United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
matter is before the Court, sua sponte under 28
U.S.C. §§ 1915(e)(2) and 1915A, on Plaintiff
Francisco Moreno's Motion For Appointment of Counsel
[Doc. 3] and Amended Complaint [Doc. 11]. Plaintiff is
incarcerated, appears pro se, and is proceeding in forma
pauperis. For the reasons explained below, the Court
will deny Plaintiff's Motion For Appointment of Counsel
and require Plaintiff to file a written response showing
cause, if any exists, why his Amended Complaint should not be
dismissed as barred by the statute of limitations.
Plaintiff's Motion To Appoint Counsel Will Be Denied
is no constitutional right to appointed counsel in a civil
case. . . . However, the court may request an attorney
represent any person unable to afford counsel.”
Baker v. Simmons, 65 F. App'x 231, 238 (10th
Cir. 2003) (internal quotation marks and citations omitted)
(unpublished); see 28 U.S.C. § 1915(e)(1).
“The decision to appoint counsel is left to the sound
discretion of the district court.” Engberg v.
Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). “In
determining whether to appoint counsel, the district court
should consider a variety of factors, including 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.” Williams v. Meese, 926 F.2d 994,
996 (10th Cir. 1991). “The burden is on the applicant
to convince the court that there is sufficient merit to his
claim to warrant the appointment of counsel.” Hill
v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th
Cir. 2004) (quoting McCarthy v. Weinberg, 753 F.2d
836, 838 (10th Cir. 1985)).
support of his motion for appointment of counsel, Plaintiff
states that he “is without the funds or assets with
which to retain counsel in the matter.” [Doc. 3]
Financial hardship, while necessary for the appointment of
counsel under 28 U.S.C. § 1915(e)(1), is insufficient on
its own to merit the appointment of counsel. Plaintiff's
Amended Complaint does not present novel or complex legal
claims and it demonstrates Plaintiffs ability to present his
legal claims, and the facts underlying those claims,
adequately before the Court. [See Doc. 11] Lastly,
as explained below, Plaintiff's claims under 42 U.S.C.
§ 1983 appear to be barred by the applicable statute of
limitations and, therefore, the merits of Plaintiff's
claims do not weigh in favor of the appointment of counsel at
this time. For the foregoing reasons, Plaintiff's Motion
For Appointment of Counsel will be denied without prejudice.
Screening of Plaintiff's Amended Complaint
Court has the discretion to dismiss an in forma
pauperis complaint sua sponte under
§§ 1915(e)(2)(B) and 1915A at any time if the
action is frivolous, malicious, or fails to state a claim on
which relief may be granted. See §§
1915(e)(2)(B), 1915A(b). “Dismissal of a pro se
complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts
he has alleged and it would be futile to give him an
opportunity to amend.” Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). The burden is on the plaintiff
to frame a complaint that contains “sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
is proceeding pro se and “[a] pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Therefore, “if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Id. At the same time, however,
it is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.”
Amended Complaint superseded his original complaint and,
therefore, it is the operative pleading for the purpose of
this Court's review under §§ 1915(e)(2) and
1915A. See Mink v. Suthers, 482 F.3d 1244, 1254
(10th Cir. 2007) (noting that “an amended complaint
supercedes an original complaint and renders the original
complaint without legal effect”) (internal quotation
marks and citation omitted). In his Amended Complaint,
Plaintiff alleges that he was sexually assaulted by Defendant
Walden, a physician at Northeast New Mexico Detention
Facility, on June 6, 2012. Plaintiff further alleges that
Defendants Corizon Medical Provider and Timothy Hatch
“knew this Doctor had violations reported at other
prison and did not act on them” or
“investigate.” [Doc. 11 at 4] Plaintiff's
Amended Complaint seeks monetary damages and the imposition
of criminal charges against Defendant Walden. [Doc. 11 at 5]
Amended Complaint alleges, in relevant part, that
Defendants' conduct violated the Prison Rape Elimination
Act (PREA) of 2003, 42 U.S.C. § 15601, et seq.
However, the PREA “does not establish a private cause
of action for allegations of prison rape.” Krieg v.
Steele, 599 F. App'x 231, 232 (5th Cir. April 15,
2015) (affirming the dismissal of the plaintiff's PREA
claim as frivolous under 28 U.S.C. § 1915) (unpublished
per curiam opinion). “The PREA is intended to address
the problem of rape in prison, authorizes grant money, and
creates a commission to study the issue, ” but
“does not grant prisoners any specific rights.”
Chinnici v. Edwards, No. 1:07-CV-229, 2008 WL
3851294, *3 (D. Vt. Aug. 12, 2008) (unpublished). “In
the absence of ‘an “unambiguous” intent to
confer individual rights, ' such as a right to sue,
courts will not imply such a right in a federal funding
provision.” Id. (quoting Gonzaga Univ. v.
