Lymon v. Aramark Corporation , 499 F. App'x 771 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 11, 2012
Elisabeth A. Shumaker
Clerk of Court
DAVON LYMON,
Plaintiff-Appellant,
v. No. 11-2210
(D.C. No. 1:08-CV-00386-JB-DJS)
ARAMARK CORPORATION; JOSEPH (D. N.M.)
NEUBAUER; CHARLIE CARRIZALES,
Defendants,
and
WEXFORD CORPORATION, JOHN
SANCHEZ; ABNER HERNANDEZ;
JOE WILLIAMS; NEW MEXICO
DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff Davon Lymon appeals from three district court orders: one denying
class certification; another dismissing his belatedly asserted claim against defendant
Wexford Corporation under the statute of limitations; and a third dismissing his
claims against the other defendants-appellees for failure to state a claim under
Fed. R. Civ. P. 12(b)(6).1 We affirm the dismissal orders for the reasons explained
below. In light of that disposition on the merits, we dismiss as moot the appeal as it
relates to class certification. See Spaulding v. United Transp. Union, 279 F.3d 901,
915 (10th Cir. 2002); Price v. FCC Nat’l Bank, 4 F.3d 472, 475 (7th Cir. 1993).
I. PLEADING HISTORY
Mr. Lymon commenced this action in state court in August 2005. His pro se
complaint alleged that while a prisoner at the Los Lunas, New Mexico Correctional
Facility, he was assigned by Officer John Sanchez to work in the prison kitchen, run
by Aramark Corporation, where he was later injured due to a preexisting condition
(surgically repaired rotator cuff). He alleged that Officer Sanchez violated prison
policy by assigning him to the work without a medical clearance, and that Aramark
employees required him to do kitchen tasks that were contrary to a medical
prescription prohibiting him from lifting objects with his left arm. On July 3, 2005,
when lifting trays in the kitchen, his shoulder gave out and he fell, prompting him to
pursue negligence and breach-of-contract claims against Aramark and its employees,
1
The claims against the remaining defendants were dismissed as a result of
settlement.
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and a negligence claim against Officer Sanchez. He also complained that Captain
Abner Hernandez foreclosed his use of the prison’s formal grievance process for the
incident (by deeming the matter resolved informally through an acknowledgment of
the lack of Mr. Lymon’s required medical clearance), though he did not assert a legal
claim against Captain Hernandez at that time.
After Mr. Lymon obtained counsel and sought to amend his pleadings to add,
inter alia, claims under 42 U.S.C. §§ 1981 and 1983, the case was removed to federal
court. In February 2009, Mr. Lymon filed a First Amended Complaint. This added
little in the way of factual allegations, but expanded the number and complexity of
his legal claims. His claims against prison officials and the department of corrections
were multiplied through respondeat superior theories. His state tort claims now
incorporated allegations referring to the state governmental immunity/tort claims act.
Captain Hernandez became a defendant, and constitutional permutations of the tort
claims against him and Officer Sanchez were added. Mr. Lymon further alleged that
defendants had interfered with his right to contract and imposed on him a condition
of involuntary servitude in violation of the Thirteenth Amendment.
Finally, in December 2009, Mr. Lymon amended his pleadings once more. For
the first time he asserted a claim against Wexford Corporation, alleging that it did not
provide him with adequate care following his injury in the kitchen. He also alleged
more generally that it failed to conduct inmate-intake and infections-disease
examinations and ran a below-standard hepatitis C Clinic.
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II. DISTRICT COURT DISPOSITION
The district court disposed of the relevant claims in two very thorough orders.
We summarize them here.
The first order, Lymon v. Aramark Corp., 728 F. Supp.2d 1222 (D. N.M.
