Appellate Case: 13-2022 Document: 01019193285 Date Filed: 01/28/2014
Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 28, 2014
Elisabeth A. Shumaker
Clerk of Court
CHARMAINE BACA,
Plaintiff-Appellant,
v. No. 13-2022
(D.C. No. 1:12-CV-00156-BRB-WDS)
MORRIS RODRIGUEZ, in his individual (D. N.M.)
capacity; EDIE JOHNSON; ARLENE
HICKSON, in their individual and
official capacities; CORRECTIONS
CORPORATION OF AMERICA,
Defendants-Appellees,
and
BRANDI MILLER, in her individual and
official capacity,
Defendant.
ORDER AND JUDGMENT*
Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 13-2022 Document: 01019193285 Date Filed: 01/28/2014 Page: 2
Plaintiff Charmaine Baca, a prisoner of the State of New Mexico, appeals from
an order of the district court dismissing her amended complaint. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
Defendant Corrections Corporation of America (CCA) is a private corporation
which runs the New Mexico Women’s Correctional Facility (NMWCF) in Grants,
New Mexico, pursuant to a contract with the New Mexico Department of
Corrections. At the time of the events complained of here, Ms. Baca was a
post-conviction prisoner incarcerated at NMWCF. She filed suit on February 17,
2012, asserting claims under 42 U.S.C. § 1983 for a violation of her rights under the
Eighth Amendment and claims under state law. She named as defendants a prison
guard, Morris Rodriguez (in his individual capacity); CCA; and Warden Arlene
Hickson and two other supervisory employees, Edie Johnson and Brandi Miller (in
their individual and official capacities).
In her amended complaint filed on April 5, 2012, Ms. Baca alleged that
Mr. Rodriguez repeatedly had sex or oral sodomy with her beginning in September or
October 2008 and continuing into March 2009. Aplt. App. at 21. Although she
termed the encounters “rapes,” id. at 20, she alleged that she “came to depend on
Defendant Rodriguez’ companionship, his willingness to listen, and his kind words,
for strength of mind and spirit,” id. at 21. She alleged that he “began to suggest to
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Plaintiff that she and he would share a life outside of prison after Plaintiff was
released,” and that she “was convinced that she was in a nurturing, long-term
relationship.” Id. She alleged that he “told her that he loved her,” id., and that he
“manipulated and exploited [her] emotional vulnerabilities in order to obtain sexual
gratification from her,” id. at 23. She sought compensatory and punitive damages
based on the alleged physical injury of having sex with Mr. Rodriguez.
On defendants’ motions to dismiss, the district court noted that Ms. Baca had
stipulated to the dismissal of her claims against Ms. Miller. Id. at 178 n.6. The court
also dismissed the amended complaint as to Mr. Rodriguez without prejudice under
Fed. R. Civ. P. 12(b)(5) for failure to effect service. In the alternative, the court
dismissed the amended complaint as to Mr. Rodriguez with prejudice under
Fed. R. Civ. P. 12(b)(6) for failure to state an Eighth Amendment violation because
Ms. Baca consented to sex. The court dismissed the amended complaint as to the
other defendants with prejudice under Rule 12(b)(6) by extension of its conclusion
that Ms. Baca failed to state a claim that Mr. Rodriguez had violated her
constitutional rights. Finally, the court declined to exercise supplemental jurisdiction
over Ms. Baca’s state-law claims. Ms. Baca filed this appeal.
II. Discussion
Ms. Baca argues that the district court erred by: (1) ruling that she failed to
state an Eighth Amendment claim, and (2) refusing to allow her more time to
properly serve Mr. Rodriguez. We recently considered a claim alleging guards’
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sexual abuse of a prisoner under the Eighth Amendment, holding as “a matter of first
impression in this circuit,” that “[a]bsent contrary guidance from the Supreme Court,
we think it proper to treat sexual abuse of prisoners as a species of excessive-force
claim, requiring at least some form of coercion (not necessarily physical) by the
prisoner’s custodians.” Graham v. Sheriff of Logan Cnty., No. 12-6302, 2013 WL
6698128, at *5, *7 (10th Cir. Dec. 20, 2013). In light of our holding in Graham on
the merits of an Eighth Amendment claim in this context, we need not address the
details of Ms. Baca’s service-of-process argument, but only the Rule 12(b)(6)
dismissal of her amended complaint.
This court reviews de novo a district court’s Rule 12(b)(6)
dismissal for failure to state a claim. Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012). Accordingly, all well-pleaded
allegations of the complaint are accepted as true and viewed in a light
most favorable to the nonmoving party. While factual assertions are
taken as true, legal conclusions are not. To survive dismissal under
Rule 12(b)(6) for failure to state a claim, plaintiffs must “nudge[ ] their
claims across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the [pleaded] factual content . . . allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1144-45 (10th Cir. 2013) (alterations
in original).
In Graham, we reviewed a grant of summary judgment in favor of the county
defendants. 2013 WL 6698128, at *1. In affirming the district court’s decision, we
noted that “the power dynamics between prisoners and guards make it difficult to
discern consent from coercion,” but we concluded that there was no such difficulty
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under the circumstances of that case due to “the overwhelming evidence of [the
plaintiff prisoner’s] consent.” Id. at *7 (brackets omitted) (internal quotation marks
omitted). Here, Ms. Baca did not allege any facts in the amended complaint from
which it could reasonably be inferred that Mr. Rodriguez coerced her into having sex
with him. As a result, Ms. Baca did not state a claim for an Eighth Amendment
violation against Mr. Rodriguez, and the district court properly dismissed the
amended complaint as to CCA and the supervisory defendants.
The district court’s holding that Mr. Rodriguez was not properly served,
however, creates a jurisdictional wrinkle as to the Rule 12(b)(6) dismissal of the
amended complaint as to Mr. Rodriguez.
Before a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons must be
satisfied. Service of summons is the procedure by which a court having
venue and jurisdiction of the subject matter of the suit asserts
jurisdiction over the person of the party served.
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (brackets
omitted) (internal quotation marks omitted). But although, “[o]rdinarily, we would
have to resolve” any jurisdictional questions before addressing the merits of a claim,
we occasionally “may rule that a party loses on the merits without first establishing
jurisdiction [when] the merits have already been decided in the court’s resolution of a
claim over which it did have jurisdiction.” Starkey ex rel. A.B. v. Boulder Cnty. Soc.
Servs., 569 F.3d 1244, 1259-60 (10th Cir. 2009) (discussing Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 98-100 (1998)). In that circumstance, “[t]he court is not
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overreaching to decide an issue; after all, the issue has already been decided.” Id.
at 1260.
CCA and the supervisory defendants were properly served, and, in light of
Graham, the district court properly dismissed Ms. Baca’s amended complaint under
Rule 12(b)(6) as to those defendants due to her failure to properly allege that
Mr. Rodriguez violated her Eighth Amendment rights. As a result, the dismissal of
the amended complaint as to Mr. Rodriguez is “foreordained” and was also proper.
See Starkey, 569 F.3d at 1262-63.
Affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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