United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under Fed.R.Civ.P. 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B) on the Complaint for Violation of
Civil Rights filed by Plaintiff Stanley Bedford on November
3, 2016 (“Complaint”). (Doc. 1). It appears on
the face of the Complaint and the record that Bedford's
claims are barred by the applicable state of limitations.
Therefore, the Court will dismiss the Complaint as untimely.
Stanley Bedford filed his Complaint under 42 U.S.C. §
1983 on November 3, 2016. (Doc. 1). In his Complaint, Bedford
claims that he was improperly touched by a Guadalupe County
Correctional Facility doctor, Waldon, on July 10, 2010. (Doc.
1 at 4-5). Bedford seeks to be awarded both compensatory and
punitive damages. (Doc. 1 at 5). On November 5, 2017, the
Court entered an Order to Show Cause. (Doc. 7). In its Order,
the Court notified Bedford that his Complaint appeared to be
time-barred by the three-year statute of limitations of
N.M.Stat.Ann. § 37-1-8 (1978). The Court ordered Bedford
to show cause, within thirty (30) days, why the Complaint
should not be dismissed as untimely. (Doc. 7). Bedford has
not shown cause or otherwise responded to the Court's
November 7, 2017 Order.
Bedford, is proceeding pro se and in forma pauperis.
(Doc. 4). 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 Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. §
1915(e)(2)(B). Under Fed.R.Civ.P. 12(b)(6) the Court must
accept all well-pled factual allegations, but not conclusory,
unsupported allegations, and may not consider matters outside
the pleading. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (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.” 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.
Twombly, 550 U.S. at 555.
§ 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. 28 U.S.C.
§ 1915(e)(2)(B)(ii). 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 whose factual contentions are clearly
baseless.” 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.” Denton
v. Hernandez, 504 U.S. 25, 32 (1992). The court is not
required to accept the truth of the plaintiff's
allegations but, instead, may go beyond the pleadings and
consider any other materials filed by the parties, as well as
court proceedings subject to judicial notice.
Denton, 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). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San
Juan County, 32 F.3d 452, 455 (10thCir.
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. Hall v. Bellmon,
935 F.2d at 1110.
Complaint is for civil rights violations under 42 U.S.C.
§ 1983. (Doc. 1 at 3). Civil rights claims arising in
New Mexico under § 1983 are governed by the three-year
personal injury statute of limitations contained in
N.M.Stat.Ann. § 37-1-8 (1978). Varnell v. Dora
Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th
Cir. 2014). A civil rights claim accrues when the plaintiff
knew or should have known of the injury and its
unconstitutional cause. Varnell, 756 F.3d at1216.
The extent of the injury is irrelevant to the analysis and,
instead, the statute of limitations commences as soon as the
plaintiff has been apprised of the general nature of the
injury. Wallace v. Kato, 549 U.S. 384, 391 (2007);
Harvey v. United States, 685 F.3d 939, 949
(10th Cir. 2012).
applicable statute of limitations for Bedford's claims
under § 1983 is the three-year statute of limitations of
§ 37-1-8. A pleading may be subject to dismissal when an
affirmative defense, such as statute of limitations, appears
on the face of the complaint or petition. Jones v.
Bock, 549 U.S. 199, 214-15 (2007); Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1096 (10th Cir. 2009).
Dismissal on the grounds that the complaint is facially
time-barred properly proceeds under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Aguilera v.
Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir.
case, it appears on the face of the Complaint that the event
giving rise to Bedford's claim occurred, and his civil
rights cause of action accrued, more than three years prior
to filing of the Complaint. Bedford's Complaint alleges
claims arising out of sexual assault by healthcare provider
Dr. Waldon in violation of Bedford's constitutional
rights. (Doc. 1 at 3-5). Bedford specifically alleges that
the event giving rise to his claims took place on or about
“7-10-2010.” (Doc. 1 at 5). Bedford's
Complaint was not filed until November 3, 2016, more than six
years after the event underlying his claims.
Court gave notice to Plaintiff Bedford on November 5, 2017,
that his claims appear to be barred by the applicable statute
of limitations. The Court ordered Bedford to show cause,
within thirty (30) days why the Complaint should not be
dismissed as untimely. (Doc. 7). Bedford has not responded to
the Court's November 5, 2017 Order to Show Cause.
Bedford's Complaint fails to state a claim for relief
because, on its face, it is barred by the three-year statute
of limitations of § 37-1-8. The Court will dismiss the
Complaint as untimely. Jones v. Bock, 549 U.S. at
214-15; Aguilera v. Kirkpatrick, 241 F.3d at 1290;
Varnell v. Dora Consol. Sch. Dist., 756 F.3d at
Court will also impose a “strike” under 28 U.S.C.
§ 1915(g). When it enacted the in forma
pauperis statute, Congress recognized that a citizen
should not be denied an opportunity to commence a civil
action in any court of the United States solely because he is
unable to pay or secure the costs. Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 342 (1948). However,
Congress also recognized that a litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits. Neitzke v.
Williams, 490 U.S. 319, 324 (1989). Noting that prisoner
suits represent a disproportionate share of federal filings,
Congress enacted a variety of reforms designed to filter out
deficient claims. Jones v. Bock, 549 U.S. 199,
reforms include the three-strike rule of the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §
1915(g). The three-strike rule of § 1915(g) states:
“In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
the Court concludes that Bedford's Complaint in this case
fails to state a claim for relief under § 1915(e)(2)(B),
the Court will impose a strike against him under the PLRA
§ 1915(g). Bedford is notified that if he accrues three
strikes, he may not proceed in forma pauperis in any
future civil actions before federal courts unless he is under
imminent danger of serious physical injury. 28 U.S.C. §