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Benavidez v. State

United States District Court, D. New Mexico

January 10, 2018



         Before 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.


         In this 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).

         Plaintiff 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.[1] 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.

         Plaintiff 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.

         On 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.[2] 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 violence charges.

         Plaintiff 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[3] 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.

         After 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.


         The 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).

         Because 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.


         Despite 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. 2008).

         The 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 ...

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