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Sena v. Tatum

United States District Court, D. New Mexico

March 22, 2018

GREG M. SENA, Plaintiff,



         THIS 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.

         I. Factual and Procedural Background

         Plaintiff 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notice of state court records available on the world wide web); Stack v. McCotter, 2003 WL 22422416 (10th Cir.2003) (unpublished opinion) (finding state district court's docket sheet is an official court record subject to judicial notice under Fed.R. Evid. 201).

         Sena 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 D-911-CR-2010-00119.

         Sena 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).

         II. The Law Regarding Dismissal for Failure to State a Claim

         Plaintiff 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.

         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 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.

         In 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.

         III. Plaintiff's Complaint Fails to State a Claim for Relief

         A. Plaintiff's Claims are Barred by Judicial and ...

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