United States District Court, D. New Mexico
ERIC F. AICHER, Plaintiff,
CORRECTIONS OFFICER POLLARD, et al., JOHN DOE 1-100, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE.
MATTER is before the Court under 28 U.S.C.
§§ 1915A and 1915(e)(2)(B), and Fed.R.Civ.P.
12(b)(6), on the Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983 filed by Plaintiff Eric F. Aicher. (Doc. 1.) The
Court will dismiss Plaintiff's Complaint for failure to
state a claim on which relief can be granted, but will permit
Plaintiff to file an amended complaint.
Eric F. Aicher is serving sentences totaling 31.5 years on
several convictions in New Mexico state court for multiple
sex offenses against minor children and other violent
crimes. At the time he filed the Complaint,
Plaintiff was an inmate incarcerated at the Lea County
Correctional Facility (LCCF) in Hobbs, New Mexico. (Doc. 1 at
1.) Plaintiff's Complaint alleges violation of his First,
Eighth, and Fourteenth Amendment rights under the United
States Constitution and “Human Rights, Article 1, 5,
12, 18 and 19 and New Mexico State Law.” (Id.
at 3.) As Defendants, Plaintiff names Corrections Officer
Pollard and Sergeant Gonzales, Supervisor. (Id. at
1-2.) Plaintiff seeks $750, 000.00 in compensatory and
punitive damages from the Defendants. (Id. at 8.)
Count I, Plaintiff alleges that Officer Pollard
“violated plaintiff's 8th Amendment
rights, his First Amendment as well plaintiffs Fourteenth
Amendment Right afforded to plaintiff under the United States
Constitution as well slanderd the plaintiff by maliciously
taunting the plaintiff with unwanted or unprovoked slurs,
comments and jokes about his ethnicity, religion, faith and
beliefs because plaintiff is Jewish.” (Id. at
3.) Count II of the Complaint avers that “Officer
Pollard is in violation of Plaintiff's Human Rights . . .
by failing to protect plaintiff from unreasonable risk to
life, liberty and happiness and to provide plaintiff with a
safe environment by his statements directed to the plaintiff
in his presences and absent of his presences by
others.” (Id. at 3.) Last, the allegations of
Count III of the Complaint are that “Sgt. Gonzales is
in violation of Plaintiffs 8th, 14th
and 1st Amendment rights afforded Plaintiff by the
U.S. Constitution and New Mexico state law. Sgt. Gonzales was
also negligent by failing to protect plaintiff from
unreasonable risks to life, liberty and happiness. Defendant
was also with deliberate indifference. Sgt. Gonzales is in
violation of plaintiff's Human Rights as follows: 1, 5,
12.” (Id. at 7.)
has filed multiple notices of change of address during the
pendency of this proceeding indicating that he was
transferred out of LCCF and incarcerated at other New Mexico
correctional facilities. (See Docs. 6, 9, 28, 29,
30, 31.) He is presently housed at Northeastern New Mexico
Correctional Facility in Clayton, New Mexico. (Doc. 30.)
FOR FAILURE TO STATE A CLAIM
Aicher is a frequent litigator in this Court and is
proceeding pro se and in forma
pauperis. The Court has the discretion to dismiss an
in forma pauperis complaint 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). A
claim should be dismissed where it is legally or factually
insufficient to state a plausible claim for relief. Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
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
pleadings. Twombly, 550 U.S. at 555; 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. Okla. Dep't of
Human Servs., 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.
§ 1915(e)(2)(B), the court may dismiss the complaint at
any time if the court determines the action fails to state a
claim upon which relief may be granted. §
1915(e)(2)(B)(2). 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, 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, 32-33
(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.
Court liberally construes the factual allegations in
reviewing a pro se complaint. 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 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. Hall, 935 F.2d at
OF PLAINTIFF'S CLAIMS
Federal Constitutional Violations: In his
Complaint, Plaintiff alleges claims for violations of his
constitutional rights under the First, Eighth, and Fourteenth
Amendments. (Doc. 1 at 3, 7.) The exclusive vehicle for
vindication of substantive rights under the Constitution is
42 U.S.C. § 1983. See Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979); Albright v. Oliver, 510
U.S. 266, 271 (1994) (Section 1983 creates no substantive
rights; rather it is the means through which a plaintiff may
seek redress for deprivations of rights established in the
Constitution); Bolden v. City of Topeka, 441 F.3d
1129 (10th Cir. 2006).
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must assert acts by government officials acting
under color of law that result in a deprivation of rights
secured by the United States Constitution. 42 U.S.C. §
1983; West v. Atkins, 487 U.S. 42, 48 (1988). There
must be a connection between official conduct and the
violation of a constitutional right. Conduct that is not
connected to a constitutional violation is not actionable
under Section 1983. See Trask v. Franco, 446 F.3d
1036, 1046 (10th Cir. 1998).
a civil rights action against a public official or entity may
not be based solely on a theory of respondeat superior
liability for the actions of co-workers or subordinates. A
plaintiff must plead that each government official, through
the official's own individual actions, has violated the
Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). Plaintiff must allege some personal involvement by an
identified official in the alleged constitutional violation
to succeed under § 1983. Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008). In a Section 1983
action, it is particularly important that a plaintiff's
complaint “make clear exactly who is alleged