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Torres v. Marcantel

United States District Court, D. New Mexico

July 17, 2017

LAYBE TORRES, Plaintiff,
GREGG MARCANTEL, Secretary of Corrections, DWAYNE SANTISTEVAN, S.T.I.U. Administrator, MAJOR RALPH LUCERO, C.N.M.C.F. Unit Manager, TAMARA KING, C.N.M.C.F. Classification Officer, Defendants.


         This 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 Plaintiff's 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, Plaintiff's motion for appointment of counsel will be denied, Plaintiff's motion to excuse the initial partial payment will be denied as moot, Plaintiff's 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.

         I. Plaintiff's Motion For Appointment of Counsel Will Be Denied

         On 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]

         “There 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 Baker v. Simmons, 65 F. App'x 231, 238 (10th Cir. 2003) (internal quotation marks and citations omitted) (unpublished); see 28 U.S.C. § 1915(e)(1).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)).

         The 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, Plaintiff's Motion For Appointment of Counsel [Doc. 5] will be denied.

         II. Plaintiff's Third Motion Show Cause To Excuse Initial Partial Payment Will Be Denied

         On 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 Plaintiff's requests.” [Doc. 16 at 1-2]

         On February 2, 2017, Plaintiff's initial partial payment of $9.35 was received by the Court. [Doc. 11] Therefore, Plaintiff's 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).

         III. Plaintiff's Complaint Fails To State A Claim On Which Relief May Be Granted

         The 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.

         Plaintiff 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.” Id.

         Plaintiff's 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] Plaintiff's complaint seeks declaratory and injunctive relief, as well as compensatory and punitive damages. [Doc. 1 at 16, 20]

         The 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.” Kentucky 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 plaintiff's “incorrect classification claim fails because due process generally does not give prisoners rights to a particular classification”) (unpublished).

         Nonetheless, 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 ...

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