United States District Court, D. New Mexico
ALREE B. SWEAT, III, Plaintiff,
DET. MIKE RICKARDS, DET. JEFF FERGUSEN, DEMING POLICE OFC. Z. ZIGMON, and JOHN DOE 2, Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
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.
of the Case and Prior Proceedings
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).
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).
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).
of Facts and Allegations
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).
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).
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).
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).
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
Plaintiff Sweat's Pending Motions
Motion for Default Judgment
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
Motion for Appointment of Counsel
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).
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 ...