United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING CIVIL RIGHTS
Robert Pipkin filed this action after Defendants allegedly
failed to protect him from attack while he was detained at
the San Juan County Detention Center. See COMPLAINT
FOR VIOLATION OF CIVIL RIGHTS (Doc. No. 1) (COMPLAINT).
Plaintiff is proceeding pro se and in forma
pauperis. See ORDER GRANTING LEAVE TO PROCEED
PURSUANT TO 28 U.S.C. § 1915(b) (Doc. 4). This ruling
pertains to Plaintiff's RESPONSE AND CLARIFICATION (Doc.
14) (RESPONSE), which he filed in lieu of an amended
complaint. For the reasons set forth below, the Court will
dismiss the action with prejudice and impose a
“strike” under 28 U.S.C. § 1915(g).
COMPLAINT alleges that Plaintiff is a sex offender and was
originally housed with similar offenders. Compl. p. 5. After
fighting with another inmate, he was sent to a 23-hour
lockdown unit and was permitted one hour per day of
recreation time. Id. During the recreational hour,
Plaintiff was placed among “a mixed classification
group.” Id. When the other inmates learned he
was a sex offender, they attacked him. Id. He spent
three days in the medical unit. Id. After his
release, Plaintiff refused the hour of recreation time.
Compl. p. 6. He was eventually transferred back to the pod
housing sex offenders. Id. Based on these events,
the COMPLAINT asserts claims under 42 U.S.C. § 1983 and
the Eighth Amendment against, inter alia, SJCDC and its
Warden, Assistant Warden, and various “unknown
employees of” SJCDC. Compl. p. 2-3.
MEMORANDUM OPINION AND ORDER entered November 28, 2017 (Doc.
13), the Court dismissed the COMPLAINT for failing to name a
person subject to liability. See McLaughlin v. Bd. of
Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000) (“A
cause of action under section 1983 requires the deprivation
of a civil right by a ‘person' acting under color
of state law.”). SJCDC is not a proper defendant
because “state-operated detention facilities ….
are not ‘persons' who have the capacity to be sued
under § 1983.” Buchanan v. Okla., 398 F.
App'x 339, 342 (10th Cir. 2010) (unpublished). Further,
there is no indication that Wardens Havel or Webb were
personally involved in Plaintiff's “mixed
classification” placement or otherwise adopted a
“plan or policy … showing [their] authorization
or approval of such” decision. See Dodd v.
Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)
(setting forth the requirements to “demonstrate an
affirmative link between the supervisor and the
with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991), Plaintiff was given thirty days to file an amended
complaint. The MEMORANDUM OPINION AND ORDER provided guidance
about what the amended complaint must allege to survive
initial review. The Court warned that any amended complaint
must “make clear exactly who is alleged to
have done what to whom, to provide each
individual with fair notice as to the basis of the claims
against him or her.” Robbins v. Oklahoma, 519
F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original). The
Court also noted that even if Plaintiff identifies the
individuals involved, the amended complaint must allege that
Plaintiff was “incarcerated under conditions posing a
substantial risk of serious harm” and that the prison
officials were deliberately indifferent to that risk.
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
filed the RESPONSE on December 13, 2017. In it, he alleges:
When Plaintiff was initially placed in mixed classification
placement, Sergeants Reynoso and Gonzales were on duty and
made the decision to place plaintiff in mixed classification.
After [the] incident, upon returning from medical wing, Sgt.
Cockrell informed plaintiff that the jail is overcrowded and
has no choice but to put plaintiff again in mixed
classification in the segregation wing of jail. Sgt. Cockrell
also stated that he can “get away with it” in
segregation although it is not allowed in the protective
custody wing of the jail.
Resp. p. 1. Plaintiff also alleges the mere fact of his
placement demonstrates that Wardens Havel and Webb endorsed
the Sergeants' actions and had a culpable state of mind.
to the Court's directive, the RESPONSE does not take the
form of an amended complaint or otherwise comply with
Fed.R.Civ.P. 8(a). Even if the Court were to excuse this
defect, however, Plaintiff's supplemental allegations
still fail to state a § 1983 claim. Plaintiff asserts
Sergeants Reynoso and Gonzales are responsible for his
initial mixed classification placement, but he has not
alleged any facts regarding their subjective intent. For
example, it is not clear whether Reynoso or Gonzales knew
that Plaintiff was a sex offender, or that allowing him to
spend one hour a day with non-sex offenders in a supervised
recreational setting posed a substantial risk of harm.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(describing the subjective component of a § 1983 claim).
Further, Sergeant Cockrell did not appear to get involved
until after Plaintiff was attacked. By that point, however,
Plaintiff faced no risk because he was refusing any
recreation time. Compl. P. 6.
“the simple fact that all three [S]ergeants placed
[P]laintiff in mixed classification” does not, as
Plaintiff argues, demonstrate that Wardens Havel or Webb
promulgated a policy that placed sex offenders at risk. Resp.
p. 2. See Dodd v. Richardson, 614 F.3d 1185, 1195
(10th Cir. 2010) (Wardens and other supervisors can face
§ 1983 liability based on the “promulgation,
creation, implementation, or utilization of a policy that
caused a deprivation of plaintiff's rights”).
Instead, Plaintiff's filings demonstrate that: (1) the
San Juan County Detention Center has a dedicated sex offender
unit; (2) Plaintiff was removed from the unit for fighting
and placed in solitary confinement; and (3) Sergeants
Reynoso, Gonzales, and Cockrell had “no choice”
but to offer one hour of mixed classification recreation due
to overcrowding. Compl. p. 5; Resp. p. 1. The Court will
dismiss the RESPONSE and this civil rights action for failure
to state a claim on which relief may be granted under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b). This
dismissal counts as a strike under the Prison Litigation
Reform Act (PLRA), 28 U.S.C. § 1915(g). See Hafed v.
Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir.
2011) (holding that dismissal of an action as frivolous,
malicious, or for failure to state a claim under §
1915(e)(2)(B) counts as a strike under § 1915(g)). The
Court notifies Plaintiff that if he accrues three strikes
under the PLRA, he may not proceed in forma pauperis
in civil actions before the federal courts unless he is under
imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
This action is DISMISSED WITH PREJUDICE under 28 U.S.C.
§ 1915(e)(2)(B)(ii) and 1915A(b) for failure to state a
claim on which relief may granted;
JUDGMENT will be entered in favor of Defendants on all
strike is IMPOSED against Plaintiff Robert Pipkin under ...