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Gonzales v. Marcantell

United States District Court, D. New Mexico

September 26, 2017



         THIS 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 court.


         Plaintiff 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 Complaint alleges:

“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, etc.”

         (Doc. 1 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).

         Plaintiff 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).

         The 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).


         Plaintiff 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).

         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. 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.

         The 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.


         Plaintiff 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 ...

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