United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under Fed.R.Civ.P.
12(b)(6) and 28 U.S.C.§ 1915(e)(2)(B) on the Complaint
for Violation of Civil Rights filed by Plaintiff Chris
Ramirez on January 5, 2017 ("Complaint"). (Doc. 1).
The Court will dismiss the Complaint for failure to state a
claim on which relief can be granted, but will grant
Plaintiff Ramirez the opportunity to file an amended
Ramirez 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 (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.
§ 1915(e)(2)(B)(ii). 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
plaintiffs allegations. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992). The court is not required to accept
the truth of the plaintiffs 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 32-33.
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
plaintiffs 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 (10 Cir. 1994). The court is
not obligated to craft legal theories for the plaintiff or to
supply factual allegations to support the plaintiffs 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).
only named Defendant in this case is the Curry County
Detention Center. The Curry County Detention Center is not a
"person" within the meaning of 42 U.S.C. §
1983 and, therefore, there is no remedy against the Curry
County Detention Center under § 1983. Therefore, the
claims against the Curry County Detention Center fail to
state a claim for relief and will be dismissed. Will v.
Michigan Dep't of State Police, 491 U.S. 58, 63-64
Ramirez does not identify any individual officials as
defendants. To state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must assert acts by government
officials acting under color of law that result in a
deprivation of rights secured by the United States
Constitution. 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988). There must be a connection between
official conduct and violation of a constitutional right.
Conduct that is not connected to a constitutional violation
is not actionable under Section 1983. See Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 1998).
a civil rights action against a public official or entity may
not be based solely on a theory of respondeat superior
liability for the actions of co-workers or subordinates. A
plaintiff must plead that each government official, through
the official's own individual actions, has violated the
Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676,
129 S.Ct. 1937, 1948 (2009). Plaintiff must allege some
personal involvement by an identified official in the alleged
constitutional violation to succeed under § 1983.
Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10 Cir.
2008). In a Section 1983 action, it is particularly important
that a plaintiffs complaint "make clear exactly
who is alleged to have done what to whom,
to provide each individual with fair notice as to the basis
of the claim against him or her." Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008) (emphasis in the original).
Statement of Claim, Ramirez makes the following allegations:
"I was order to be released on the 13th of
August 2016. The County released me on the 15th of
Aug .. .1 was order to be released by Judge VanSolen after
serving a 30 day sentence. Sgt Rosenthal informed me that
there was warrants out of Portales NM. I told him they were
taken care of and records can show that. Jay informed me that
I should've been out."
(Doc. 1 at 4-5).
the statement of the claim mentions Sgt Rosenthal and
"Jay, " Ramirez does not name either individual as
a defendant, nor do his allegations specify who they are or
what either individual did, if anything, that violated
Ramirez's constitutional rights. Robbins v.
Oklahoma, 519 F.3d at 1249-50. The Complaint fails to
state a claim for relief against any individual official.
Twombly, 550 U.S. at 570. The Court will dismiss the
Complaint and will grant Ramirez the opportunity to file an
amended complaint specifying individuals and the
individualized actions that he claims resulted in violation
of a constitutional right. Hall v. Bellmon, 935 F.2d
at 1110, nt. 3 (pro se litigants are to be given reasonable
opportunity to remedy defects in their pleadings).
IS ORDERED that the Complaint for Violation of Civil
Rights filed by Plaintiff Chris Ramirez on January 5, 2017
("Complaint") (Doc. 1) is
DISMISSED without prejudice for failure to
state a claim on which relief can be granted and Plaintiff
Ramirez is granted leave to file an amended complaint within
30 days of entry of this Order. If an amended complaint,
identifying specific individual defendants and individualized
actions that allegedly violated ...