Full opinion text
MEMORANDUM OPINION AND AMENDED ORDER James 0. Browning, UNITED STATES DISTRICT JUDGE THIS MATTER comes before the Court on: (i) Defendant Dr. Mark E. Walden’s Motion for Summary Judgment, filed April 2, 2015 (Doc. 38)(‘Walden Motion”); (ii) Defendants Guadalupe County and GEO’s Motion for Summary Judgment (Regarding Failure to Pile Tort Claim Notice and Failure to Exhaust Administrative Remedies) and Memorandum of Law in Support, filed April 6, 2015 (Doc. 40)(“MSJ 2”); and (iii) Defendants] Corizon & Katherine Ar-mijo’s Motion for Summary Judgment and Joinder & Adoption of Defendant Mark E. Walden’s Motion for Summary Judgment [Doc. #38] and Defendant Mark E. Walden’s Memoranda Brief in Support of Motion for Summary Judgment [Doc. ■ #39] and Defendants Guadalupe County and GEO’s Motion for Summary Judgment (Regarding Failure to File Tort Claim Notice and Failure to Exhaust Administrative Remedies) and Memorandum of Law in Support and Statement of Additional Authorities, filed April 6, 2015 (Doc. 41)(“MSJ 3”). The Court held a hearing on June 23, 2015. The primary issues are: (i) whether Plaintiff Christopher Martinez was a “prisoner” as the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)(a) (“PLRA”) defines that word, thus requiring that he exhaust available administrative remedies before filing suit for claims under 42 U.S.C. § 1983; and (ii) whether Martinez exhausted the'administrative remedies available to him with respect to his federal claims. The undisputed evidence shows that Martinez failed to exhaust the administrative remedies available to him. with respect to the federal claims he asserts against Defendants Dr. Mark E. Walden, Corizon, Inc., and Katherine Armijo as the PLRA requires. It is undisputed that Martinez does not assert any federal claims against Defendants Guadalupe County and the GEO Group, Inc. Accordingly, the Court will grant in part the Walden Motion and the MSJ 3. The Court will grant in part summary judgment—on the federal claims that Martinez asserts against Walden, Corizon, Inc., and Armijo—and will leave it for the state court to decide whether Walden, Cor-izon, Inc., and Armijo are entitled to summary judgment on Martinez’ state law claims. The Court will leave the MSJ 2 for the state court to decide. Because no federal claims remain before the Court and because Walden removed this case from state court, the Court remands Martinez’ case and remaining state law claims to the Second Judicial District Court, County of Bernalillo, State of New Mexico. FACTUAL BACKGROUND “Plaintiff was an inmate- of the New Mexico Corrections Department (‘NMCD’) and incarcerated at the [Guadalupe County Correctional Facility] at the time of the incident that forms the basis of this lawsuit.” Defendant Dr. "Mark E. Walden’s Memorandum Brief in Support of Motion for Summary Judgment ¶ 1, at 2, filed April 2, 2015 (Doc. 39)(“MSJ resetting forth this fact). See MSJ 3 ¶ 1, at 2 (setting forth a similar, fact); Plaintiffs Brief in Opposition to Defendants Corizon, Ar-mijo and Walden’s Motions for Summary Judgment on Failure to Exhaust Administrative Remedies and State Law Claims ¶ 1, at 2, filed April 23, 2015 (Doc. 49)(“MSJs 1 & 3 Response”) (not disputing the proposed facts in the MSJ 1 and the MSJ 3); MSJ 2 ¶ 1, at 4 (setting forth a similar fact); Plaintiffs Brief in Opposition to the GEO Defendants’ Motion for Summary Judgment ¶. 1, at 1, filed -June 5, 2015 (Doc. 63)(“MSJ 2 Response”); First Amended Complaint for Personal Injury Arising from Negligence and the Deprivation of Civil Rights ¶ 1, at 1, October 31, 2014 (Doc. 1-1)(“FAC”). “On or about August 12, 2011, while incarcerated at GCCF, Plaintiff [sustained a bimalleolar fracture of his ankle] while playing handball.” MSJ 1 ¶ 3, at 2 (setting forth unmodified version of this fact). See MSJ 3 ¶ 4, at 2 (setting forth a similar fact); MSJs 1 <& 3 Response ¶ 3, at 2 (not disputing the MSJ l’s proposed fact); id. ¶ 4, at 3 (not disputing the MSJ 3’s proposed fact); MSJ 2 ¶ 2, at 4 (setting forth a similar fact); MSJ 2 Response ¶ 2, at 1 (not disputing the MSJ 2’s proposed fact); FAC ¶ 22-28, at 4. “On August 12, 2011, Plaintiff was seen in the GCCF medical unit and treated by Dr. Walden shortly after sustaining an ankle injury.” MSJ 1 ¶ 4, at 3 (setting forth this fact). See MSJ 3 ¶ 5, at 3 (setting forth a similar fact); FAG ¶-37, at 5; id. ¶41, at 6. “Plaintiff! ] [said] that he wanted to be taken to the hospital for treatment of his broken leg, where there was an emergency room, x-rays, anesthetic, and a doctor he could have confidence in.” MSJs 1 & 3 Response ¶ 8, at 4 (setting forth unmodified version of this fact). See Plaintiff Christopher Martinez’ Answers to Defendant the GEO Group, Inc.’s First Set of Interrogatories at 1-2, filed April 23, 2015 (Doc. 49-l)(“Answers to GEO Interrogatories”); id. at 5-6; Plaintiff Christopher Martinez’ Responses to Defendant Dr. Mark E, .Walden’s First Set of Interrogatories and Requests for Production of Documents at 7, filed April 23, 2015 (Doc. 49-2)(“-An-swers to Walden Interrogatories”). “Plaintiff ... screamed at [Walden] ‘Don’t touch me’ and demanded that he be taken to the hospital.” MSJs 1 & 3 Response ¶ 9, at 4 (setting forth unmodified version of this fact). See Answers to GEO Interrogatories at 1-2; id. at 5-6; Answers to Walden Interrogatories at 7. “Walden ignored Plaintiffs verbal efforts to resolve the issue, declaring that Plaintiffs injury wasn’t too bad [and] ordering medical staff and correctional staff to ‘hold him down’ .... ” MSJs 1 & 3 Response ¶ 1, at 4 (setting forth unmodified version of this fact), “The following morning Plaintiff spoke to the Warden, and Plaintiffs transport to the hospital was authorized, and he was taken to the hospital that morning.” MSJs 1 & 3 Response ¶ 11, at 4 (setting forth unmodified version of this fact). See Answers to GEO Interrogatories at 1-2; id. at 5-6; Answers to Walden Interrogatories at 7. “Mid-morning [Plaintiff] was transported to the hospital for X-rays.” Answers to GEO Interrogatories at 2 (setting forth unmodified version of this fact). See MSJ 3 Reply. “Plaintiffs complaint against the GEO Defendants was filed on August 12, 2013.” MSJ 2 Response ¶ 1, at 2 (setting forth this fact). See MSJ 2 Reply at 3 (not disputing this fact). “Plaintiff was not incarcerated when he filed his original Complaint in New Mexico state court on August 12, 2013.” MSJ 2 ¶ 3, at 4 (setting forth this fact). See MSJ 2 Response ¶ 3, at 1 (not disputing this fact); Complaint for Personal Injury and Damages, filed in state court on August 12, 2013, filed in federal court on November 16, 2014 (Doc. 15-l)(“Complaint”). “Plaintiff never served [Guadalupe] County with a tort claim notice prior to filing his original complaint.” MSJ 2 ¶ 5, at 4 (setting forth this fact). See MSJ 2 Response ¶ 5, at 1 (not disputing this fact). The GEO Group operated the Guadalupe Facility pursuant to a contract it has with Guadalupe County, See MSJ 2 at 1; FAC ¶3, at 2. Guadalupe County is a subdivision of the State of New Mexico. See FAC ¶ 2, at 2; GEO Answer ¶ 2, at 1. “On August 8, 2014, Plaintiff was an NMCD inmate incarcerated at Lea County Corrections Facility (‘LCCF’) at the time he filed his First Amended Complaint.” MSJ 1 ¶ 2, at 2 (setting forth this fact). See MSJ 3 ¶ 3, at 2 (setting