2010), painstakingly parsed through the various claims asserted against the state
defendants, explaining why none was legally viable. Count I against Officer Sanchez
for negligently classifying Mr. Lymon for kitchen work, and Count II against Captain
Hernandez for negligently denying access to the formal grievance process and
thereby insulating Sanchez and Aramark from legal accountability, failed because the
New Mexico Tort Claims Act (NMTCA) did not waive governmental immunity for
the alleged conduct. Specifically, N.M. Stat. § 41-4-6, which waives immunity for
“operation or maintenance of any building,” concerns unsafe conditions on
government property and does not apply to the administrative functions involved
here. Lymon, 728 F. Supp.2d at 1266-68 (relying primarily on Archibeque v. Moya,
866 P.2d 344, 347 (N.M. 1993) (holding prison’s negligent classification of prisoner
fell outside waiver of immunity)). And N.M. Stat. § 41-4-12, which waives
immunity for certain torts committed by “law enforcement officers,” does not apply
to corrections officers. Lymon, 728 F. Supp.2d at 1268-70 (relying primarily on
Callaway v. N.M Dep’t of Corr., 875 P.2d 393 (N.M. App. 1994) (holding
corrections officers are not law enforcement officers under § 41-4-12)).
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Counts III and IV assert tort claims against the New Mexico Department of
Corrections (NMDOC) and its Secretary, Joe Williams. To the extent these claims
are based on respondeat superior, the district court held they failed because the
underlying claims against Officer Sanchez and Captain Hernandez failed. Lymon,
728 F. Supp.2d at 1271 (relying on Silva v. State, 745 P.2d 380, 385 (N.M. 1987)
(noting respondeat superior liability under the NMTCA first requires “a negligent
public employee who [himself] meets one of the waiver exceptions under [the
NMTCA]”) (further quotation omitted)). To the extent they assert direct claims of
negligent policy, training, supervision, etc., the court held the claims fell outside the
waivers of immunity in the NMTCA. Id. at 1272-73.
Count V, a § 1983 claim against Officer Sanchez and Captain Hernandez,
alleges that their combined conduct forced Mr. Lymon to work for Aramark in the
prison kitchen in violation of his procedural and substantive due process rights. The
district court rejected the procedural aspect of the claim for lack of a protected liberty
interest in prison work assignments. Id. at 1258-59. The court rejected the
substantive aspect of the claim for lack of conduct egregious enough to satisfy the
controlling shock-the-conscience standard. Id. at 1259-60.
Count VI claims that Officer Sanchez’s conduct reflected racist interference
with Mr. Lymon’s right to contract, specifically in relation to his work with Aramark,
in violation of §§ 1981 and 1983. The district court rejected this claim for lack of
any actual loss of a contractual interest. That is, even assuming the existence of the
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oral contract that Mr. Lymon alleged had been created between him and Aramark,
Sanchez’s conduct assisted rather than impeded its formation. Id. at 1263.
Counts VII and VIII seek to impose liability on Secretary Williams and
NMDOC for an unwritten policy of ignoring Aramark’s substandard food service and
the misclassification of inmates for that service who are medically unfit for the
assignment, particularly those known to carry infectious disease. Noting that the
Second Amended Complaint did not allege any harm suffered by Mr. Lymon from
the alleged policy, the district court held that his claims failed for lack of any actual
injury. Id. at 1262. In this regard, the court refused to consider an affidavit that
Mr. Lymon claimed showed an injury,2 holding that a conversion from dismissal to
summary judgment proceedings was not warranted. The court relied on the fact that
the affidavit had been submitted months before Mr. Lymon filed his Second
Amended Complaint, yet he elected not to include its averments in his pleading. Id.
at 1261. The court cited its prior leniency in affording Mr. Lymon repeated
opportunities to amend his pleadings and concluded that further delay occasioned by
conversion of the pending motion to dismiss into a motion for summary judgment
was not warranted. Id. at 1261-62.
2
The affidavit stated that Mr. Lymon had hepatitis C, without saying when or
how he contracted the disease, much less attributing it to the prison’s food service.
See App. at 90. His continuing contention that this somehow demonstrates an injury
supporting his claims in this case is meritless.
