United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
matter is before the Court, pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A, on Plaintiff Laybe
Torres' Complaint For Violation of Civil Rights [Doc. 1]
and Memorandum of Law [Doc. 12]. Also before the Court are
Plaintiffs Motion For Appointment of Counsel [Doc. 5] and
Third Motion Show Cause To Excuse Initial Partial Payment
[Doc. 16]. Plaintiff was incarcerated at the time of filing,
appears pro se, and is proceeding in forma pauperis.
For the reasons explained below, Plaintiffs motion for
appointment of counsel will be denied, Plaintiffs motion to
excuse the initial partial payment will be denied as moot,
Plaintiffs civil rights complaint will be dismissed, and
Plaintiff will be granted thirty (30) days in which to file
an amended complaint that states a claim upon which relief
may be granted.
Plaintiffs Motion For Appointment of Counsel Will Be
December 22, 2016, Plaintiff filed a Motion For Appointment
of Counsel [Doc. 5], seeking appointment of counsel because
he "has very limited access to legal resources, "
"absolutely no access to a law library where [he] can do
legal research, " he "has little knowledge of civil
rights law and procedures, " his "complaint
contains complex legal issues of law and facts, " and he
"has no financial resources or assets to hire a civil
rights attorney." [Doc. 5 at 3-4]
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(unpublished); see 28 U.S.C. § 1915(e)(1).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)).
record reflects that Plaintiff understands the issues in this
case and is representing himself in an intelligent and
capable manner. Although Plaintiff states that he has no
access to legal research or knowledge of civil rights law, he
has submitted a comprehensive Memorandum of Law in support of
his legal claims, which contains citations to case law and an
in-depth legal analysis. [See Doc. 12] The factual
and legal issues are neither novel nor complex and, for the
reasons explained below, the Court concludes that the merits
of Plaintiff s claims do not warrant the appointment of
counsel at this time. Therefore, Plaintiffs Motion For
Appointment of Counsel [Doc. 5] will be denied.
Plaintiffs Third Motion Show Cause To Excuse Initial
Partial Payment Will Be Denied
December 22, 2016, Plaintiff filed his third motion seeking
to excuse the initial partial payment in the amount of $9.35
ordered by the Court pursuant to 28 U.S.C. §
1915(b)(1)(A). [Doc. 16; see Doc. 4] In his motion,
Plaintiff details the attempts he has made to pay the initial
partial payment and states that "prison officials refuse
to comply with Plaintiffs requests." [Doc. 16 at 1-2]
February 2, 2017, Plaintiffs initial partial payment of $9.35
was received by the Court. [Doc. 11] Therefore, Plaintiffs
third motion to excuse the initial partial payment will be
denied as moot. Plaintiff is reminded that "he is
required to pay the full amount of the filing fee."
§ 1915(b)(1); see McClain v. Davis, 494
F.App'x 874, 875 (10th Cir. August 20, 2012) ("The
grant of ifp status . .. does not relieve an
indigent litigant of the obligation to pay the filing fee, it
only relieves him of the obligation to pay the fee in full
before initiating his suit.") (unpublished).
Plaintiffs Complaint Fails To State A Claim On Which Relief
May Be Granted
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." Id.
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
plaintiffs 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."
complaint alleges that Defendants Gregg Marcantel, Secretary
of the Department of Corrections, Dwayne Santistevan,
Security Threat Investigation Unit (STIU), Ralph Lucero, Unit
Manager at Central New Mexico Correctional Facility (CNMCF),
and Tamara King, Classification Officer at CNMCF, improperly
classified him as a member of a prison gang. [Doc. 1] As a
result of this improper classification, Plaintiff alleges
that he was segregated "in solitary confinement for
months" and then housed "with violent gang
members" in violation of his Fourteenth Amendment right
to due process of law and Eighth Amendment right to be free
from cruel and unusual punishment. [Doc. 1 at 11] Plaintiffs
complaint seeks declaratory and injunctive relief, as well as
compensatory and punitive damages. [Doc. 1 at 16, 20]
Court examines "procedural due process questions in two
steps: the first asks whether there exists a liberty or
property interest which has been interfered with by the
[defendants]... the second examines whether the procedures
attendant upon that deprivation were constitutionally
sufficient." Kentuclcy Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (citations omitted).
A prisoner does not have a liberty interest in his or her
classification and, therefore, "[c]hanging a
prisoner's classification does not deprive him of liberty
under the due process clause." Sparks v.
Foster, 241 F.App'x 467, 471 (10th Cir. 2007)
("Because Sparks does not have a liberty interest in a
particular classification, be it a gang member or within an
[Security Threat Group], he cannot maintain an action based
on the classification under the Fourteenth Amendment.")
(unpublished); see also Templeman v. Gunter, 16 F.3d
367, 369 (10th Cir. 1994) ("Changing an inmate's
prison classification ordinarily does not deprive him of
liberty, because he is not entitled to a particular degree of
liberty in prison."); Muniz v. Moore, 375
F.App'x 841, 844 (10th Cir. 2010) (holding that the
plaintiffs "incorrect classification claim fails because
due process generally does not give prisoners rights to a
particular classification") (unpublished).
a liberty interest may arise under the due process clause if
the classification extends the length of an inmate's
sentence or "imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life." Sandin v. Conner,515 U.S. 472, 484
(1995). Plaintiff does not allege that his classification as
a prison gang member has extended the length of his sentence,
but he does allege that it has resulted in his segregation