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 Under the Civil
Rights Act filed by Plaintiff Carlito Quintana-Speas on
February 3, 2017 and transferred to this Court from the
Eastern District of California on February 10, 2017. (Doc.
1). The Court will dismiss the Complaint for failure to state
a claim on which relief can be granted, but will grant
Plaintiff Quintana-Speas the opportunity to file an amended
PLAINTIFF'S PENDING MOTIONS
Plaintiff's Motion to Appoint Counsel.
has filed a Motion: To Appoint Legal Counsel. (Doc. 10).
There is no right to appointment of counsel in a civil rights
case. Instead, the decision whether to request assistance of
counsel rests in the sound discretion of the Court.
Beaudry v. Corrections Corp. of America, 331 F.3d
1164, 1169 (10th Cir.2003); MacCuish v. United
States, 844 F.2d 733, 735 (10th Cir.1988). In
determining whether to appoint counsel, the district court
should consider the merits of the litigant's claims, the
nature and complexity of the factual and legal issues, and
the litigant's ability to investigate the facts and to
present his claims. Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir.2004). The Court
has reviewed the complaint and subsequent filings in light of
the foregoing factors. Plaintiff appears to understand the
issues in the case and to be representing himself in an
intelligent and capable manner. See Lucero v.
Gunter, 52 F.3d 874, 878 (10th Cir. 1995). Accordingly,
the Court will deny the Motion for Appointment of Counsel.
Plaintiff's Motion to Consolidated.
Quintana-Speas has also filed a motion to consolidate this
case with Smith, et al., v. Corrections Corporation of
America, et al., No. CV 16-1201 MCA/GJF. (Doc. 9).
Consolidation of actions is governed by the provisions of
Fed.R.Civ.P. 42(a). Rule 42(a) provides that “[i]f
actions before the court involve a common question of law or
fact, the court may ... consolidate the actions.”
Fed.R.Civ.P. 42(a)(2). The decision whether to consolidate
actions involving common questions of law or fact is
committed to the sound discretion of the court. Shump v.
Balka, 574 F.2d 1341, 1344 (10th Cir.1978).
deciding whether to grant a motion to consolidate, the court
should initially consider whether the cases to be
consolidated involve a common question of law or fact. If
there is a common question, the court should weigh the
interests of judicial convenience in consolidating the cases
against the delay, confusion, and prejudice that
consolidation might cause. See Servants of the Paraclete
v. Great American Insurance Co., 866 F.Supp. 1560, 1572
(D.N.M. 1994). The purpose of Rule 42(a) is to give the court
broad discretion to decide how cases on its docket are to be
administered to promote expedition and economy while
providing justice to the parties. Where consolidation will
not promote convenience and economy in case administration,
the Court properly denies a motion to consolidate. Shump
v. Balka, 574 F.2d at 1344.
claims in this case involve different named defendants than
the claims in CV16-01201, and the incident allegedly giving
rise to this case occurred on November 14, 2016, after the
Complaint in CV 16-01201 was filed. (Doc. 1 at 3).
Plaintiff's Motion does not claim that the two cases
involve common questions of law or fact. See Doc. 9.
Further, even if the legal theories Plaintiff attempts to
advance are similar, consolidation would not promote
expedition and economy in the administration of the cases. To
the contrary, consolidation would result in unnecessary
confusion and would be prejudicial to the administration of
justice due to the different factual circumstances and
time-frames underlying the two cases. The Court will deny the
Motion to Consolidate. Shump v. Balka, 574 F.2d at
Plaintiff's Second Application to Proceed In Forma
Plaintiff Quintana-Speas has filed a second Application to
Proceed in the District Court Without Prepayment of Fees or
Costs (Doc. 11). Plaintiff's first Application to Proceed
in forma pauperis (Doc. 2) was granted by the Court
on February 24, 2017 (See Doc. 6). The Court will dismiss his
second Application as redundant and unnecessary.
PLAINTIFF'S COMPLAINT FAILS TO STATE A
Quintana-Speas 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
plaintiff's allegations. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). The court is not required to
accept the truth of the plaintiff's 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
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
plaintiff's 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 (10thCir.
1994). The court is not obligated to craft legal theories for
the plaintiff or to supply factual allegations to support ...