Anderson v. State

                                                      Office of the Director   New Mexico
                                                       15:35:27 2022.10.07     Compilation
                                                                     '00'06-   Commission



            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 25, 2022

No. S-1-SC-38570

TOBBY ANDERSON, BRYN ARNOLD,
ANITA CARRILLO, AMANDA ELLER,
SEAN GODKIN, PAMELA HOFFSCHNEIDER,
HEIDI MACHACEK, EDUARDO TRISTE,
NEW MEXICO CRIMINAL DEFENSE LAWYERS
ASSOCIATION, and AMERICAN CIVIL LIBERTIES
UNION OF NEW MEXICO,

      Plaintiffs-Appellants,

v.

STATE OF NEW MEXICO;
MICHELLE LUJAN GRISHAM,
Governor, State of New Mexico;
ALISHA TAFOYA LUCERO, Secretary,
New Mexico Corrections Department;
and MELANIE MARTINEZ, Director,
New Mexico Probation and Parole,

      Defendants-Appellees.

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
Matthew J. Wilson, District Judge

Law Office of Ryan J. Villa
Ryan J. Villa
Albuquerque, NM

Faegre Drinker Biddle & Reath LLP
John P. Mandler
Minneapolis, MN
Christopher J. Casolaro
Denver, CO

for Appellants

Holly Agajanian, Chief General Counsel
Maria S. Dudley, Associate General Counsel
Kyle P. Duffy, Associate General Counsel
Santa Fe, NM

for Appellee Governor Michelle Lujan Grisham

Hector H. Balderas, Attorney General
Neil R. Bell, Assistant Attorney General
Nicholas M. Sydow, Civil Appellate Chief
Santa Fe, NM

for Appellees State of New Mexico; Alisha Tafoya Lucero, Secretary, New Mexico
Corrections Department; Melanie Martinez, Director, New Mexico Probation and Parole

                                         OPINION

VIGIL, Justice.

{1}     Eight named inmates (Named Plaintiffs) and two nonprofit organizations (the ten
Plaintiffs, collectively) filed an amended complaint in district court seeking a mixture of a
classwide writ of habeas corpus and classwide injunctive and declaratory relief.
Plaintiffs allege that the State’s management of COVID-19 in New Mexico prisons
violates inmates’ rights under the New Mexico Constitution. The district court dismissed
the amended complaint, concluding that it lacked subject-matter jurisdiction because the
Named Plaintiffs failed to exhaust the internal grievance procedures of the New Mexico
Corrections Department (NMCD) before seeking relief, as required by NMSA 1978,
Section 33-2-11(B) (1990). Agreeing with the result, but not all of its reasoning, we
affirm the district court.

{2}     We hold that Section 33-2-11(B) imposes an exhaustion requirement for
statutorily created rights such as declaratory relief, see Am. Fed’n of State, Cnty. &
Mun. Emps. v. Bd. of Cnty. Comm’rs of Bernalillo Cnty. (AFSCME), 

, 

, but that it is Rule 5-802(C) NMRA which imposes an
independent duty to first exhaust the administrative remedies of the NMCD before
petitioning for writs of habeas corpus. We also hold that although habeas corpus actions
are not governed by our Rules of Civil Procedure, see Allen v. LeMaster, 2012-NMSC-
001, ¶¶ 15-17, 

, procedures analogous to civil procedure Rule 1-023
NMRA are proper for classwide habeas relief. And to satisfy the habeas corpus
exhaustion requirement under Rule 5-802(C) for an entire plaintiff class, one or more
named class members must exhaust administrative remedies for each claim. Because
no Named Plaintiff exhausted or sought to exhaust NMCD’s internal grievance
procedures, we affirm.

I.     BACKGROUND

{3}    Plaintiffs filed a complaint and an amended complaint in district court claiming
that the State of New Mexico, the Governor of the State of New Mexico, the Secretary
of NMCD, and the Director of New Mexico Probation and Parole Division of NMCD
(collectively, Defendants) in their handling of COVID-19 in New Mexico prisons violated
inmates’ rights to substantive and procedural due process, freedom of speech, and
freedom from cruel and unusual punishment under the New Mexico Constitution.
Plaintiffs alleged that Defendants allowed COVID-19 to run “rampant in New Mexico’s
prisons” by refusing to enforce their own mandates for social distancing, mask-wearing,
heightened hygiene practices, and safe quarantine and treatment.

{4}     As a result, Plaintiffs sought a classwide writ of habeas corpus and classwide
relief under Rule 1-023(B)(2) consisting of the release of “all current and future persons
held in any New Mexico prison facility during the course of the COVID-19 pandemic” as
well as declaratory and injunctive relief. Currently, the NMCD home page reports about
6,000 inmates in New Mexico prisons. 1 The injunctive relief requested was for adequate
testing of COVID-19, requiring prison staff to wear face coverings, providing inmates
with face coverings and access to sanitation services, enforcement of social distancing
within the prison, staggering of meal and recreation time, designating a room for
evaluation of individuals with COVID-19 symptoms, and placing individuals with COVID-
19 under medical isolation.

