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Gadbury v. Riley

United States District Court, D. New Mexico

November 30, 2017

PAUL R. GADBURY, Plaintiff,
v.
JUDGE LISA B. RILEY; DISTRICT ATTORNEY DREW INMAN; CARLSBAD LAW ENFORCEMENT and OFFICE OF THE FIFTH JUDICIAL DISTRICT COURT, Defendants.

          Paul R. Gadbury Central New Mexico Correctional Facility Los Lunas, New Mexico Plaintiff pro se

          MEMORANDUM OPINION AND ORDER

         THIS 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. § 1915(g)(“PLRA”).

         FACTUAL AND PROCEDURAL BACKGROUNDS

         Plaintiff 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.

         Although 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.[1]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. D-503-CR-2013-00236.

         In case 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 incarcerated.

         LAW REGARDING DISMISSAL FOR FAILURE TO STATE A CLAIM

         Gadbury 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.

         Under § 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.

         In 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.

         In 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).

         LAW REGARDING JUDICIAL AND ...


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