaint, as well as new facts. Far from
being an abuse of the discovery system to create a moving target through amended pleadings, the
proposed Third Amended Complaint appears designed to narrow the scope of the litigation to
where the facts as revealed through discovery most strongly point. Defendants correctly note that
Plaintiff’s proposed Third Amended Complaint adds a new claim. However, given the posture of
this litigation – Defendants have yet to file an answer – and given that the new claim does not
substantially change the factual scope of the case, the Court does not believe that the addition of
this new claim undermines the good cause that otherwise exists.
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The question remains, however, whether allowing Plaintiff to file the proposed Third
Amended Complaint would be futile. This question is inexorably tied to the question of whether
dismissal of the Second Amended Complaint is warranted, as the only federal claims asserted in
the Second Amended Complaint, and then the one asserted again in the proposed Third
Amended Complaint, are brought pursuant to § 1983. If relief under § 1983 is not available
based on those facts, then the federal claims set forth in the Second Amended Complaint are
subject to dismissal for failure to state a claim, and the federal claim set forth in the proposed
Third Amended Complaint would succumb to the same fate upon a Rule 12(b)(6) challenge.
Indeed, Plaintiff’s proposed Third Amended Complaint specifically requests that, if relief is
unavailable under § 1983, the entire case be dismissed without prejudice so that he can refile in
state court. Doc. 124-1 at 24, ¶ 66. Thus, the viability of the Second Amended Complaint and the
futility of amendment both turn on whether Plaintiff, a federal detainee, has adequately alleged
that CoreCivic, a private correctional facility, and its employees were acting under color of state
law for purposes of § 1983 in connection with the incidents out of which this case arose.
In relevant part, § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983. As such, “[t]o state a claim under § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West v. Atkins,
487 U.S. 42, 48 (1988) (emphasis added). Whether the violative action occurred under color of
state law is a “jurisdictional requisite for a § 1983 action.” Jojola v. Chavez, 55 F.3d 488, 492
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(10th Cir. 1995). The state action requirement aims to “further[] the fundamental goals of
preserving an area of individual freedom by limiting the reach of federal law” and seeks to avoid
“imposing on the state, its agencies or officials, responsibility for conduct for which they cannot
fairly be blamed.” Id. For this reason, no matter the merits of Plaintiff’s underlying allegations
that his Eighth and Fourteenth Amendment rights were violated based on the failure of
Defendants to protect him from this brutal attack, his claim is ineligible for relief unless
Defendants acted under color of state, rather than federal, law. Indeed, Plaintiff aptly notes that
the “bone of contention” is “whether Defendants were acting under color of state law (as
Plaintiff alleges) or color of federal law (as Defendants argue).” Doc. 42 at 4.
A private party acts under color of state law when exercising a “power possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the authority of
state law.” West, 487 U.S. at 49 (internal citations omitted). “To constitute state action, the
deprivation must be caused by the exercise of some right or privilege created by the State … or
by a person for whom the state is responsible,” and “the party charged with the deprivation must
be a person who may fairly be said to be a state actor.” Id. In the Tenth Circuit, it is settled law
that a private prison holding inmates or detainees on behalf of a state is acting under color of
state law. Phillips v. Tiona, 508 F. App’x 737, 749-50 (10th Cir. 2013) (Corrections Corporation
of America acted under color of state law when housing state inmates under contract with the
State of Colorado). In support of that conclusion, the Phillips Court reasoned that
inmates assigned to private prisons remain officially in the custody of the [Colorado
Department of Corrections (CDOC)], and the CDOC retains sole authority to assign
and transfer inmates, make final determinations on disciplinary matters affecting
liberty interests, make decisions that affect sentences or time served, including
earned time credits, make recommendations to the state board of parole, develop
work requirements, and determine eligibility for any form of release from a
correctional facility.
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Id. at 751. In other words, the private prison in Phillips acted under color of state law because the
state remained the formal custodians of the inmate-plaintiff and retained the exclusive ability to
make crucial decisions over his liberty interests and the conditions of his confinement.
