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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: April 28, 2023
4 No. A-1-CA-39290
5 LEONARDO LUCERO,
6 Plaintiff-Appellant,
7 v.
8 CENTURION CORRECTIONAL 9 HEALTHCARE OF NEW MEXICO, LLC,
10 Defendant-Appellee,
11 and
12 CORE CIVIC, INC.,
13 Defendant.
14 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 15 Frances J. Mathew, District Court Judge
16 Stephen F. Lawless, PA 17 Stephen F. Lawless 18 Albuquerque, NM
19 for Appellant
20 Park & Associates, L.L.C. 21 Alfred A. Park 22 James J. Grubel 23 Albuquerque, NM
24 for Appellee 1 OPINION
2 HANISEE, Judge.
3 {1} Plaintiff Leonardo Lucero appeals the district court’s dismissal of his case
4 with prejudice for failing to exhaust administrative remedies before filing a claim
5 while incarcerated in the New Mexico Corrections Department (NMCD). He argues
6 that his claim of medical negligence does not require exhaustion, and that the district
7 court erred by dismissing his claim with prejudice. The relevant statutory language
8 is clear that medical negligence claims require administrative exhaustion, though
9 Plaintiff is correct that district courts facing unexhausted inmate claims should
10 generally dismiss such claims without prejudice. We accordingly reverse and
11 remand for further proceedings consistent with this opinion.
12 BACKGROUND
13 {2} Plaintiff alleges that on October 22, 2018, he was severely beaten by six
14 individuals in the Northwest New Mexico Correctional Facility. He filed suit on
15 February 6, 2020, against Centurion Correctional Healthcare of New Mexico, LLC
16 (CCH), the contractor who provides medical services to inmates at the facility, and
17 other defendants unrelated to this appeal, alleging medical negligence specifically
18 against CCH for failing to properly diagnose and treat his broken jaw and ribs.
19 Plaintiff was an inmate at the time of his complaint. CCH promptly filed a motion
20 for summary judgment, arguing that Plaintiff failed to exhaust administrative 1 remedies as a prisoner in NMCD as required by NMSA 1978, Section 33-2-11(B)
2 (1990). CCH specifically asserted that Plaintiff failed to exhaust NMCD’s internal
3 grievance procedure before filing his claim, and therefore the district court lacked
4 jurisdiction.
5 {3} Plaintiff does not contest that he did not file a grievance through proper
6 channels, but instead asserts that the medical negligence of CCH was a nongrievable
7 issue, outside the control of NMCD, and therefore exempt from the exhaustion
8 requirements. The district court granted CCH’s motion, finding that Plaintiff’s claim
9 of medical negligence was “substantially related to his incarceration,” and thus
10 required exhaustion of administrative remedies according to Section 33-2-11(B).
11 The district court also rejected Plaintiff’s argument that medical negligence was not
12 grievable under NMCD’s grievance policy. The court held that it “does not have
13 subject matter jurisdiction over the lawsuit” and dismissed the case with prejudice.
14 Plaintiff appeals.
15 DISCUSSION
16 {4} We begin with Plaintiff’s assertion that medical negligence is not subject to
17 the administrative exhaustion requirement, then turn to the argument that dismissal
18 without prejudice would have been proper for an inmate suit that had not exhausted
19 all administrative remedies. Because these matters involve construction of statutory
20 language, our review is de novo. See U.S. Xpress, Inc. v. N.M. Tax’n & Revenue
2 1 Dep’t, 2006-NMSC-017, ¶ 6, 139 N.M. 589, 136 P.3d 999 (“The meaning of
2 language used in a statute is a question of law that we review de novo.” (internal
3 quotation marks and citation omitted)).
