United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
the Court is Plaintiff's Amended Civil Rights Complaint.
(Doc. 14). Plaintiff is incarcerated, appears pro
se, and is proceeding in forma pauperis. For
the reasons set out below, the Court will dismiss the Amended
Complaint for failure to state a claim. The Court will also
impose a “strike” under 28 U.S.C. § 1915(g).
filed his original complaint on December 7, 2016. He asserts
Defendants were deliberately indifferent to his medical needs
in violation of 42 U.S.C. § 1983 and the Eighth and
Fourteenth Amendments. Specifically, Plaintiff alleges the
Northwest New Mexico Correctional Facility
(“NNMCF”) medical staff failed to treat his
injuries from a fall. See Doc. 1, p. 2. The medical
staff also purportedly withheld pain medication following a
surgery in retaliation for an earlier grievance. Id.
at p. 3. The complaint seeks $15 million in damages from the
New Mexico Department of Corrections, Centurion Correctional
Healthcare, LLC, and Core Civil. Id. at p. 7.
complaint does not identify any individual wrongdoers, and
none of the named Defendants are subject to liability. The
Tenth Circuit has held that the “New Mexico Department
of Corrections is not a ‘person' subject to suit
under § 1983.” See Blackburn v. Department of
Corrections, 172 F.3d 62 (10th Cir. Feb. 25, 1999)
(unpublished). Further, private corporations like Centurion
Correctional Healthcare, LLC, and Core Civil can only be
liable under § 1983 when the corporation's official
policy or custom caused a deprivation of constitutional
rights, which Plaintiff did not allege. See Hinton v.
City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993)
(A private corporation performing a government function can
be held liable under § 1983 only where a plaintiff shows
“1) the existence of a...policy or custom, and 2) that
there is a direct causal link between the policy or custom
and the injury alleged.”).
these reasons, the Court dismissed the complaint on July 19,
2017 for failing to state a cognizable claim. See 28
U.S.C. § 1915(e)(2) (Courts may sua sponte
dismiss an in forma pauperis complaint “if
… the action … fails to state a claim upon
which relief may be granted.”); 28 U.S.C. §
1915A(b) (The Court must dismiss any inmate complaint that
fails to state a cognizable claim or “seeks monetary
relief from a defendant who is immune…”).
Consistent with Hall v. Bellmon, 935 F.2d 1106, 1109
(10th Cir. 1991), Plaintiff was given thirty days to amend
his complaint to cure the pleading defects. The Court also
provided guidance about what the amended complaint must
allege to survive initial review. In particular, the Court
warned that any amended complaint must “make clear
exactly who 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 original).
filed an Amended Complaint on August 23, 2017,  which
“attach[es] (3) additional pages that state laws,
rules, statutes, [and] records” from “[his]
file.” See Doc. 14, p. 1. All three pages set
forth the legal standards for “Due Process Claims for
Personal Injuries and Property Deprivation, ”
“Cruel and Unusual Punishment.” “The Right
to Receive Medical Treatment, ” and “Conditions
of Confinement.” See Doc. 14, p. 2-4. The
Amended Complaint does not contain new factual averments or
identify any persons responsible for the alleged
constitutional violations. See McLaughlin v. Bd. of
Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000) (“A
cause of action under section 1983 requires the deprivation
of a civil right by a ‘person' acting under color
of state law.”). The Amended Complaint therefore fails
to state a claim on which relief may be granted, and this
action will be dismissed with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b).
dismissal counts as a strike under the Prison Litigation
Reform Act (PLRA), 28 U.S.C. § 1915(g). See Hafed v.
Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir.
2011) (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
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
IS FURTHER ORERED that a strike is
IMPOSED against Plaintiff Karl Marx
Candelaria under 28 U.S.C. § 1915(g).
 The deadline to file an amended
pleading was actually August 19, 2017, but the Court will