United States District Court, D. New Mexico
December 5, 2016
BILL VAL VASQUEZ, Plaintiff,
AYUDANDO GUARDIANS INC., and DEPARTMENT OF VETERANS AFFAIRS REGIONAL OFFICE, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court sua sponte under 28
U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6) on the
Prisoner's Civil Rights Complaint filed by Plaintiff,
Bill Val Vasquez on July 15, 2016 (Doc. 1)
(“Complaint”). The Court concludes that the
Complaint fails to state a claim on which relief can be
granted under § 1915(e)(2)(B).
Vasquez brings civil rights claims against Ayudando Guardians
Inc. (“Ayudando Guardians”), a private company
providing guardianship services to veterans under contract
with the United States Department of Veterans Affairs and
against the Department of Veterans Affairs Regional Office.
Plaintiff asserts jurisdiction pursuant to 42 U.S.C. §
1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). (Doc. 1 at 2). The
Complaint alleges that Defendants have taken his money
without due process of law. (Doc. 1 at 1-4).
for Failure to State a Claim
Vasquez is proceeding pro se and in forma pauperis.
The Court has the discretion to dismiss an in forma
pauperis complaint sua sponte for failure to
state a claim upon which relief may be granted under either
Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B).
Under Fed.R.Civ.P. 12(b)(6) the Court must accept all
well-pled factual allegations, but not conclusory,
unsupported allegations, and may not consider matters outside
the pleading. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007); Dunn v. White, 880 F.2d 1188, 1190
(10th Cir. 1989). The court may dismiss a
complaint under rule 12(b)(6) for failure to state a claim if
“it is ‘patently obvious' that the plaintiff
could not prevail on the facts alleged.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting
McKinney v. Oklahoma Dep't of Human Services,
925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. A claim should be dismissed where it is legally or
factually insufficient to state a plausible claim for relief.
Twombly, 550 U.S. at 555.
§ 1915(e)(2)(B) the court may dismiss the complaint at
any time if the court determines the action fails to state a
claim for relief or is frivolous or malicious. 28 U.S.C.
§ 1915(e)(2)(B)(ii). The authority granted by §
1915 permits the court the unusual power to pierce the veil
of the complaint's factual allegations and dismiss those
claims whose factual contentions are clearly baseless.
Neitzke v. Williams, 490 U.S. 319, 327 (1989).
See also Hall v. Bellmon, 935 F.2d at 1109. The
authority to “pierce the veil of the complaint's
factual allegations” means that a court is not bound,
as it usually is when making a determination based solely on
the pleadings, to accept without question the truth of the
plaintiff's allegations. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). The court is not required to
accept the truth of the plaintiff's allegations but,
instead, may go beyond the pleadings and consider any other
materials filed by the parties, as well as court proceedings
subject to judicial notice. Denton, 504 U.S. at
reviewing a pro se complaint, the Court liberally construes
the factual allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San
Juan County, 32 F.3d 452, 455 (10thCir.
1994). The court is not obligated to craft legal theories for
the plaintiff or to supply factual allegations to support the
plaintiff's claims. Nor may the court assume the role of
advocate for the pro se litigant. Hall v. Bellmon,
935 F.2d at 1110.
deciding whether to dismiss the complaint, in whole or in
part, the court is to consider whether to allow plaintiff an
opportunity to amend the complaint. Pro se plaintiffs should
be given a reasonable opportunity to remedy defects in their
pleadings. Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). The opportunity to amend
should be granted unless amendment would be futile. Hall
v. Bellmon, 935 F.2d at 1109. An amendment is futile if
the amended claims would also be subject to immediate
dismissal under the rule 12(b)(6) or § 1915(e)(2)(B)
standards. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
of Vasquez's Claims
1983 provides a federal civil remedy for the deprivation of
any rights, privileges, or immunities secured by the
Constitution by any person acting under color of state law.
Section 1983 only authorizes suits against persons acting
under color of state law. See McCarty v. Gilchrist,
646 F.3d 1281, 1285 (10th Cir. 2011). The state
action doctrine requires that the deprivation must be caused
by the exercise of some right or privilege created by the
State or by a rule of conduct imposed by the state or by a
person for whom the State is responsible and the party
charged with the deprivation must be a person who may fairly
be said to be a state actor. Stone v. Elohim, Inc.,
336 Fed.Appx. 841, 842 (10th Cir. 2009) (quoting Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). The
Department of Veterans Affairs is an agency of the United
States, not a State entity. As such, it never acts under
color of state law. Ayudando Guardians is a private entity
providing services under contract with a federal agency. It,
similarly, does not act under color of state law. See
Browder v. Anderson, 2008 WL 1884093 (W.D. Ky 2008);
Aragon v. Ayudando Guardians, No. CV 07-00669 MV/RHS
(D.N.M. February 15, 2008) (Vazquez, J.). The Complaint fails
to state any claim for relief against the Department of
Veterans Affairs Regional Office or Ayudando Guardians under
42 U.S.C. § 1983. McCarty v. Gilchrist, 646
F.3d at 1285.
Complaint also fails to state any claim for relief pursuant
to Bivens v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). Bivens
creates a cause of action against federal officials similar
to the cause of action § 1983 creates against state
officials. However, Bivens only applies to
individual federal officials, and Bivens claims
against the United States and its agencies are barred by
sovereign immunity. FDIC v. Meyer, 510 U.S. 471,
484-85 (1994); Greenlee v. U.S. Postal Service, 247
F.App'x 953, 955 (10th Cir. 2007).
Plaintiff's Complaint does not identify any individual
federal officers, the claims against the Department of
Veterans Affairs are barred by sovereign immunity, and
Aydando Guardians is not a federal entity. Therefore, any
Bivens claim for damages against Ayudando Guardians
and the Department of Veterans Affairs also fails under 28
U.S.C. § 1915(e)(2)(B).
Court will dismiss Vasquez's Complaint, but will grant
him the opportunity to amend to try to remedy the defects in
his Complaint. Hall v. Bellmon, 935 F.2d at 1109. In
order to succeed on a Bivens claim, Plaintiff must
allege facts showing some personal involvement by identified
federal officials in the alleged constitutional violation.
Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct.
1937, 1948 (2009); Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008). Plaintiff must make
clear the identity of the individual officials, what those
officials did, and how the acts of those individuals deprived
Plaintiff of a constitutional right. Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008) (emphasis in the original). Plaintiff must file any
amended complaint within thirty days of entry of this
Memorandum Opinion and Order. If Plaintiff fails to file an
amended complaint, or files an amended complaint that
similarly fails to state any claim for relief, the Court may
enter a final order of dismissal without further notice.
ORDERED that the Prisoner's Civil Rights Complaint filed
by Plaintiff, Bill Val Vasquez on July 15, 2016 (Doc. 1) is
DISMISSED for failure to state a claim under 28 U.S.C. §
1915(e)(2)(B) and Plaintiff is granted leave to file an
amended complaint within thirty (30) days of entry of this
Memorandum Opinion and Order.