forth a similar fact); MSJs 1 & 3 Response ¶ 2, at 2 (not disputing the MSJ l’s proposed fact); id. ¶ 3, at 2 (not disputing the MSJ 3’s proposed fact); MSJ 2 ¶ 3, at 4 (setting forth a similar fact); MSJ 2 Response ¶ 3, at 1 (not disputing the MSJ 2’s proposed fact); Affidavit of Mary Jane Chavez (the Classification Director at the Guadalupe Facility) ¶3-4, at 1, filed April 2, 2015 (Doc. 39-l)(“Chavez Aff”); Offender Physical Location History: Christopher Joseph Martinez at 1-2, filed April 2, 2015 (Doc. 39-2)(“Lo-cation History”). “On August 8, 2014, Plaintiff filed his First Amended Complaint, naming Corizon defendants for the first time, in this lawsuit.” MSJ 3 ¶ 2, at 2 (setting forth this fact). See MSJs 1 & 3 Response ¶ 2, at 2 (not disputing this fact); FAC -¶ 1-38, at 1-5. “Plaintiff has not asserted a § 1983 claim, or a claim under another federal law, against the GEO Defendants.” MSJ 2 Response ¶ 3, at 2 (setting forth this fact). See MSJ 2 Reply at 3 (not disputing this fact). “None of the allegations ' includéd in the Amended Complaint were directed at the GEO Defendants, nor can they be so construed.” MSJ 2 Response ¶4, at 2 (setting forth this fact). See MSJ 2 Reply at 3 (not disputing this fact). “Plaintiffs original Complaint contains no claims arising out of alleged improper or adequate medical care; those claims were asserted for the first time in Plaintiffs Amended Complaint.” MSJ 2 ¶ 4, at 4 (setting forth this fact). “The first time either of the Corizon Defendants was sued by Mr. Martinez for the injuries he alleged to have incurred on August 12, 2011, was August 8, 2014.” MSJ 3 ¶ 9, at 3 (setting forth this fact). See MSJs 1 & 3 Response ¶ 9, at 3 (not disputing this fact); FAC passim. “The Claims against the Corizon Defendants arise out of their provision of licensed health care medical services to Plaintiff, an NMCD inmate, pursuant to Corizon’s contract with NMCD.” MSJ 3 ¶ 10, at 3 (setting forth this fact). See MSJs 1 & 3 Response ¶ 10, at 3 (not disputing this fact); FAC ¶¶ 82-91, at 11-12. “Defendant Katherine Armijo was Cor-izon’s Health Services administrator and an employee of Corizon.” MSJ 3 ¶ 8, at 3 (setting forth this fact). See MSJs 1 & 3 Response ¶ 8, at 3 (not disputing this fact); FAC ¶¶ 14-15, at 3; id. ¶ 78, at 11. “The New Mexico Department of Corrections has an established grievance procedure.” MSJ 1 ¶ 5,- at 3 (setting forth this fact). See MSJ 3 ¶ 6, at 3 (setting forth a similar fact); MSJs 1 & 3 Response ¶ 5, at 2 (not disputing this fact); Affidavit of Krystal Rivera (the Grievance Lieutenant at the Guadalupe Facility) ¶ 3, at 1, filed April 2, 2015 (Doc. 39-3)(“Rivera Aft”). “The New Mexico Corrections Department had in force and effect, at the time of Plaintiffs injury, an established grievance procedure.” MSJ 3 ¶ 6, at 3 (setting forth this fact). See MSJs 1 & 3 Response ¶ 6, at 3 (not disputing this fact); MSJ 2 ¶ 6, at 4 (setting forth a similar fact); id. ¶ 7, at 5 (setting forth a similar fact); Rivera Aff. ¶ 3, at l. “NMCD Policy 10501AG) sets forth the inmate’s responsibilities regarding the grievance process.” MSJs 1 & 3 Response ¶ 1, at 3 (setting forth this fact). See Defendant Dr. Mark E. Walden’s Reply in Support of Summary Judgment ¶ 1, at 2, filed May 7, 2015 (Doc. 53)(“MSJ 1 Reply”)(not disputing this fact). Section 150501 of the Grievances Policy states, in pertinent part: Before using the formal grievance procedure, an inmate is expected to attempt to resolve the grievance or particular area of concern informally through discussion with the person or persons responsible for the incident, giving rise to the complaint. The inmate shall first file an informal complaint using the Inmate Informal Complaint Form (CD-150501.3) within five calendar days from the date of the incident giving rise to the complaint. The inmate shall explain in detail his/her complaint and address their complaint to the Unit Manager or designee in units with a Unit Manager and to the Chief of Security or designee in units without a Unit Manager. If this informal effort fails to resolve the complaint within five working days of receipt of the complaint, the inmate may file an Inmate Grievance Form (CD-150501.1). The inmate must file the formal grievance within 20 calendar days of the date of the incident giving rise to the complaint. The Unit Manager, Chief of Security, or designees’ shall review the inmate complaint and make every effort to resolve the complaint at an informal level within five working days from receipt of the complaint. A copy of all resolved complaints shall be maintained and a copy given to the inmate. All non-resolved complaints shall be returned to the inmate to be attached to the formal grievance. A written formal grievance shall be filed using the. Inmate Grievance Form (CD-150501.1). The non-resolved Inmate Informal Complaint shall be attached to the. formal grievance and be submitted to the Grievance Officer by depositing the form(s) in an institutional mailbox, a designated Grievance Box or by delivering it in person to the Grievance Officer. Inmate Grievance Forms will be readily available.to inmates in accessible locations within the institution. All grievances must be signed by the grievant. Copies of grievances sent to persons other than the Institutional Grievance Officer will be considered informational copies only, not requiring a response. The Grievance Officer shall notify the grievant of receipt of a grievance on an Inmate 2-Day Notice of Receipt of Formal Grievance Form (CD-1505001.2). New Mexico Corrections Department Inmate Grievances Policy CD-150501 at l, filed April 2, 2015 (Doc. 39-3)(“Grievances Policy § 150501”). “Per policy 150500 E[,] it is the policy of the Department to resolve grievances at the lowest possible level. informal resolution is encouraged.” MSJs 1 & 3 Response ¶5, at 4 (setting forth this fact). See MSJ 1 Reply ¶ 5, at 3 (not disputing this fact); MSJ 3 Reply (not disputing this fact). “Per policy 150500 D(3) if a grievance is ruled non-grievable at any level, that decision may not be appealed through the remaining levels of the grievance procedure.” MSJs 1 & 3 Response ¶ 6, at 4 (setting forth this fact). See MSJ 1 Reply ¶ 6, at 3 (not disputing this fact); MSJ 3 Reply (not disputing this fact). Grievances Policy § 150500 states: The following matters are not grievable by inmates: a. Any matter over which' the Corrections Department has no control, for ■example: parole decisions, sentences, tort claims and claims regarding inmate compensation which is regulated by statute. b. Matters involving the loss or delay of mail by the U.S. Postal Service or other carriers, mg. UPS, Federal Express, etc. c. Any matter involving disciplinary procedure and findings. A separate appeal process is provided by Department policy for disciplinary actions. d. Any matter involving a classification decision. A separate appeal process is provided by Department policy for classification actions or placement in Level 6. e. Complaints on behalf of other inmates. f. The subject of any prior grievance on which a final determination has been made or which is currently under review. g. Other matters beyond the control of the Department. New Mexico Corrections Department Inmate Grievances Policy CD-150500 at 5-6, filed April 2, 2015 (Doc. 39-3)(“Grievances Policy § 150500”). Regarding what relief an inmate may obtain through the grievance process, Grievances Policy § 150500 states: If a grievance is decided in favor of an inmate, appropriate relief shall be provided to the inmate and the Department may, at its discretion, authorize one or more of the following remedies: 1. If the grievance involves loss of or damage to personal property, the remedy may be restoration of the property involved or payment of fair market value not to exceed $50.00 for any one item at the discretion of the Department. In no event will replacement or monetary compensation be awarded without a showing of negligence or willful misconduct on the part of Department employees. 