United States District Court, D. New Mexico
GREG M. SENA, Plaintiff,
DREW D. TATUM, DONNA J. MOWRER, MARNA N. PYLE-TRAMMELL, Defendants.
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE
MATTER is before the Court under 28 U.S.C. §1915A, 28
U.S.C. § 1915(e)(2)(B), and Fed.R.Civ.P. 12(b)(6) on the
Prisoner's Civil Rights Complaint filed by Plaintiff Greg
M. Sena on August 29, 2017 (Doc. 1)
(“Complaint”). The Court will dismiss the
Complaint, with prejudice, based on immunity, failure to
state a claim, and the Heck doctrine.
Factual and Procedural Background
Greg M. Sena is a prisoner in New Mexico state custody and
incarcerated at the Northwestern New Mexico Correctional
Facility. (Doc. 1 at 1). Although Sena's Complaint arises
out of his New Mexico state criminal prosecutions and
convictions, he does not identify the state court proceedings
in his Complaint. However, the Court has reviewed the
official record in Sena's state court proceedings through
the New Mexico Supreme Court's Secured Online Public
Access (SOPA). The Court takes judicial notice of the records
in Sena's criminal cases, State of New Mexico, County of
Roosevelt, Ninth Judicial District Nos. D-911-CR-2009-00152,
D-911-CR-2010-00011, and D-911-CR-2010-00119 . United
States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th
Cir.2007) (The Court may take judicial notice of publicly
filed records in other courts concerning matters that bear
directly upon the disposition of the case at hand);
Shoulders v. Dinwiddie, 2006 WL 2792671
(W.D.Okla.2006) (court may take judicial notice of state
court records available on the world wide web); Stack v.
McCotter, 2003 WL 22422416 (10th Cir.2003) (unpublished
opinion) (finding state district court's docket sheet is
an official court record subject to judicial notice under
Fed.R. Evid. 201).
was charged with multiple felony crimes in 2009 and 2010. He
pled guilty to possession of a controlled substance, battery
on a police officer, aggravated driving while intoxicated,
aggravated battery against a household member, false
imprisonment, attempted abuse of a child, and being a
habitual offender. The Court sentenced him to a total of 12
½ years of incarceration. See cause nos.
D-911-CR-2009-00152, D-911-CR-2010-00011, and
filed his Complaint under 28 U.S.C. § 1343 and 42 U.S.C.
§ 1983 on August 29, 2017. (Doc. 1). His Complaint names
District Judge Drew D. Tatum and District Attorney Donna J.
Mowrer as Defendants. (Doc. 1 at 1-2). Sena alleges:
“Claim 1: Due Process Violations throughout all of the
courts proceedings; Multiple other Constitution violations
Claim 2: Use of false information (evidence) in a criminal
conviction Claim 3: Double Jeopardy prohibits increase in
defendant sentence when legitimatly expectation of finality
has attached to sentence”
(Doc. 1 at 9). Sena also lists Marna N. Pyle-Trammell as a
Defendant in the case caption, but does not identify her role
or make any allegations against her in the body of the
Complaint. (Doc. 1 at 1). However, court records indicate she
was criminal defense counsel for Sena in the criminal
proceedings. See D-911-CR-2009-00152,
D-911-CR-2010-00011, and D-911-CR-2010-00119. Sena seeks to
vacate his state criminal sentence, be returned to his place
of residence, and be awarded “$1, 800 for everyday that
I was incarcerated illegally.” (Doc. 1 at 9).
The Law Regarding Dismissal for Failure to State a
Sena is proceeding pro se and in forma pauperis. The
Court has the discretion to dismiss an in forma
pauperis complaint sua sponte 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).
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 pleading. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007); 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. Oklahoma Dep't of Human Services,
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. A claim should be dismissed where it is legally or
factually insufficient to state a plausible claim for relief.
Twombly, 550 U.S. at 555.
§ 1915(e)(2)(B) the court may dismiss the complaint at
any time if the court determines the action fails to state a
claim for relief or is frivolous or malicious. 28 U.S.C.
§ 1915(e)(2)(B)(ii). 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 v. Bellmon, 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 (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.
reviewing a pro se complaint, the Court liberally construes
the factual allegations. 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 County, 32 F.3d 452, 455 (10thCir.
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 v. Bellmon,
935 F.2d at 1110.
Plaintiff's Complaint Fails to State a Claim for
Plaintiff's Claims are Barred by Judicial and