Plaintiff directs the Court to district court decisions extending this reasoning to allow
federal inmates to proceed with a § 1983 action against state prisons holding them pursuant to a
contract with a federal agency. Doc. 124-1 at 23, ¶ 65. For example, in Dushane v. Sacramento
Cnty. Jail, the Court held that “a federal inmate being housed in a city jail under a contract
between the federal government and the city could sue jail staff under § 1983 because the
defendants interacted with the federal inmates pursuant to authority granted by the city (and
derived from the state).” No. 13-cv-2518, 2014 WL 3867468, at *2 (E.D. Cal. Aug. 6, 2014).
Similarly, in Dorantes v. Nye, the court assumed jurisdiction under § 1983 for a claim brought by
a federal prisoner “against officials at the Grady County Jail based on an incident which occurred
while [the plaintiff] was temporarily housed there.” No. 22-cv-50, 2022 WL 1097093, at *1
(W.D. Okla. Feb. 28, 2022). These cases, however, do not speak directly to the distinct issue
here, where Plaintiff was a federal detainee in a private correctional facility, rather than in a state
correctional facility.
Plaintiff argues that the reasoning of Phillips should be extended to the facts here,
because “Defendants, as (privately contracted) officers of the Torrance County Detention
Facility, wielded authority derived from the state (and its political subdivision), and thus acted
under the color of state, not federal law.” Doc. 124-1 at 23, ¶ 65 (emphases in original).
According to Plaintiff, Defendants “exercised their power—to detain, house, supervise, monitor,
and medically treat detainees within [TCDF] (in other words, the traditional public function of
prison operations)—solely by virtue of CoreCivic’s contract with the Torrance County
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government.” Doc. 42 at 5. Plaintiff reasons that, because CoreCivic has a contract with the
County, “it is performing a public function traditionally reserved to the state.” Id.
Conversely, Defendants contend that the “authority to maintain custody of federal
prisoners [] is created by federal law, and is reserved solely to the federal government.” Doc. 38
at 5. Thus, they argue, “correctional officers at a privately owned prison under contract with the
United States Marshals Service are federal actors performing an exclusively federal function.”
Id. at 5-6. Defendants cite several district court decisions holding that private prison employees
are federal actors when the private prison houses federal detainees or inmates. Id. at 6 n. 4; see
Yassin v. Corr. Corp. of Am., No. 11-cv-0421, 2011 WL 4501403, at *3 (S.D. Cal. Sept. 27,
2011); Benson v. Corr. Corp. of Am., No. 4:08-cv-469, 2009 WL 2461016, at *3 (N.D. Ohio
Aug. 7, 2009); Gonzalez-Jarquin v. Corr. Corp. of Am., No. 3:08-cv-013, 2008 WL 3285764
(S.D. Ga. Aug. 8, 2008).
Notably, Defendants cite to a case within the Tenth Circuit, Burke v. Corr. Corp. of Am.,
in which the District Court for the District of Kansas considered the analogous situation of a
USMS detainee held at a facility run by Corrections Corporation of America (CCA), the
predecessor to CoreCivic. No. 09-cv-3068, 2009 WL 1631579 (D. Kan. June 10, 2009). The
Burke Court found that, since the “plaintiff appear[ed] to be in the custody of the USMS, and
[was being] held in the CCA[] facility pursuant to a contract between the CCA and the USMS
for confinement of federal prisoners,” there was “nothing in the complaint to support a finding
that any named defendant acted under color of state law rather than federal law.” Id. at *2. Thus,
the court concluded that § 1983 relief was not available to the plaintiff. Id.