{5}    Despite their claims being directly related to their conditions of confinement and
treatment by NMCD, Named Plaintiffs did not avail themselves of NMCD’s internal
grievance procedures. Under NMCD policy, emergency grievances “shall be forwarded
without substantive review immediately to the Warden,” “shall receive an expedited
response at every level . . . [and] in no event will the time for response exceed three (3)
working days from the time the grievance is received by the Grievance officer,” and
“may be immediately appealed to the State wide Grievance/Disciplinary Appeals
Manager if the emergency grievance after investigation and Warden’s review cannot
resolve the issues presented at their facility level.” See New Mexico Corrections
Department, Inmate Grievances (June 14, 2018). 2

{6}     In the district court, Plaintiffs acknowledged that none of the Named Plaintiffs
filed emergency grievances but argued that some class members—meaning any
current New Mexico inmate—did file grievances and received no determination from
NMCD. Plaintiffs also argued that the Named Plaintiffs did not avail themselves of
NMCD’s grievance procedures because “NMCD cannot grant release, the relief
requested, on its own,” thus making a futility argument. Defendants moved to dismiss,
arguing that the district court lacked subject-matter jurisdiction because the Named
Plaintiffs failed to exhaust administrative remedies under Section 33-2-11(B).

{7}    Section 33-2-11(B) provides:

       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


1Available at https://www.cd.nm.gov/ (last visited Aug. 9, 2022).
2Available at https://www.cd.nm.gov/wp-content/uploads/2019/06/CD-150500.pdf (last visited Aug. 9,
2022).
       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.

{8}     The district court issued an order dismissing the amended complaint for lack of
subject-matter jurisdiction. The district court ruled that accepting the allegations in the
amended complaint as true, there was no allegation that the Named Plaintiffs exhausted
or tried to exhaust the NMCD’s internal grievance procedures. The district court
concluded that because all of Plaintiffs’ claims are “directly related to [Named Plaintiffs’]
confinement and treatment by NMCD,” they are subject to Section 33-2-11(B). The
district court also ruled that a futility exception to exhaustion of administrative remedies
does not apply because “[t]he clear legislative command of Section 33-2-11(B) requires
exhaustion as a precondition to subject matter jurisdiction.” And even if a futility
exception does apply, the district court determined that “[e]xhaustion would not be futile
in this case because the NMCD has the authority to address the conditions in New
Mexico’s correctional facilities, a remedy that would address the majority of the
allegations” made by the Named Plaintiffs. As to the nonprofit organizations, the district
court held that to allow them to pursue a claim as plaintiffs when the Named Plaintiffs
representing the purported class have not exhausted their administrative remedies
would “frustrate the legislative purpose of Section 33-2-11(B) and would lead to an
absurd result.” The district court dismissed the amended complaint, and Plaintiffs
appealed to the Court of Appeals.

{9}     “Because the core relief sought in the [amended] complaint requires the issuance
of the writ of habeas corpus and [because] all of the relief sought is inextricably
connected to that request,” the Court of Appeals certified all questions on appeal to this
Court. See Rule 5-802(N)(2) (directing that the New Mexico Supreme Court has
exclusive appellate jurisdiction over denials of habeas corpus petitions). We accepted
certification.

II.    DISCUSSION

{10} Plaintiffs make three arguments on appeal. First, the district court erred in
concluding that the exhaustion requirement under Section 33-2-11(B) is jurisdictional
because it implies an unconstitutional limitation by the Legislature on district courts’
habeas corpus jurisdiction and on the writ of habeas corpus itself. Second, in holding
that no futility exception applies, the district court erred because a material factual
dispute exists as to whether exhaustion is futile. Finally, the district court erred in
dismissing the nonprofit organizations on the basis that the grievance process applies
only to inmates. We first consider the arguments related to exhaustion and futility and
then turn to the argument concerning the nonprofit organizations.

A.     Standard of Review

{11} All issues in Plaintiffs’ arguments—the proper interpretation of Section 33-2-
11(B), the district court’s granting of a motion to dismiss for lack of jurisdiction, and the
nonprofit organizations’ standing to bring a claim—raise questions of law which we
review de novo. See U.S. Xpress, Inc. v. N.M. Tax’n & Revenue Dep’t, 2006-NMSC-
017, ¶ 6, 

, 

 (“The meaning of language used in a statute is a
question of law that we review de novo.” (internal quotation marks and citation omitted));
see also Gallegos v. Pueblo of Tesuque, 

, 

, 

 (“In reviewing an appeal from an order granting . . . a motion to dismiss for lack of
jurisdiction, the determination of whether jurisdiction exists is a question of law which an
appellate court reviews de novo.”); ACLU of N.M. v. City of Albuquerque, 2008-NMSC-
045, ¶ 6, 

, 

 (determining whether a party has standing to
challenge a law is a question of law subject to de novo review).

B.     Section 33-2-11(B) Is Jurisdictional for Rights Established by the
       Legislature

{12} Article VI, Section 13 of the New Mexico Constitution provides, “The district
courts, or any judge thereof, shall have power to issue writs of habeas corpus,
mandamus, injunction, quo warranto, certiorari, prohibition and all other writs, remedial
or otherwise, in the exercise of their jurisdiction.” (Emphasis added.) Plaintiffs argue that
because district courts’ habeas jurisdiction is constitutionally granted, it cannot be
circumscribed or restrained by the Legislature. Plaintiffs contend that the district court’s
determination that Section 33-2-11(B)’s exhaustion requirement is “a precondition to
state courts’ jurisdiction over the Plaintiffs’ request for a writ of habeas corpus”
recognizes constitutional authority in the Legislature that it does not have. Plaintiffs
assert that the right to seek habeas relief is “enshrined in the [New Mexico] Bill of
Rights” and that Section 33-2-11(B) cannot limit this fundamental constitutional right.
See N.M. Const. art. II, § 7 (“The privilege of the writ of habeas corpus shall never be
suspended.”).

