Case 1:08-cv-01184-JB-RLP

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LISA SALAS, as parent and next friend of ORLANDO SALAS, Plaintiff, v. MATTHEW BRIGHAM, MARISA BEE, TERRI RHUE, EMANUEL RODRIGUEZ, and LUCY DeLUNA, each in their individual capacity, and the BOARD OF COUNTY COMMISSIONERS OF CURRY COUNTY, Defendants. No. CIV 08-1184 JB/RLP

AMENDED COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, STATE TORTS, AND DAMAGES Plaintiff Lisa Salas, as parent and next friend of Orlando Salas, brings this amended complaint seeking damages for violation of Orlando Salas civil rights under 42 U.S.C. 1983 and 1988, for violation of his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. 12112 et. seq., and for state tort claims pursuant to the New Mexico Tort Claims Act, NMSA 1978, 414-1 et. seq., and alleges as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 42 U.S.C. 1983 and 1988, and 28 U.S.C. 1331. Venue is proper in this district as Defendants are residents of New Mexico and all of the acts complained of occurred in New Mexico. Plaintiffs cause of action arose in New Mexico.

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PARTIES 2. Orlando Salas is a resident and citizen of the State of New Mexico, whose date of birth is December 27, 1989. On or about February 5, 2009, the Second Judicial District Court for the State of New Mexico ordered that Mr. Salas be committed for treatment on grounds of incompetency to the New Mexico Behavioral Health Institute in Las Vegas, New Mexico. 3. Lisa Salas is the mother and natural guardian of Orlando Salas. She brings this amended complaint on behalf of her son only as a nominal party pursuant to Fed. R. Civ. P. 17(c)(2). 4. Defendants Matthew Brigham, Marisa Bee, Terri Rhue, and Emanuel Rodriguez were, at all relevant times herein, employed as detention officers at the Curry County Juvenile Detention Facility (CCJDF), a governmental facility owned and operated by Defendant Board of County Commissioners of Curry County (Defendant Board). 5. Defendant Lucy DeLuna was, at all relevant times herein, employed as the Administrator of the CCJDF and responsible for its day-to-day operation. 6. 7. Defendant DeLuna was a final decision-maker for the CCJDF. At all times material to this complaint, Defendants Brigham, Bee, Rhue, Rodriguez, and DeLuna were acting within the scope of their duties as law enforcement officers and under color of state law. 8. The individual Defendants are each being sued in their individual capacity. 2

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GENERAL FACTUAL ALLEGATIONS 9. Plaintiff was booked as a pretrial detainee into the CCJDF when he was 15-yearsold on or about September 15, 2005. 10. 11. Plaintiff remained at the CCJDF until on or about May 12, 2006. During the time he was incarcerated at the CCJDF, Plaintiff was regularly denied adequate or sufficient amounts of food by the individual Defendants and others employed there to the point that he had lost approximately one-third (1/3) of his body weight by the time he was transferred to another facility. 12. Defendants and others employed at the CCJDF denied Plaintiff access to any mental health counseling or treatment during the entire time he was there despite an obvious and acute need for same, which was only exacerbated by the abuse to which he was subjected at the CCJDF. 13. Instead, Defendant DeLuna and/or others employed at the CCJDF kept Plaintiff in isolation for the duration of his detention there. 14. During the time Plaintiff was incarcerated at the CCJDF, Defendants Brigham, Bee, Rhue, and Rodriguez regularly tortured and abused Plaintiff by placing him into a restraint chair. On occasion, Plaintiff was placed in the restraint chair for long periods of time without access to food, water, and bathroom facilities. 15. On information and belief, Defendant DeLuna personally authorized use of the restraint chair on several occasions, including one night when Plaintiff spent approximately nine (9) hours in the chair without adequate supervision.

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16.

On at least one (1) occasion, Defendants Brigham and Rhue restrained Plaintiff by tying him down and handcuffing him in a manner that caused him to be choked by his own arm.

17.

Plaintiff was given access to inhalants during his detention, which he used to huff until he passed out.

18.

Defendants and others employed at the CCJDF imposed a number of other physically and emotionally harmful punitive measures against Plaintiff without adequate legal grounds to do so.

19.

