United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
the Court is Plaintiff's civil rights complaint (Doc. 1,
supplemented by Docs. 13 and 14) and motion seeking a review
his civil rights claims (Doc. 19). Plaintiff is incarcerated,
appears pro se, and is proceeding in forma
pauperis. He alleges prison officials waged a
“campaign of terror” against him when he
complained about sexual harassment. After conducting a
sua sponte review under 28 U.S.C. § 1915(e)(2)
and Fed.R.Civ.P. 12(b)(6), the Court will dismiss the
complaint and grant Plaintiff thirty (30) days from the entry
of this Order to amend his pleading.
Governing Sua Sponte Review
Court has discretion to dismiss an in forma pauperis
complaint sua sponte under § 1915(e)(2)
“at any time if … the action … is
frivolous or malicious; [or] fails to state a claim on which
relief may be granted.” The Court may also dismiss a
complaint sua sponte under Rule 12(b)(6) if
“it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing [plaintiff] an
opportunity to amend [the] complaint would be futile.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (quotations omitted). The plaintiff must 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 a cause of action and conclusory
allegations, without more, do not suffice. Id.
Plaintiff is pro se, his “pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”
Hall, 935 F.2d at 1110. While pro se
pleadings are judged by the same legal standards that apply
to represented litigants, the Court can overlook the
“failure to cite proper legal authority, …
confusion of various legal theories, … poor syntax and
sentence construction, or … unfamiliarity with
pleading requirements.” Id. Further, pro
se plaintiffs should ordinarily be given the opportunity
to cure defects in the original complaint, unless amendment
would be futile. Id. at 1109.
Court assumes the following facts taken from the complaint
arrived at the Roswell Correctional Center
(“RCC”) on January 22, 2016. See Doc. 1,
p. 6. He was not well liked by the prison staff. Id.
Sergeant Ramirez and Lieutenant Rivera were particularly
harsh, calling him lewd names and issuing slang directives
about performing certain sex acts on them. Id. On or
about February 13, 2016, Plaintiff filed a sexual harassment
complaint against those officers pursuant to the Prison Rape
Elimination Act (“PREA”). Id. at p. 6;
Doc. 13, p. 3.
next three days, RCC's warden, counselors, and prison
guards waged a “campaign of terror” against
Plaintiff in retaliation for the complaint. See Doc.
1, p. 6-7. Sergeant Ramirez deprived him of food, conducted
unnecessary strip searches, made him stand naked for hours,
and called him a “snitch” and other names.
Id. at p. 7. Lieutenant Rivera used similar insults
and threatened to put a “hit” on Plaintiff
(i.e., cause other inmates to attack him).
Id. at p. 6. Officers Sena and Juertta told other
prisoners about the PREA complaint, and Lieutenant Briscoe,
Captain Castillo, and Officer Virrueta publically
“shamed” Plaintiff. Id. at p. 6-7; Doc.
13, p. 1. All of these actors also allegedly conspired to
falsify documents, although there are no further details on
that point. See Doc. 1, p. 7. Plaintiff feared for
his safety and requested a transfer to another prison.
See Doc. 1, p. 7.
February 15, 2016, two days after the PREA complaint, another
RCC inmate (Patrick Flores) was attacked. See Doc.
13, p. 2. A confidential informant identified Plaintiff as
one of the assailants. See Doc. 13, p. 3; Doc. 14,
p. 2. However, Plaintiff asserts he was not involved and that
various RCC officers conspired to frame him for the crime.
See Doc. 13, p. 3; Doc. 1, p. 6-7. The extent of
each officer's involvement in the conspiracy is not
clear, as the complaint and supplements are somewhat
inconsistent with respect to each actor's role.
See generally Docs. 1, 13, and 14.
February 16, 2016, Plaintiff was transferred to the Lea
County Correctional Facility (“LCCF”).
See Doc. 1, p. 7; Doc. 13, p. 3. Lieutenant Rivera
(a target of Plaintiff's PREA complaint) drove the
transport van. Id. He turned up the heater even
though it was summer and played loud music during the three
hour trip. See Doc. 13, p. 3. Plaintiff asserts he
suffered heat rash, mental distress, and permanent hearing
arrived at LCCF, Plaintiff was placed in segregation and
charged with the attack on Flores. Id. at p. 4. RCC
Officer John Crocker was assigned to hear that case as well
as the PREA complaint. Id. Plaintiff viewed this as
a conflict, as Officer Crocker was friends with Sergeant
Ramirez and Lieutenant Rivera. Id. Officer Crocker
allegedly warned that Plaintiff would be found guilty for the
attack if he refused to withdraw the PREA complaint.
Id. When Plaintiff refused, he was adjudged guilty
despite reports by two other assailants that he was not
involved in the attack. Id. LCCF placed Plaintiff in
some type of segregation unit pending completion of a
“predator program.” Id. He alleges he
“sat in segregation at LCCF from February 16, 2016 to
May 28, 2016, ” but later states he completed a year in
segregation. Id. at p. 7.
seeks $370, 000 in damages from various wardens, officers,
and caseworkers at RCC and LCCF. He lists Chris Bell and Niel
Garcia as “co-plaintiffs” in the action, but they
did not sign the complaint, are not mentioned in the prayer
for relief, and are clearly meant to be witnesses. The Court
will therefore remove them from the case caption and screen
state a cognizable claim under 42 U.S.C. § 1983, the
plaintiff must demonstrate “a deprivation of a civil
right by a ‘person' acting under color of state
law.” McLaughlin v. Bd. of Trustees, 215 F.3d
1168, 1172 (10th Cir. 2000). The plaintiff must allege that
each government official has personally violated the
Constitution, and that there is a connection between the
conduct and the violation. S ...