United States District Court, D. New Mexico
PAUL R. GADBURY, Plaintiff,
JUDGE LISA B. RILEY; DISTRICT ATTORNEY DREW INMAN; CARLSBAD LAW ENFORCEMENT and OFFICE OF THE FIFTH JUDICIAL DISTRICT COURT, Defendants.
R. Gadbury Central New Mexico Correctional Facility Los
Lunas, New Mexico Plaintiff pro se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiff's
Civil Rights Complaint Pursuant to 42 U.S.C. § 1983,
filed December 20, 2016 (Doc. 1)(“Complaint”).
The Court will dismiss the Complaint for failure to state a
claim on which relief can be granted and impose a strike
under the Prison Litigation Reform Act, 28 U.S.C. §
AND PROCEDURAL BACKGROUNDS
Paul R. Gadbury names, as Defendants, the Honorable Lisa B.
Riley, New Mexico District Judge, Assistant District Attorney
Drew Inman, the Carlsbad Law Enforcement/Carlsbad Police
Department, and the Office of the Fifth Judicial District
Court. See Complaint ¶¶ 2-3, at 1-2.
Gadbury is proceeding under 42 U.S.C. § 1983, alleging
that “[t]hese so called professionals violated my civil
rights; my family's civil rights; and violated many City,
and State laws in this case.” Complaint ¶ 3, at 2.
Gadbury alleges three counts against the Defendants:
Count I: Illegally searched me with no probable cause and did
this by depriving me of my rights to have council [sic]
present; this was a warrantless search which violated due
process; and violates many city and state laws;
unprofessional actions by so called law enforcement; breaking
laws & civil right . . . .
Count II: Illegally obtaining evidence under false pretense
by asking for the garage opener they in fact illegally
searched this vehicle & seized drugs that can not be used
because of how they were obtained . . . .
Count III: Judge & District Attorney allowed this ill
gotten evidence into court knowing that they were covering up
for illegally obtained evidence.
Complaint at 3-4. Gadbury seeks “to have sentence
terminated; to have all costs & fees paid by Defendants;
and to have all future retaliation & harrassment stopped
right now.” Complaint at 5.
Gadbury alleges that he “has no past criminal history,
” Complaint at 3, he has three New Mexico state court
convictions: State v. Gadbury, No.
D-503-CR-2008-00292; State v. Gadbury, No.
D-503-CR-2013-00236; and State v. Gadbury, No.
D-503-CR-2015-00086.Gadbury's Complaint does not identify
which of his criminal convictions he is challenging, but
because Gadbury names Judge Riley and Mr. Inman as
Defendants, based on the state court record it appears his
claims relate to State v. Gadbury, No.
No. D-503-CR-2013-00236, a jury convicted Gadbury on two
counts: possession of a controlled substance (narcotics) and
possession of marijuana. Gadbury was sentenced to 1 year, 4
months, and 24 days of incarceration. He has completed
serving his sentence in D-503- CR-2013-00236, and is
currently on probation following his conviction in case No.
D-503-CR-2015-00086, although he filed his Complaint while
REGARDING DISMISSAL FOR FAILURE TO STATE A
is proceeding pro se and in forma pauperis. The Court has the
discretion to dismiss an in forma pauperis complaint sua
sponte for failure to state a claim upon which relief may be
granted under either rule 12(b)(6) of the Federal Rules of
Civil Procedure or under 28 U.S.C. § 1915(e)(2)(B).
Under rule 12(b)(6), the Court must accept all well-pled
factual allegations, but not unsupported legal conclusions,
and may not consider matters outside the pleading. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); 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.” Bell Atlantic Corp. v.
Twombly, 550 U.S. at 570. A claim should be dismissed
where it is legally or factually insufficient to state a
plausible claim for relief. See Bell Atlantic Corp. v.
Twombly, 550 U.S. at 570.
§ 1915(e)(2)(B), the Court may dismiss the complaint at
any time if the court determines the action fails to state a
claim for relief or is frivolous or malicious. See
28 U.S.C. § 1915(e)(2)(B)(i). The authority granted by
§ 1915 permits the Court the unusual power to pierce the
veil of the complaint's factual allegations and dismiss
those claims for which the factual contentions are clearly
baseless. See Neitzke v. Williams, 490 U.S. 319, 327
(1989). See also Hall v. Bellmon, 935 F.2d at 1109.
The authority to “pierce the veil of the
complaint's factual allegations” means that a court
is not bound, as it usually is when making a determination
based solely on the pleadings, to accept without question the
truth of the plaintiff's allegations. See Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992). The Court,
instead, may go beyond the pleadings and consider any other
materials that the parties file, as well as court proceedings
subject to judicial notice. See Denton v. Hernandez,
504 U.S. at 32-33.
reviewing a pro se complaint, the Court liberally construes
the factual allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992). A pro se
plaintiff's pleadings are judged, however, by the same
legal standards that apply to all litigants and a pro se
plaintiff must abide by the applicable rules of court.
See Ogden v. San Juan Cty, 32 F.3d 452, 455 (10th
Cir. 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. See
Hall v. Bellmon, 935 F.2d at 1110.
deciding whether to dismiss the complaint, in whole or in
part, the court is to consider whether to allow the plaintiff
an opportunity to amend the complaint. Pro se plaintiffs
should be given a reasonable opportunity to remedy defects in
their pleadings. See Reynoldson v. Shillinger, 907
F.2d 124, 126 (10th Cir. 1990). The opportunity to amend
should be granted unless amendment would be futile. See
Hall v. Bellmon, 935 F.2d at 1109. 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. See Bradley v. Val-Mejias,
379 F.3d 892, 901 (10th Cir. 2004).
REGARDING JUDICIAL AND ...