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 on motions to dismiss filed by
several of the Defendants (Doc. 2, 4, 6, 20, 55). The Court
will dismiss Plaintiffs federal civil rights claims under 42
U.S.C. § 1983, and will remand the case to state court
for adjudication of Plaintiff s state-law claims.
FACTUAL AND PROCEDURAL BACKGROUND
Monte Whitehead is a prisoner in the custody of the State of
New Mexico. He is proceeding pro se. Plaintiff
Whitehead was charged with 53 counts and pled guilty/no
contest to five counts of criminal sexual penetration of a
minor child. He was sentenced to a term of 15 years of
imprisonment. State of New Mexico v. Monte
Whitehead, Fifth Judicial District Cause No.
D-503-CR-2006-00120. After serving a portion of his prison
sentence in correctional facilities in Estancia and Clayton,
New Mexico, he was transferred to the Otero County Prison
Facility ("OCPF") on March 6, 2013. (Doc. 1-1 at
Whitehead filed his Civil Complaint (Tort)
("Complaint") in the State of New Mexico, County of
Otero, Twelfth Judicial District Court on November 14, 2016.
(Doc. 1-1). He alleges that his suit is authorized by the New
Mexico Tort Claims Act, Chapter 41 NMSA, and seeks redress
for violation of his rights under Constitutional Amendments
I, IV, V, VIII, and XIV, and comparable New Mexico
Constitutional rights. (Doc. 1-1 at 1-2). Whitehead claims
his constitutional rights were violated by several different
conditions of confinement at OCPR. The Complaint was removed
from the Twelfth Judicial District Court to this Court by
Defendant Otero Board of County Commissioners ("Otero
County") on March 1, 2017. (Doc. 1).
County also filed a Motion to Dismiss the Complaint on March
1, 2017. (Doc. 2). On March 6, 2017, Defendants Ricardo
Martinez and Management & Training Corporation filed
their Motions to Dismiss. (Doc. 4, 6). Defendant Eason
submitted his Motion to Dismiss on April 18, 2017. (Doc. 20).
Defendant Keefe Corporation's Motion seeking dismissal of
the Complaint was filed on June 13, 2017. (Doc. 55). Answers
to the Complaint were filed by Defendants Boyd, Smith,
Pascale, Prospero, Waters, and Moreno on March 6, 2017, by
Defendant Frawner on March 21, 2017, by Defendant Management
& Training Corporation on June 12, 2017, and by Defendant
Monks on July 5, 2017. (Doc. 5, 8, 54, 67). Each Answer
raises the defense of failure to state a claim on which
relief can be granted. (Doc. 5 at 19, Doc. 8 at 15, Doc. 54
at 16, Doc. 67 at 16).
DISMISSAL FOR FAILURE TO STATE A CLAIM
Court has the discretion to dismiss a pro se 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; Dimn 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." Twombfy, 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
(10n Cir. 1994). The court is not obligated to
craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiffs claims. Nor may the
court assume the role of advocate for the pro se litigant.
Hall v. Bellmon, 935 F.2d at 1110.
ANALYSIS OF PLAINTIFF WHITEHEAD'S CLAIMS AND
DEFENDANTS' MOTIONS TO DISMISS AND 12(b)(6)
Whitehead'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); Boiden v. City of
Topeka, 441 F.3d 1129 (10th Cir. 2006).
Plaintiff Whitehead's Complaint states:
"Plaintiff Monte Whitehead, pro se, brings this Tort for
Damages for violations of Civil and Constitutional Rights ..
(1) This is a Tort suit authorized by the New Mexico Tort
Claims Act, Chapter 41 NMSA, by a corrections department
prisoner who seeks damages for:
(a) Violation of Plaintiff s Constitutional Amendment rights
I, V, and XIV and comparable New Mexico Constitutional rights
(b) Violation of Plaintiff s Constitutional Amendment rights
IV and VIII and comparable New Mexico Constitutional rights .
(Doc. 1-1 at 1-2). Therefore, the Court construes the
portions of Whitehead's Complaint alleging claims for
violation of rights under the U.S. Constitution as civil
rights claims brought under 42 U.S.C. § 1983.
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any State . .
.subjects or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
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 Trash
v. Franco, 446 F.3d 1036, 1046 (10th Cir.
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. Gailegos, 523 F;3d 1147, 1162
(10lh Cir. 2008). In a Section 1983 action, it is
particularly important that a plaintiffs 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). Nor
do generalized statements that defendants caused the
deprivation of a constitutional right, without plausible
supporting factual allegations, state any claim for relief.
Robbins v. Oklahoma, 519 F.3d at 1249-50.
out, below, the Court concludes that Plaintiffs Complaint
fails to state a claim for relief under § 1983. The
Court will grant the Rule 12(b)(6) motions to dismiss filed
by Defendants Otero County Board of Commissioners (Doc. 2),
Ricardo Martinez (Doc. 4), and Keefe Corporation (Doc. 55),
and the Rule 12(b)(6) defenses raised by Defendants Boyd,
Smith, Pascale, Prospero, Waters, Frawner, Management &
Training Corporation, and Monks (Doc. 5 at 19, Doc. 8 at 15,
Doc. 54 at 16, Doc. 67 at 16) and will dismiss all of
Plaintiff s federal claims in this case.
Claims Against New Mexico Corrections Department and Official
Capacity Claims Against State Officials:
Whitehead identifies the New Mexico Corrections Department as
a Defendant and seeks to assert claims against the New Mexico
Corrections Department Secretary, Gregg Marcantel, New Mexico
Corrections Department Monitor Cruz, and New Mexico
Corrections Department Grievance Officer Laity Phillips in
their official capacities. (Doc. 1-1 at ¶¶ 4, 13,
14, 56, 109). The New Mexico Corrections Department is a
state agency. As such, the claims against it are claims
against the State of New Mexico. Official capacity claims
against New Mexico Corrections Department officers are also
claims against the State.
State is not a "person" within the meaning of 42
U.S.C. § 1983 and, therefore, there is no remedy against
the State under § 1983. Will v. Michigan Dep't
of State Police, 491 U.S. 58, 63-64 (1989). Therefore,
the official capacity claims against the New Mexico
Corrections Department, Secretary Marcantei, Monitor Cruz and
Grievance Officer Phillips will be dismissed.
Civil Rights Claims Against Otero County:
Whitehead asserts claims against the Otero County Board of
Commissioners for violation of his First, Fifth, and
Fourteenth Amendment rights to petition the government for
redress of grievances and due process, violation of his
Fourth and Eighth rights to privacy and to be free of
unreasonable searches, violation of his First Amendment
rights to freedom of speech and of the press, and violation
of his Fourteenth Amendment rights to equal protection and
due process in taxation. See Doc. 1-1, Claims One,
Two, Four, and Five. Otero County has filed a Motion to
dismiss the claims against it under Fed.R.Civ.P. 12(b)(6) on
the grounds that the allegations of the Complaint are
insufficient to state a § 1983 claim for relief. (Doc.
county may not be held liable under a respondeat
superior theory in a § 1983 case. Instead, a
plaintiff seeking to impose § 1983 liability on a county
must identify a custom or policy that caused the plaintiffs
injury. J.B. v. Washington County, 127 F.3d 919, 923
(10th Cir.1997) (citing Board of County
Comm'rs of Bryan County v. Brown, 520
U.S. 397, 403 (1997)). To establish liability of a county
government under § 1983, a plaintiff must demonstrate:
(i) that an officer committed an underlying constitutional
violation; (ii) that a county policy or custom exists; and
(iii) that there is a direct causal link between the policy
or custom, and the injury alleged. See Graves v.
Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Such a
policy or custom may be established by proving the existence
of an express policy or custom, or the provision of
inadequate training, or a practice so widespread as to
constitute custom or usage with the force of law. Winters
v. Board o/County Comm'rs, 4 F.3d 848, 855
(10th Cir.1993); Sauers v. Salt Lake County, 1 F.3d
II22, 1129 (10th Cir.1993).
"Otero County was the owner of OCPF and therefore
responsible for ensuring that the contract obligations of
Management and Training Corporation (MTC)-the private prison
contractor who manages OCPF-were met. . . Otero County had a
statutory obligation to appropriate funds and otherwise
provide the necessary funding to maintain and operate a
facility for the incarceration of prisoners."
(Doc. 1-1 at ¶ 5).
"Defendants Otero County . .. maintained a custom or
policy which permitted or condoned the foregoing violations
of Plaintiffs Constitutional rights."
(Doc. 1-1 at ¶44).
"Otero County allowed this culture to propogate