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Count XIII asserts that working in the prison kitchen constituted involuntary
servitude in violation of Mr. Lymon’s rights under the Thirteenth and Fourteenth
Amendments. The district court relied on unopposed case law, and the language of
the Thirteenth Amendment itself,3 to hold that prison labor is not impermissible
involuntary servitude. Id. at 1264 (citing Tracy v. Keating, 42 F. App’x 113, 116
(10th Cir. 2002)); see also Ruark v. Solano, 928 F.2d 947, 949 (10th Cir. 1991),
overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996); Williams v.
Henagan, 595 F.3d 610, 621-22 (5th Cir. 2010).
Count XIV is the last claim asserted against the state defendants. In this claim
Mr. Lymon alleges that the classification decisions of Officer Sanchez represent a
threat to public health, due to his assignment of inmates with infectious diseases to
work in the prison kitchen. He further alleges that a decision that places the public or
any inmate at risk from a health hazard is against federal policy and hence actionable
under the Supremacy Clause. The district court again noted that there was no
allegation that Mr. Lymon (or anyone else) contracted an infectious disease as a
result of Officer Sanchez’s classification decisions, see also note 2 above, and held
that the count failed to state a claim upon which relief could be granted and that
Mr. Lymon lacked standing to assert such a claim in any event, Lymon,
728 F. Supp.2d at 1264-65.
3
The Thirteenth Amendment provides that “[n]either slavery nor involuntary
servitude, except as punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States.”
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The second order under review dismissed Mr. Lymon’s claim for inadequate
medical care, newly initially asserted against Wexford Corporation in the Second
Amended Complaint, as barred by the applicable statutes of limitation. See App. at
236 (Memorandum Opinion and Order filed July 7, 2010). For purposes of § 1983,
the district court applied the three-year limitation period for personal injury actions
set out in N.M. Stat. § 37-1-8. App. at 250-51; see Garcia v. LeMaster, 439 F.3d
1215, 1217 n.3 (10th Cir. 2006). For purposes of the state law aspect of the claim,
the court noted that the NMTCA governs tort actions against prison health care
providers, see N.M. Stat. § 41-4-3(F)(7), and applied its two-year limitations period,
id. § 41-4-15. App. at 252. Under both provisions, the claim against Wexford
Corporation that Mr. Lymon first sought to add in April 2009, was facially time
barred.
Mr. Lymon advanced several arguments to avoid the time-bar, none of which
were successful. The district court rejected his effort to invoke the relation-back
principle in Fed. R. Civ. P. 15(c), holding that nothing in the earlier pleadings would
have given Wexford Corporation notice that Mr. Lymon had any complaint about his
medical treatment, much less that he would have brought suit over it earlier but for a
mistake about the identity of the proper defendant. App. at 255-56. As for his
attempt to characterize his claim as sounding in contract—despite its assertion as a
“deliberate indifference” claim and the absence of any allegation of a breached
contractual obligation, see App. at 157—in order to invoke the longer limitations
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periods in N.M. Stat. § 31-1-3 (six years for action on written contract) and § 31-3-4
(four years for action on oral contract), the court noted that the nature of the right
sued upon controls and this claim for damages for personal injury clearly sounded in
tort, not contract, App. at 253-54. The court also rejected Mr. Lymon’s argument for
delayed accrual, because whether or not he knew the full extent of his injury, he was
aware of its existence and the inadequate care alleged as its cause when the incident
in the kitchen occurred. Id. at 254-55. Finally, the court dismissed his argument for
equitable tolling based on the other defendants’ delays in answering his earlier
pleadings, because this did not preclude him from adding a claim, or filing a separate
lawsuit, against Wexford Corporation in timely fashion. Id. at 254-55.
