United States District Court, D. New Mexico
JESUS P. LOVATO, Plaintiff,
SAN JUAN COUNTY ADULT DETENTION CENTER, Defendant.
MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE.
matter is before the Court, sua sponte under 28
U.S.C. §§ 1915(e)(2) and 1915A, on Plaintiff Jesus
P. Lovato's Complaint For Violation of Civil Rights,
filed on May 10, 2017. (Doc. 1.) Plaintiff is incarcerated,
appears pro se, and is proceeding in forma pauperis.
For the reasons explained below, the Court will dismiss
Plaintiff's complaint for failure to state a claim on
which relief may be granted under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1) and grant Plaintiff leave
to file an amended complaint within thirty days from the date
of entry of this Memorandum Opinion and Order.
is a pretrial detainee incarcerated at the San Juan County
Adult Detention Center. (Doc. 1 at 2, 4.) Plaintiff's
complaint alleges that Defendant San Juan County Adult
Detention Center is depriving him of proper medical care in
violation of the Fifth and Eighth Amendments to the United
States Constitution. (Id. at 3.) Specifically,
Plaintiff alleges that he has a hypoglycemic disorder, which
requires him to have his blood sugar levels checked daily,
but his blood sugar levels are only being checked once a
week. (Id. at 3, 4.) Plaintiff further alleges that
he is not being provided with the diabetic snacks prescribed
by his doctor to help regulate his blood sugar. (Id.
at 3, 4.) Plaintiff's complaint seeks punitive damages in
the amount of twenty-five million dollars. (Id. 1 at
Court has the discretion to dismiss an in forma
pauperis complaint sua sponte under
§§ 1915(e)(2)(B) and 1915A at any time if the
action is frivolous, malicious, or fails to state a claim on
which relief may be granted. See §§
1915(e)(2)(B), 1915A(b). “Dismissal of a pro se
complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts
he has alleged and it would be futile to give him an
opportunity to amend.” Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). The burden is on the plaintiff
to frame a complaint that contains “sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. “Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements do not suffice.” Id.
is proceeding pro se and “[a] pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Therefore, “if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Id. At the same time, however,
it is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.”
Fifth Amendment right to be free from the deprivation of
“life, liberty, or property, without due process of
law, ” U.S. Const., amend. V, is not applicable to the
states. See Sawyer v. Burke, 504 F. App'x 671,
673 (10th Cir. 2012) (noting that the Fifth Amendment was not
implicated because the plaintiff had “only alleged
constitutional violations committed by agents of the State of
Kansas”). The Fourteenth Amendment, however, prohibits
the states from depriving “any person of life, liberty,
or property, without due process of law.” U.S. Const.,
amend. XIV. Because the sole defendant named in
Plaintiff's complaint is a governmental sub-unit of San
Juan County of the State of New Mexico, the Court liberally
will construe Plaintiff's Fifth Amendment claim as a
Fourteenth Amendment claim. See Id. at 673-74
(construing the plaintiff's Fifth and Fourteenth
Amendment claims “to be one in the same”).
the Fourteenth Amendment due process clause, pretrial
detainees are . . . entitled to the degree of protection
against denial of medical attention which applies to inmates
under the Eighth Amendment.” Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
“Although the constitutional standard for adequate
health care has not been fully spelled out, the Supreme Court
has held in the context of a [42 U.S.C.] § 1983 action
for damages and injunctive relief that only ‘deliberate
indifference to serious medical needs' of prisoners
violates the Eighth Amendment proscription against cruel and
unusual punishment.” Ramos v. Lamm, 639 F.2d
559, 575 (10th Cir. 1980) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). “A medical need
is serious if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity
for a doctor's attention.” Id. (internal
quotation marks and citation omitted). “Deliberate
indifference to serious medical needs is shown when prison
officials have prevented an inmate from receiving recommended
treatment or when an inmate is denied access to medical
personnel capable of evaluating the need for medical
is proceeding under 42 U.S.C. § 1983, and “[a]
cause of action under section 1983 requires the deprivation
of a civil right by a ‘person' acting under color
of state law.” McLaughlin v. Bd. of Trs. of State
Colls. of Colo., 215 F.3d 1168, 1172 (10th Cir. 2000).
Although municipalities and local governments are
“persons” who may be sued under § 1983,
see Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 690 (1978), “[g]enerally,
governmental sub-units are not separate suable entities that
may be sued under § 1983.” Hinton v. Dennis,
362 F. App'x 904, 907 (10th Cir. 2010). Defendant San
Juan County Adult Detention Center is a governmental sub-unit
and, as such, it “is not a person or legally created
entity capable of being sued.” Aston v.
Cunningham, No. 99-4156, 2000 WL 796086 at *4 n.3 (10th
Cir. June 21, 2000); see also White v. Utah, 5 F.
App'x 852, 853 (10th Cir. 2001). Therefore,
Plaintiff's § 1983 claims against Defendant San Juan
County Adult Detention Center will be dismissed without
prejudice for failure to state a claim on which relief may be
granted under 28 U.S.C. § 1915(e)(2)(B)(ii) and
Court will grant Plaintiff leave to file an amended complaint
within thirty days of the date of entry of this Memorandum
Opinion and Order. Plaintiff's amended complaint must
identify the person or persons responsible for the alleged
deprivation of medical care and “must explain what each
defendant did to him . . .; when the defendant did it; how
the defendant's action harmed him . . .; and what
specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007); see
also Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir.
2013) (holding that “the plaintiff's facile,
passive-voice showing that his rights ‘were
violated' will not suffice. Likewise insufficient is a
plaintiff's more active-voice yet undifferentiated
contention that ‘defendants' infringed his rights.
. . . Rather, it is incumbent upon a plaintiff to identify
specific actions taken by particular
defendants in order to make out a viable § 1983 . . .
claim”) (internal quotation marks and citations
omitted). Failure to timely file an amended complaint may
result in the dismissal of this action without further
THEREFORE ORDERED that Plaintiff s Complaint For Violation of
Civil Rights (Prisoner Complaint) (Doc. 1) is DISMISSED
without prejudice; and Plaintiff is granted thirty days from
the date of entry of this Memorandum Opinion and Order in
which to file an amended complaint;
FURTHER ORDERED that the Clerk of the Court is directed to
mail to Plaintiff, together with a copy of this Memorandum
Opinion and Order, a form § 1983 complaint, with
New Mexico state law governs
the capacity of a governmental entity to be sued.
See Fed. R. Civ. P. 17(b). Under New Mexico law,
counties are granted the same powers as municipalities and,
therefore, may sue and be sued. See NMSA 1978,
§§ 3-18-1(A); 4-37-1. However, suits against a New
Mexico county must be brought against “the board of