United States District Court, D. New Mexico
ERNESTO J. BENAVIDEZ, Plaintiff,
STATE OF NEW MEXICO DISTRICT ATTORNEY'S OFFICE, et al., Defendants.
MEMORANDUM OPINION AND ORDER DISMISSING CIVIL RIGHTS
the Court is Plaintiff Ernesto Benavidez's Civil Rights
Complaint (Doc. 1, supplemented by Docs. 3, 17). Plaintiff is
incarcerated, appears pro se, and is proceeding
in forma pauperis. Having reviewed the
complaint sua sponte under 28 U.S.C. §
1915(e)(2) and Fed.R.Civ.P. 12(b)(6), the Court will dismiss
Plaintiff's claims with prejudice.
lawsuit, Plaintiff asserts constitutional claims against all
police officers, prosecutors, and state officials involved in
his arrest and prosecution for aggravated stalking. The
Complaint alleges that on March 12, 2013, Officers Bassiri
and Wharton arrested Plaintiff at the Albuquerque Public
Library. Plaintiff asserts the officers were proceeding
without a warrant and lacked probable cause for the arrest.
He acknowledges that the “officer[s] w[ere] responding
to the a call made by the alleged victim, ” but
complains that they “found [him] prior to making the
response to her call on a violation of restraining
order.” (Doc. 1, p. 7).
was indicted on the stalking charges on March 26, 2013 in New
Mexico's Second Judicial District Court, case no.
D-202-CR-2013-01452. About three weeks later, Plaintiff was
indicted in the same court for criminal sexual penetration,
kidnapping, battery, and damage to property in relation to a
different woman, case no. D-202-CR-2013-01762.
was detained pending trial in both cases until about February
2016. His claims focus on the prosecutors' conduct in
connection with the stalking case. He alleges they proceeded
in a slow and “cumbersome” manner, misrepresented
facts to the state court, and improperly refused to allow him
to interrogate the alleged victim. He also argues that the
prosecution was improper because passing a woman's house
five or six times does not constitute stalking.
February 4, 2016 - while the stalking case was pending -
Plaintiff was convicted by jury of the lesser charge of
damage to property in case no. D-202-CR-2013-01762. He was
sentenced to two years minus two days, with 1, 085 days of
credit for time served. Shortly thereafter, the State
determined that pursuing the stalking charges was no longer
in the interests of justice or judicial economy and entered a
nolle prosequi in case no. D-202-CR-2013-01452. Plaintiff was
released on March 2, 2016, although he is currently
incarcerated pending trial on unrelated stalking/domestic
alleges constitutional claims for malicious prosecution and
wrongful arrest against: the State of New Mexico; the State
Attorney General; the United States Attorney General; the
State District Attorney's Office; the City of
Albuquerque; the Albuquerque Police Department; Mayor Richard
Berry; Kari Brandenburg; all prosecutors involved in the
case; and all arresting officers. Plaintiff seeks $2.5
million in damages. He alleges that because of the wrongful
arrest and prosecution, his fiancé Jolene became
pregnant by another man and he lost custody of his children,
his job, his assault rifle, and his car. Plaintiff also asks
that the defendants receive additional training and be
subjected to hair follicle drug testing.
filing the complaint, Plaintiff filed a motion seeking leave
to again name Officers Bassiri and Wharton as defendants.
(Doc. 3). He also filed a Motion to Amend, which clarifies
that he does not seek monetary relief from any defendant with
immunity but instead intends to recover from the United
States Treasury, the State of New Mexico, and the City of
Albuquerque. (Doc. 17). Consistent with the obligation to
construe pro se pleadings liberally, the Court will
grant both motions and consider the complaint and motions
collectively as the operative pleading.
GOVERNING SUA SPONTE REVIEW
Court has discretion to dismiss an in forma pauperis
complaint sua sponte under § 1915(e)(2)
“at any time if … the action … is
frivolous or malicious; [or] fails to state a claim on which
relief may be granted.” The Court may also dismiss a
complaint sua sponte under Rule 12(b)(6) if
“it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing [plaintiff] an
opportunity to amend [the] complaint would be futile.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (quotations omitted). In evaluating whether an in
forma pauperis complaint states a plausible claim, the
Court may “pierce the veil of the complaint's
factual allegations” and consider other materials such
as state court proceedings subject to judicial notice.
Neitzke v. Williams, 490 U.S. 319, 327 (1989);
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Plaintiff is pro se, the Court liberally construes
the factual allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992). However, the
pleadings are still judged by the same legal standards that
apply to all litigants. Ogden v. San Juan County, 32
F.3d 452, 455 (10th Cir. 1994). The Court is not obligated to
craft legal theories for the plaintiff or assume the role of
advocate. Hall, 935 F.2d at 1110.
various rules and statutes cited by Plaintiff, his claims
must be construed under 42 U.S.C. § 1983, which is the
only “remedial vehicle for raising claims based on the
violation of constitutional rights.” See Brown v.
Buhman, 822 F.3d 1151, 1161 n. 9 (10th Cir. 2016). To
state a claim under § 1983, “a plaintiff must
allege the violation of a right secured by the Constitution
…, and must show that the alleged deprivation was
committed by a person acting color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). The
allegations must also demonstrate a connection between the
official conduct and the constitutional violation.
Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.
crux of Plaintiff's Complaint is that he was subjected to
malicious prosecution and false arrest in violation of the
Fourth and Fourteenth Amendments. He appears to believe that
his release from incarceration after almost three years on a
nolle prosequi demonstrates he should not have ...