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Aicher v. Corrections Officer Pollard

United States District Court, D. New Mexico

March 12, 2018

ERIC F. AICHER, Plaintiff,



         THIS 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.

         Plaintiff 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.[1] 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.)

         In 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.”[2] (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.)

         Aicher 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.)


         Plaintiff Aicher is a frequent litigator in this Court and is proceeding pro se and in forma pauperis.[3] 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).

         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 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.

         Under § 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.

         The 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 1110.


         I. 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).

         To 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).

         Further, 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 ...

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