{13} We conclude that the district court correctly determined that Section 33-2-11(B)’s
exhaustion requirement applies to statutory duties. Nevertheless, the district court erred
in concluding that Section 33-2-11(B)’s exhaustion requirement applies to all of
Plaintiffs’ claims, including the claims for writs of habeas corpus.

{14} We have held that the “Legislature may establish a right and predicate a court’s
power of review on the fact that suit is brought by one of a particular class of plaintiffs or
petitioners.” AFSCME, 

 (emphasis added). Or said another way,
if a right is created by statute, the Legislature may limit the court’s power of review for
that right. See 

 Such a limitation “is not a deprivation or ouster of jurisdiction of the
courts, but a postponement until the [agency] has passed upon the complaint.” Smith v.
S. Union Gas Co., 

, ¶ 10, 

, 

. Exhaustion of
administrative remedies is one such limitation, which is not to say that imposing a duty
to exhaust is always statutorily mandated.

{15} The requirement of exhaustion of administrative remedies “originates from two
different sources: statutes and the common law.” In re Estate of McElveny, 2017-
NMSC-024, ¶ 22, 

. The common-law duty is a “non-jurisdictional form of
exhaustion,” that is flexible, pragmatic, and “subject to several judge-made exceptions.”
Id. ¶ 23 (internal quotation marks and citation omitted). That said, when “a statute
explicitly requires a party to exhaust particular remedies as a prerequisite to judicial
review the statutorily mandated exhaustion requirements are jurisdictional. A court
cannot excuse a petitioner from complying with an explicit and detailed statutory duty to
exhaust administrative remedies.” Id. (ellipsis, internal quotation marks, and citation
omitted).

{16} To determine if there is a jurisdictional statutory duty to exhaust administrative
remedies, there must be “sweeping and direct statutory language indicating that there is
no jurisdiction prior to exhaustion,” and a “mere reference to the duty to exhaust
administrative remedies” is not enough. Id. ¶ 24 (ellipses, internal quotation marks, and
citation omitted). U.S. Xpress offers one example of statutory language being enough to
establish a jurisdictional statutory duty.

{17} In U.S. Xpress, this Court ruled that NMSA 1978, Section 7-1-22 (1995,
amended 2015) of the Tax Administration Act is jurisdictional and requires exhaustion of
administrative remedies. 

, ¶ 7. Section 7-1-22 (1995) provides that
“[n]o court of this state has jurisdiction” over certain taxpayer proceedings “except as a
consequence of [an] appeal” from a denied protest remedy “or except as a
consequence of a” denied claim for a refund. The U.S. Xpress Court held that the broad
language of Section 7-1-22 (1995) “plainly insists that no court will have jurisdiction
except as a consequence of an administrative appeal or a claim for a refund.” 2006-
NMSC-017, ¶ 11. The Court then declined to apply the futility doctrine because futility of
exhaustion would be an inappropriate “excuse for bypassing a clear statutory directive.”
Id. ¶ 12.

{18} On the other hand, in In re McElveny, this Court held that exhaustion of
administrative remedies under the Uniform Unclaimed Property Act (UPA), NMSA 1978,
§§ 7-8A-1 to -31 (1997, as amended through 2007), is “non-jurisdictional” and subject to
judicial discretion and exceptions. 

. This is because there is
“no direct and unequivocal statement in the UPA requiring exhaustion of administrative
remedies,” whereas there are numerous justifications for imposing a common-law duty
to exhaust. Id. ¶¶ 23-25. In deciding the question of exhaustion, the McElveny Court
noted that if “the UPA contained an express and unequivocal exhaustion requirement,
we would be required to remand this matter to the [d]epartment,” but “because
exhaustion is required in this case not for statutory, jurisdictional reasons but for
prudential, non-jurisdictional reasons, we have discretion.” Id. ¶ 28.

{19} The language of Section 33-2-11(B) is much like that of the statute at issue in
U.S. Xpress. Compare § 33-2-11(B) (“No court of this state shall acquire subject-matter
jurisdiction . . . with regard to any cause of action . . . substantially related to the
inmate’s incarceration by the corrections department until the inmate exhausts the
[NMCD’s] internal grievance procedure.”), with § 7-1-22 (1995) (“No court of this state
has jurisdiction to entertain any proceeding by a taxpayer in which the taxpayer calls
into question the taxpayer’s liability for any tax . . . except as a consequence of the
appeal by the taxpayer to the court of appeals from the action and order of the secretary
. . . , or except as a consequence of a claim for refund.”). In Section 33-2-11(B) the
Legislature did not make a “mere reference” to a duty to exhaust but instead used
“sweeping and direct statutory language indicating that there is no jurisdiction prior to
exhaustion.” In re McElveny, 

 (ellipsis, internal quotation marks,
and citation omitted). Because the Legislature used sweeping and direct language
indicating that no court “shall acquire subject-matter jurisdiction” until administrative
remedies are exhausted, Section 33-2-11(B) is jurisdictional. But it is jurisdictional only
as to statutorily created rights. See AFSCME, 

.

