United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court under 28 U.S.C. §
1915(e)(2), on the Plaintiffs Prisoner's Civil Rights
Complaint, filed on July 11, 2016 (Doc.
l)("Complaint"). Plaintiff Christopher Scott Dangim
was incarcerated at the time of filing, appears pro se, and
is proceeding in forma pauperis. For the reasons explained
below, the Court will dismiss Dangim's claims under 42
U.S.C. § 1983 without prejudice for failure to state a
claim on which relief may be granted under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1), and will afford
Dangim thirty days in which to file an amended complaint that
complies with this Memorandum Opinion and Order's
Complaint is not clear, but it appears to raise multiple
constitutional claims under 42 U.S.C. § 1983 against
various unidentified defendants. First, Dangim appears to
allege that police officers employed by the City of Rio
Rancho, New Mexico, and by the County of Sandoval, New
Mexico, racially profiled him, tazed him, and falsely
arrested him in 2008 and 2012. See Complaint at 2-5.
Second, Dangim alleges that he was deprived of his right
under the Sixth Amendment to the Constitution of the United
States of America “to appear at the grand jury in sound
state of mind.” Complaint at 4. Third, Dangim contends
that he “was jumped in prison by two guards who twisted
my arm and said I was resisting and jumped and burned
me.” Complaint at 4. Last, Dangim alleges that his
right under the Eighth Amendment to the Constitution of the
United States of America to be free from cruel and unusual
punishment was violated when he was physically assaulted in
county jail, and denied “outside hospital treatment,
” even though his “finger was severed at the
[cuticle].” See Complaint at 1. In his request
for relief, Dangim requests to be exonerated of all criminal
charges, released from state custody, preliminary injunctive
relief “against officers [for] racist tactics, ”
and compensatory damages in the amount of five million
dollars. Complaint at 6.
to Dangim's Complaint is a state court complaint, which
appears to raise claims under the New Mexico Tort Claims Act,
N.M. Stat. Ann. §§ 41-4-1, et seq.
Complaint at 8. Dangim alleges that, in November, 2016,
Officer FNU Salazar, a guard at the Sandoval County Detention
Center, placed an unhygienic substance in his food and
slammed his hand in the feed port, severing his finger at the
cuticle. See Complaint at 8-9. Dangim further
alleges that he was denied medical treatment, resulting in an
infection in his finger and causing him to be
“permanently maimed.” Complaint at 9. In his
prayer for relief, Mr. Dangim requests “charges of
assault” to be filed against the guard and compensatory
damages in the amount of $300, 000.00. Complaint at 10.
certain mailings to Dangim were returned as undelivered, the
Honorable Steven C. Yarbrough, United States Magistrate Judge
for the United States District Court of the District of New
Mexico, ordered Dangim to show cause why the Court should not
dismiss his complaint for failure to inform the Court of his
current mailing address as D.N.M. LR-Civ. 83.6 requires.
See Order to Show Cause at 1-2, filed July 26, 2016
(Doc. 6). In response, Dangim explained that he was
unexpectedly released from state custody and informed the
Court of his new mailing address. See Response to
Order to Show Cause at 1, filed August 10, 2016 (Doc.
8)(“First Response”); Response to Cure Defects at
1, filed August 10, 2016 (Doc. 9)(“Second
Response”); Second Response to Order to Show Cause at
1, filed August 10, 2016 (Doc. 10)(“Third
Response”); Second Response to Cure Defects at 1, file
August 10, 2016 (Doc. 11)(“Fourth Response). Dangim
also requested a change of venue to an African-American
judge. See First Response at 1; Second Response at
1; Third Response at 1; Fourth Response at 1.
August 22, 2016, Judge Yarbrough quashed the Order To Show
Cause and liberally construed Dangim's request for a
change of venue as a motion to disqualify under 28 U.S.C.
§ 455(a). See Order Quashing Order to Show
Cause Granting Leave to Proceed Pursuant to 28 U.S.C. §
1915, and Denying Motion to Disqualify at 1, filed August 22,
2016 (Doc. 13)(“Quash Order”). Judge Yarbrough
denied Dangim's motion, because “unsupported and
speculative assertions of bias or prejudice are insufficient
to merit disqualification under § 455(a).” Quash
Order at 3.