2. Change of policies, procedures or practices. 3.Correction of departmental records. "4. Other remedies as appropriate. Grievances Policy § 150500 at 6-7. There is also an appeal process available for inmates, which is set forth in Grievances Policy § 150501: 1. If an inmate is not satisfied with the decision of the Warden, the inmate may appeal that decision to the Office of the Secretary of Corrections'within seven calendar days of receiving the decision from the Warden. The inmate may appeal by completing the appeal portion of the Inmate Grievance Form and mailing or placing the form in an institutional mailbox, a designated Grievance Box or by delivering it in person to the Grievance Officer for processing to Central Office. 2: The Grievance Officer will note the date of -receipt of the appeal portion of the Inmate Grievance Form. 3. The Grievance officer will attach all relevant materials to the appeal and deliver the appeal to the Administrator within five working days of the date of receipt of the appeal portion of the Inmate Grievance Form. 4. The Grievance Administrator will note the date receipt of the appeal portion of the Inmate Grievance Form. 5. The Grievance Administrator will conduct any further investigation necessary and present a recommendation to the Secretary or designee, within twenty-five (25) calendar days of receiving the appeal portion of the grievance. Institutional/prison administrators and employees are prohibited from interfering with or otherwise attempting to influence the review by the Grievance Administrator. 6. The Secretary or designee will render a final decision on the grievance within ten calendar days of receipt of the appeals portion of the Inmate Grievance Form. 7. The inmate will be informed in writing of the final decision on the grievance. A brief and clear description of the reasons for the final decision should accompany the inmate notification. Copies of this notification will be forwarded to the Warden and Grievance . Officer at the institution. 8. If the grievant is awarded any relief, the Secretary or designee shall assign one or more specific personnel the duty to implement the relief granted within a reasonable period of time. Grievances Policy § 150501 at 4-5. “[Krystal] Rivera is the Grievance Lieutenant at GCCF.” MSJ 2 ¶ 6, at 4 (setting forth this fact). See MSJ 2 Response -¶ 6, at 1 (not disputing this fact); Rivera Aff. ¶ 1, at 1. In her capacity as the Grievance Lieutenant, Ms. Rivera maintains copies and is the official custodian of all Informal Complaints, Grievances and Appeals filed by inmates at GCCF. When an inmate submits a Grievance, the standard practice at GCCF is to record the Grievance on the grievance log, make a copy of the Grievance, and provide it to the inmate, and to place a copy in the grievance file. When an inmate submits an Appeal to the Secretary of Corrections, the standard practice at GCCF is to record the Appeal on the grievance log, make a copy of the Appeal and provide it to the inmate, mail a copy of the Appeal to the Secretary of Corrections via certified mail, and place a copy of the Appeal and the certified mail receipt in the grievance file. MSJ 2 ¶ 9, at 5 (setting forth this fact). See Rivera Aff. ¶ 6, at 2. “In her capacity as Grievance Lieutenant, Ms. Rivera also prepares and maintains the log of all Grievances and Appeals filed by inmates. The grievance log- reflects, among other things, the date an inmate filed his Grievance and Appeal, and the disposition of the inmate’s submissions.” MSJ 2 ¶ 10, at 5-6 (setting forth this fact). See Rivera-Aff. ¶ 7, at 2. Ms. Rivera has reviewed her grievance log and all of her grievance records reflecting submissions by Plaintiff on and after the date he broke his ankle, August 12, 2011. A true and accurate copy of Ms. Rivera’s grievance log for the relevant timeframe is included as Attachment 2 to her Affidavit. True and accurate copies of all Grievances and Appeals submitted by Plaintiff and relating in any way to the claims made in this lawsuit are included as Attachment 3 to her Affidavit. MSJ 2 ¶ 11, at 6 (setting forth these facts). See Rivera Aff. ¶ 8, at 2-3. “Upon review of her grievance log and grievance records,” Rivera confirms as follows: a. Plaintiff submitted an Informal Complaint on September 1, 2011, complaining- that the condition of GCCF’s gym floor caused his: ankle injury. Because Plaintiff submitted this Informal Complaint past the five-day deadline, it was rejected as untimely. b. Plaintiff submitted a Grievance concerning the same matter on September 8, 2011. Despite Plaintiffs failure to follow the proper policy and procedure, GCCF accepted Plaintiffs Grievance. An investigation was conducted regarding the condition of the gym floor, and the Grievance was . deemed ‘resolved.’. c. A copy of the Grievance was returned to Plaintiff on September 27, 2011. According to the NMCD Grievance policy, if Plaintiff was dissatisfied with the outcome of his Grievance, he was required to submit an Appeal to the Secretary of the Department of Cor- . rections within seven (7) calendar days. If Plaintiff had submitted an Appeal, it would have been recorded in the grievance log and a copy of the Appeal would have been placed in the grievance file. Both the grievance log and the grievance records reflect that Plaintiff never submitted an Appeal. d. Plaintiff- never submitted any other Informal Complaint .or Grievance regarding the matters alleged in this lawsuit. Thus, he never submitted any Informal Complaint or Grievance regarding the medical care he received after he suffered his ankle injury- MSJ 2 ¶ 12, at 6-7 (setting forth these facts). See Rivera Aff. ¶ 9, at 3-4, PROCEDURAL BACKGROUND Martinez filed his original Complaint against the GEO Group and Guadalupe County in state court on August 12, 2013. See MSJ 2 Response ¶ 1, at 2 (setting forth this fact); MSJ 2 Reply at 3 (not disputing this fact); Complaint for Personal Injury and Damages, filed in state court August 12, 2013, filed in federal court November 16, 2014 (Doc. 15-l)(“Complaint”). At the time that Martinez filed his original Complaint, he was not incarcerated. See MSJ 2 ¶ 3, at 4 (setting forth this fact); MSJ 2 Response ¶3, at 1 (not disputing this fact). In the original Complaint, Martinez asserted a state law negligence claim against the GEO Group and Guadalupe County. See Complaint ¶¶ 13, 17-20, at 2-4. Martinez contended that he broke his ankle on August 12, 2011 while playing handball on a gym floor, which he asserted the GEO Group negligently maintained. See Complaint ¶¶ 10, 12-13, 17-20, at 2-4. Martinez did not, however, serve Guadalupe County with