Gatlin v. CoreCivic ( 2022 )

Appellate Case: 22-2031 Document: 010110775562 Date Filed: 11/30/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
JASON T. GATLIN,
Plaintiff - Appellant,
v. No. 22-2031
(D.C. No. 1:21-CV-00680-RB-JHR)
CORECIVIC, INC., f/k/a Corrections (D. N.M.)
Corporation of America; CENTURION
CORRECTIONAL HEALTHCARE OF
NEW MEXICO, LLC,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MORITZ, and CARSON, Circuit Judges.
_________________________________
Jason T. Gatlin appeals the district court’s order dismissing his suit against
CoreCivic, Inc. (CoreCivic) and Centurion Correctional Healthcare of New Mexico,
LLC (Centurion) for improper service of process. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
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I. BACKGROUND
According to the allegations in Mr. Gatlin’s complaint, CoreCivic operates the
Northwestern New Mexico Correctional Center (NNMCC) under a contract with the
State of New Mexico. In turn, CoreCivic contracts with Centurion to provide
medical care to inmates.
Mr. Gatlin broke his foot while he was an inmate at NNMCC. Between May
and August 17, 2017, he allegedly filed four grievances concerning Centurion’s
failure to treat the injury. Dissatisfied with CoreCivic’s responses and the belated
treatment he received from Centurion, Mr. Gatlin, through counsel, filed suit in
New Mexico state court on January 30, 2020, alleging a claim against CoreCivic and
Centurion under 42 U.S.C. § 1983 for the alleged violation of his rights under the
Eighth and Fourteenth Amendments and various state-law negligence claims
(Gatlin I).
Soon thereafter, on March 20, 2020, Mr. Gatlin filed a pro se complaint in
New Mexico state court (Gatlin II). In Gatlin II, Mr. Gatlin sued the New Mexico
Department of Corrections (NMDC) and CoreCivic under § 1983 for the alleged
violation of his constitutional rights by operating the NNMCC above maximum
capacity in violation of a consent decree, unsanitary living conditions that resulted in
multiple staph infections, and lack of changes to the menu. On August 27, 2020,
CoreCivic removed Gatlin II to federal court.1
1
The NMDC was eventually served on June 22, 2021, but only after the
magistrate judge entered an order setting a deadline for service to avoid dismissal.
2
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On January 25, 2021, the state court dismissed Gatlin I for failure to prosecute.
In its order, the court added that Mr. Gatlin could move to reinstate the action within
thirty days; however, it warned that failure to comply with the thirty-day deadline
would result in denial of the motion without a hearing.
Eventually, on March 30, 2021—more than thirty days after the deadline for
reinstatement had passed—Mr. Gatlin’s attorney filed an untimely motion to reinstate
the complaint. As grounds, he explained that “[Mr.] Gatlin has now been released
from custody and is ready to move the case forward and officially serve the
Defendants.” Centurion’s Suppl. App. at 29. Also on March 30, the same attorney
representing Mr. Gatlin in Gatlin I entered his appearance in Gatlin II.
Even though the state court had not ruled on the motion to reinstate Gatlin I,
Mr. Gatlin served Centurion and CoreCivic on June 22 and 23, 2021, respectively—
nearly three months after he told the state court that he was “ready to move the case
forward.” Id. On July 22, 2021, Centurion removed Gatlin I to federal court.
CoreCivic and Centurion each moved to dismiss Gatlin I on several grounds,
including insufficient service of process under Fed. R. Civ. P. 12(b)(5). Specifically,
they argued that Mr. Gatlin failed to exercise reasonable diligence in effecting
service of process as required under New Mexico law. The district court agreed and
granted the motions to dismiss. Mr. Gatlin appeals.
II. STANDARD OF REVIEW
“We review under an abuse-of-discretion standard the decision to dismiss a
defendant for failure of proper service.” Constien v. United States, 628 F.3d 1207,
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1213 (10th Cir. 2010) (internal quotation marks omitted). Under the abuse-of-
discretion standard, “a trial court’s decision will not be disturbed unless the appellate
court has a definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.”
Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (internal quotation marks
omitted).
III. LEGAL FRAMEWORK
Federal Rule of Civil Procedure 12(b)(5) authorizes dismissal of a lawsuit for
insufficient service of process. “Because the action was in [New Mexico] state court
before removal, we examine [New Mexico’s] service requirements.” Knight v.
Mooring Cap. Fund, LLC, 749 F.3d 1180, 1184 (10th Cir. 2014). See also Wallace v.
Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010) (holding that “federal courts in
removed cases look to the law of the forum state . . . to determine whether service of
process was perfected prior to removal”); Fed. R. Civ. P. 81(c)(1) (providing that the
Federal Rules of Civil Procedure govern “after [a civil action] is removed from a
state court”).