As a result of the foregoing, Plaintiff has suffered damages and injuries, including but not limited to physical injuries, pain and suffering, and severe psychological and emotional distress. COUNT I: SECTION 1983 PROCEDURAL DUE PROCESS CLAIM AGAINST ALL DEFENDANTS

20. 21.

Plaintiff incorporates paragraphs 1 through 19 as though fully set forth herein. As set forth above, Plaintiff was placed into extraordinary periods of solitary confinement and repeatedly placed in a restraint chair as a punitive measure.

22.

Plaintiff was not afforded a hearing or any other means of review to ensure that his ongoing solitary confinement or Defendants use of the restraint chair were authorized.

23.

By placing Plaintiff in solitary confinement and repeatedly using a restraint chair without a hearing or other means of review, Defendants denied Plaintiff all

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procedural protections guaranteed to him under State law and the CCJDFs own policies and procedures in violation of the Fourteenth Amendment. WHEREFORE, Plaintiff Orlando Salas requests compensatory and punitive damages against Defendants Matthew Brigham, Marisa Bee, Terri Rhue, Emanuel Rodriguez, and Lucy DeLuna, and compensatory damages against Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law. COUNT II: SECTION 1983 CLAIM FOR CRUEL AND UNUSUAL PUNISHMENT AGAINST DEFENDANTS BRIGHAM, BEE, RHUE AND RODRIGUEZ 24. 25. Plaintiff incorporates paragraphs 1 through 23 as though fully set forth herein. At all times during his detention at the CCJDF, Plaintiff had a right to humane conditions of confinement, including reasonable measures to guarantee his health and safety and the right to be free from unreasonable bodily restraints. 26. The acts and omissions of Defendants Brigham, Bee, Rhue, and Rodriguez as set forth above constituted deliberate indifference to Plaintiffs rights in light of a substantial risk of harm that would be caused by the punitive measures they implemented against him. 27. These acts and omissions of Defendants Brigham, Bee, Rhue, and Rodriguez were intentional, willful, wanton, obdurate, and in gross and reckless disregard of Plaintiffs rights. 28. These acts and omissions of Defendants Brigham, Bee, Rhue, and Rodriguez proximately caused Plaintiffs damages and injuries as set forth above.

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WHEREFORE, Plaintiff Orlando Salas requests compensatory and punitive damages against Defendants Matthew Brigham, Marisa Bee, Terri Rhue, and Emanuel Rodriguez, together with all costs and attorneys fees allowed by law. COUNT III: SECTION 1983 CLAIM FOR SUPERVISORY AND MUNICIPAL LIABILITY FOR CRUEL AND UNUSUAL PUNISHMENT AGAINST DEFENDANTS DeLUNA AND BOARD DIRECT PARTICIPATION 29. 30. Plaintiff incorporates paragraphs 1 through 28 as though fully set forth herein. At all times during his detention at the CCJDF, Plaintiff had a right to humane conditions of confinement, including reasonable measures to guarantee his health and safety and the right to be free from unreasonable bodily restraints. 31. Defendant DeLunas acts and omissions, including but not limited to her tacit or express authorization to place Plaintiff in a restraint chair, her classification of Plaintiff to isolated segregation for the duration of his detention, and her failure to ensure that Plaintiff received mental health counseling or treatment constituted deliberate indifference to Plaintiffs health and safety in light of a substantial risk of harm that would be caused by such these measures. 32. These acts and omissions by Defendant DeLuna were intentional, willful, wanton, obdurate, and in gross and reckless disregard of Plaintiffs rights. 33. These acts and omissions by Defendant DeLuna proximately caused Plaintiffs damages and injuries as set forth above. 34. Moreover, Defendants DeLunas acts and omissions, as those of a final decisionmaker, subject Defendant Board to municipal liability.

