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Sweat v. Rickards

United States District Court, D. New Mexico

March 30, 2017

ALREE B. SWEAT, III, Plaintiff,
v.
DET. MIKE RICKARDS, DET. JEFF FERGUSEN, DEMING POLICE OFC. Z. ZIGMON, and JOHN DOE 2, Defendants.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the 1983 Prisoner Civil Rights Complaint filed by Plaintiff Alree B. Sweat III (“Complaint”) (Doc. 1), the Motion to Dismiss for Failure to State a Claim filed by Defendant Zack Sigmon (Doc. 22) and the Answer to the Complaint filed by Defendants Michael Rickards and Jeffery Ferguson (Doc. 18). The Court will dismiss Plaintiff Sweat's Complaint for failure to state a claim on which relief can be granted.

         Nature of the Case and Prior Proceedings

         This is a prisoner civil rights case brought by Plaintiff Alree B. Sweat III under 42 U.S.C. § 1983. Plaintiff Sweat is proceeding pro se and in forma pauperis. (Doc. 12 at 1). Sweat filed his Prisoner's Civil Rights Complaint (Doc. 1) (“Complaint”) on May 22, 2015. The Complaint named the State of New Mexico, Det. Mike Rickards, City of Las Cruces, Chief of Police Jaime Montoya, Det. Jeff Ferguson, Chief of Police for Deming (John Doe), Deming Police Ofc. Z. Zigmon, Director of Luna County Detention Center (John or Jane Doe), Luna County Detention Center Booking Officer John Doe (1) and John Doe (2). (Doc. 1).

         On February 24, 2016, the Court entered a sua sponte Memorandum Opinion and Order under 28 U.S.C. § 1915(e)(2) and Fed.R.Civ.P. 12(b)(6). (Doc. 12). The Court's Memorandum Opinion and Order dismissed Plaintiff's claims I, III, the supervisory claim in Count [sic] IV, and the claim against John Doe (1) in Count [sic] V for failure to state a claim on which relief can be granted. (Doc. 12 at 5). The Memorandum Opinion and Order also dismissed all claims against the State of New Mexico, City of Las Cruces, Chief of Police (Jaime Montoya), Chief of Police for Deming (John Doe), Director of Luna County Detention Center (John or Jane Doe), and Luna County Detention Center Booking Officer John Doe (1). (Doc. 12 at 6). The Court's Order permitted the claims in Claim II, Count V as to John Doe (2), Count VI and Count VII to proceed. The Court granted Sweat a reasonable time to identify Luna County Detention Center Booking Officer John Doe (2) for purposes of Count V and to identify the individuals alleged to have subjected him to double jeopardy for purposes of Count VI. The Court directed issuance of notice and waiver of service forms to Defendants Mike Rickards, Jeff Ferguson and Z. Zigmon. (Doc. 12 at 5, 6).

         Defendant Zack Sigmon, incorrectly identified in the Complaint as “Z. Zigmon, ” entered an appearance through counsel and filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) based on claim or issue preclusion. (Doc. 22). Defendants Michael Rickards and Jeffrey Ferguson also appeared and filed an Answer asserting the defense of failure to state a claim and claim preclusion. (Doc. 18). Plaintiff Sweat has filed a Motion to Amend his Complaint to name Luna County Detention Center Officer Chris Verduzco as a defendant in place of John Doe (2). (Doc. 20). Also pending before the Court are Plaintiff Sweat's Motion for Default Judgment (Doc. 26) and Motion for Appointment of Counsel (Doc. 43).

         Statement of Facts and Allegations

         In June of 2013, Plaintiff Alree B. Sweat III was notified that he was the target of a grand jury investigation in Dona Ana County, New Mexico. Sweat was being investigated for multiple crimes of burglary of a vehicle committed in Dona Ana County in April and May, 2013. (Doc. 1 at 32-37). The crimes were being investigated by Las Cruces Police Department Detective Michael Rickards. (Doc. 1 at 30-31). During the course of his investigation, Detective Rickards learned that possible DNA blood evidence had been recovered during preliminary investigation of the auto burglaries. Detective Rickards sent the evidence to the New Mexico Department of Public Safety Forensic Laboratories in Santa Fe for analysis and received a confirmation letter from the New Mexico DNA Identification System that there was a confirmed offender match to Plaintiff Sweat. (Doc. 1 at 30-31). On August 7, 2013, Rickards obtained a Search Warrant for oral/buccal swabs from Sweat to send as a standard to the laboratory. The Search Warrant was signed by Judge Conrad Perea. (Doc. 1 at 31).