4 Medical Negligence Requires Administrative Exhaustion
5 {5} Plaintiff argues that his claim should not have been dismissed because medical
6 negligence is not grievable, and therefore is exempt from administrative exhaustion
7 requirements. He relies on the NMCD policy Inmate Grievances, CD-150500 (June
8 14, 2018), for the proposition that “[a]ny matter over which the Corrections
9 Department has no control” is not grievable. Inmate Grievances, Grievability E.2.a.,
10 at 6.1 Plaintiff contends that NMCD does not control any given “particular healthcare
11 decision for providing medical care to an inmate” and therefore lacks control such
12 as to make medical negligence subject to grievance procedures.
13 {6} “The guiding principle in statutory construction requires that we look to the
14 wording of the statute and attempt to apply the plain meaning rule, recognizing that
15 when a statute contains language which is clear and unambiguous, we must give
16 effect to that language and refrain from further statutory interpretation.” Tucson
17 Elec. Power Co. v. N.M. Tax’n & Revenue Dep’t, 2020-NMCA-011, ¶ 8, 456 P.3d
18 1085 (internal quotation marks and citation omitted). Section 33-2-11(A) empowers
1 https://www.cd.nm.gov/wp-content/uploads/2021/02/CD-150500.pdf.
3 1 NMCD to “examine and inquire into all matters connected with . . . the punishment
2 and treatment of the prisoners.” Section 33-2-11(B) reads:
3 No court of this state shall acquire subject-matter jurisdiction over any 4 complaint, petition, grievance or civil action filed by any inmate of the 5 corrections department with regard to any cause of action pursuant to 6 state law that is substantially related to the inmate’s incarceration by 7 the corrections department until the inmate exhausts the corrections 8 department’s internal grievance procedure.
9 (Emphasis added.) The operative language “substantially related to the inmate’s
10 incarceration” bears the most weight on Plaintiff’s case. Id. At first blush, medical
11 treatment within the NMCD system seems substantially related to Plaintiff’s
12 incarceration. As even Plaintiff alleges in his complaint, the medical treatment was
13 provided to Plaintiff by an entity and individuals assigned to prison healthcare by
14 NMCD, at the prison where Plaintiff was located, during Plaintiff’s period of
15 incarceration. NMCD not only had the power to address medical treatment—or the
16 lack thereof—in prison facilities, but it had a duty to inquire into such matters. See
17 Anderson v. State, 2022-NMSC-019, ¶ 41, 518 P.3d 503 (noting NMCD has a duty
18 under Section 33-2-11(A) to inquire into and address prison conditions). Absent
19 contrary argument grounded in the statutory text from Plaintiff, we struggle to see
20 why medical negligence in the prison would not be substantially related to
21 incarceration.
22 {7} To further inform our reading, we look to the NMCD internal policy on inmate
23 grievances referenced by the statute. The grievance policy provides: “Except as
4 1 provided below in E.2, the following matters are grievable by inmates: . . . [t]he
2 substance, interpretation and application of policies, rules and procedures of the
3 institution or Department including, but not limited to . . . negligence as to lost
4 property or medical/mental health care.” Inmate Grievances, Grievability E.1.a., at
5 5. The exceptions under E.2 include the following as not grievable: “Any matter over
6 which the Corrections Department has no control, for example: parole decisions,
7 sentences, and claims regarding inmate compensation which is regulated by statute.”
8 Inmate Grievances, Grievability E.2.a., at 6.
9 {8} The grievance policy seems abundantly clear that medical negligence is
10 included in things that NMCD considers to be both substantially related to an
11 inmate’s incarceration and within their control to investigate. See Inmate
12 Grievances, Grievability E.1.a., at 5. Moreover, the kinds of contentions described
13 as being outside of the control of the NMCD (e.g., “parole decisions, sentences, and
14 claims regarding inmate compensation”) are decisions made by entities outside of
15 NMCD or by statutory provision, not applications of policy within NMCD itself.
16 Inmate Grievances, Grievability E.2.a., at 6.
17 {9} Plaintiff’s assertion that healthcare is outside of the control of NMCD is
18 misguided. NMCD has adopted a policy that “provide[s] for a comprehensive health
19 care services program, staffed by qualified health care professionals that are
20 available to all [NMCD] patient inmates.” NMCD, Health Services Administration
5 1 Policy CD-170000 (Oct. 27, 2017).2 The policy likewise dictates that the Central
2 Office Health Services Bureau is to be the authority “responsible for oversight of all
3 adult correctional health services operations, personnel, and resources.” Health
4 Services Administration Procedures CD-170000 A.1., at 1. Given such a clear policy,
5 medical care within prisons is decidedly within the control of NMCD.
