Todd Jager v. Jose G. Andrade-Barraza, et al.

Las Cruces, New Mexico personal injury lawyer represented Plaintiff, who sued Defendant on a civil rights violation theory under 42 U.S.C. 1983 claiming to have suffered more than $75,000 in injuries and/or damages as a direct result of an accident.





Based on the parties' briefing and the record as a whole, the Court finds the following material facts to be undisputed for purposes of Defendants' motions for summary judgment:2



1. On May 31, 2016, Plaintiff, an inmate at the Southern New Mexico Correctional Facility ("SNMCF"), was punched in the face by another inmate. SMF 1;3 doc. 90 at ¶¶ 69-70.



2. Plaintiff did not initially report his injury and remained in his cell for several hours. SMF 2; doc. 125-1 at 27:24-28:4, 29:12-18.



3. At around 10:00 p.m. on the evening of May 31, 2016, Plaintiff was taken by security personnel to the medical unit, where he was medically evaluated. SMF 3; doc. 125-1 at 32:18-24.



4. Plaintiff was examined and did not exhibit nausea, vomiting, headaches, seizure activity, or visual impairment. SMF 4; doc. 125-2 at 51:7-12.



5. On June 1, 2016, Plaintiff was transported to Memorial Medical Center in Las Cruces, New Mexico for x-rays of his facial bones. SMF 5; doc. 90 at ¶ 75.



6. The radiology report indicated the following findings: "Diastases of the frontozygomatic suture.4 No fracture of the zygoma is apparent. Suggests CT scan/facial bone series for further evaluation." SMF 6; doc. 133-1 at 26:11-14.



7. The radiology report from Memorial Medical Center was reviewed by SNMCF medical staff on June 3, 2016. SMF 7.



8. Plaintiff recalls receiving multiple medications for pain including Tramadol, Topamax, Ibuprofen, and Naproxen. SMF 12. Plaintiff was provided with the pain reliever Tramadol on June 17, 2016. SMF 11; doc. 125-1 at 46:23-47:10.



9. As suggested in the x-ray report of June 3, 2016, Defendant Lillian Klinger submitted a request for an off-site CT scan on June 7, 2016. SMF 13; RMF 13; doc. 125-3 at 28:4-5.



10. A CT scan was performed on June 24, 2016. The CT scan revealed a quadripod fracture of the left zygoma. SMF 14; doc. 125-5 at 111:11-18.



11. Dr. Andrade met with Plaintiff on July 2, 2016 regarding the CT scan results. SMF 17; doc. 125-3 at 63:12-14.



12. On July 11, 2016, Defendants submitted a consultation request form for Plaintiff to meet with Dr. Liat Shama. SMF 18; doc. 125-3 at 74:24-75:1.



13. The appointment resulting from the July 11, 2016 request with Dr. Shama was set for September 29, 2016. SMF 19; doc. 125-3 at 78:12-13, 23-24, 79:5-6.



14. On July 26, 2016, a consultation request was submitted to have Plaintiff seen by University of New Mexico Ophthalmology. Plaintiff was given an appointment with an Ophthalmologist, to occur on October 6, 2016. SMF 20; doc. 125-2 at 93:14-16, 92:15-17.



15. Upon meeting with Plaintiff on September 29, 2016, Dr. Shama requested an additional CT scan. She specifically requested a 3D face scan. SMF 21; doc. 125-3 at 105:13-18.



16. The 3D facial CT scan was performed on Plaintiff on October 20, 2016, as requested by Dr. Shama. SMF 22; doc. 125-4. The 3D facial CT scan "[r]eidentified left facial fractures" found in the prior scan. Doc. 125-4 at 1. It revealed the following specific findings: comminuted fracture of the left lateral orbital wall, fracture of the left orbital floor, fracture of the anterior and posterolateral walls of the maxillary sinus, depression of the left zygoma, and deformity of the left orbit. Id. The extraocular muscles and globes were intact. Id.



17. On December 1, 2016, Plaintiff met with Dr. Shama at the University of New Mexico Hospital for a surgical consultation. SMF 23; doc. 125-6 at 28:15-19.



18. During the December 1, 2016 meeting, Dr. Shama discussed with Plaintiff possible options for repair, "which would include refracture of the fracture versus [the] possibility [of] an implant." SMF 24; doc. 125-6 at 28:24-29:11.



19. Dr. Shama believed that Plaintiff's surgery was for cosmetic purposes and there was no medical reason to provide the surgery. SMF 25; doc. 125-6 at 30:7-15.



20. Dr. Shama consulted with two colleagues, an ophthalmologist, Dr. Amar Joshi, and an otolaryngologist, Tara Brennan, M.D. SMF 26; doc. 125-6 at 22:2-17.



21. Plaintiff met with Dr. Brennan on March 8, 2017. Mr. Jager was presented with the options of an implant or surgery that would rebreak and reset his facial bones. Mr. Jager was advised that an implant could cause blindness if he were in another altercation. SMF 27; doc. 125-1 at 80:8-12.



22. Plaintiff chose not to have surgery, as he was six or seven months from being released from custody. He also did not want to have surgery while incarcerated because, "I've seen it, the cleanliness, the medical with the pills . . . . So, you know, it scared me to get medical treatment this far already into it, and I'm already going to be getting out already. So, to have that medical rebreak my face, go through this thing in prison, do you know what I mean is—it's more traumatic. And I was worried about my health, essentially, having this going on when I was in prison." SMF 28; doc. 125-1 at 75:18-76:3; 82:12-19; 83:6-10, 14-18.





The elements of a personal injury claim in New Mexcio are: (1) Failure on the part of the Defendant to exercise due care, (2) damages and/or injuries caused to Plaintiff, and (3) a direct casual relationship between 1 and 2.

02/04/2020 190 MEMORANDUM OPINION AND ORDER by Magistrate Judge Gregory B. Wormuth granting 126 Motion for Summary Judgment; granting in part and denying in part 185 Motion to Remand to State Court; finding as moot 125 Motion for Summary Judgment; finding as moot 129 Motion for Summary Judgment. Counts I and II of the Third Amended Complaint are hereby DISMISSED WITH PREJUDICE. Counts III, IV, and V of the Third Amended Complaint are DISMISSED WITHOUT PREJUDICE. (ts) (Entered: 02/04/2020)

02/04/2020 191 FINAL ORDER by Magistrate Judge Gregory B. Wormuth. (ts) (Entered: 02/04/2020)

02/05/2020 192 ORDER Vacating 189 Status Conference and Settlement Conference by Chief Magistrate Judge Carmen E. Garza. (ag) (Entered: 02/05/2020)

02/05/2020 193 NOTICE OF APPEAL by Todd Jager. (Filing Fee - Online Payment) (Strickland, Margaret) (Entered: 02/05/2020)

02/05/2020 Filing Fee Received: $ 505 receipt number 1084-6942322 re 193 Notice of Appeal filed by Todd Jager (Payment made via Pay.gov)(Strickland, Margaret) (Entered: 02/05/2020)