United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. § 1915(A) and
Fed.R.Civ.P. 12(b)(6) on the Prisoner's Civil Rights
Complaint filed by Plaintiff Alexander Velasquez on August 3,
2017 (“Complaint”) (Doc. 1). The Court will
dismiss the Complaint based on absolute judicial immunity,
failure to state a claim, and failure to comply with a Court
Alexander Velasquez is a pretrial detainee at the
Metropolitan Detention Center. Velasquez was indicted by a
Grand Jury and is awaiting trial in the Second Judicial
District Court, State of New Mexico, on multiple charges
including First Degree Murder, Kidnapping, Aggravated
Burglary, Armed Robbery, and Possession of a Firearm by a
Felon. See Doc. 1 at 2; State v. Velasquez,
No. D-202-CR-201601881. See, also, United States v.
Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007) (The
Court may take judicial notice of publicly filed records in
this court and other courts concerning matters that bear
directly upon the disposition of the case at hand). He is
proceeding pro se in this Court.
Velasquez filed his Prisoner Civil Rights Complaint on August
3, 2017. (Doc. 1). Velasquez names, as Defendants, Second
Judicial District Judge Cindy Leos and his criminal defense
counsel, Public Defender Kathleen Rhinehart. (Doc. 1 at 1-2).
Velasquez claims that Attorney Rhinehart has been ineffective
in representing him and he wants to substitute different
counsel. Velasquez also contends that Judge Leos has not
allowed him to properly explain why he does not want to be
represented by Attorney Rhinehart. (Doc. 1 at 3). He claims
the actions of Attorney Rhinehart and Judge Leos have
deprived him of his constitutional right to effective
assistance of counsel. (Doc. 1 at 2). The Court takes
judicial notice that Attorney Rhinehart has withdrawn from
representation and Velasquez is now represented by retained
counsel in case no. D-202-CR-201601881. United States v.
Ahidley, 486 F.3d at 1192 n. 5.
filed his Complaint, Plaintiff Velasquez did not pay the
filing fee or submit an application to proceed without
prepayment of fees and costs. The Court issued an Order to
Cure Deficiency on August 10, 2017, ordering Velasquez to
either pay the filing fee or submit an application to proceed
without prepayment of fees under 28 U.S.C. § 1915 within
thirty days. (Doc. 8). Velasquez did not pay the filing fee,
did not submit an application to proceed under § 1915,
and did not otherwise respond to the Order to Cure
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; 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.
Claims Against Judge Leos are Barred by Judicial
has brought suit against Second Judicial District Judge Cindy
Leos. (Doc. 1 at 1). Velasquez's civil rights claims
against a judicial officer acting as a judge are clearly
barred by absolute judicial immunity. See Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978); Christensen
v. Ward, 916 F.2d 1462, 1473-76 (10th Cir.
1990); Hunnicutt v. Sewell, 147 N.M. 272, 277-78,
219 P.3d 529, 534-45 (Ct. App. 2009). It is well settled that
the doctrine of judicial immunity is applicable in actions,
such as the case at bar, with 42 U.S.C. § 1983 claims as
well as state law claims. Van Sickle v. Holloway,
791 F.2d 1431, 1434-35 (10th Cir.1986); Collins on Behalf
of Collins v. Tabet, 111 N.M. 391, 396, 806 P.2d 40, 45
(1991). Absolute immunity bars all suits for money damages
for acts made in the exercise of judicial discretion.
Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th
United States Supreme Court has recognized absolute immunity
for officials whose special functions or constitutional
status requires complete protection from suit. Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982). The
purpose of absolute judicial immunity is:
“to benefit the public, ‘whose interest is that
the judges should be at liberty to exercise their functions
with independence and without fear of consequences.' The
Supreme Court has recognized that ‘the loser in one
forum will frequently seek another, charging the participants
in the first with unconstitutional animus.' Therefore,
absolute immunity is necessary so that judges can perform
their functions without harassment or intimidation.”
Van Sickle v. Holloway, 791 F.2d at 1434-35.
Velasquez's allegations against Judge Leos relate to the
performance of her judicial functions. (Doc. 1 at 2-3). To
the extent Velasquez sought injunctive relief against Judge
Leos, his clams have been mooted by the withdrawal and
substitution of retained counsel for Velasquez in his
criminal case. See Murphy v. Hunt, 455 U.S. 478-481
(1982). Any damages claims against Judge Leos are for acts
that were unquestionably made in the exercise of judicial
discretion and are barred by absolute judicial immunity.
Harlow, 457 U.S. at 807.
Defender Rhinehart Does Not Act Under Color of State
also asserts clams against his Public Defender, Kathleen