Doe, 536 U.S. 273, 279-80 (2002)). Therefore,
Plaintiff's PREA claims will be dismissed as frivolous
under §§ 1915(e)(2)(B)(i) and 1915A(b)(1).
Amended Complaint also alleges that Defendants' conduct
violated the New Mexico Department of Corrections'
(NMDOC) policies prohibiting sexual misconduct and requiring
a “safe and secure environment for both staff and
inmates.” [Doc. 11 at 3] Although 42 U.S.C.
“§ 1983 affords a remedy for violations of federal
law, ” it “does not provide a basis for
redressing violations of state law.” D.L. v.
Unified School Dist. No. 497, 596 F.3d 768, 776 (10th
Cir. 2010). A failure to follow administrative regulations,
standing alone, does not amount to a violation of §
1983. See Gaines v. Stenseng, 292 F.3d 1222, 1225
(10th Cir. 2002) (“To the extent [the plaintiff] seeks
relief for the alleged violations of state statutes and
prison regulations . . . he has stated no cognizable claim
under § 1983.”). Therefore, the Court concludes
that Plaintiff's Amended Complaint fails to state a
cognizable claim for relief under § 1983 for the alleged
violation of NMDOC policies.
the Court recognizes that an “inmate has a
constitutional right to be secure in [his] bodily
integrity” and a sexual assault by a prison official is
“sufficiently serious to constitute a violation under
the Eighth Amendment.” Barney v. Pulsipher,
143 F.3d 1299, 1310 (10th Cir. 1998) (internal quotation
marks and citation omitted). Section 1983 “provides a
cause of action against state officials who violate
constitutional or other federally protected rights.”
Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.
2013). “For section 1983 actions, state law determines
the appropriate statute of limitations and accompanying
tolling provisions.” Fratus v. DeLand, 49 F.3d
673, 675 (10th Cir. 1995). “[T]he pertinent limitations
period for section 1983 claims in New Mexico is that found in
N.M. Stat. Ann. § 37-1-8 (1978), which provides that
actions for an injury to the person must be brought within
three years.” Jackson v. City of Bloomfield,
731 F.2d 652, 653 (10th Cir. 1984). “Section 1983
claims accrue, for the purpose of the statute of limitations,
when the plaintiff knows or has reason to know of the injury
which is the basis of his action.” Johnson v.
Johnson Cty. Comm'n Bd., 925 F.2d 1299, 1301 (10th
Cir. 1991). In the present case, Plaintiff's § 1983
claims accrued on the date of the alleged sexual assault:
June 6, 2012. See Keith v. Koerner, 843 F.3d 833,
851 (10th Cir. 2016) (holding that the plaintiff's §
1983 claim accrued on the date of the sexual assault).
Because Plaintiff's § 1983 action was filed more
than three years after Plaintiff's claims accrued, it
appears to be barred by the statute of limitations.
law governs tolling of the three-year statute of limitations.
See Roberts v. Barreras, 484 F.3d 1236, 1241 (10th
Cir. 2007) (noting that “in a § 1983 suit, state
tolling rules, not federal ones, apply”). “New
Mexico has both statutory and equitable tolling
provisions.” Id. “Equitable tolling
typically applies in cases where a litigant was prevented
from filing suit because of an extraordinary event beyond his
or her control.” Id. (quoting Ocana v.
American Furniture Co., 91 P.3d 58, 66 (N.M. 2004)).
“Such ‘extraordinary events' include conduct
by a defendant that caused the plaintiff to refrain from
filing an action during the applicable period.”
Id. Statutory tolling applies in cases where a
plaintiff attempts to exhaust mandatory administrative
remedies. See Id. at 1242-43; see also N.M.
Stat. Ann. § 37-1-12 (1978). The Court will afford
Plaintiff an opportunity to explain, within thirty (30) days
of the date of this order, why the three-year statute of
limitations should be tolled under the doctrines of equitable
tolling and/or statutory tolling. See Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1097 (10th Cir. 2009)
(“When a district court believes it is likely that a
pro se prisoner's § 1983 complaint is dismissable on
the basis of the state's statute of limitations, the
court may issue a show cause order giving the plaintiff an
opportunity to explain why the statute of limitations should
be tolled.”). Failure to file a timely written response
within thirty (30) days of the date of this order may result
in the dismissal of Plaintiff's Amended Complaint without
THEREFORE ORDERED that Plaintiff's Motion For Appointment
of Counsel [Doc. 3] is DENIED without prejudice;
FURTHER ORDERED that Plaintiff's PREA claims are
DISMISSED as frivolous under §§ ...