{20} Plaintiffs sought a writ of habeas corpus and brought claims for injunctive and
declaratory relief. Relief under the Declaratory Judgment Act is statutorily created. See
AFSCME, 

; see also NMSA 1978, § 44-6-2 (1975) (granting
district courts the “power to declare rights, status and other legal relations whether or
not further relief is or could be claimed”). Further, the Declaratory Judgment Act “does
not enlarge the jurisdiction of the courts over subject matter and parties, but provides an
alternative means of presenting controversies to courts having jurisdiction thereof.”
Smith v. City of Santa Fe, 

, 

, 

 (internal
quotation marks and citation omitted). Because we conclude that Section 33-2-11(B)’s
exhaustion requirement is jurisdictional, the district court was correct in dismissing
Plaintiffs’ Declaratory Judgment Act claims. The district court was also correct in
concluding that the exhaustion requirement of Section 33-2-11(B) applies without
exception. “A court cannot excuse a petitioner from complying with an explicit and
detailed statutory duty to exhaust administrative remedies.” In re McElveny, 2017-
NMSC-024, ¶ 23 (internal quotation marks and citation omitted).

{21} Nevertheless, writs of habeas corpus and injunctions are common-law claims
falling under district courts’ original jurisdiction. 3 See N.M. Const. art. VI, § 13. Under
the principle of comity, when a court has original jurisdiction because there is a
common-law or legal remedy “apart from or in addition to an administrative remedy,” the
court may “defer to the administrative agency where the interests of justice are best
served by permitting the agency to resolve factual issues within its peculiar expertise.”
McDowell v. Napolitano, 

, ¶ 11, 

, 

.
Additionally, certain judge-made exceptions to exhaustion—such as futility—may be
applied. See In re McElveny, 

; U.S. Xpress, 

. We hold that district courts have authority to exercise their constitutional jurisdiction
to issue writs of habeas corpus notwithstanding Section 33-2-11(B). See N.M. Const.
art. VI, § 13; see also Max Minzner, Habeas Corpus in New Mexico, 

,
54 n.56 (2016) (concluding that despite any limitation imposed by Rule 5-802(C) and
Section 33-2-11(B), the Supreme Court retains “residual constitutional jurisdiction to


3Plaintiffs do not contend that the claims for injunctive relief were improperly dismissed by the district
court, but we note “that most any challenge to an administrative agency’s decision may be articulated in
terms of a request for injunctive relief. If one can circumvent administrative remedies simply by seeking
the court’s order enjoining the agency to reverse its decision, the exception will swallow the rule.”
Gzaskow v. Pub. Emps. Ret. Bd., 

, ¶ 37 n.2, 

. We also note that Section
33-2-11(A) grants NMCD with “the power and duty to examine and inquire into all matters connected with
the government, discipline and police of the corrections facilities and the punishment and treatment of the
prisoners.” Thus, any injunctive relief pertaining to conditions of confinement should be dealt with at the
administrative level, at least in the first instance, because NMCD has the power and the duty to address
such matters. See 

issue writs of habeas corpus”). The Legislature has not circumscribed or restrained the
writ of habeas corpus or district courts’ habeas jurisdiction by enacting Section 33-2-
11(B).

C.     Named Plaintiffs Did Not Exhaust Administrative Remedies

{22} Although Section 33-2-11(B) is not jurisdictional as to Plaintiffs’ habeas claims,
Rule 5-802(C)(2) imposes an independent duty to exhaust administrative remedies for
habeas claims challenging conditions of confinement. See Rule 5-802(C)(2) (tracking
the language of Section 33-2-11(B) in allowing that an inmate may petition for a writ of
habeas corpus challenging conditions of confinement “provided that no court of this
state shall acquire subject-matter jurisdiction . . . with regard to any cause of action
under state law that is substantially related to the inmate’s incarceration by the NMCD
until the inmate exhausts the NMCD’s internal grievance procedure”). Outlining the
procedure that must be followed to petition for a writ of habeas corpus is within the
Supreme Court of New Mexico’s vested inherent power to prescribe rules and regulate
pleadings, practice, and procedure in all courts of this state. See N.M. Const. art. III, §
1; N.M. Const. art. VI, § 3; Martinez v. Chavez, 

, 

, 

. And although there is a substantive right to habeas corpus, N.M. Const. art.
II, § 7, “restrictions on the time and place of exercising this right are procedural and
within the Supreme Court’s rule making power.” State v. Garcia, 

, ¶ 11,

, 

; Ammerman v. Hubbard Broad., Inc., 

, ¶
10, 

, 

; cf. Olguin v. State, 

, ¶ 2, 

,

 (“The right of appeal is provided for in the Constitution while the means for
exercising that right are properly controlled by rules of procedure.”). Thus, Named
Plaintiffs must still show that they have exhausted administrative remedies for their
habeas claims, but because of this Court’s and district courts’ original jurisdiction, N.M.
Const. art. VI, §§ 3, 13, exceptions to exhaustion may be considered.