6 {10} Plaintiff additionally argues that complying with NMCD’s grievance policy
7 would have been futile. The doctrine of futility, a judge-made exception to
8 administrative exhaustion requirements, “applies where the agency has deliberately
9 placed an impediment in the path of a party, making an attempt at exhaustion a
10 useless endeavor.” Anderson, 2022-NMSC-019, ¶¶ 15, 21, 43 (emphasis, internal
11 quotation marks, and citation omitted). Futility may excuse a plaintiff’s failure to
12 exhaust administrative remedies if the exhaustion requirement is nonjurisdictional.
13 Id. ¶¶ 15, 21. If, however, an exhaustion requirement is jurisdictional, a plaintiff
14 must comply with the exhaustion requirement “without exception.” Id. ¶¶ 19-20. Our
15 Supreme Court recently held that Section 33-2-11(B)’s exhaustion requirement is
16 jurisdictional for claims asserting “statutorily created rights,” Anderson, 2022-
17 NMSC-019, ¶ 19, but nonjurisdictional for common law or constitutional claims
18 falling under the district court’s original jurisdiction, id. ¶¶ 21-22. 3
https://www.cd.nm.gov/wp-content/uploads/2021/04/CD-170000.pdf. 2
Following our Supreme Court’s recent opinion in Anderson, we requested 3
additional briefing from the parties on whether Plaintiff’s claim against CCH
6 1 {11} Irrespective of whether Plaintiff’s claim against CCH is treated as asserting a
2 statutory right or as arising out of the district courts’ original jurisdiction, however,
3 we conclude Plaintiff may not avail himself of the doctrine of futility. We explain.
4 If Plaintiff’s claim asserts a statutory right under the New Mexico Tort Claims Act,
5 as he argued below, Section 33-2-11(B)’s exhaustion requirement is jurisdictional
6 and, thus, the exhaustion requirement applies in this case “without exception.”
7 Anderson, 2022-NMSC-019, ¶ 20. If, on the other hand, Plaintiff’s claim is for
8 common law negligence, as he now argues on appeal, Plaintiff has failed to establish
9 futility, as he has made no allegation and presented no evidence that NMCD impeded
10 his ability to comply with its grievance procedure. See id. ¶¶ 42-45 (rejecting the
11 plaintiffs’ argument that exhaustion was futile because “[a]bsent from [their]
12 allegations is anything about [the d]efendants preventing, thwarting, or hindering
13 [n]amed [p]laintiffs’ efforts to avail themselves of an administrative remedy”).
14 Accordingly, regardless of whether Section 33-2-11(B)’s exhaustion requirement is
15 jurisdictional or nonjurisdictional as applied to Plaintiff’s claim, he was required to
16 exhaust NMCD’s grievance procedure under Section 33-2-11(B). See Cordova v.
17 World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901
18 (providing that “appellate courts will affirm a district court’s decision if it is right
constituted a statutorily created right or a matter falling under the district court’s original jurisdiction.
7 1 for any reason, so long as the circumstances do not make it unfair to the appellant to
2 affirm”).
