United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court sua sponte under
28 U.S.C. § 1915A and Rule 12(b)(6) of the Federal Rules
of Civil Procedure on the Complaint (Tort) filed by Plaintiff
Nick James Gonzales in state court on September 29, 2016 and
removed to this Court on November 21, 2016. (Doc. 1 at 5-17).
The Court will dismiss all federal claims in the Complaint
for failure to state a claim on which relief can be granted
and will remand Plaintiff's state-law claims to state
AND PROCEDURAL BACKGROUND
Nick James Gonzales is an inmate incarcerated at the
Penitentiary of New Mexico in Santa Fe. (Doc. 1 at 5).
Gonzales has been diagnosed with a chronic health condition,
Hepatitis C. (Doc 1 at2). Gonzales filed his Complaint (Tort)
in the State of New Mexico, County of Santa Fe, First
Judicial District Court on September 29, 2016. (Doc. 1). His
“1. This is a tort suit authorized by the New Mexico
Tort Claims Act, Chapter 41 N.M.S.A., by a corrections
department prisoner who seeks damages for the following:
(a) Negligence, Medical Malpractice, deliberate indifference
to a serious medical issue ‘(but not limited to)'
negligent supervision or cruel and unusual treatment, denial
of rights secured by the Constitution, mental cruelty,
at 5). The Complaint names, as Defendants, Gregg Marcantel,
Secretary of Corrections, Centurion Medical Care Providers,
Jose Martinez, doctor, and Tisha Romero, RN-BSN Service
Administrator. (Doc. 1 at 5). The case was removed to this
Court by Defendant Marcantel on November 21, 2016, based on
allegations that Defendants violated Gonzales' federal
constitutional rights. (Doc. 1 at 1-3).
Gonzales has filed two Motions to Deny and Dismiss
Defendants' Removal, asking that the case be remanded to
state court. (Doc. 4, 8). Gonzales has also filed a Motion
for Reconsideration on All Pleadings Along With
Plaintiff's Motion to Amend Complaint (Doc. 14) and a
Petition for Protective Injunctive Preliminary Order (Doc.
19). Defendant Marcantel filed a Motion to Dismiss the case.
(Doc. 3). Last, Defendant Marcantel also filed a Motion to
Exclude Plaintiff's Request for Order to Show Cause and
Request for Preliminary Injunction (Doc. 18).
Court takes judicial notice that Plaintiff Gonzales filed a
prior proceeding asserting the same claims in this Court,
Nick James Gonzales v. Corizon Health Care Providers, et
al., NO. CV 15-00890 WJ/GJF. Duhart v. Carlson,
469 F.2d 471, 473 (10th Cir. 1972)(a district
court may take judicial notice of its own records). In his
prior suit, Plaintiff also contended that the treatment of
his Hepatitis-C condition by prison officials constituted
deliberate indifference to serious medical needs in violation
of his Eighth Amendment rights to be free of cruel and
unusual punishment. (CV 15-00890 WJ/GJF Doc. 1). The Court
concluded that, although Plaintiff's allegations might
state a claim for medical malpractice or negligence under
state law, they did not rise to the level of an Eighth
Amendment violation and dismissed his federal claims without
prejudice. See CV 15-00890 WJ/GJF Doc. 36).
FOR FAILURE TO STATE A CLAIM
Gonzales is proceeding pro se. 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 Fed.R.Civ.P. 12(b)(6). 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).
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. Twombly, 550 U.S. at 555; 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.
Court liberally construes the factual allegations in
reviewing a pro se complaint. 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.
OF PLAINTIFF'S CLAIMS
Gonzales originally filed this proceeding in state court as a
tort action under the New Mexico Tort Claims Act. (Doc. 1 at
5). However, his Complaint also alleges deliberate
indifference to serious medical needs in violation of his
rights under the Constitution. (Doc. 1 at 5). Plaintiff's
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 U.S. Constitution. See, 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