There are a number of very important steps that must be completed prior to filing suit against a New Mexico prison or jail. Failure to complete these steps can prevent a prisoner from ever obtaining justice for wrongs committed by the prison, jail or their respective private contractors. To make things worse, prisons and jails, especially New Mexico Corrections Department (NMCD) who we will focus on here, will do everything it possibly can to prevent the prisoner from completing the steps. Much of what NMCD does to keep prisoners out of court is unconstitutional. All of it is grossly unfair. Some is callous and cruel. The rest is run of mill deception that is baked into NMCD’s behavior, akin to standard operating procedure.
The Steps Must be Completed to the Degree Possible
Despite NMCD’s obstruction, it is important that the inmate try to complete these steps the best he or she can. NMCD’s obstruction will much more often than not prevent the inmate from completing the steps. Naturally, NMCD will then try to profit on its own illegal conduct arguing to the Court that the inmate’s lawsuit must be thrown out because necessary steps were not completed. This doesn’t mean the inmate should give up. It just means there is going to be a fight and NMCD’s obstruction and deception will carry right into the courts.
Fortunately, New Mexico State Courts are on to NMCD. The federal courts are an entirely different ballgame with the odds stacked heavily against inmates no matter what the misconduct of NMCD. The reasons for this are complicated but the gist of it is that cases in federal court often end before evidence necessary to the case can be collected due to qualified immunity. As a result of qualified immunity laws, federal court judges do not get to see the evidence of routine atrocities committed against New Mexico inmates at the hands of NMCD and its contractors. The situation is very different in State Court where qualified immunity is not an obstacle.
Step 1: File an Informal Complaint
Under both state and federal law, inmates must exhaust the prison or jail grievance process prior to filing suit. This means completing the grievance process. NMCD requires that an inmate file an informal complaint within 5 days of the alleged wrongful act by the prison or its contractors. Once the prisoner hears back from the prison on the Informal Complaint, the prisoner must then file a formal grievance within 5 days. Once the prisoner hears back on the formal grievance, the inmates must file an appeal within 5 days. This all sounds easy enough, but it is anything but easy.
NMCD’s obstruction, deceit, manipulation and misguidance is staggering. Rather than discuss here the countless ways that NMCD tries to keep prisoners from completing the grievance process, the reader can if interested review the Petition for Declaratory Relief and Temporary Restraining Order by Collins & Collins, P.C. related to the pervasive, illegal and unconstitutional abuses of the medical grievance system. The Petition seeks an Order from the Court declaring the entire prison grievance process unconstitutional. The scale and scope of misconduct is addressed there in 292 pages of complaint and exhibits but is far too expansive to discuss here.
Step 2: File Tort Claims Notice
To sue NMCD in State Court on state law claims, the prisoner must file a Tort Claims Notice within 90 days of the alleged wrongdoing. Compared to the 5 days allowed for the Informal Complaint, this seems like an eternity, but the 90 days can run very quickly.
The New Mexico Tort Claims Act is pretty harsh even in non-prison settings. It results in many valid cases being barred from suit. The first big trap is the Tort Claims Notice. If it is not sent within 90 days, it will bar the prisoner’s lawsuit completely in State Court. The lawsuit might still be filed in federal court, but federal court is a burial ground for prisoner lawsuits. In short, do not miss the Tort Claims Notice deadline.
Step 3: Preservation of Evidence Letter
A preservation of evidence letter should be sent right away. Collins & Collins, P.C. incorporates it into the Tort Claims Notice with what’s called spoliation of evidence warnings. Basically, preservation of evidence is mandatory once NMCD is on notice of the need to preserve the evidence. NMCD has a penchant for destroying and/or concealing evidence so the Preservation/Spoliation Letter is essential. The list of items to preserve in the Tort Claims Notice/Preservation Letter is expansive. It covers basically everything that might relate to the case. If NMCD destroys evidence after receiving the letter, there can be severe sanctions.
Surprisingly, NMCD does not always take the Preservation Letter too seriously. Fortunately, it does not matter if NMCD takes it seriously. The Courts do. If NMCD conceals or destroys evidence after receiving the Preservation Letter, the Courts can and have ordered spoliation sanctions against NMCD. At a minimum, the sanctions will include a presumption that the evidence destroyed was favorable to the inmate. That is what the jury will be told. In the extreme case of sanctions, a Court can issue summary judgement on the issues at hand related to the evidence destroyed or in very rare circumstances, the entire case can be defaulted.
Step 4: Inspection of Public Records Act Requests
The Inspection of Public Records Act (IPRA) goes hand in hand with the preservation of evidence letter. You can get a lot of information with an Inspection of Public Records Act request including the entire inmate file which should include the grievance file, disciplinary file and location history. However, we ask for these independently as well. The expectation is that the inmate file will be incomplete, but it is a start. If NMCD refuses to provide the inmate file, file an IPRA lawsuit. NMCD has no defense for refusal to provide public records. Statutory damages are up to $100/day for violation of IPRA.
Step 5: Collect Medical Records
It should be noted that medical records cannot be collected via IPRA. It would be a violation of patient privacy laws. In order to obtain inmate medical records, whether NMCD or outside medical records, a HIPAA release is needed. As with all things NMCD, it should be expected that a full set of medical records will not be provided. This is a topic unto itself but suffice it to say that just obtaining a full set of medical records can be a battle all its own.
Contact an Attorney Experienced with Prison and Jail Lawsuits
These cases are very complex and difficult. If the case of your imprisoned loved one has merit and there are severe injuries as a result of NMCD’s misconduct, it is important to seek experienced legal counsel. Collins & Collins, P.C. has filed numerous suits against NMCD and its contractors. There is no end in site due to the extreme cruelty, callousness, neglect and flat out incompetence of NMCD and its contractors. We will be glad to review your file to figure out if there is a case. In cases that get past the initial screening, this involves extensive investigation of the facts. In the case of prison and jail medical malpractice claims which is primarily what the firm handles, it also involves a careful review of the medical records.