United States District Court, D. New Mexico
MEMORANDUM OPINION AND FINAL ORDER OF
MATTER is before the Court sua sponte on
the Complaint (Tort) and Amended Complaint filed by Plaintiff
Victor Andrew Apodaca Sr. and removed to this Court on
November 8, 2016 (Doc. 1-1, 1-2) and on the “File
Amended Complaint Proposed” filed by Apodaca on
November 13, 2017 (Doc. 21). The Court will deny Plaintiff
Apodaca's request to file an amended complaint and will
dismiss Plaintiff's claims with prejudice for failure to
state a claim on which relief can be granted. The Court will
also impose a “strike” under 28 U.S.C. §
time of filing of his original Complaint, Plaintiff Victor
Andrew Apodaca, Sr., was a prisoner incarcerated at the Lea
County Correctional Facility in Hobbs, New Mexico. (Doc. 1-1
at 1). Plaintiff Apodaca filed his Complaint (Tort) in the
First Judicial District Court, County of Santa Fe, State of
New Mexico on July 6, 2016. (Doc. 1-1 at 1). In the caption,
Plaintiff Apodaca named Warden R.C. Smith, N. Alaniz, Mrs.
Maldonado, Mrs. Strub, Mailroom Supervisor, Stevi Madera, and
Geo Group as Defendants. (Doc. 1-1 at 1). Plaintiff filed an
Amended Complaint on October 13, 2016, naming Secretary of
Corrections N.M.C.D. Greg Marcantel, Director Jerry Roark,
“Employs at L.C.C.F., ” and Mrs. Gomez as
additional Defendants. (Doc. 1-2 at 1). On November 8, 2016,
Defendant Stevi Madera filed a Notice of Removal, removing
the case from the State of New Mexico, First Judicial
District Court to this Court. (Doc. 1). Defendant Madera
removed the case to federal court under 28 U.S.C.
§§1331, 1441, and 1446 on the grounds that
Plaintiff Apodaca asserts federal constitutional claims.
(Doc. 1 at 2).
Court dismissed Apodaca's Complaint and Amended
Complaint, without prejudice, on September 20, 2017. (Doc.
20). The dismissal was based on the Court's determination
that, under the standards set out in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), the Complaint and
Amended Complaint failed to state a factually sufficient or
plausible claim for relief against any Defendant. (Doc. 20 at
4-8). Plaintiff Apodaca failed to articulate specific factual
allegations of individualized conduct in violation of his
constitutional rights. (Doc. 20 at 4-8). The Court also
granted Apodaca thirty (30) days to remedy the deficiencies
in his pleadings and file an amended complaint. (Doc. 20 at
9). The Memorandum Opinion and Order was mailed to
Apodaca's address of record at Northeastern New Mexico
Detention Facility (“NENMDF”), where he is
presently incarcerated and has been incarcerated since May of
2017. (Doc. 18, Doc. 20). The mailing to Apodaca was not
returned as undelivered.
Apodaca did not file an amended complaint or otherwise
respond to the Court's Memorandum Opinion and Order
within the allotted thirty days. Instead, on November 13,
2017, Apodaca filed his “File Amended Complaint
Proposed” (Doc. 21 at 1-4) and the attached
“Motion and Memorandum in Brief Answer to order of
Dismissal Order for GEO Group Attorneys to Show Cause”
(Doc. 21 at 5-8). Doc. 21 does not contain any statement
indicating that it was mailed to the Court in accordance with
the prisoner mailbox rule. Apodaca indicates that
“plaintiff received this order and memorandum opinion
for dismissal and an order of reference relating to prisoner
case on November 7, 2017 as the date stamp it was received on
September 22, 2017”, suggesting that he did not receive
the Court's September 20, 2017 Memorandum Opinion and
Order until November 7. However, his statement is not sworn
under penalty of perjury and he provides no actual evidence
to support this claim.
The Court Will Deny the Motion to Amend:
Court's September 20, 2017 Memorandum Opinion and Order
granted Apodaca leave to file an amended complaint within
thirty days to remedy the defects in his Complaint and
Amended Complaint. (Doc. 20). Under the Court's
Memorandum Opinion and Order, the amended complaint was due
no later than October 20, 2017. Apodaca did not file an
amended complaint within the time granted by the Court and
did not request any extension of the Court's deadline.
Instead, on November 13, 2017, twenty-four days after the
deadline, Apodaca filed his “File Amended Complaint
Proposed.” (Doc. 21).