As in Burke, this Court finds that neither the Second Amended Complaint nor the
proposed Third Amended Complaint contains facts that, if proven, would establish that
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Defendants acted under color of state law. Both the Second Amended Complaint and the
proposed Third Amended Complaint allege that TCDF houses both federal and state inmates or
detainees, and that, at all relevant times, there was a contractual relationship between the state
(inclusive of localities deriving their power from state law) and CoreCivic, related to the
operation of TCDF. The existence of a contractual relationship between the state and CoreCivic,
however, neither equally alleges that Plaintiff was being housed at TCDF pursuant to that
relationship nor establishes the absence of a separate, distinct relationship between USMS and
CoreCivic. In fact, up until the Motion to Amend the Complaint, which included the proposed
Third Amended Complaint, Plaintiff appears to avoid characterizing the federal government’s
relationship with CoreCivic as it relates to his detention. In the Second Amended Complaint,
Plaintiff asserts that, at the time of the incident, Defendants were “providing services in the
facility pursuant to a contract between the State and CoreCivic.” This fails to specify whether
Defendants were providing services to Plaintiff pursuant to that contract. Doc. 37 at ¶¶ 5-6.
However, in the proposed Third Amended Complaint, he describes the attack as having occurred
“just a few short months before the notorious private-prison company CoreCivic would lose its
contract with the U.S. Marshals Service to operate the federal pretrial detention center in
Torrance County.” Doc. 124-1 ¶ 1. Similarly, as noted supra, Plaintiff’s Motion to Amend the
Complaint states that “TCDF closed down (as a USMS facility) in 2017.” Doc. 124 at 8. Plaintiff
thus alleges a direct contractual relationship between USMS and CoreCivic.
Moreover, neither the Second Amended Complaint nor the proposed Third Amended
Complaint contains factual allegations that, if proven, would establish that the state had the sort
of control over Plaintiff that the Tenth Circuit considered essential in Phillips to warrant the
finding that the private prison at issue acted under color of Colorado law. In short, there is no
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indication in either the Second Amended Complaint or the proposed Third Amended Complaint
that New Mexico, Torrance County, or any other localities in New Mexico were Plaintiff’s
formal custodians with the authority to dictate the conditions under which CoreCivic confined
Plaintiff or to make crucial decisions regarding his liberty interests.
At the pleading stage, Plaintiff bears the burden of stating facts that “satisfy the under-
color-of-state-law element” of his § 1983 claim. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982). Neither the Second Amended Complaint nor the proposed Third Amended Complaint
meets this burden. The Second Amended Complaint, as written, leaves open the very real
possibility that CoreCivic held Plaintiff, a federal detainee, under an agreement with the federal
government, and housed state detainees pursuant to an entirely distinct agreement with state
governmental entities. If that is the case, then the fact that CoreCivic employees were clothed
with state authority as to state detainees would not equally mean that they were clothed with state
authority as to all detainees. As discussed supra, however, Plaintiff’s Motion to Amend the
Complaint and the proposed Third Amended Complaint resolve that ambiguity, acknowledging
that USMS did have a contract with CoreCivic that ended only months after Plaintiff was
attacked. That contract, which Plaintiff alleges had yet to be terminated at the time of the attack,
was presumably the legal instrument that authorized CoreCivic to hold him in custody.
Because the Second Amended Complaint thus fails to allege facts that, if proven, would
establish that Defendants were acting under color of state law for purposes of § 1983, Plaintiff’s
federal constitutional claims must be dismissed. In addition to his federal constitutional claims,
Plaintiff asserts three claims arising solely under state law, namely, claims of medical
negligence, negligent operation of medical facilities, and a tort action for assault and battery. The
Court’s pendent jurisdiction over these state law claims “is exercised on a discretionary basis,”
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and the Tenth Circuit has generally held that “if federal claims are dismissed before trial, leaving
only issues of state law, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.” Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010)
(citations omitted). The Tenth Circuit has explained its general disinclination “to exercise
pendent jurisdiction in such instances because notions of comity and federalism demand that a
state court try its own lawsuits, absent compelling reasons to the contrary.” Id. at 1230.
