Appellate Case: 13-2022     Document: 01019193285      Date Filed: 01/28/2014
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                                                               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 This order and judgment is not binding
  precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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         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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