Apodaca's “File Amended Complaint Proposed, ”
he “request[s] leave to file an amended Complaint
adding party.” (Doc. 21). Because Apodaca's
“File Amended Complaint Proposed” was submitted
after the time granted by the Court had expired and because
the proposed amendment does not remedy the defects in his
prior filings but, instead, seeks to add new parties, the
Court will construe the “File Amended Complaint
Proposed” as a motion for leave to file an amended
complaint under Fed.R.Civ.P. 15.
Rule 15(a)(2), the Court should freely give leave to amend
“when justice so requires.” Fed. R. Civ. O.
15(a)(2). Leave to amend is to be liberally granted. However,
the courts are not required to indulge in futile gestures and
a party moving for leave to amend should present at least a
prima facie meritorious claim. DeLoach v.
Woodley, 405 F.2d 496 (5th Cir.1968); Kaplan v.
United States, 42 F.R.D. 5 (C.D. Cal. 1967). A court
should deny leave to amend under Rule 15(a) where the
proposed “amendment would be futile.”
Jefferson Cnty. Sch. Dist. v. Moody's Investor's
Serv., 175 F.3d 848, 859 (10th Cir. 1999). See,
also, In re Thornburg Mortg., Inc. Sec. Litig., 265
F.R.D. at 579-80; Hall v. Bellmon, 935 F.2d 1106,
1109 (10th Cir. 1991). An amendment is futile if the amended
claims would also be subject to immediate dismissal under the
Rule 12(b)(6) or § 1915(e)(2)(B) standards. Bradley
v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.
motion seeks to add Assistant Warden T. Foster,
Paralegal/Librarian Dwayne Burris and Warden M. Bowen as
Defendants. (Doc. 21 at 1). Apodaca's proposed complaint,
however, does not state a claim for relief against the
additional Defendants. The sole factual allegation
specifically identifying those Defendants states: “A.
Warden T. Foster and Dwayne Burris and Warden Bowen are
Correctional Officers employed at the New Mexico Corrections
Department they are being sued in their individual
capacities.” (Doc. 21 at 2). The proposed amended
complaint does not specify any individualized actions by any
of the additional Defendants, nor does it state how any
actions by those Defendants violated Apodaca's
constitutional rights. Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008); Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008). The attachments to the motion to amend, similarly, do
not suggest circumstances rising to the level of a
constitutional violation by any of the proposed additional
Defendants. (Doc. 21 at 5-63). See Trask v. Franco, 446
F.3d 1036, 1046 (10th Cir. 1998). Moreover, Warden
Bowen is warden at NENMDF, not at the LCCF prison which is
the subject of his original filings. (Doc. 21 at 43-44).
Apodaca's proposed amended complaint fails to state a
claim for relief against any of the additional Defendants
under 42 U.S.C. § 1983 and the proposed amendment would
be subject to immediate dismissal. West v. Atkins,
487 U.S. 42, 48 (1988); Twombly, 550 U.S. at 555.
Allowing Apodaca to amend would be futile and Apodaca's
motion for leave to file an amended complaint will be denied.
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991); Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
Apodaca's Pleadings Still Fail to State a Claim for
Court previously determined that Plaintiff Apodaca's
Complaint and Amended Complaint fail to state a § 1983
claim for relief. Even if the Court were to consider
Apodaca's “File Amended Complaint Proposed”
as another amended complaint, his filings still fail to state
any plausible claim for relief. The Court will dismiss all of
his claims, with prejudice, under Fed.R.Civ.P. 12(b)(6) and
28 U.S.C. § 1915(e)(2)(B).
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. at 48. Plaintiff must
allege some personal involvement by an identified official in
the alleged constitutional violation to succeed under §
1983. Fogarty v. Gallegos, 523 F.3d at 1162. A
plaintiff's complaint must “make clear exactly
who is alleged to have done what to
whom.” Robbins v. Oklahoma, 519 F.3d at
1249-50 (emphasis in the original). Generalized allegations
against “defendants” or “officers, ”
without identification of individual actors and conduct that
caused the deprivation of a constitutional right, do not
state any claim for relief. Robbins v. Oklahoma, 519
F.3d at 1249-50.
Court has determined, applying the § 1915(e)(2)(B) and
Fed.R.Civ.P. 12(b)(6) standards, the original Complaint,
Amended Complaint, and “File Amended Complaint