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Apodaca v. Smith

United States District Court, D. New Mexico

September 20, 2017

VICTOR ANDREW APODACA, Plaintiff,
v.
WARDEN R.C. SMITH, N. ALANIZ, MRS. MALDONADO, MRS. STRUB, MAILROOM SUPERVISOR, STEVI MADERA, GEO GROUP, et al., Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         THIS 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.

         1. Factual and Procedural Background

         Plaintiff 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).

         In the 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).

         On 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).

         2. Standards for Failure to State a Claim

         Plaintiff 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.

         Under § 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.

         In 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).

         3. Apodaca's Complaint Fails to State a Claim

         Apodaca's 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.

         To 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).

         Further, 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 original).

         A. ...


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