{23} “Th[e] exhaustion requirement is designed to ensure that habeas petitioners have
tried to resolve their challenges to their conditions of confinement through the internal
corrections procedure.” Minzner, supra 54. Standard justifications for exhaustion
support such a requirement for habeas claims. By requiring exhaustion for habeas
claims related to conditions of confinement, NMCD is put on notice of any complaints
and provided with an opportunity to remedy the situation. See Resolution Tr. Corp. v.
Binford, 

, ¶ 18, 

, 

 (“[O]ne of the main
purposes of requiring exhaustion of administrative remedies is to prevent the
government from being surprised by claims it has not had time to consider
administratively.” (internal quotation marks and citation omitted)); see also Cummings v.
State, 

, 

, 

 (“Requiring a prisoner to
exhaust internal grievance procedures ensures that [NMCD] has been given a full
opportunity to undertake such an inquiry.”). Furthermore, exhaustion may help prevent
unnecessary habeas claims in district court and ensure that the court will have the most
complete record possible when such claims make their way to the district court. See
McGee v. United States, 

 (1971) (explaining that exhaustion
allows for a full opportunity to make a factual record and allows the agency to apply its
expertise). But how do inmates, as a class, exhaust administrative remedies for Rule 5-
802(C)(2) purposes?

{24} On this point, Plaintiffs argue that they put forth facts in support of their position
that exhaustion would be futile and that the district court erred by dismissing the
amended complaint when there was a disputed question of fact. Plaintiffs contend that
they “referred to the existence of evidence that [c]lass [m]embers had filed grievances,
including grievances under the emergency grievance procedure, seeking to remedy the
government’s constitutional violations in the midst of the COVID-19 pandemic, but had
received no determination or remedy.” Implicitly, therefore, Plaintiffs’ position is that to
establish that administrative remedies have been exhausted, or that exhaustion would
be futile, it is enough to allege that unnamed class members have attempted to exhaust
administrative remedies and have received no response.

{25} Defendants argue that the holding from U.S. Xpress requires each class member
to individually exhaust administrative remedies before seeking judicial review. In U.S.
Xpress, this Court declined to adopt the doctrine of “vicarious or virtual exhaustion” for
the Tax Administration Act. 

. The U.S. Xpress Court held that
vicarious exhaustion did not apply because the Tax Administration Act “provid[ed] the
exclusive remedies for tax refunds and require[ed] the taxpayer to individually seek the
refund.” 

 Additionally, this Court rejected the application of the futility exception,
holding that it has no force “in the face of the clear legislative command” to exhaust. Id.
¶ 12. Defendants argue that the same should be true here because of the language
used in Section 33-2-11(B).

{26} We conclude both positions are impractical. Plaintiffs’ view of vicarious
exhaustion is far too broad. We cannot say that the entire inmate population of New
Mexico may be considered to have exhausted administrative remedies simply because
some unnamed class member/inmate tried to file a grievance. Similarly, we cannot say
that the nearly 6,000 inmates must each individually show they have exhausted
administrative remedies. Such a requirement for all class members could unduly burden
the prison’s complaint system and delay resolution of grievances. Woodford v. Ngo, 

 (2006) (explaining that exhaustion “was intended to ‘reduce the quantity and
improve the quality of prisoner suits’” (citation omitted)). Thus, a balance must be
struck, a balance that provides NMCD with an opportunity to expeditiously address the
merits of a claim while avoiding an undue burden on the internal grievance process.

{27} We conclude that the exhaustion requirement for habeas claims is satisfied as to
an entire plaintiff class when one or more named class members have exhausted
administrative remedies for each claim raised by the class. Defendants’ argument that
U.S. Xpress requires each class member to individually exhaust administrative
remedies is unpersuasive for three reasons.

{28} First, as reflected above, U.S. Xpress concerned a statutorily created remedy,
not a common-law or legal remedy apart from or in addition to the administrative
remedy applied. 

 (providing that the Tax Administration Act offers
two exclusive remedies, a protest remedy and a refund remedy).
{29} Second, in determining that the doctrine of vicarious exhaustion did not apply,
the U.S. Xpress Court not only looked to the specific language of the Tax Administration
Act, but it also concluded that because the exhaustion requirement was jurisdictional
and class actions are procedural, “the class action procedural rule does not effect any
change on the subject matter jurisdiction limitations imposed by the Legislature.” Id. ¶¶
9, 13. Here, the same reasoning does not apply because Section 33-2-11(B) exhaustion
cannot be jurisdictional as to the habeas claims.

{30} Finally, there are factual differences between U.S. Xpress and this case. This
case involves the health and well-being of individuals, not tax refunds. Moreover, in
cases like this one, the composition of the class is subject to constant change beyond
the class members’ control. See Jones v. Berge, 

 (W.D.
Wis. 2001) (discussing class actions that challenge conditions of confinement and
concluding that “the transfer of just one additional inmate to the institution intermittently
would prevent a class action suit from ever being filed”).