3 {12} In sum, we conclude Plaintiff’s claim is substantially related to his
4 incarceration, and, thus, Section 33-2-11(B)’s exhaustion requirement applies. As
5 Plaintiff does not dispute that he did not comply with the administrative exhaustion
6 requirements before filing, and because he has not persuaded us that his failure to
7 exhaust may be excused by the doctrine of futility, the district court properly
8 dismissed his claim for failure to exhaust NMCD’s administrative remedies, as
9 required by Section 33-2-11(B). The remaining question before us is whether that
10 dismissal should have been with or without prejudice.
11 Dismissal Without Prejudice for Unexhausted Claims
12 {13} Plaintiff challenges the district court’s dismissal of his claim as it was with
13 prejudice. He argues that dismissal with prejudice unduly burdens inmates who
14 failed to exhaust administrative remedies while incarcerated but seek judicial
15 recourse after their time in prison. CCH argues that dismissal with prejudice was
16 proper because any attempt to cure Plaintiff’s lack of exhaustion would be untimely.
17 Implicit in CCH’s argument is the notion that an inmate can never cure deficient
18 administrative exhaustion once the grievance policy’s time window has expired,
19 therefore rendering any unexhausted claim permanently barred from the courts.
8 1 {14} Whether a plaintiff’s dismissal for failure to exhaust his administrative
2 remedies under Section 33-2-11(B) should be with prejudice appears to be a novel
3 issue for New Mexico courts. Under the statutory language, it is not apparent
4 whether our Legislature intended dismissal to be with or without prejudice when an
5 inmate fails to exhaust the administrative procedure. See id. New Mexico courts have
6 addressed matters of construction and application of our prisoner litigation statute
7 before, see, e.g., Anderson, 2022-NMSC-019, but these cases have not addressed
8 this particular procedural question. This dearth of case law is exemplified by the
9 litigants’ reliance on administrative exhaustion cases in the employment and
10 foreclosure contexts to analogize how Section 33-2-11(B) should be applied in
11 prisoner litigation contexts.
12 {15} Again, we begin with the statutory text to apply the plain meaning rule if
13 possible. Tucson Elec. Power Co., 2020-NMCA-011, ¶ 8. Section 33-2-11(B)’s
14 exhaustion requirement applies to claims “filed by any inmate of the corrections
15 department.” Id. A plain reading of the text indicates that the statute applies to
16 individuals presently incarcerated within the corrections department. See NMSA
17 1978, § 33-16-2(B) (2019) (defining an “inmate” as “an adult or juvenile person who
18 is under sentence to or confined in a correctional facility,” within Chapter 33 of our
19 statutes). The phrase “filed by any inmate” makes no directive for individuals who
20 were former inmates, so we do not read its restrictions as applying to plaintiffs who
9 1 are no longer incarcerated. We also construe the language “filed by” to mean that
2 the statute focuses on the plaintiff’s status as an inmate at the time the lawsuit is
3 filed. Therefore, as a matter of first impression, we hold that Section 33-2-11(B)
4 only applies to cases filed by current inmates within the corrections department.
5 {16} To read this provision to require plaintiffs who are former inmates to have
6 exhausted administrative remedies—available only within the prison system—
7 would create a near-absolute prohibition on lawsuits by former inmates who failed
8 to exhaust their administrative remedies while incarcerated. We see no indication in
9 the statute that the Legislature intended this harsh result. A former inmate who is not
10 prohibited by other mechanisms such as a statute of limitations should not continue
11 to be prohibited from seeking judicial remedy once they are no longer an inmate
12 contemplated by Section 33-2-11. To conclude otherwise would treat former inmates
13 differently than other citizens for whom civil causes of action frequently offer the
14 sole mechanism by which a given injury tortuously inflicted might be addressed.