a tort claim notice before filing his original Complaint. See MSJ 2 ¶ 5, at 4 (setting forth this fact); MSJ 2 Response ¶ 5, at 1 (not disputing this fact). On August 8, 2014, Martinez filed the First Amended Complaint. See FAC at 1. At that time, he was a New Mexico Correction’s inmate incarcerated at the Lea County Corrections Facility in Hobbs, New Mexico. See MSJ 1 ¶ 2, at 2 (setting forth this fact); MSJ 3 ¶ 3, at 2 (setting forth a similar fact); MSJs 1 & 3 Response ¶ 2, at 2 (not disputing the MSJ l’s proposed fact); id. ¶ 3, at 2 (not disputing the MSJ- 3’s proposed fact); MSJ 2 ¶ 3, at 4 (setting forth.a similar fact); MSJ 2 Response ¶ 3, at 1 (not disputing the MSJ 2’s proposed fact); Chavez Aff. ¶3-4, at' 1; Location History at 1-2. In addition to Guadalupe County and the GEO Group, Martinez names new Defendants in the FAC:. Walden, Corizon, Inc., and Armijo. See MSJ 3 ¶ 2, at 2 (setting forth this fact); MSJs 1 & 3 Response ¶ 2, at 2 (not disputing this fact); FAC ¶¶ 1-38, at 1-5. Specifically, Martinez asserts five counts in the FAC: (i) Count I—that Guadalupe County, the GEO Group, John Doe, Inc. (unidentified flooring contractor), John Does 1-6 (unidentified GEO Group employees or agents) were negligent; (ii) Count II—that Walden violated his civil rights under the Eighth Amendment of the Constitution of the United States of America, the Due Process ■ clause in the Fourteenth Amendment of the Constitution of the United States of America, and the Equal Protection clause of the Constitution of the United States of America in the course of Walden providing, medical care to Martinez; (iii) Count III—that Walden was negligent, and/or committed assault and battery, in the course of providing medical care to Martinez;, (iv) Count IV—that Cori-zon, Inc. and Armijo negligently operated a medical facility; and (v) Count V—that Armijo violated Martinez’ unspecified constitutional rights. See FAC passim. On September 30, 2014, Guadalupe County and the GEO Group filed a motion for summary judgment in the state court, asking the state court to dismiss Martinez’ claims against them' because he did not exhaust his administrative remedies with respect to those claims, as the PLRA and N.M. Stat. Ann. § 33-2-ll(B) require. See The GEO Defendants’ Motion for Summary Judgment and Memorandum of Law in Support passim, filed in state court September 30, 2014, filed in federal court November 6, 2014 (Doc. 15-6)(“State MSJ”). On October 31, 2014, the- new Defendants—Walden, Corizon, Inc., and Ar-mijo—removed the case to federal court with the Guadalupe County and the GEO Group’s consent. See Notice of Removal, filed October 81, 2014 (Doc. l)(“Notiee of Removal”). 1. Walden’s Motion for Summary Judgment. Walden filed a motion for summary judgment, and a separate memorandum brief in support of. his motion, on April 2, 2015. See Walden Motion; MSJ 1. In the MSJ 1, Walden asks the Court to grant summary judgment in his favor and dismiss all of the claims that Martinez asserts against him—the claims brought under the Eighth and Fourteenth Amendments, and the state law tort claims—as a matter of law. See MSJ 1 at 1. He notes that the PLRA states: “No action shall be brought with respect to prison conditions- under section 1983 or this title,- or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.” MSJ at 4 (quoting 42 U.S.C. § 1997e(a)); Walden'argues that the PLRA requires that a prisoner must exhaust all the available administrative remedies before the prisoner can file a lawsuit in federal court. See MSJ 1 at 4 (emphasis in MSJ 1). Accordingly, Walden asserts that he is entitled to summary judgment, because Martinez did not exhaust his administrative remedies, as- the PLRA requires. See MSJ 1 at 4. Walden asserts that the Supreme Court of the United States of America has held that the exhaustion requirement is a mandatory requirement and is not left to the district court’s discretion. See MSJ 1 at 4 (citing Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)(Ginsburg, J.)). He notes that the United States Court of Appeals for the Tenth Circuit has also held that , the exhaustion requirement is mandatory. See MSJ 1 at 4 (citing Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir.2001)(Henry, J.)). Further, he maintains that the Supreme Court has held that the exhaustion requirement still applies when the administrative procedures cannot grant the remedies sought. See MSJ 1 at 4 (citing Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)(Souter, J.); Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)(Alito, J.)). Walden further asserts that “[cjomplete exhaustion.of administrative procedures is a prerequisite to suit.” MSJ 1 at 5 (citing Porter v. Nussle, 534 U.S. at 524, 122- S,Ct. 983). Walden argues that the plaintiff must properly exhaust the administrative remedies, as the applicable prison’s procedural requirements require. See MSJ 1 (citing Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)(Roberts, J.)). He notes thát the Tenth Circuit held in Little v. Jones, 607 F.3d 1245 (10th Cir.2010)(Tacha, J.), that a prisoner who does not complete the grievance process cannot bring a claim in federal court. See 607 F.3d at 1249. Finally, Walden argues that an inmate who misses deadlines set by the grievance process cannot then allege that administrative remedies are exhausted for PLRA purposes. See Jones v. Bock, 549 U.S. at 217-18, 127 S.Ct. 910. Walden argues that New Mexico law also requires that an inmate exhaust all administrative remedies before filing a lawsuit. See MSJ 1 at 5. According to Walden, the applicable New Mexico statute states: No court of this, state shall acquire subject-matter jurisdiction over any complaint, petition, grievance or civil action filed- by any inmate of the corrections department with regard to any cause of action pursuant to state law that is substantially related to the inmate’s incarceration by the corrections department until the inmate exhausts the corrections department’s internal grievance procedure. Upon exhaustion of this administrative remedy, the first judicial proceeding shall be a de novo hearing, unless otherwise provided by law. MSJ 1 at 5 (quoting N.M. Stat. Ann. § 33-2-ll(B) (emphasis in MSJ 1). Walden asserts that, under New Mexico state law, as under the PLRA, an inmate must exhaust all administrative remedies before he can challenge his treatment during confinement in court. See MSJ 1 at 5. Walden notes that Martinez was incarcerated both when Martinez filed this suit against him and when he treated Martinez for his ankle injury. See MSJ 1 at 6. Accordingly, Walden argues that both the PLRA and N.M. Stat. Ann. § 33-2-ll(B) apply to Martinez’ claims. See MSJ 1 at 6. He points to the three-step grievance process that New Mexico Corrections had in place at the Guadalupe Facility, and argues that, Martinez failed to comply with this process, because Martinez never used this process to file a grievance regarding the medical treatment he received at the Guadalupe Facility. See MSJ 1 at 6. Walden therefore asserts that Martinez failed to exhaust his administrative remedies. See MSJ 1 at 6. Walden maintains that this failure to exhaust means that he is entitled to summary judgment on all claims against him as a matter of law and asks the Court to grant the Walden Motion. See MSJ 1 at 6. 