United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. §
1915(e)(2)(B), Fed.R.Civ.P. 12(b)(6), and Fed.R.Civ.P. 41(b)
on the Prisoner's Civil Rights Complaint filed by
Plaintiff Danny Murray on May 16, 2016. (Doc. 1)
(“Complaint”). The Court will dismiss the
Complaint for failure to state a claim on which relief can be
granted, failure to comply with Court orders, and failure to
prosecute. The Court will also impose a “strike”
under 28 U.S.C. § 1915(g).
Danny Murray is a prisoner incarcerated at the Southern New
Mexico Correctional Facility on multiple state convictions
for aggravated assault, aggravated battery, issuance of
worthless checks, conspiracy to commit residential burglary,
and conspiracy to commit larceny. See State of New
Mexico cause nos. D-1333-CR-200400042, D-202-CR-201103479,
D-1333-CR-201300047, D-1333-CR-201000077, and
D-1333-CR-201000078. He is proceeding pro se and in forma
pauperis. In his Complaint, he claims violation of his
First, Fourth, Eighth, and Fourteenth Amendment rights and he
seeks nine hundred million dollars in damages under 42 U.S.C.
§ 1983. (Doc. 1 at 4, 7). Murray names, as
Defendants, the “staff at Southern New Mexico
Correctional Facility, ” Unit Manager Bob Miyagasheima,
Caseworker Louis Hernandez, Deputy Warden K. Hodges,
Correctional Officer Viaz, Correctional Officer Sanchez,
Warden James Mulheron, Governor Susana Martinez, and former
Secretary of Corrections Greg Marcantel. (Doc. 1 at 1-3).
of Plaintiff Murray's Complaint alleges
“Discrimination Personal/Unsanitary Conditions”
in violation of the Fourth and Eighth Amendment. Murray
asserts that he was forced to use a rag/sheet as toilet paper
and was denied on multiple occasions when he asked for toilet
paper. (Doc. 1 at 4). He makes the following allegations
against Defendants Hernandez, Miyagasheima, and Mulheron:
“Caseworker Hernandez & Unit Manager Bob
Miyagasheima & Co's on duty I personal notified
Co's & caseworker, unit manager always refuses to
talk to me, but I'm sure Hernandez (caseworker) told him
!!!. . . Warden is reading & answering grievances, so was
(Doc. 1 at 4). Claim I contains no other factual allegations
of individual conduct on the part of any Defendant.
II asserts “mail-due process & discrimination
personal & unsanitary conditions” in violation of
Murray's First, Fourth, and Eighth Amendment rights.
(Doc. 1 at 4). Murray claims that he has been discriminated
against because he couldn't get a bar of soap for at
least 3 weeks, and couldn't get any razor, shampoo, or
deodorant for a month's time. He states he only had 7
cents in his inmate account, which gives him indigent status,
and the “Warden is reading & answering grievances,
so was aware.” (Doc. 1 at 4). Claim II sets out no
allegations of individual conduct other than the allegation
that, because he was reading and answering grievances, the
Warden was aware of the situation.
the allegations of Claim III are for “deliberate
indifference to a serious medical need” under the
Eighth Amendment. (Doc. 1 at 5). Murray states that, when he
came to the facility, he was on a no-meat diet because he has
an unspecified medical condition that makes him allergic to
processed meats. He alleges the processed meat has a label
that reads “not for human consumption.” He also
claims that he has been denied medical treatment and
medications for this condition. (Doc. 1 at 5). Claim III is
devoid of any allegations of individual conduct by any of the
February 10, 2017, the Court entered a Memorandum Opinion and
Order dismissing Plaintiff's claims without prejudice for
failure to state a claim for relief and granting him leave to
file an amended complaint within 30 days. (Doc. 20). The
Court also advised Plaintiff that, if he did not file an
amended complaint within the 30 day period, the Court could
enter a final order of dismissal without further notice.