15 This we cannot countenance absent statutory directive or binding precedent, neither
16 of which—sensibly, in our view—exists. 4 When an inmate such as Plaintiff misses
In our general calendar notice, we asked the parties to address this issue with 4
respect to federal circuit precedent, noting a lack of federal uniformity regarding this issue given the multitude of prospective factors a district court must consider in claims and cases such as this. Compare Bargher v. White, 928 F.3d 439, 448 (5th Cir. 2019) (“Because this is therefore not an occasion where ‘modification of the judgment would be futile,’ the district court’s judgment should be amended to dismissal without prejudice.”), with Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004)
10 1 the grievance deadline or otherwise fails to exhaust the correctional department’s
2 grievance procedure, dismissal is required, but we see no evidence of an intent by
3 the Legislature to cut off access to the courts if their incarceration ends before the
4 statute of limitations runs. See Inmate Grievances, Grievability E.1.a., at 5. We are
5 persuaded that dismissal without prejudice is generally the appropriate posture for
6 an inmate’s claim that has failed to complete administrative exhaustion as required
7 by Section 33-2-11(B).
8 {17} Indeed, CCH’s contrary argument places undue reliance on the proposition
9 that Plaintiff could not later cure his failure to exhaust his administrative remedies.
10 CCH cites Rist v. Design Center at Floor Concepts, Inc. for the proposition that
11 dismissal with prejudice is the proper remedy when a district court lacks subject
12 matter jurisdiction over a claim because of a failure to exhaust administrative
13 remedies. 2013-NMCA-109, ¶ 14, 314 P.3d 681. We first observe that in Rist, the
14 question raised here was not preserved, and this Court therefore did not consider
15 whether the plaintiffs in that case could later cure a failure to exhaust. Id. ¶ 12.
16 Second, Rist relied on Schneider National, Inc. v. New Mexico Taxation and Revenue
(“Under these circumstances and in the absence of any justification for not pursuing available remedies, his failure to pursue administrative remedies while they were available precluded his federal lawsuits, and they were properly dismissed with prejudice.” (footnote omitted)). Given that the statutory language that governs this action is clear and unambiguous, we reach our determination based on the plainly stated intent of the Legislature as appearing in the statutory text, and leave for some other court the reconciliation of federal precedent.
11 1 Department, 2006-NMCA-128, ¶¶ 7-12, 140 N.M. 561, 144 P.3d 120 in asserting
2 that dismissal with prejudice was “appropriate.” 2013-NMCA-109, ¶ 14. In
3 Schneider National, Inc., this Court affirmed a dismissal with prejudice when a
4 plaintiff failed to comply with a statutory mandate requiring filing of a claim within
5 ninety days of receipt of a refund denial letter from the state tax department. 2006-
6 NMCA-128, ¶¶ 9-12. Under those circumstances, a plaintiff could not cure their
7 defective filing after the statutory deadline nor could their status change. As neither
8 Rist nor Schneider National, Inc. contemplated the possibility that the exhaustion
9 requirement no longer applies because of a change in the plaintiff’s status, they are
10 not applicable to this matter.
11 {18} As for Plaintiff’s request that we toll the statute of limitations on his claim,
12 we decline to do so absent a presentation of argument or citation to authoritative
13 support. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d
14 53 (“We will not review unclear arguments, or guess at what a party’s arguments
15 might be.” (alteration, internal quotation marks, and citation omitted)). Lastly, we
16 note that the question of when or if the statute of limitations expired is not before us.
17 “It is not within the province of an appellate court to decide abstract, hypothetical or
18 moot questions in cases wherein no actual relief can be afforded.” See State v.
19 Ordunez, 2012-NMSC-024, ¶ 22, 283 P.3d 282 (alteration, internal quotation marks,
12 1 and citation omitted). Plaintiff’s claim should have been dismissed without
2 prejudice, and we express no opinion as to future litigation on remand.
3 CONCLUSION
4 {19} For the above reasons, we reverse the district court’s dismissal with prejudice
5 and remand for further proceedings consistent with this opinion.
6 {20} IT IS SO ORDERED.
_____________________________ 7 J. MILES HANISEE, Judge
8 WE CONCUR:
9 ________________________________ 10 JENNIFER L. ATTREP, Chief Judge
11 ________________________________ 12 JANE B. YOHALEM, Judge