United States District Court, D. New Mexico
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 Marc
Eric Schwenk on December 14, 2015 (Doc. 1)
(“Complaint”). The Court dismissed Schwenk's
Complaint without prejudice for failure to state a claim on
which relief can be granted, but permitted Schwenk the
opportunity to file an amended complaint. The deadline has
passed and Schwenk has not filed an amended complaint.
Therefore, the Court will dismiss the Complaint with
prejudice for failure to state a claim on which relief can be
granted and will impose a “strike” under 28
U.S.C. § 1915(g).
prior Memorandum Opinion and Order (Doc. 9), the Court
dismissed Schwenk's Complaint without prejudice on the
grounds that it fails to state a claim for relief. Plaintiff
Schwenk 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, 555 (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.
§ 915(e)(2)(B)(2). 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).
with these standards, the Court determined that Schwenk's
Complaint did not state a claim under Rule 12(b)(6) or §
1915. (Doc. 9 at 3-5). The Court also afforded Schwenk the
opportunity to remedy the deficiencies in his pleading and
granted Schwenk leave to file an amended complaint within
thirty days after entry of the Memorandum Opinion and Order.
(Doc. 9 at 5-6). More than thirty days has passed and Schwenk
has failed to file an amended complaint or seek any extension
of time to do so. Therefore, at this time, the Court will
dismiss Schwenk's Complaint with prejudice. Hall v.
Bellmon, 935 F.2d at 1109-1110. Because the Court
concludes that Schwenk's Complaint fails to state a claim
for relief, see § 1915(e)(2)(B)(ii), the Court also
imposes a strike against him under the Prisoner Litigation
Reform Act (PLRA). § 1915(g). The Court reminds Schwenk
that if he accrues three strikes, he may not proceed in
forma pauperis in civil actions before federal courts
unless he is under imminent danger of serious physical
injury. § 1915(g).
Plaintiff Marc Eric Schwenk's Prisoner's Civil Rights
Complaint (Doc. 1) against Defendants Cibola County Detention
Center, Melody Pohl, ...