{31} Because Named Plaintiffs challenge their conditions of confinement rather than
the fact or length of their confinement, looking to class actions under the Prison
Litigation Reform Act (PLRA) is instructive. See Preiser v. Rodriguez, 

 (1973) (holding that a 

 civil rights action “is a
proper remedy for a state prisoner who is making a constitutional challenge to the
conditions of his prison life, but not to the fact or length of his custody”); see also PLRA,
42 U.S.C. § 1997e(a) (2013) (“No action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are
exhausted.”). Additionally, PLRA class actions are particularly relevant because Section
33-2-11(C) specifically mentions that when an inmate sues under 

, exhaustion of the administrative remedies is not required unless the remedies
substantially comply with the minimum standards of the PLRA. See § 33-2-11(C).

{32} Circuit courts across the country have held that the PLRA’s exhaustion
requirement is satisfied through “‘vicarious exhaustion’” when one or more named class
members have exhausted administrative remedies for each claim raised by the class.
See Chandler v. Crosby, 

 (11th Cir. 2004) (concluding that the
named class member satisfied the PLRA’s exhaustion requirement “as to the entire
plaintiff class”); see also Gates v. Cook, 

 (5th Cir. 2004) (determining
that one named class member’s exhaustion was “enough to satisfy the requirement for
the class”); Jackson v. District of Columbia, 

 (D.C. Cir. 2001)
(analyzing whether any of the named plaintiffs exhausted administrative remedies).

{33} Although the Tenth Circuit has not expressly adopted the vicarious exhaustion
rule for the PLRA, it has expressed approval of the rule. See McGoldrick v. Werholtz,

 (10th Cir. 2006) (“Although we agree with plaintiffs that the
vicarious exhaustion rule might save their claims if the district court had certified a class
of prisoners . . . , the district court did not certify a class here.”). And federal district
courts in New Mexico and Colorado have applied the vicarious exhaustion rule to the
PLRA. See Memorandum Op. and Ord. Denying Cnty. Defs. Motion for Partial
Summary Judgment at 8, Armendariz v. Santa Fe Cnty. Bd. of Comm’rs, 1:17-cv-
00339-WJ-LF (D.N.M. Feb. 20, 2019) (concluding that application of the rule was
“legally supportable as well as feasible”); see also Decoteau v. Raemisch, 

 (D. Colo. 2014) (approving of vicarious exhaustion under the PLRA when
“the named [p]laintiffs have exhausted their administrative remedies”).

{34} We conclude that requiring one or more named plaintiffs to exhaust
administrative remedies strikes the balance needed to carry out the purposes of
exhaustion while also ensuring that inmate complaints are addressed. We note that this
is a threshold requirement for determining whether Rule 5-802(C)’s exhaustion
requirement has been met. The plaintiff class would still need to be certified under Rule
1-023. See Crosby, 

 (holding that plaintiffs must still be certified under
the federal equivalent of Rule 1-023 when applying vicarious exhaustion for the PLRA).
Vicarious exhaustion would then apply to all plaintiffs if the class is certified, but it would
not apply to nonexhausted plaintiffs if class certification is denied. We recognize that
habeas corpus actions are not governed by our Rules of Civil Procedure, see Allen v.
LeMaster, 

, ¶¶ 13-17, but “in these circumstances, the habeas corpus
jurisdiction and the duty to exercise it being present, the courts may fashion appropriate
modes of procedure, by analogy to existing rules or otherwise in conformity with judicial
usage,” Harris v. Nelson, 

 (1969). Thus, we hold that Rule 1-023 class
action procedures are appropriate for a class of inmate plaintiffs challenging conditions
of confinement under Rule 5-802(C) governing habeas corpus procedures. Additionally,
we request recommendations from the Rules of Criminal Procedure for the State Courts
Committee for procedures analogous to Rule 1-023 for a class of inmate plaintiffs
challenging conditions of confinement under Rule 5-802(C).

{35} Plaintiffs’ amended complaint lists eight Named Plaintiffs to serve as
representatives under Rule 1-023(A) for “all current and future persons held in any New
Mexico prison facility during the course of the COVID-19 pandemic.” The amended
complaint does not allege that any of the Named Plaintiffs exhausted administrative
remedies. In fact, during oral argument, Plaintiffs’ attorney acknowledged that the
amended complaint “was confined to the Named Plaintiffs” and that none of them filed a
grievance. Nevertheless we conclude that simply alleging that unnamed class members
have exhausted administrative remedies is not enough to satisfy the exhaustion
requirement under Rule 5-802(C), even when applying vicarious exhaustion.

{36} Next, Plaintiffs argue that exhaustion is futile because NMCD cannot grant the
relief requested.

D.     Plaintiffs Do Not Allege Facts Sufficient to Show Exhaustion Would Be
       Futile

{37} Plaintiffs contend that exhaustion of administrative remedies would be futile
because their claims relate to Named Plaintiffs’ release and NMCD lacks any authority
to grant release. Plaintiffs argue that Cummings, 

, supports
the proposition that if the relief requested cannot be granted by the administrative
agency, exhaustion is futile.
{38} In Cummings, this Court held that a writ of habeas corpus “is not a one-stop shop
for a prisoner’s grievances” and that the petitioner’s writ for habeas corpus, arguing that
he was wrongly denied the right to vote, was correctly denied by the district court. Id. ¶
25. The petitioner in Cummings sought a writ of habeas corpus, arguing that the district
court made a clerical error wrongly denying him the right to vote. Id. ¶¶ 3, 25. The
Cummings Court denied the writ because the right to vote is not part of a defendant’s
felony conviction and sentence but simply a collateral consequence of that conviction.
Id. ¶ 25. The Court, in dicta, noted that it “question[ed] the district court’s conclusion that
[the petitioner] is first required to exhaust his administrative remedies . . . before
requesting relief in district court” because the petitioner’s “allegation has nothing to do
with the correctional facilities where he is housed, nor does it have anything to do with
his punishment and treatment.” Id. ¶ 26. The Court reasoned that to force the petitioner
“to pursue an administrative remedy would be futile simply because there is no
administrative remedy for what he seeks.” Id.