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WHEREFORE, Plaintiff Orlando Salas requests compensatory and punitive damages against Defendant Lucy DeLuna and compensatory damages against Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law. COUNT IV: SECTION 1983 CLAIM FOR SUPERVISORY AND MUNICIPAL LIABILITY FOR VIOLATION OF PLAINTIFFS EIGHTH OR FOURTEENTH AMENDMENT RIGHTS AGAINST DEFENDANTS DeLUNA AND BOARD OF COUNTY COMMISSIONERS OF CURRY COUNTY FAILURE TO TRAIN AND SUPERVISE 35. 36. Plaintiff incorporates paragraphs 1 through 34 as though fully set forth herein. At all times during his detention at the CCJDF, Plaintiff had a right to humane conditions of confinement, including reasonable measures to guarantee his health and safety, the right to be free from unreasonable bodily restraints, and the right to such minimally adequate training and supervision of employees at the CCJDF as reasonably required by these interests. 37. On information and belief, Defendant DeLuna and Defendant Board failed to properly train and supervise detention staff or institute and enforce adequate procedures designed to protect detainees such as Plaintiff from the misconduct described above. 38. These Defendants acts and omissions in this regard posed a pervasive and unreasonable risk to the health and safety of detainees at the CCJDF, and constituted a custom, practice, or policy of deliberate indifference to Plaintiffs constitutional rights. Moreover, Defendants DeLunas acts and omissions, as those of a final decision-maker, subject Defendant Board to municipal liability.

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39.

These acts and omissions of Defendant DeLuna and Defendant Board were intentional, willful, wanton, obdurate, and in gross and reckless disregard of Plaintiffs rights.

40.

These acts and omissions of Defendant DeLuna and Defendant Board proximately caused Plaintiffs damages and injuries as set forth above.

WHEREFORE, Plaintiff Orlando Salas requests compensatory and punitive damages against Defendant Lucy DeLuna and compensatory damages against Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law. COUNT V: CLAIM PURSUANT TO AMERICANS WITH DISABILITIES ACT AGAINST DEFENDANT BOARD 41. 42. Plaintiff incorporates paragraphs 1 through 40 as though fully set forth herein. During his detention at the CCJDF, Plaintiff was a qualified individual with a mental disability. 43. Plaintiff was excluded from participation in or denied the benefits of the CCJDFs services, programs, or activities, inter alia, he was kept in isolated segregation to deny him any means of socialization, deprived of food, placed in a restraint chair, tortured, abused, and denied access to any mental health counseling or treatment by reason of his disability. 44. Defendants acts and omissions in this regard were undertaken with malice or with reckless indifference to Plaintiff's federally protected rights. 45. These acts and omissions of Defendants proximately caused Plaintiffs damages and injuries as set forth above.

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WHEREFORE, Plaintiff Orlando Salas requests compensatory and punitive damages against Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law. COUNT VI: SECTION 1983 CLAIM FOR DENIAL OF ADEQUATE PSYCHOLOGICAL TREATMENT AGAINST ALL DEFENDANTS 46. 47. 48. Plaintiff incorporates paragraphs 1 through 45 as though fully set forth herein. During his detention at the CCJDF, Plaintiff had a serious mental health disorder. Defendants denied Plaintiff access to any mental health counseling or treatment during his detention at the CCJDF. In the alternative, any mental health counseling or treatment Defendants provided to Plaintiff was grossly inadequate based on his acute need for same. 49. Defendants failure to provide adequate mental health services was a consequence of their deliberate indifference to Plaintiffs serious mental health needs. 50. Defendants acts and omissions in this regard were intentional, willful, wanton, obdurate, and in gross and reckless disregard of Plaintiffs rights. 51. These acts and omissions of Defendants proximately caused Plaintiffs damages and injuries as set forth above. WHEREFORE, Plaintiff Orlando Salas requests compensatory and punitive damages against Defendants Matthew Brigham, Marisa Bee, Terri Rhue, Emanuel Rodriguez, and Lucy DeLuna, and compensatory damages against Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law.

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COUNT VII: STATE TORT CLAIMS AGAINST DEFENDANTS BRIGHAM, BEE, RHUE, AND RODRIGUEZ, AND DeLUNA 52. 53. Plaintiff incorporates paragraphs 1 through 51 as though fully set forth herein. Defendants Brigham, Rhue, Rodriguez, and DeLuna intentionally assaulted, battered, falsely arrested, and falsely imprisoned Plaintiff during his detention at the CCJDF. 54. Defendant Bee intentionally battered and falsely imprisoned Plaintiff during his detention at the CCJDF. 55. Defendants Brigham, Bee, Rhue, Rodriguez, and DeLuna were all acting within the scope of their duties as law enforcement officers when they committed these intentional torts against Plaintiff, for which immunity is waived pursuant to NMSA 1978, 41-4-12. 56. These tortious actions proximately caused Plaintiff to sustain damages and injuries as set forth above. 57. Defendant Board, as the employer of Defendants Brigham, Bee, Rhue, Rodriguez, and DeLuna is vicariously liable under a theory of respondeat superior for the intentional torts committed by its employees within the course and scope of their duties of employment. WHEREFORE, Plaintiff Orlando Salas requests compensatory damages against Defendants Matthew Brigham, Marisa Bee, Terri Rhue, Emanuel Rodriguez, Lucy DeLuna, and Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law.

