United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court under 28 U.S.C. §§
1915(e)(2)(B) and 1914A and Fed.R.Civ.P. 12(b)(6) on the
Complaint (Tort) and Amended Complaint filed by Plaintiff
Victor Andrew Apodaca Sr. and removed to this Court on
November 8, 2016 (Doc. 1-1, 1-2). Also pending before the
Court is Defendant Stevi Madera's Motion for More
Definite Statement (Doc. 2). The Court will deny Defendant
Madera's Motion as moot and will dismiss the Complaint
for failure to state a claim on which relief can be granted.
Factual and Procedural Background
Victor Andrew Apodaca, Sr., is a prisoner incarcerated at the
Lea County Correctional Facility in Hobbs, New Mexico. (Doc.
1-1 at 1). Plaintiff Apodaca filed his Complaint (Tort) in
the First Judicial District Court, County of Santa Fe, State
of New Mexico on July 6, 2016. (Doc. 1-1 at 1). Although his
Complaint states that the suit is authorized under the New
Mexico Tort Claims Act, Chapter 41 N.M.S.A., Apodaca alleges
violation of due process and retaliation in violation of
First, Fifth, and Fourteenth Amendment constitutional rights.
(Doc. 1-1 at 1).
caption, Plaintiff Apodaca names Warden R.C. Smith, N.
Alaniz, Mrs. Maldonado, Mrs. Strub, Mailroom Supervisor,
Stevi Madera, and Geo Group as Defendants. (Doc. 1-1 at 1).
Plaintiff filed an Amended Complaint on October 13, 2016,
naming Secretary of Corrections N.M.C.D. Greg Marcantel,
Director Jerry Roark, Employs at L.C.C.F., and Mrs. Gomez as
additional Defendants. (Doc. 1-2 at 1).
November 8, 2016, Defendant Stevi Madera filed a Notice of
Removal, removing the case from the State of New Mexico,
First Judicial District Court to this Court. (Doc. 1).
Defendant Madera removed the case to federal court under 28
U.S.C. §§1331, 1441, and 1446 on the grounds that
Plaintiff Apodaca asserts federal constitutional claims.
(Doc. 1 at 2). Defendant Madera also filed a Motion for More
Definite Statement on November 8, 2016. (Doc. 2).
Standards for Failure to State a Claim
Apodaca is proceeding pro se and in forma pauperis
on civil rights claims under 42 U.S.C. § 1983. 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, 555 (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 570.
§ 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.
§ 915(e)(2)(B)(2). 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
32-33. In 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 the plaintiff's 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).
Apodaca's Complaint Fails to State a
Complaint is filed on a New Mexico state form for claims
under the New Mexico Tort Claims Act, N.M.Stat.Ann. §
41-4-1, et seq. However, in his Complaint and in the
Amended Complaint, Apodaca alleges violation of his rights
under the First, Fifth, and Fourteenth Amendments to the U.S.
Constitution. See Doc. 1-1 at 2; Doc. 1-2 at 1. The
Complaint does not expressly allege causes of action under 42
U.S.C. § 1983. However, 42 U.S.C. § 1983 is the
exclusive vehicle for vindication of substantive rights under
the Constitution. Baker v. McCollan, 443 U.S. 137,
144 n. 3 (1979); Albright v. Oliver, 510 U.S. 266,
271 (1994) (Section 1983 creates no substantive rights;
rather it is the means through which a plaintiff may seek
redress for deprivations of rights established in the
Constitution); Bolden v. City of Topeka, 441 F.3d
1129 (10th Cir. 2006). Therefore, the Court
construes Apodaca's claims for violation of rights under
the Constitution as civil rights claims brought under 42
U.S.C. § 1983.
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