{39} Plaintiffs’ argument that Cummings supports the proposition that exhaustion
would be futile here fails for two reasons.

{40} First, Cummings stands for the proposition that if there is no administrative
remedy to address the underlying issue necessitating the request for habeas relief, then
exhaustion is futile. Id. In Cummings, the petitioner was requesting habeas relief
because he was being denied the right to vote, a complaint NMCD has no power to
remedy. Id. In such a scenario, exhaustion is futile not only because NMCD cannot
remedy the situation, but also because Rule 5-802(C) would not apply where the cause
of action is not “substantially related to the inmate’s incarceration by the NMCD.” Rule
5-802(C); see Cummings, 

 (concluding that the right to vote “has
nothing to do with the correctional facilities where [the petitioner] is housed, nor does it
have anything to do with his punishment and treatment”).

{41} Unlike the underlying issue necessitating the request for habeas relief in
Cummings, Plaintiffs here are requesting habeas relief for something NMCD has not
only the power but the duty to address. See § 33-2-11(A) (providing that NMCD has “the
power and the duty to examine and inquire into all matters connected with . . . the
punishment and treatment of the prisoners”). Further, Plaintiffs’ claims are directly
related to Named Plaintiffs’ confinement and treatment by NMCD, thus falling squarely
under Rule 5-802(C). Plaintiffs sought a writ of habeas corpus alleging that Defendants
refused to enforce their own mandates for social distancing, mask-wearing, heightened
hygiene practices, and safe quarantine and treatment. As the district court correctly
points out, NMCD has the authority to address these issues pertaining to conditions of
confinement, and it “has procedures in place, including emergency procedures, to
remedy conditions that pose a risk of harm to inmates.” If Named Plaintiffs had utilized
the NMCD internal grievance procedure, perhaps their complaints over conditions of
confinement would have been remedied.

{42} Second, Plaintiffs’ reading of Cummings would render Rule 5-802(C) a nullity.
Plaintiffs’ argument—that because the requested relief (release) cannot be granted by
NMCD, exhaustion is futile—can be applied to every case requesting habeas relief
based on conditions of confinement. Any inmate could bypass the exhaustion
requirement of Rule 5-802(C) simply by requesting to be released. This is not futility.

{43} We have held that “[f]utility, as an exception to exhaustion requirements, applies
where the agency has deliberately placed an impediment in the path of a party, making
an attempt at exhaustion a useless endeavor.” In re McElveny, 

(emphasis added) (internal quotation marks and citation omitted). This definition of
futility is embodied in the PLRA’s futility rule as well: “Where prison officials prevent,
thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy, they
render that remedy ‘unavailable’ and a court will excuse the prisoner’s failure to
exhaust.” Little v. Jones, 

 (10th Cir. 2010).

{44} When looking to the facts alleged in the amended complaint and accepting the
allegations therein as true, Plaintiffs do not state any facts to show that exhaustion of
available NMCD remedies would be futile. See Gzaskow, 

; see
also Rule 5-802(H)(2)(b) (providing that the court shall order a summary dismissal of a
petition for a writ of habeas corpus if it plainly appears from the record that “the
petitioner is not entitled to relief as a matter of law”). Plaintiffs never allege that NMCD
“deliberately placed an impediment in the path of [Named Plaintiffs], making an attempt
at exhaustion a useless endeavor.” In re McElveny, 

 (internal
quotation marks and citation omitted). Plaintiffs merely allege that “NMCD cannot grant
release, the relief requested, on its own.” We acknowledge that our standard of notice
pleading allows a plaintiff to state only general allegations of conduct in a complaint, see
Schmitz v. Smentowski, 

, ¶ 9, 

, 

, but we will
not read into a complaint matters which it does not contain, see Wells v. Arch Hurley
Conservancy Dist., 

, ¶ 35, 

, 

 (Hernandez, J.,
specially concurring) (“[A] court under the guise of liberal construction of a pleading
cannot supply matters which it does not contain.”).

{45} Even allowing for a liberal construction of the amended complaint, Plaintiffs do
not allege facts showing administrative remedies were made unavailable or futile. Take
for example Plaintiffs’ facts for their claim that Defendants’ treatment of inmates
amounts to cruel and unusual punishment in violation of Article II, Section 13 of the New
Mexico Constitution. Plaintiffs allege that Defendants “have acted with deliberate
indifference to the substantial risk [Named] Plaintiffs face of infection with COVID-19
due to the conditions of their confinement.” More specifically, Plaintiffs allege that
Defendants “know or should know that the conditions of [Named] Plaintiffs’ confinement
expose them to a substantial risk of infection with COVID-19.” Absent from these
allegations is anything about Defendants preventing, thwarting, or hindering Named
Plaintiffs’ efforts to avail themselves of an administrative remedy.