September 1, 2016, Dangim submitted 191 pages of exhibits,
which included medical and mental health records as well as
various documents from his state court criminal proceedings.
See Sealed Notice, filed August 23, 2016 (Doc.
19)(“Medical Records”). Judge Yarbrough
determined that the information in these records triggered
the obligation under rule 17(c)(2) of the Federal Rules of
Civil Procedure “to inquire into the current status of
[Dangim's] mental health to determine whether the
appointment of a guardian ad litem, or other appropriate
order, is required.” Sealed Order Requiring
Supplemental Documentation Regarding Plaintiff's Mental
Competency at 3, filed March 15, 2017 (Doc.
Order”). Judge Yarbrough ordered Dangim to submit,
on or before April 14, 2017, “supplemental
documentation regarding the current status of his
mental health, including, but not limited to, court
records, updated medical records, and statement from treating
physicians or psychiatrists.” Supplemental
Documentation Order at 3 (emphasis in original). The deadline
for the submission of supplemental documentation has expired,
and Dangim has not complied or otherwise responded to Judge
Yarbrough's Supplemental Documentation Order.
preliminary matter, the Court must determine which obligation
it has a duty to fulfill first: (i) screening of the
complaint under §§ 1915(e)(2) and 1915(A); or (ii)
determination of Dangim's mental competency to represent
himself pro se under rule 17(c)(2). The Court will first
screen the Complaint under §§ 1915(e) and 1915A.
The Court will next address Dangim's mental competency
under rule 17(c)(2).
THE COURT FIRST WILL SCREEN THE COMPLAINT UNDER §§
1915(E) AND 1915A BEFORE ADDRESSING DANGIM'S MENTAL
COMPETENCY UNDER FED. R. CIV. P. 17(c)(2).
17(c)(2) provides, in relevant part, that “[t]he court
must appoint a guardian ad litem -- or issue another
appropriate order -- to protect a minor or incompetent person
who is unrepresented in an action.” Fed.R.Civ.P.
17(c)(2). “[T]he language of the Rule makes the
obligation mandatory, ” but it does not indicate
“which factors should trigger the district court's
duty of inquiry as to whether the individual at issue is
incompetent.” Powell v. Symons, 680 F.3d 301,
303 (3d Cir. 2012). Although the United States Court of
Appeals for the Tenth Circuit has not addressed the issue in
a published opinion, the Courts of Appeal generally apply the
standard that the United States Court of Appeals for the
Second Circuit articulated in Ferrelli v. River Manor
Health Care Center, 323 F.3d 196 (2d Cir. 2003). In that
case, the Second Circuit held that Fed.R.Civ.P. 17(c)(2) does
not obligate “a district court to monitor a pro se
litigant's behavior for signs of mental
incompetence.” Ferrelli v. River Manor Health Care
Center, 323 F.2d at 201. The duty to appoint a guardian
ad litem or issue another appropriate order arises, however,
when a court is
presented with evidence from an appropriate court of record
or a relevant public agency indicating that the party had
been adjudicated incompetent, or if the court received
verifiable evidence from a mental health professional
demonstrating that the party is being or has been treated for
mental illness of the type that would render him or her
Ferrelli v. River Manor Health Care Center, 323 F.2d
28 of the United States Code, § 1915(A) also imposes a
mandatory obligation on district courts to screen
“before docketing, if feasible, or in any event, as
soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915(A)(a). See Plunk v.
Givens, 234 F.3d 1128, 1129 (10th Cir. 2000)(holding
that “§ 1915A applies to all prison litigants,
without regard to their fee status, who bring civil suits
against a governmental entity, officers, or employee”).
On review, the court is required to “identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, ” if it “is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
” or if it “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b). Furthermore, where a litigant such as Dangim
has been granted permission to proceed in forma pauperis, the
district court “shall dismiss ...