2. Guadalupe County and the GEO Group’s Motion for Summary Judgment. Guadalupe County and the GEO Group filed a motion for summary judgment on April 6, 2015. See MSJ 2 at 1. Guadalupe County and the GEO Group ask that the Court grant MSJ 2, because Martinez failed to file a tort claim notice and did not exhaust his administrative remedies. See MSJ 2 at 1. Guadalupe County and the GEO Group assert that, while the FAC asserts only a single claim against them for -negligence, it appears that Martinez may seek to hold them liable for other alleged violations of his rights under state and/or federal law. See MSJ 2 at 2-3. They state that they obtained this conception because of the several non-specific references to “Defendants” in Count IV. MSJ at 2 (quoting FAC ¶¶ 74-81, at 10-12). They next argue that all of Martinez’ claims against them fail as a matter of law for a number of reasons. See MSJ 2 at 3. First, Guadalupe County and the GEO Group argue that Martinez must bring all of his state law claims against Guadalupe County under the New Mexico Tort Claims Act (“NMTCA”). See MSJ 2 at 8 (citing N.M. Stat. Ann. § 41-4-2). They assert that the NMTCA requires each person requesting damages from a county to provide written notice—stating the time, place and circumstances of the’ loss or injury—to the county clerk within ninety days after the occurrence that gives rise to a claim for which the NMCTA waives immunity. See MSJ 2 at 8 (citing N.M. Stat. Ann. § 41—4—16(A)). Guadalupe County and the GEO Group assert that the NMTCA provides: No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence. The time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving the notice by reason of injury. MSJ 2 at 8 (quoting N.M. Stat. Ann. § 41-4-16(B)). They assert that “mere awareness” of an accident does not put a governmental entity on notice under N.M. Stat. Ann. § 41-4-16(A) and that “actual notice” under N.M. Stat. Ann. § 41-4-16(B) does not require the governmental entity have notice that a lawsuit will be filed, but rather that it have notice of a likelihood that litigation may ensue. See MSJ 2 at 8 (citing Powell v. N.M. Highway and Transp. Dep’t, 1994-NMCA-035, ¶¶ 15-16, 117 N.M. 415, 872 P.2d 388, 392 (Donnelly, J.); Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶¶ 5-6, 117 N.M. 637, 875 P.2d 393, 396 (Flores, J.)). Guadalupe County and the GEO' Group assert that it is undisputed that Martinez never provided notice of his tort claim to the Clerk of Guadalupe County. See MSJ 2 at 9. They also assert that there is no evidence that Guadalupe County had actual notice of the likelihood that litigation might ensue following the alleged incidents. See MSJ 2 at 9. Second, Guadalupe County and the GEO Group argue that the Court must dismiss Martinez’ claims against them, because Martinez did not exhaust his administrative remedies as the PLRA and N.M. Stat. Ann. § 33-2-ll(B) require. See MSJ 2 at 9. They maintain that it is undisputed that the Guadalupe Facility had New Mexico Correction’s Inmate Grievance Policy in effect at all times relevant to this lawsuit. See MSJ 2 at 10. Further, they assert that Martinez did not file any grievance related to his alleged inadequate medical care and that he did not exhaust his administrative remedies with respect to the gym floor’s alleged improper maintenance—because he did hot appeal the Warden’s decision on this matter to the Secretary of Corrections. See MSJ 2 at 10-11. Guadalupe County and the GEO Group maintain that there is no document or witness to support Martinez’" argument that he filed an appeal. See MSJ 2 at 11. They ask the Court to treat Martinez’ affidavit as a “sham,” because it states, for the first time, that he attempted to file an’ appeal—despite his prior admission to the contrary in his response to Guadalupe County and the, GEO Group’s first motion for summary judgment. MSJ 2 at 11 (citing Affidavit of Christopher Martinez ¶¶ 8-10, at 2, filed February 16, 2015 (Doc. 29-lj(“Martinez Aff.); Plaintiffs Brief in Opposition to the GEO Defendants’ Motion for Summary Judgment ¶ 7, at 2, filed in -state court October 14, 2014, filed in federal court November 6, 2014 (Doc. 15-10)(“State MSJ Response”)). Further, they assert that, even if the Court considers Martinez’ affidavit, the affidavit does not save his claims from dismissal, because a number of courts have held that “bare, unsupported assertions are insufficient as a matter of law” to defeat a defendant’s claim of a failure to exhaust administrative remedies. MSJ 2 at 12 (citing Sparks v. Foster, 241 Fed.Appx. 467, 474 (10th Cir.2007)(O’Brien, J.)). They argue that the Court should conclude, as a matter of-law, that Martinez failed to file an appeal and thus failed to exhaust his administrative remedies regarding the condition of the gym floor at the Guadalupe Facility. See MSJ 2 at 13 (citing Jernigan v. Stuchell, 304 F.3d 1030,. 1032 (10th Cir.2002)(Kelly, J.)). Guadalupe County and the GEO Group therefore contend that the Court should dismiss all of Martinez’ claims against them under the PLRA and under the N.M. Stat. Ann. § 33-2-ll(B). See MSJ 2 at 13, Guadalupe County and the GEO Group next argue that Martinez had to exhaust all of his administrative remedies because his claims were grievable under the New Mexico Correction’s policy. See WISJ 2 at 13. They concede “that tort claims” are not grievable under the New Mexico Correction’s policy, but give two reasons why Martinez’ complaints were grievable under the policy. MSJ 2 at 14 (citing Grievances Policy § 150500 at 6). First, Guadalupe County and the GEO Group assert that the policy “clearly states that matters involving the application of prison policies, rules and procedures, including but not limited to medical care ... [and] matters relating to conditions of inmate care or supervision within the authority of NMCD or its contractors are grievable.” MSJ 2 at 14 (citing Grievances Policy § 150500 at 5). They therefore conclude that Martinez’ complaints regarding the gym floor and his medical care were “grievable” as the face of the policy indicates. MSJ 2 at 14. Second, Guadalupe County and the GEO Group assert that Martinez did not have a “tort claim” until he filed this lawsuit, and that Martinez’ grievance about the gym floor, and any grievance he could have filed regarding his medical care, were not “tort claims” during the time he was required to file a grievance. MSJ 2 at 14-15 (quoting Tort, Black’s Law Dictionary (9th ed.. 2009); Claim,. Black’s Law Dictionary (9th ed. 2009)). They allege that, if the Court were to follow Martinez’ logic, “no incident that results in injury to an inmate is grievable under NMCD policy.” MSJ 2 at 15. Guadalupe County and the GEO Group maintain that the policy merely makes it clear that inmates cannot use the grievance process to seek damages for personal injuries but, instead provides a number of other remedies. See MSJ 2 at 15 (citing Grievance Policy § 150500 at 6-7). They also note that the PLRA’s exhaustion requirement applies regardless what relief is available through the administrative procedures. See MSJ 2 at 15 (citing Booth v. Churner, 532 U.S. at 741, 121 S.Ct. 1819). They maintain that Martinez cannot argue that his claims in the FAC were “non-grievable,” because it is undisputed that he submitted a grievance regarding the gym floor and that it