Rule 1-004(C)(2) of the New Mexico Rules of Civil Procedure provides that
“[s]ervice of process shall be made with reasonable diligence[.]” “In considering a
motion relating to due diligence under Rule 1-004[(C)(2)], the district court is to
exercise its discretion in determining whether delay demonstrates a lack of due
diligence and whether the delay warrants dismissal of the complaint.” Martinez v.
Segovia, 62 P.3d 331, 338 (N.M. Ct. App. 2002). A “standard of objective
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reasonableness” applies, under which a court should “consider the totality of
circumstances” and “weigh the actions taken by [the plaintiff] to obtain service
against the prejudice to the [defendants] resulting from the delay of service.” Id.IV. ANALYSIS
According to Mr. Gatlin, the district court abused its discretion in two ways.
First, the court erred in finding there was a seventeen-month delay in service between
the time when Gatlin I was filed in January 2020 and when CoreCivic and Centurion
were served in June 2021. Instead, he maintains that CoreCivic and Centurion were
“placed on notice that [he] had a claim against them such that [they] would have
started preserving evidence” as early as August 27, 2020, when Gatlin II was
removed to federal court; thus, there was no prejudice from the delay in service.
Aplt. Opening Br. at 12. Second, he argues the court failed to consider “[t]he
COVID-19 pandemic . . . in [its] analysis.” Id. at 13. Specifically, Mr. Gatlin
maintains the pandemic “limited access to prisoners . . . and therefore, [he] should
have been given significant latitude to proceed with his case.” Id.
The problem with the first argument is that Mr. Gatlin failed to raise it in the
district court and does not argue plain error on appeal. Therefore, the issue is
waived. See, e.g., Rumsey Land Co. v. Res. Land Holdings, LLC (In re Rumsey Land
Co.), 944 F.3d 1259, 1271 (10th Cir. 2019) (“If an appellant does not explain how its
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forfeited arguments survive the plain error standard, it effectively waives those
arguments on appeal.”).2
Mr. Gatlin’s second argument fares no better. Here, the district court
specifically considered his pandemic-related arguments and rejected them as
objectively unreasonable under the totality of the circumstances.
The district court first outlined the numerous delays, including the fact that the
state court dismissed the suit for failure to prosecute and Mr. Gatlin’s failure to
comply with the deadline to seek reinstatement. Moreover, the court noted that
despite Mr. Gatlin’s assertion that he was “ready to move the case forward . . . [he]
took almost three more months to serve Centurion and CoreCivic.” Aplt. App. at 57
(internal quotation marks omitted). Also of note, the court found that
“[a]pproximately ten months passed from the time the statute of limitations ran [in
August 2020] to the time [Mr.] Gatlin served [CoreCivic and Centurion.]” Id.3
Next, the district court considered and rejected Mr. Gatlin’s argument that his
incarceration was sufficient to justify the delay, noting that he “filed a second lawsuit
pro se while he was incarcerated, which evidence[d] his ability to participate in legal
proceedings while at the NNMCC.” Id.2
Mr. Gatlin fails to explain how a suit about prison overcrowding would put
CoreCivic on notice about a suit involving a foot injury or how Centurion, who was
not named as a party in Gatlin II, would have had notice of any legal action
whatsoever by Mr. Gatlin.
3
The parties agree that a three-year statute of limitations applies to both the
federal and state-law claims, and that the statute ran in August 2020, three years after
Mr. Gatlin filed his fourth and final grievance on August 17, 2017.
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Last, although the district court “sympathize[d] with the complications
COVID-19 has caused attorneys and their incarcerated clients, the pandemic does not
fully excuse the 17-month delay in this case.” Id. at 58. In particular, the court
found that Mr. Gatlin failed to explain why he could not communicate with his
attorney between the time when suit was filed in late January 2020 and when “the
New Mexico Governor [first] declare[d] a pandemic-related state of emergency [in]
mid-March 2020.” Id. Nor was there any evidence “to support a finding that
[Mr. Gatlin and his attorney] had no opportunities to communicate . . . in the more
than 14 months between the time . . . the Complaint [was filed] and the time he
moved to reinstate the lawsuit.” Id. “In fact, when [Mr.] Gatlin moved to reinstate
the state lawsuit in March 2021, he did not blame [the] failure to prosecute on the
pandemic or on lack of communication. Rather, he simply stated that he had been
released from custody and [was] ready to move the case forward.” Id. (internal
quotation marks omitted). Nor was any explanation offered for the three-month
delay in service following the motion to reinstate.
The district court weighed these circumstances against the prejudice to
CoreCivic and Centurion, including the “delay[, which] robbed [them] of the best
evidence from witnesses, as the memories of staff . . . will have faded . . . in the
intervening years.” Id. at 59 (brackets and internal quotation marks omitted).
Ultimately, after considering the totality of the circumstances, the court concluded
that the delay was not objectively reasonable and granted the motions to dismiss for
insufficient service. This was not an abuse of discretion.
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V. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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