III. CONTENTIONS ON APPEAL
In contrast to (perhaps because of) the thorough nature of the district court’s
orders, Mr. Lymon’s appellate briefing is insubstantial and unpersuasive. Much of
the district court’s analysis is effectively unchallenged, and it is not our role to act as
advocate by scrutinizing that which the appellant has not put in issue. Limiting our
review to the arguments advanced on appeal, we readily affirm for substantially the
reasons stated by the district court.
Much of Mr. Lymon’s briefing concerns the affidavit touched on earlier. At
some points, he challenges the district court’s refusal to consider the affidavit; at
others, he simply refers to the affidavit in support of other arguments. Obviously,
once we conclude that the district court properly refused to consider the affidavit, the
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latter arguments lose their premise and fail as well. The district court noted that the
affidavit, which was neither attached to nor referenced in the Second Amended
Complaint,4 was not part of the pleadings for purposes of the motion to dismiss. The
court concluded that conversion of the motion to one for summary judgment to
permit consideration of the affidavit—requiring further delay of the proceedings for
the parties to marshal and present evidence on claims already subject to challenge for
their facial insufficiency—was not warranted. This prudent decision was within the
court’s discretion, Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998),
and we see nothing, particularly in the points raised by Mr. Lymon on appeal, to
suggest it abused that discretion.
Mr. Lymon notes that his initial pleadings were verified and hence could have
been accepted as affidavits as well.5 That is immaterial. The status of the superseded
pleadings as potential affidavits has nothing to do with whether the affidavit at issue
should have been deemed part of the Second Amended Complaint. Moreover, if the
factual allegations in these earlier pleadings—reproduced in the Second Amended
Complaint and assumed to be true for purposes of the motion to dismiss—were
legally insufficient to state a claim for relief, they perforce were not, as factual
4
The affidavit was submitted months before the filing of the Second Amended
Complaint, when it was attached to a motion for reconsideration of an earlier order
denying amendment.
5
He also refers in passing to another affidavit, submitted by counsel earlier in
the case. That affidavit relates to service-of-process matters and is not remotely
pertinent to the issue at hand.
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averments, sufficient to require the court to postpone its disposition of the case in
favor of protracted summary judgment proceedings. Mr. Lymon’s fallback argument
that defendants waived any objection to his use of the affidavit in opposition to their
motion to dismiss the Second Amended Complaint because they did not object when
he submitted it as a mere attachment to a filing made months before they even moved
to dismiss the Second Amended Complaint, borders on the frivolous.
Mr. Lymon’s briefing on the substance of his claims fares no better. As noted
earlier, much of what he argues depends on his affidavit, which we have concluded
the district court properly refused to consider.6
Mr. Lymon takes issue with the district court’s analysis of the NMTCA’s
applicability to his state tort claims, but his conclusory objections in this respect are
unpersuasive. In holding that Officer Sanchez’s assignment of prisoners to work in
the kitchen was not actionable under the NMTCA, the district court relied on the
New Mexico’s Supreme Court’s decision in Archibeque v. Moye, which held that the
administrative classification of a prisoner—there, for entry into the general prison
population—falls outside the NMTCA’s limited waiver of immunity for dangerous
6
We note that the affidavit, particularly the handwritten letter attached to it,
relates events involving Officer Sanchez that occurred years after this action was
filed and that do not concern the prison kitchen. The appropriate course to pursue
legal redress for such matters would have been either to move to supplement the
pleadings under Fed. R. Civ. P. 15(d), or to commence another action. The affidavit
does refer to one claim in the Second Amended Complaint, but that is the claim
against Wexford Corporation dismissed on a legal basis (statute of limitations) to
which the affidavit is immaterial.