was not rejected for being “no'n-grievable.” MSJ 2 at 15. Guadalupe County and the GEO Group complete their motion by making two final arguments. See MSJ 2 at 16. First, they assert that Martinez brought only a state law negligence claim against them in the Complaint, and thus any new or different state and/or federal claims against them in the FAC must fail ás a matter of law, because of Martinez’ failure to exhaust. See MSJ 2 at 16. Guadalupe County and the GEO Group also posit: . Plaintiff may argue that, because he was not incarcerated at the time he filed his original Complaint, neither the PLRA nor Section 33-2-ll(B) apply_Plain-tiff’s argument, however, fails because as numerous courts have .held, with respect to claims asserted for the first time in an amended complaint, Plaintiffs status as a prisoner for purposes of the PLRA is determined by his status at the time he filed the amended complaint. See, e.g., Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir.2010); Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir.2014)(holding that the district court should have used the date of the first amended complaint instead of the date of original complaint when deciding whether certain claims were administratively exhausted according to the PLRA). MSJ 2 at 16. Second, they argue that the Court should also dismiss Martinez’ negligence claim against them in the Complaint and reasserted at Count I of the FAC, because they believe the Court should conclude the relevant date for deciding Martinez’ status as an inmate for purposes of N.M. Stat. Ann. § 33—2—11(B) is the date he filed FAC—a date when Martinez was indisputably incarcerated. See MSJ 2 at 16-17. Guadalupe County and the GEO Group note that the United States Court of Appeals for the Ninth Circuit has held that an amended complaint supersedes the original, rendering the original complaint non-existent and assert that the Court should find this holding persuasive. See MSJ 2 at 17 (citing Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir.2010)(Tashima, J.)). They note that this holding agrees with the Tenth Circuit’s holding that the PLRA applies to a plaintiff who was not incarcerated when he initiated a civil action, but was incarcerated when he filed notice of his appeal. See MSJ 2 at 17 (citing Brown v. Eppler, 725 F.3d 1221, 1230 (10th Cir.2013)(Murphy, J.)). Finally, they argue the Court does not have subject-matter jurisdiction over Martinez’ claim in Count I, because Martinez did not file an appeal of his grievance and thus failed to exhaust his administrative remedies. See MSJ 2 at 17. Accordingly, Guadalupe County and the GEO Group ask the Court to grant their motion for summary judgment. See MSJ 2 at 18. 3. Corizon, Inc, and Armijo’s Motion for Summary Judgment. Corizon, Inc. and Armijo, its Health Services Administrator, filed a motion for summary judgment on all claims against them as a matter of law on April 6, 2015. See MSJ 3 at 1. Corizon, Inc. and Armijo assert that the Walden Motion, the MSJ 1, and the MSJ 2 conclusively establish the following, and join and incorporate them by reference in their motion: 1) Under Federal Judgment law, Dr. Walden and the Corizon Defendants are entitled to Summary Judgment oh all Federal claims asserted against them, pursuant to 42 U.S.C. § 1997(e)(a). 2) Under Federal Summary Judgment law, as a matter of law,. Plaintiffs State law claims are barred by his failure to exhaust administrative remedies, pursuant to § 33-2-ll(B) NMSA1978. MSJ 3 at 4. Corizon, Inc. and Armijo argue that they both meet the NMTCA’s definition of a “public employee,” because of their provision of licensed medical services pursuant , to Corizon, Inc.’s contract with New Mexico Corrections. MSJ 3 at 4 (quoting Lymon v. Aramark Corp., 728 F.Supp.2d 1207, 1219 (D.N.M.2010)(Browning, J.), aff'd, 499 Fed.Appx. 771 (10th Cir.2012)). Corizon, Inc. and Armijo assert that this Court held in Lymon v. Aramark Corporation that Wex-ford Health Services, Inc., the contract medical provider to New Mexico Correction’s Correctional Medical Services, and its employees come within the NMTCA’s protections, because “employee” under the NMTCA’s § 41-4-15 includes “licensed medical, psychological or dental arts practitioners providing services to the corrections department pursuant to contract.” MSJ 3 at 4-5 (quoting Lymon v. Aramark Corp., 728 F.Supp.2d at 1219). Accordingly, Corizon, Inc. and Armijo argue that the NMTCA governs Martinez’ state law claims against them and that its statute of limitations thus bars the claims: Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability. MSJ 3 at 5 (quoting N.M. Stat. Ann. § 41-4-15(A)). Corizon, Inc. and Armijo thus ask the Court to grant them summary judgment on Martinez’ federal law claims, because of his failure to exhaust administrative remedies as the PLRA requires, and on Martinez’ state law claims, because of his failure to exhaust administrative remedies as N.M. Stat. Ann. § 33-2-ll(B) requires, and because of his failure to bring claims within its two-year statute of limitations. See MSJ 23 at 6. 4. Martinez’ Response to Walden’s, Corizon, Inc.’s, and Armijo’s Motions for Summary Judgment. Martinez responded to the MSJ 1 and the MSJ 3 on April 23, 2015. See MSJs 1 & 3 Response at 1. Martinez first argues that there was no need for him to complete all the steps of the grievance procedure, because he prevailed at an early stage in the process. See MSJs 1 & 3 Response at 1. He asserts that prevailing in the grievance process means an inmate has “exhausted” his remedies, regardless where in the grievance process an inmate prevails. MSJs 1 & 3 Response at 1. Martinez also notes that New Mexico Correction’s grievances policy states that “tort claims” are not grievable by inmates. MSJs 1 & 3 Response (citing Grievances Policy § 150500 at 6). Martinez asserts that his claims are not grievable, because they are tort claims, and because the grievance procedure does not give the authority for New Mexico Corrections or the prison’s Warden to make an award of money damages. See MSJs 1 & 3 Response at 2. He also argues that the only relief he seeks is money damages and that damages is not an available remedy under New Mexico Correction’s grievance process, so he had no obligation to exhaust his administrative remedies. See MSJs 1 & 3 Response at 2. Further, Martinez argues that Corizon, Inc., Armijo, and Walden carry the burden of proof, and cannot fulfill this burden simply by arguing that “Plaintiffs name is not on the grievance log.” MSJs 1 & 3 Response at 2. Martinez maintains that the Tenth Circuit law is clear that, “once a prisoner has won all the relief that is available under the institution’s administrative procedures, his administrative remedies are exhausted.” MSJs 1 & 3 Response at 5 (citing Ross v. Cty. of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.2004)(Ebel, J.)). He also argues that, in the majority of jurisdictions, an inmate’s duty to exhaust available administrative remedies is complete when there is no possibility of further relief. See MSJs 1 & 3 Response at 5. Martinez asserts that his current situation is like the plaintiffs situation in Ross v. County of Bernalillo, who, after slipping and falling in the shower, submitted a “Pre-Grievance Resolution Form,” and received a response that new shower mats