         On August 8, 2013 Detective Rickards contacted Chris from Action Bail Bonds to ask for assistance in arranging a meeting with Sweat. Chris provided him with Sweat's telephone number and address in Deming, New Mexico, and informed Detective Rickards that Sweat was unwilling to cooperate. (Doc. 1 at 31). Detective Rickards contacted Sweat by telephone and advised him of the Search Warrant. Sweat advised Rickards he would not comply. (Doc. 1 at 31). Rickards then filed a Criminal Complaint in Dona Ana County Magistrate Court on August 9, 2013, charging Sweat with the crime of Resisting, Evading or Obstructing an Officer contrary to Section 30-22-1(A) NMSA 1978. (Doc. 1 at 29). Rickards also filed a sworn Statement of Facts in Support of Complaint setting out the facts to establish probable cause to believe that Sweat committed the crime charged. A bench warrant was issued for Sweat's arrest. (Doc. 1 at 30-31).

         On August 9, 2013, Sweat was arrested by Deming Police Officer Zack Sigmon in Deming, Luna County, New Mexico. Officer Sigmon transported Sweat to the Luna County Detention Center where he was detained until Detective Jeff Ferguson of the Las Cruces Police Department arrived. While at the Luna County Detention Center, Sweat was booked, taken to a room and asked to strip for a visual inspection, given a prison uniform, and escorted to get bedding by officer John Doe (2) (now identified as Officer Chris Verduzco) prior to being placed in a housing unit. (Docs. 1 at 7; 20-1 at 11-15). Detective Ferguson arrived at the Detention Center, executed the Search Warrant, and obtained a DNA sample from Sweat. (Doc. 1 at 15).

         Sweat was later convicted on multiple counts of burglary of a vehicle and is serving sentences in the New Mexico state correctional system. See State v. Sweat, Dona Ana County cause nos. D 307-CR-201300452 and D-307-CR-201301165; see also State v. Sweat, 2016 WL 6562968 (Ct. App. N.M. 2016). A nolle prosequi was entered on the charge of Resisting, Evading or Obstructing an Officer by the Dona Ana County District Attorney's Office on April 8, 2014. (Doc. 1 at 38).

         Sweat has filed two previous actions arising out of the same operative facts. In Sweat v. Judge Conrad Perea, No. CV 14-00034 LH/LAM, Sweat brought claims against Judge Perea, who issued the search warrant, Detective Rickards (improperly named as Det. Mike Richards), Det. John Doe of LCPD, and Deming Police Officer John Doe. The Court dismissed the claims against Detective Rickards, Det. John Doe of LCPD, and Deming Police Officer John Doe for failure to state a claim on which relief could be granted. See CV 14-00034 Doc. 19. Sweat filed the same claims in No. CV 14-00227 MCA/WPL. The Court found that the claims in CV 14- 00227 were duplicative of the claims asserted in CV 14-00034 and dismissed them on that basis. See CV 14-00227 Doc. 33. Sweat did not appeal the Court's ruling in either case.

         I. Plaintiff Sweat's Pending Motions

         A. Motion for Default Judgment

         Plaintiff Sweat has filed a Motion for Default Judgment seeking entry of default against Defendants Sigmon, Rickards, and Ferguson. (Doc. 26). Under Fed.R.Civ.P. 55, the Court may enter a default only where the record shows that a defendant has failed to plead or otherwise defend. The record in this case does not show that Defendants Sigmon, Rickards, and Ferguson have failed to plead or otherwise defend. To the contrary, all three Defendants have appeared and are defending this action. (Docs. 18, 22). The Court will deny the Motion for Default Judgment.

         B. Motion for Appointment of Counsel

         Also before the Court is Plaintiff Sweat's Motion for Appointment of Counsel. (Doc. 43). United States District Courts lack the authority to appoint counsel to represent indigent prisoners in §1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, a court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). In deciding whether to request voluntary assistance of counsel, the court is to consider “the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (internal quotation marks omitted).

         Ultimately, the burden is on the plaintiff “to convince the court that there is sufficient merit to his claim to warrant [a request for voluntary assistance] of counsel.” Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (internal quotation marks omitted). Plaintiff Sweat's filings have adequately articulated the claims he seeks to prosecute. As set out, below, the allegations of Plaintiff's Complaint and the additional materials in the record fail to state any claim for relief. Sweat's Memorandum of Law in Support of Plaintiff's Motion for Appointment of Counsel (Doc. 41) does not convince the ...


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