{46} Nor are we persuaded by Plaintiffs’ argument that the district court should have
held an evidentiary hearing to determine whether exhaustion was in fact futile. Plaintiffs
argue that they provided facts to the district court in briefing and at argument to support
their position that exhaustion was futile; however, the facts are all premised on the idea
that exhaustion is futile when NMCD cannot grant release or because unnamed class
members have tried to exhaust and received no response. As stated above, neither the
inability to grant release nor the filing of a grievance by an unnamed class member
demonstrates futility.

{47} Although our reasoning rests on the exhaustion requirement of Rule 5-802(C)
rather than Section 33-2-11(B), we conclude that the district court was correct in holding
that “Plaintiffs do not allege that the [Named] Plaintiffs exhausted or attempted to
exhaust the NMCD’s internal grievance procedures” and that “[e]xhaustion would not be
futile in this case because the NMCD has the authority to address the conditions in New
Mexico’s correctional facilities.” This fact of NMCD’s authority coupled with the Named
Plaintiffs’ failure to exhaust NMCD’s emergency grievance procedures, with no factual
allegation to support a finding that an attempt to exhaust those procedures would be
futile, forecloses the Named Plaintiffs’ right to judicial relief before exhaustion. Thus, we
affirm the district court’s dismissal of the amended complaint. See State v. Vargas,

, 

, 

 (“Under the right for any reason
doctrine, we may affirm the district court’s order on grounds not relied upon by the
district court if those grounds do not require us to look beyond the factual allegations
that were raised and considered below.” (internal quotation marks and citation omitted)).

E.     The District Court Properly Dismissed the Entire Action Despite the
       Presence of the Nonprofit Organizations

{48} The district court’s order dismissing the amended complaint did not make any
ruling as to standing. The district court held that to allow the nonprofit organizations “to
pursue the claims in the [a]mended [c]omplaint when the [Named] Plaintiffs have not
exhausted their administrative remedies would frustrate the legislative purpose of
Section 33-2-11(B) and would lead to an absurd result.” The district court determined
that because the Named Plaintiffs had not exhausted administrative remedies, the court
lacked “subject matter jurisdiction over the claims raised in the [a]mended [c]omplaint
with respect to all Plaintiffs.” As such, the district court concluded that the Governor’s
motion to dismiss the nonprofit organizations for lack of standing was rendered moot.

{49} Plaintiffs argue that the district court erred in dismissing the nonprofit
organizations by conflating exhaustion and standing. Plaintiffs contend that because the
exhaustion requirement only applies to inmates, it cannot apply to the nonprofit
organizations, and a separate substantive analysis of their standing is necessary. We
disagree.

{50} We conclude that the district court correctly dismissed the amended complaint
with respect to all Plaintiffs. We also conclude that the district court’s reasoning—to
allow the nonprofit organizations to pursue the claims in the amended complaint when
none of the Named Plaintiffs have exhausted their administrative remedies would
frustrate the purpose of Section 33-2-11(B)—equally applies to Rule 5-802(C). To allow
the nonprofit organizations to pursue the claims in the amended complaint when none
of the Named Plaintiffs have exhausted their administrative remedies would render
meaningless the requirements for exhaustion in Section 33-2-11(B) and Rule 5-802(C).
See Baker v. Hedstrom, 

, 

 (“We will not construe a
statute to defeat the intended purpose or achieve an absurd result.” (internal quotation
marks and citation omitted)).

{51} Plaintiffs argue that the district court’s conclusion forces the nonprofit
organizations “to exhaust remedies that they have no avenue to pursue.” This argument
misses the point. The nonprofit organizations “are nonprofit public advocacy
organizations seeking to assert rights on behalf of their constituents.” As such, their
claims are brought purely in a representative capacity and depend here on the viability
of the Named Plaintiffs’ claims. It makes no sense to allow the nonprofit organizations to
pursue claims on behalf of the Named Plaintiffs they represent who have not met their
jurisdictional exhaustion prerequisites. Cf. Parent/Pro. Advocacy League v. City of
Springfield, Mass., 

 (1st Cir. 2019) (concluding that it would be illogical
to allow the organizations to avoid the exhaustion requirement prerequisite to standing
for the students they represent).

{52} We conclude that the district court properly dismissed the amended complaint as
to all Plaintiffs. The exhaustion requirements of Section 33-2-11(B) and Rule 5-802(C)
cannot be circumvented by bringing claims through a representative entity.

III.   CONCLUSION

{53} We conclude that Section 33-2-11(B)’s exhaustion requirement is jurisdictional as
to statutorily created rights. We also conclude that Rule 5-802(C) imposes an
independent duty to exhaust administrative remedies for habeas claims. We hold that to
satisfy the habeas corpus exhaustion requirement under Rule 5-802(C) for an entire
plaintiff class, one or more named class members must exhaust administrative
remedies for each claim. Because Plaintiffs do not allege that the Named Plaintiffs
exhausted or sought to exhaust NMCD’s internal grievance procedures, nor do they
allege facts sufficient to show exhaustion would be futile, the district court correctly
dismissed the amended complaint. We affirm.

{54}   IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice