United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court, sua sponte
under 28 U.S.C. § 1915(e)(2) and Fed.R.Civ.P. 12(b)(6),
on Plaintiff Rogelio Ezqueda's civil rights complaint
[Doc. 1]. Plaintiff is incarcerated, appears pro se,
and is proceeding in forma pauperis. For the reasons
set out below, the Court will dismiss the complaint for
failure to state a claim and failure to prosecute. The Court
will also impose a "strike" under 28 U.S.C. §
January 3, 2017, Plaintiff filed a civil rights complaint
challenging his treatment at the Northeast New Mexico
Detention Facility. The complaint alleges prison officials
forced him to defecate and vomit into the same tote bag.
[Doc. 1, p. 3-5]. When he complained, the officials allegedly
confiscated his prayer rug. [Doc. 1, p. 5]. Plaintiff also
alleges prison officials dismissed his Prison Rape
Elimination Act ("PREA") report, spread
"rumors" about him, refused to provide adequate
mental health care, and failed to protect him from attack.
[Doc. 1, p. 5-7]. The complaint seeks unspecified money
damages and injunctive relief pursuant to 42 U.S.C. §
1983 and the First, Fourth, Eighth, and Fourteenth
Memorandum Opinion and Order entered August 22, 2017 [Doc.
14], the Court I dismissed the complaint sua sponte
for failing to state a claim upon which relief may be
gtanted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b). Specifically, Plaintiffs allegations lacked
sufficient detail to demonstrate an objectively serious
constitutional deprivation or that the prison officials had a
"sufficiently culpable state of mind." Craig v.
Eberly, 164 F.3d 490');">164 F.3d 490, 495 (10th Cir. 1998) (quotations
omitted). The Court noted, for example, that it was unclear
whether the tote bag incident involved a search for
contraband, what explanation, if any, the prison officials
provided for the intrusion, and whether Plaintiff wished to
proceed under the Fourth or Eighth Amendment. [Doc. 14, p.
3]. The ruling also cited several Tenth Circuit cases
describing how to state a claim based on the denial of
religious freedom, deliberate indifference to medical needs,
and the failure to protect. See, e.g. Kay v. Bemis,
1214');">500 F.3d 1214, 1218 (10th Cir. 2007) (Under the First
Amendment, an inmate's religious beliefs must be
"substantially burdened" by the confiscation and
the officials must lack "legitimate penological
interests that justified the impinging conduct");
Oxendine v. Kaplan, 1 F.3d 1272');">241 F.3d 1272, 1276 (10th Cir.
2001) (The deliberate indifference standard requires the
mental health issues to have "been diagnosed by a
physician as mandating treatment or ... so obvious that even
a lay person would easily recognize the necessity for a
doctor's attention"); Northington v.
Jackson, 1518');">973 F.2d 1518, 1525 (10th Cir. 1992) (the
failure to protect may be actionable if the inmate names the
with Hall v. Bellmon, 1106');">935 F.2d 1106, 1109 (10th Cir.
1991), Plaintiff was given thirty days (i.e., until
September 21, 2017) to amend his complaint. The Court advised
that if he failed to timely file an amended complaint, the
case could be dismissed with prejudice and without further
notice. Plaintiff did not file an amended complaint or
otherwise respond t(j> the Memorandum Opinion and Order.
This action will therefore be dismissed with prejudice
pursuant Case 1:17-cv-00008-MCA-CG Document 15 Filed 10/27/17
Page 3 of 3 to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b) for failure to state a claim on which relief may be
dismissal counts as a strike under the Prison Litigation
Reform Act ("PLRA"j), 28 U.S.C. § 1915(g).
See Hafed v. Bureau of Prisons, 1172');">635 F.3d 1172,
1176-77 (10th Cir. 2ot 1) (holding that dismissal of an
action as frivolous, malicious, or for failure to state a
claim under § 1915(e)(2)(B) counts as a strike under
§ 1915(g)). The Court notifies Plaintiff that if he
accrues three strikes under the PLRA, he may not proceed
in forma pauperis in civil actions before' the
federal courts unless he is under imminent danger of serious
physical injury. See § 1915(g).
foregoing reasons, IT IS HEREBY ORDERED that
this action is DISMISSED with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)
for failure to state a claim on which relief may granted; and
judgment will be entered.
IS FURTHER ORERED that a strike is
IMPOSED against Plaintiff Rogelio Fjzqueda