(Doc. 20 at 6). On March 6, 2017, Plaintiff Murray filed a
Motion for Extension of Time to File an Amended Complaint.
(Doc. 21). The Motion was an open-ended request that did not
specify how much additional time Plaintiff needed to file the
amended complaint. The only grounds given for the extension
was “to afford petitioner an opportunity to receive and
refile an amended complaint cause petitioner is not receiving
his mail.” (Doc. 21). On June 12, 2017, the Court
denied Plaintiff Murray's Motion for Extension of Time,
but granted Murray an additional 21 days to show cause why
the case should not be dismissed with prejudice. (Doc. 22).
The Order advised Plaintiff Murray that, if he did not show
cause within 21 days of entry of the Order, the Court could
dismiss this case with prejudice and without further notice.
Murray did not file any amended complaint and did not respond
to the Court's Order to Show Cause.
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). A
claim should be dismissed where it is legally or factually
insufficient to state a plausible claim for relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In
deciding whether to dismiss the complaint, in whole or in
part, the court is to allow the plaintiff a reasonable
opportunity to remedy the defects in his pleadings.
Reynoldson v. Shillinger, 907 F.2d 124, 126
(10th Cir. 1990). An opportunity to amend should
be granted unless amendment would be futile. Hall v.
Bellmon, 935 F.2d at 1109.
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
(10thCir. 2008). In a Section 1983 action, it is
particularly important that a plaintiff's 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
Court previously determined, the Complaint fails to state a
claim for relief against any named Defendant. (Doc. 20).
Murray's Complaint contains no allegations, whatsoever,
of individual conduct by Deputy Warden K. Hodges, C.O. Viaz,
C.O. Sanchez, Governor Susana Martinez, or Secretary of
Corrections Greg Marcantel. Robbins v. Oklahoma, 519
F.3d at 1249-50. Further, the Southern New Mexico
Correctional Facility may not be held vicariously liable for
the conduct of unidentified “staff.” Ashcroft
v. Iqbal, 556 U.S. at 676. Moreover, Southern New Mexico
Correctional Facility is not a “person” within
the meaning of 42 U.S.C. § 1983 and, therefore, there is
no remedy against it under § 1983. Will v. Michigan
Dep't of State Police, 491 U.S. 58, 63-64 (1989). As
for Warden Mulheron, Unit Manager Miyagasheima, and
Caseworker Hernandez, Murray alleges no more than that they
knew, or he thinks they knew, about the alleged unsanitary
conditions. He does not set out how any of them acted to
violate any constitutional right. The allegations against
Defendants Mulheron, Miyagasheima, and Hernandez are
insufficient to state any plausible claim for relief under
§ 1983. Trask v. Franco, 446 F.3d at 1046;
Twombly, 550 U.S. at 570.
with Hall v. Bellmon, 935 F.2d at 1109, Plaintiff
was given the opportunity to amend his Complaint to remedy
the defects in his pleading. Plaintiff was also advised that,
if he failed to file an amended complaint, his Complaint
could be dismissed with prejudice and without further notice.
(Doc. 11 at 7). Murray did not file an amended complaint.
Murray was also given an additional 21 days to show cause why
the case should not be dismissed. (Doc. 22). Despite being
given, in effect, a total period of five months to do so,
Plaintiff has failed to file any amended complaint or
otherwise explain to the Court why his Complaint should not
be dismissed. Plaintiffs Complaint (Doc. 1) fails to state a
claim on which relief can be granted under both Fed.R.Civ.P.
12(b)(6) and 28 U.S.C. § 1915(e)(2)(B). Under
Fed.R.Civ.P. 41(b), Plaintiff has also failed to comply with
the Court's order to file an amended complaint, failed to
comply with the Court's Order to Show Cause, and failed
to prosecute this action. The Plaintiffs Complaint will,
therefore, be dismissed with prejudice. Because the Court
concludes that Plaintiffs Complaint fails to state a claim
for relief under § 1915(e)(2)(B), the Court will impose
a strike against him as provided ...