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conditions on government premises in N.M. Stat. § 41-4-6. See Archibeque,
866 P.2d at 346-349. Mr. Lymon states that Archibeque is distinguishable on seven
bases, summarily listed as bullet points. See Aplt. Opening Br. at 12. The first states
“Fact pattern is different,” which presumably refers to the third and fourth points that
state “[t]he Corrections Officer [in Archibeque] was strictly an Administrative
Officer” and “[i]n Mr. Lymon’s Affidavit Sanchez is mainly a Line Officer.” Id. But
Archibeque did not turn on the job title of the officer who made the classification
decision. Rather, the court looked to the nature of the decision itself, holding that
prison classification served an administrative function distinct from the relevant
statutory category of “operation and maintenance” of the prison premises. 866 P.2d
at 347. The second point advanced by Mr. Lymon, that Archibeque was a decision
on a certified question and thus somehow less authoritative is meritless. The fifth
and sixth points refer to unrelated conduct of Officer Sanchez taken from the
properly rejected affidavit.
The seventh point just cryptically states: “FN 3 p. 621 in Achebeque [sic] v.
Moye concerning the need for more than one inmate to be named as injured.” Aplt.
Opening Br. at 12. That is not proper argument, see United States v. Wooten,
377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation.” (internal quotation marks omitted)), but a separate comment is
warranted. Insofar as Mr. Lymon is contending that the cited footnote suggests
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NMTCA immunity might not apply to an administrative decision that causes injury to
groups of persons (such as the sickening of multiple inmates served food by infected
prisoners assigned to work in the kitchen), we note that the Second Amended
Complaint does not allege any such harm even to Mr Lymon, much less to anyone
else. Also inadequate as appellate argument is the string cite following the bullet
points, introduced with the conclusory statement that Mr. Lymon “offers other New
Mexico cases which are favorable to his interpretation of NMTCA.” Aplt. Opening
Br. at 12.7
Most of Mr. Lymon’s arguments concerning his constitutional claims derive
from the content of the properly rejected affidavit and thus cannot succeed. He does,
however, present a cursory legal argument to support his involuntary-servitude claim.
In an effort to circumvent the established principle, noted by the district court, that
prison inmates may be forced to work without violating the Thirteenth Amendment,
he insists his involuntary-servitude claim is, rather, for forcing inmates to work
7
The cited cases are a mix of NMTCA immunity and statute-of-limitations
decisions with no clear import for our facts here. But included in the string cite is
Silva v. State, 745 P.2d 380, the case discussed in the Archibeque footnote mentioned
in the seventh bullet point. Silva held that § 41-4-6 could potentially waive immunity
for inadequacies in a prison’s “staffing, training, and provision for facilities which
would have provided [a decedent inmate] a course of treatment and acute mental
health care” for the illness that led to his suicide. Silva, 745 F.3d at 381-82, 385.
This case (limited to its facts by Archibeque, which held that it did not create a
general rule of liability for administrative functions including inmate classification,
866 P.2d at 349), was fully addressed, in conjunction with Archibeque, by the district
court here, see Lymon, 729 F. Supp.2d at 1271-73, and Mr. Lymon offers nothing by
way of argument to indicate any error in the district court’s thorough analysis.
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against legitimate medical limitations. But this argument throws the constitutional
claim actually alleged out with the bathwater. There is a constitutional prohibition
dealing with the disregard of medical limitations, though it is not the Thirteenth
Amendment provision against involuntary servitude invoked in the Second Amended
Complaint. Rather, it is the Eighth Amendment’s prohibition on cruel and unusual
punishment—which has never been the constitutional basis for any of Mr. Lymon’s
claims against the state defendants.
We have nothing to add with respect to the dismissal of the claim belatedly
asserted against Wexford Corporation. The district court’s analysis of the issues
surrounding application of the proper statute of limitations to this claim is quite
thorough and nothing Mr. Lymon says on appeal persuades us of the presence of any
error in the decision.
Finally, we note that while we have considered all of the contentions advanced
by Mr. Lymon on appeal, we have addressed here only those points warranting
explicit comment. In this same vein we note that any new arguments belatedly raised
in the reply brief are deemed waived. See Aviva Life & Annuity Co. v. F.D.I.C.,
654 F.3d 1129, 1136 n.6 (10th Cir. 2011).
The judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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