had been placed in the shower. MSJs 1 & 3 Response at 6 (citing Ross v. Cty. of Bernalillo, 365 F.3d at 1183). Martinez explains that the plaintiff then sued, alleging that the shower was unreasonably dangerous and that the medical treatment he received was inadequate, but the district court dismissed the plaintiffs complaint under the “total exhaustion” rule, because the district court found he had not exhausted his administrative remedies with respect to the dangerous shower claim. MSJs 1 & 3 Response at 7 (quoting citing Ross v. Cty. of Bernalillo, 365 F.3d at 1183). Martinez notes that the Tenth Circuit affirmed, because it found the plaintiff had exhausted his administrative remedies with respect to the dangerous shower claim but not the inadequate medical treatment claim—but Martinez argues that the dangerous shower claim is the claim relevant to his motion. See MSJs 1 & 3 Response at 7 (citing Ross v. Cty. of Bernalillo, 365 F.3d at 1184). Martinez explains that, like the grievance policy at the Guadalupe Facility, the policy in Ross v. County of Bernalillo had an informal procedure and a formal procedure, and the Tenth Circuit held that the plaintiff was not required to proceed through the formal grievance process, because he was successful in the first, informal stage, “and nothing in the record suggested that there was any further relief whatsoever available through the jail procedures.” MSJs 1 & 3 Response at 7 (citing Ross v. Cty. of Bernalillo, 365 F.3d at 1187). Martinez asserts that he initiated the first stage of the applicable New Mexico Correction’s grievance process after fracturing his ankle through “discussion” when he “screamed at'Walden: ‘Don’t touch me’ and ‘Get me to the hospital.’ ” MSJs 1 & 3 Response at 8. Martinez argues that he continued this “discussion” the following day, when he told the Guadalupe Facility’s Warden that he wanted to go to the hospital. MSJs 1 & 3 Response at 8. Martinez maintains this grievance process was then subsequently completed when he was taken to the hospital, and so he had no further obligation to pursue the process by filing an informal complaint or a formal complaint. See MSJs 1 & 3 Response at 8-9. He maintains that he obtained the relief he sought—transport to the hospital—and, because this relief was the only relief available under the New Mexico Correction’s policy, his administrative remedies were exhausted. See MSJs 1 & 3 Response at 9. Martinez also maintains that his only remaining claim against Walden, Corizon, Inc., and Armijo is a tort claim for the illegal touching, for which he seeks monetary damages. See MSJs 1 & 3 Response at 9. He asserts that, under the New Mexico Correction’s policy, however, tort claims are not grievable and that monetary damages for personal injury are not an available remedy. See- MSJs 1 & 3 Response at 9. Martinez admits that he. made two complaints to Walden: (i) “don’t touch me”; and (ii) “get me to the hospital.” MSJs 1 & 3 Response at . 9. He allows that the latter claim was arguably grievable, either as a “condition of care” under CD-150500D(d) or a medical health care decision under CD-150500D(a), and that he sought relief for this claim in the form of an injunction. MSJs 1 & 3 Response at 9., Martinez asserts, however, that it was unclear that “ ‘get me to the hospital’ would be grieva-ble under these circumstances ... as the only reason Walden was contacted was to comply with security protocols [and] [o]th-erwise grievable medical decisions are not grievable if the medical decision is based on a security issue.” MSJs 1 & 3 Response at 9 (citing Grievances Policy § 150500 at 5). Finally, Martinez asserts that it is the Defendants’ burden to prove that the grievance system was available to him. See MSJs 1 & 3 Response at 9 (citing Main v. Martin, 2009 WL 215404, at *6 (D.Colo., Jan. 22, 2009)(Miller, J.)). Martinez argues that the Defendants have not proved that any specific remedy was available to him and remained available after he was taken to the hospital. See MSJs 1 & 3 Response at 10. He asserts that the evidence shows that tort claims are “non-grievable” and that a number of courts have held that “non-grievable” complaints do not have to be exhausted—especially where the corrections department has no control over the complaint. MSJs 1 & 3 Response at 10-11 (citing Benning v. Georgia, 2010 WL 4000616, at *1 (M.D.Ga., Oct. 12, 2010)(Treadwell, J.)). Martinez argues that the Defendants have adopted the New Mexico Correction’s grievance policy and cannot contest that he has presented a tort claim. See MSJs 1 <& 3 Response at 11. He concludes that the Defendants cannot argue that he--was required to grieve the non-grievable tort claim or to formally appeal grievances that were resolved informally. See MSJs 1 & 3 Résponse at 11. Last, Martinez states that he does not oppose the dismissal of his state law negligence claims against Walden, Corizon, Inc., and Armijo, because he acknowledges that they are not viable, but requests the Court to deny the Walden Motion and MSJ 3 as to his federal law claims under 42 U.S;C. § 1983. See MSJs 1& 3 Response at 12-13. 5. Walden’s Reply. Walden replied to Martinez’ Response to the MSJ 1 and the MSJ 3 on May 7, '2015. See MSJ 1 Reply. Walden notes that Martinez did not dispute his status as a prisoner at all relevant times and, therefore, his obligation to comply with the PRLA. See MSJ 1 Reply at 4. Walden also notes that Martinez did not dispute that he did not file any grievances, informal or formal, regarding Walden’s treatment of his ankle. See MSJ 1 Reply at 4. Walden asserts that the two arguments which Martinez brought instead—that his complaint about Walden’s decision to delay transport to the hospital was informally grieved and resolved, and that the only remaining complaint against Walden is for assault and battery, a tort—lack merit. See MSJ 1 Reply at 4. Accordingly, Martinez maintains that he is entitled to summary judgment on all claims as a matter of law. See MSJ 1 Reply at 4: Fii-st, Walden asserts that “a mere difference of opinion between the prisoner/patient and prison medical authorities as to the course of treatment does not give rise to a §'1983 claim.” MSJ 1 Reply at 5 (citing Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993)(Anderson, J.)). Walden also argues that a delay in treatment is not sufficient' to establish a claim of substantial indifference. See MSJ 1 Reply at 5 (citing Olson v. Stotts, 9 F.3d at 1477). While Walden allows that the -New Mexico Correction’s grievance procedure encourages informal resolution of disputes, he asserts that the first step of the grievance procedure is to file an “Inmate Informal Complaint Form.” MSJ 1 Reply at 5, (citing Grievances Policy § 150501 at 1). Further, Walden posits that his conception of Martinez’ grievance concerns the prison’s medical transport policy and asserts that, had Martinez used the grievance procedure, the New Mexico Corrections department would have been able to evaluate the policy and determine what remedy, if any, was appropriate. See MSJ 1 Reply at 6. Walden contends that Martinez is alleging that an “informal grievance” occurs every time a prisoner shouts something at prison staff-even though the New Mexico Correction’s grievance procedure does not contain this rule. MSJ 1 Reply at 6. Walden argues that, if