Applying this precedent, the Court finds that Plaintiff’s state law claims are best left for the state
court’s determination. Id. Accordingly, the Court declines to exercise jurisdiction over
Plaintiff’s remaining state law claims and will dismiss them without prejudice. Id. The Court
notes that this result is consistent with Plaintiff’s request.2
Additionally, because the proposed Third Amended Complaint fails to allege facts that, if
proven, would establish that Defendants were acting under color of state law for purposes of §
1983, the Third Amended Complaint would be subject to dismissal if challenged under Rule
12(b)(6). Accordingly, granting Plaintiff leave to file the Third Amended Complaint would be
futile. The Court thus will deny Plaintiff’s request for leave to amend. Nonetheless, the Court
will give Plaintiff 120 days to file a motion for leave to amend, attaching a proposed amended
complaint to such motion. Such proposed amended complaint must plead facts that, if proven,
would establish that Defendants acted under color of state law. Within the Tenth Circuit, Phillips
gives Plaintiff a roadmap for the kinds of facts that, if proven, could sustain a finding that private
prison employees act under color of state law. 508 F. App’x at 751. For example, was the state
authorized to make final determinations about disciplinary matters affecting Plaintiff’s liberty
2 Also consistent with Plaintiff’s request, the Court declines to analyze whether relief would be
available under Bivens.
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interests? Was the state authorized to made decisions affecting Plaintiff’s sentence, or the
amount of earned-time credit he receives? Was the state authorized to make a final determination
on whether Plaintiff was eligible for release at any point? The Court recognizes that plaintiffs
face significant logistical and legal impediments to conducting discovery in the context of a
private-prison defendant. Sometimes plaintiffs lack information that is necessary to even allege
facts that can survive a motion to dismiss. To the extent that additional discovery is needed to
have enough information to allege in good faith facts that comport with the considerations in
Phillips, Plaintiff may request permission to conduct that additional discovery. If further
discovery is warranted but filing a new motion for leave to amend based on facts generated by
that discovery would not be feasible within the 120-day deadline herein imposed, Plaintiff may
request an extension of that deadline.
If Plaintiff chooses to file a motion for leave to amend, and Defendants do not consent in
writing thereto, it will be “within the discretion of the Court to grant or deny leave to amend.”
Foman, 371 U.S. at 182. If Plaintiff’s proposed amended complaint contains the same
deficiencies identified herein, or if leave to amend is otherwise improper based on any of the
grounds set forth in Rule 15, his motion for leave to amend will be denied. If Plaintiff does not
timely file a motion to amend, this case will be dismissed and a final judgment entered.
Finally, the Court feels compelled to express a growing concern regarding the gap in the
federal remedies available to individuals in federal custody whose constitutional rights are
violated while being held at a private facility. As already discussed, § 1983 furnishes a cause of
action for harms arising out of constitutional torts committed by parties acting under color of
state law, which can include situations where the tortfeasor is a state employee or a contractor
acting under color of state law. However, when the tortfeasor acts under color of federal law,
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plaintiffs can only recover under the implied cause of action established in Bivens if the
tortfeasor was a federal employee. The Supreme Court has made clear that Bivens does not cover
constitutional torts committed by private parties acting under color of federal law, which is
presumably why Plaintiff explicitly requested that the Court not construe his claim as a Bivens
action. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (declining to extend the implied
Bivens cause of action to corporate entities); Minneci v. Pollard, 565 U.S. 118, 131 (2012)
(declining to extend Bivens to individual employees of a private prison that held the respondent,
a federal prisoner, due to the fact that adequate remedies were available under state tort law). A
right is a paper tiger without a corresponding remedy, and when a right is federally guaranteed,
the remedy ensuring it should be too. See Marbury v. Madison, 5 U.S. 137, 163 (1803) (“The
government of the United States has been emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the
violation of a vested legal right.”). Thus, while state causes of action may exist to allow
meritorious plaintiffs to recover for constitutional torts committed by federal contractors, this
Court remains concerned about the gap in the federal scheme for vindicating rights enshrined in
the United States Constitution.