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COUNT VIII: NEGLIGENT OPERATION OR MAINTENANCE OF A PUBLIC FACILITY AGAINST DEFENDANTS DeLUNA AND THE BOARD 58. 59. Plaintiff incorporates paragraphs 1 though 57 as though fully set forth herein. Defendant DeLuna, and other persons employed at the CCJDF, owed Plaintiff a duty to protect his health and safety in their operation and maintenance of the CCJDF. 60. Defendant DeLuna, and other persons employed at the CCJDF, breached this duty as set forth above. 61. The negligent conduct of Defendant Luna and other persons employed at the CCJDF, proximately caused Plaintiffs damages and injuries as set forth above. 62. The conduct described herein constitutes negligent operation or maintenance of a public facility for which immunity is waived pursuant to NMSA 1978, 41-4-6. 63. Defendant Board, as the employer of Defendant DeLuna and any other employees at the CCJDF whose conduct it is determined breached the duty to protect Plaintiffs health and safety, is vicariously liable under a theory of respondeat superior for any and all such negligence of its employees committed within the course and scope of their duties of employment. WHEREFORE, Plaintiff Orlando Salas requests compensatory damages against Defendants Lucy DeLuna and Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law. COUNT IX: NEGLIGENCE RESULTING IN INTENTIONAL BATTERY AGAINST DEFENDANTS DeLUNA AND THE BOARD 64. Plaintiff incorporates paragraphs 1 though 63 as though fully set forth herein.

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65.

Defendant DeLuna, and other persons employed at the CCJDF, owed Plaintiff a duty to protect him from intentional torts, including assault, battery, and false imprisonment, by detention staff and other detainees at the CCJDF.

66.

Defendant DeLuna, and other persons employed at the CCJDF, breached this duty as set forth above.

67.

The negligent conduct of Defendant Luna and other persons employed at the CCJDF, proximately caused others to intentionally assault, batter, and falsely imprison Plaintiff for which Defendant DeLunas immunity from suit is waived pursuant to NMSA 1978, 41-4-12 (1977).

68.

Defendant Board, as the employer of Defendant DeLuna and any other employees at the CCJDF whose conduct it is determined breached the duty to protect Plaintiff from intentional torts, including assault, battery, and false imprisonment, by detention staff and other detainees at the CCJDF, is vicariously liable under a theory of respondeat superior for any and all such negligence of its employees committed within the course and scope of their duties of employment.

WHEREFORE, Plaintiff Orlando Salas requests compensatory damages against Defendants Lucy DeLuna and Defendant Board of County Commissioners of Curry County, together with all costs and attorneys fees allowed by law. X. JURY DEMAND 69. Plaintiff hereby demands a trial by jury on all counts so triable. Respectfully submitted by,

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/s/Adam S. Baker ADAM S. BAKER BAKER LAW OFFICE, LLC P.O. Box 3572 Taos, New Mexico 87571 Telephone: (505) 231-8984 Facsimile: (575) 751-0704 MATTHEW COYTE COYTE LAW, P.C. 1000 2nd St., NW Albuquerque, New Mexico 87102 Telephone: (505) 244-3030 Facsimile: (505) 244-1406 Attorneys for Plaintiff I hereby certify that a copy of the foregoing was served via electronic transmission to: Daniel J. Macke Robles, Rael & Anaya, P.C. 500 Marquette NW, Suite 700 Albuquerque, NM 87102 (505) 242-2228 dan@roblesrael.com Mary T. Torres Beall & Biehler Law Firm 6715 Academy Rd NE Albuquerque, NM 87109 (505) 828-3600 mtorres@beall-biehler.com this 6th day of August 2009. /s/Adam S. Baker Adam S. Baker

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