this were the rule, prisoners would always be able to bypass the available administrative remedies through the prison system and “completely eviscerate the PLRA’s requirement for exhaustion of administrative remedies.” MSJ 1 Reply at 6, Accordingly, Walden asserts that Martinez failed to use the grievance procedure and to exhaust his administrative remedies, which means that Walden is entitled to summary judgment. See MSJ 1 Reply at 6-7. Second, Walden asserts that Martinez’ argument regarding his medical care at the Guadalupe Facility—that Walden’s reduction of Martinez’ broken ankle constituted assault and battery, and was not “treatment”—is counterfactual, MSJ 1 Reply at 7. Walden contends that the United States Court of Appeals for the Sixth Circuit provided the “clearest” explanation of the applicability of the PLRA’s exhaustion provision when it stated: A natural reading of the statute suggests that its application requires consideration of three simple questions. First, is plaintiff “a prisoner confined in [a] jail, prison, or other correctional facility?” If not, the statute is inapplicable. If so, a second question must be considered: Is the plaintiff suing under § 1983 respecting “prison conditions?” If not, the statute is inapplicable. If so, a third question must be considered: Did plaintiff exhaust “such administrative remedies as [were] available” before plaintiff “brought” his action? If question three is answered in the negative, plaintiff is in violation of the statute and the court is required to dismiss plaintiff’s suit. MSJ 1 Reply at 7 (quoting Cox v. Mayer, 332 F.3d 422, 424 (6th Cir.2003)(Hood, J.)). As it is undisputed that Martinez was a prisoner confined to a correctional facility at all relevant times and that he did not seek administrative remedies after Walden’s reduction of his ankle fracture, Walden posits that only the second question -is relevant to Martinez’ MSJs 1 & 3 Response. See MSJ 1 Reply at 7-8. Walden asserts that Martinez’ claims fall within the PLRA’s scope of “prison conditions.” MSJ 1 Reply at 8. He notes that the Supreme Court defined “prison conditions,” as the PLRA uses that phrase, in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)(Ginsburg, J.), and stated that it is a broad term that makes the PLRA’s exhaustion requirement apply “to ail inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” MSJ 1 Reply at 8 (quoting Porter v. Nussle, 534 U.S. at 532, 122 S.Ct. 983)(emphasis in MSJ 1 Reply). Walden further asserts that the Supreme Court in Porter v. Nussle rejected the argument ‘which Martinez is attempting to make—that his complaint is not about “prison conditions.” MSJ 1 Reply at 8. Walden argues, therefore,- that Martinez was required to use the grievance procedure and exhaust the available administrative remedies, and, because Martinez failed to exhaust, requests that the Court grant his motion for summary judgment. See MSJ 1 Reply at 9. 6. Corizon, Inc, and Armijo’s Reply. Corizon, Inc. and Armijo, replied to Martinez’ Response to the MSJ 1 and the MSJ 3 on May 18, '2015. See MSJ 3 Reply. Corizon, Inc. and Armijo first state that they “incorporate and adopt all arguments set forth in” the MSJ 1 Reply, and “the arguments contained within the GEO Defendant’s Reply in Support of Motion for Summary Judgment [filed November 4, 2014 (Doc. 13)(“State MSJ Reply”) ] under subheading C, appearing at pages- 5-7.” Corizon, Inc. and Armijo make two arguments to refute Martinez’ Response to the MSJ 1 and the MSJ 3. See MSJ 3 Reply at 2. First, Corizon, Inc. and Armijo argue that the Court should find, as a matter of law, that Martinez failed to invoke any aspect of the New Mexico Correction’s grievance process with respect to his medical care, and also adopt Walden’s discussion of this fact in the MSI Reply. See MSJ 3 Reply at 2 (citing MSJ 1 Reply at 2, 5-7). Further, they note that Martinez criticized the care he received beyond the initial decision to not transport him immediately to the hospital, because: ■© in the FAC’s Count IV, Martinez criticizes the retention of Walden and Armijo; and (ii) in the FAC’s Count V, Martinez raises constitutional supervisory liability claims against Armijo. See MSJ 3 Reply at 3. Corizon, Inc. and Armijo allege that it is undisputed that Martinez never initiated or exhausted his administrative remedies regarding these two claims or his claim regarding his medical care, See MSJ 3 Reply at 3: They argue that it does not matter if the Court accepts that Martinez’ statements to Walden constituted an informal grievance, because Martinez’ complaint is that he was not sent to the emergency room immediately for treatment but, when he went, “his sole purpose in going there was for the taking of x-rays, not treatment.” MSJ 3 Reply at 3 (emphasis in MSJ 3 Reply). They also assert that, after being taken to the hospital, Martinez was “still dissatisfied with the medical care provided to him and the running of the medical department, as a condition of his imprisonment,” and thus he still had a grievable claim. MSJ 3 Reply at 3. Second, Corizon, Inc. and Armijo argue that, even if the New Mexico Correction’s grievance process cannot award monetary damages, Martinez was complaining of “Prison Conditions,” and thus his complaints constitute grievable offenses for which he had to exhaust the available administrative remedies before pursuing any federal claims. MSJ 3 Reply at 4 (citing Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 passim; Jernigan v. Stuchell, 304 F.3d 1030 passim; Porter v. Nussle, 534 U.S. at 532, 122 S.Ct. 983). They also adopt by reference the discussion in the State MSJ Reply under subheading C, pages 5-7, and Walden’s discussion under heading B, pages 7-10, in the MSJ 1 Reply. See MSJ 3 Reply at 4. Accordingly, Corizon, Inc. and Armijo assert that the Court must dismiss Martinez’ claims against them, and ask the Court to grant their motion for summary judgment. See MSJ 3 Reply at 4-5. 7. Martinez’ Response to Guadalupe County and the GEO Group’s Motion for Summary Judgment. Martinez responded to the MSJ 2 on June 5, 2015. See MSJ 2 Response at 1. Martinez starts his response by reiterating that he was not incarcerated when he filed his complaint against Guadalupe County and the GEO Group on August 12, 2013, and that he is not asserting a § 1983 claim or any other claim under federal law against Guadalupe County and the GEO Group. See MSJ 2 Response ¶¶ 1-3, at 2. Martinez further states that he does not direct any of the FAC’s allegations at Guadalupe County and the GEO Group, and the allegations cannot be construed in that way. See MSJ 2 Response ¶ 4, at 2. Martinez starts his argument acknowledging that he failed to file a tort claim notice as the NMTCA requires, and thus consents to the dismissal of his tort claims against Guadalupe County. See MSJ 2 Response at 3. Martinez next asserts that “[e]x-prisoners are not prisoners” and that the PLRA does not apply to lawsuits filed after a prisoner’s release, because that person is no longer a “prisoner” for purposes of the statute. MSJ 2 Response at 4 (citing Norton v. The City of Marietta, OK, 432 F.3d 1145, 1150 (10th Cir.2005)(per curium)). He states that the Tenth Circuit has held that the plaintiffs status at the time of filing suit determines whether or not the PLRA’s exhaustion provision applie