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Granado v. Lnu

United States District Court, D. New Mexico

February 2, 2017

AUGUSTIN F. GRANADO, Jr., DAVID OTERO, ERIC R. FIERRO, Plaintiffs,
v.
FNU LNU, Wardens, Lea County Correctional Facility, Otero County Prison Facility, Santa Fe P.N.M. South, et al., Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         This matter is before the Court, sua sponte under 28 U.S.C. § 1915(e)(2), on the Amended Complaint [Doc. 37], filed on January 6, 2017, and Second Amended Complaint [Doc. 44], filed on January 27, 2017, by Plaintiffs Augustin F. Granado Jr., David Otero, and Eric R. Fierro. Plaintiffs are incarcerated and proceeding pro se. Although Plaintiff Granado has been granted permission to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915 [Doc. 13], neither Plaintiff Otero nor Plaintiff Fierro have sought or received permission to proceed IFP in this case. For the reasons explained below, the claims raised by Plaintiffs Otero and Fierro will be dismissed without prejudice, Plaintiff Granado's Second Amended Complaint will be dismissed with prejudice for failure to state a claim on which relief may be granted under § 1915(e)(2)(B)(ii), all pending motions will be denied as moot, a strike will be imposed on Plaintiff Granado under § 1915(g), and final judgment will be entered.

         On September 1, 2016, Plaintiff Granado filed a Prisoner's Civil Rights Complaint [Doc. 10] against a variety of Defendants, seeking monetary damages and release from prison for “[a]ll actions over a period of 18 years of incarceration.” [Doc. 10 at 4] In a Memorandum Opinion and Order dated October 25, 2016, the Court dismissed Plaintiff's complaint for failure to state a claim on which relief may be granted, because it was “a quintessential ‘kitchen-sink' or ‘shotgun' complaint which brings every conceivable claim against every conceivable defendant.” [Doc. 21 at 8 (internal quotation marks and citation omitted)] The Court explained that such complaints are “pernicious because they unfairly burden defendants and courts by shifting onto them the burden of identifying plaintiff's genuine claims and determining which of those claims might have legal support.” [Id. (internal quotation marks and citation omitted)] The Court further explained that “kitchen-sink” or “shotgun” complaints violate Rule 8 of the Federal Rules of Civil Procedure because they do not include a short and plain statement of the claim showing that the pleader is entitled to relief.” [Id.]

         The Court granted Plaintiff thirty days in which to file an amended complaint and instructed Plaintiff that his amended complaint must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her.” [Id. at 9 (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original)]. The Court further instructed Plaintiff that conclusory allegations regarding the violation of his rights will not suffice: “Rather, it is incumbent upon a plaintiff to identify specific actions taken by particular defendants in order to make out a viable § 1983 claim.” [Id. (quoting Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013) (emphasis in original)]. In sum, Plaintiff was informed that his amended complaint “must explain what each defendant did to him . . .; when the defendant did it; how the defendant's action harmed him . . .; and what specific legal right the plaintiff believes the defendant violated.” [Id. (quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)].

         On December 1, 2016, Plaintiff filed a motion for extension of time to file an amended complaint, which the Court granted. [See Docs. 26, 35] On January 6, 2017, Plaintiff timely filed an Amended Complaint [Doc. 37], which named Plaintiffs David Otero and Eric R. Fierro as additional Plaintiffs. On January 27, 2017, Plaintiffs Granado, Otero, and Fierro filed a Second Amended Complaint [Doc. 44], which adds class action claims, but otherwise is identical to the Amended Complaint. Because an amended complaint “supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified, ” Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990) (internal quotation marks and citation omitted), the Court will consider the Second Amended Complaint to be the operative pleading for the purpose of its review under § 1915(e).

         Plaintiffs' sixty-five page Second Amended Complaint names the following individuals and entities in the caption as Defendants:

The New Mexico Public Defenders, Governor Susana Martinez, The New Mexico Legislature, Attorney's Micheal Rosenfelt, John McCall, Corizen Medical Services, Centurion Medical Service's all it's Agency's employ's, Warden, Security, Staff at Lea, Otero, Santa Fe, P.N.M South, North, Central New Mexico Correctional Facility, Troy Pritchard, Eric Turner, Donald Knchersberger, Joe Shattch, Greg Worley, Lianne Kerr, Anna M. Aragon, Casey Erwin, Brian Tucker, Albuquerque, Bernallio County, M.D.C. Metropolitan Detention Center, FNU, LNU [sic]

[Doc. 44 at 2] In the body of the Complaint, Plaintiffs name the following additional Defendants as parties:

Centurion Medical Service's at all Facility's of placement for the Plaintiff's. Prior address's listed. And for the New Mexico Dept. of Corrections. [sic]
#14 All Dr.'s, P.A.'s, nursing staff, administrator's, Optomitrist's, x-ray tech's, record's personnel at all facility's representatives for Centurian Medical Service's, Corizon Medical Service's, Psychiatry, Mental Health Service's, Corizon Medical Service's, Psychiatry, Mental Health service's, Dentist's, Specialist's, outside prison facility medical carrier's their representative's, agency's, etc. At all facility's held in custody by the Defendant's at various prisons in the New Mexico Dept. of Corrections. [sic]
#15 All Regional Director's, administrators, for Centurion, Corizon, the N.M.D.O.C. Medical Service's, the N.M.D.O.C. Psychiatric Care, Health Service's Bureau Chief's, Mental Health Care, Optomitry care, Orthotic Care, A.D.A. Administrator's, Disciplinary administrator's, Grievance administrator's, all officer's agents there of in all facility's. [sic]
# 16 All Contract Monitor's [sic]
#17 All A.C.A. Standard Monitor's. [sic]
# 7 The Municipality's of Hobb's, Chapparal, Santa Fe City's town's or village. Including the Municipality of ...

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