Those concerns are especially pronounced in more rural Western states like New Mexico,
Montana, and Arizona that disproportionately rely on private prison facilities. According to the
Bureau of Justice Statistics, 6.9 percent of state inmates nationwide were held in private facilities
in 2023 (the most recent year for which official data is available).3 Meanwhile, 29.2 percent of
New Mexico inmates, 48.7 percent of Montana inmates, and 28.5 percent of Arizona inmates
3 D EREK M UELLER & R ICH K LUCKOW , BUREAU OF J UST. S TAT., NCJ 310197, P RISONERS IN 2023 – S TATISTICAL
TABLES 26 (2025), https://bjs.ojp.gov/document/p23st.pdf.
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were held in private facilities in 2023.4 Those are the three highest percentages among all states.5
Since federal detainees (or inmates who receive a short term of federal imprisonment) are
commonly held in facilities used by states, the reliance on private facilities at a state level also
has implications for federal detainees and certain federal inmates in New Mexico and similarly
reliant states.
Furthermore, the remedy gap for individuals held in private facilities while in federal
custody is increasingly nationally salient amidst the surge in federal detainees resulting from
President Trump’s aggressive immigration enforcement priorities. Immigration and Customs
Enforcement (ICE) holds between 85 percent and 90 percent of its detainees in private facilities.6
That percentage is likely to go up in the future since the Administration’s strategy to increase the
total amount of bed space available for immigration detainees appears to largely rely on
expanding contracts with private prison companies such as CoreCivic and The Geo Group, Inc.7
All 20 of the largest ICE detention centers in the country are private.8 Since the number of ICE
detainees grew from 39,238 to 65,735 between January and November 2025, there are tens of
thousands of new federal detainees being housed in private facilities compared to just a year ago,
all of whom risk having their constitutional rights violated by their private captors while being
unable to recover under federal law. 9
4 Id.
5 Id.
6 See TRANSACTIONAL RECORDS A CCESS C LEARINGHOUSE , Immigration Detention Statistics: A Retrospective and a
Look Forward (Feb. 21, 2025), https://tracreports.org/reports/753.
7 See, e.g., Heather Hollingsworth & John Hanna, ICE Is Using No-Bid Contracts, Boosting Big Firms, to Get More
Detention Beds, AP N EWS (June 16, 2025), https://apnews.com/article/immigration-detention-centers-ice-
deportations-trump-e92b67a388f041b84593d7a29fd93c54.
8 Immigration Detention Statistics: A Retrospective and a Look Forward, supra note 6.
9 ICE Detention, TRANSACTIONAL RECORDS A CCESS CLEARINGHOUSE,
https://tracreports.org/immigration/detentionstats/pop_agen_table.html (last visited Dec. 22, 2025).
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CONCLUSION
The Second Amended Complaint fails to allege facts that, if proven, would establish that
Defendants were acting under color of state law for purposes of § 1983. Accordingly, the Court
dismisses Plaintiff’s federal constitutional claims without prejudice for lack of subject matter
jurisdiction. The Court declines to exercise its supplemental jurisdiction over Plaintiff’s
remaining state law claims. Accordingly, the Court dismisses Plaintiff’s state law claims without
prejudice. The proposed Third Amended Complaint fails to allege facts that, if proven, would
establish that Defendants were acting under color of state law for purposes of § 1983.
Accordingly, the Court denies Plaintiff’s request for leave to file the Third Amended Complaint.
The Court gives Plaintiff 120 days to file a Rule 15 motion for leave to amend, noting that any
proposed amended complaint must cure the deficiencies identified in this Opinion. If Plaintiff
does not timely file a motion to amend, this case will be dismissed and a final judgment will be
entered.
IT IS ORDERED that Defendant’s Motion to Dismiss the Second Amended Complaint
[Doc. 38] is GRANTED, as follows: Plaintiff’s claims are dismissed without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Complaint [Doc. 124]
is DENIED.
DATED this 29th day of December 2025.
MARTHA VÁZQUEZ
Senior United States District Judge
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