United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
the Court is Defendants' Motion to Dismiss Plaintiffs
civil rights complaint (Doc. 2). Plaintiff is incarcerated
and appears pro se. After reviewing the complaint
under 28 U.S.C. § 1915A and Fed.R.Civ.P. 12(b)(6), the
Court will dismiss the complaint and grant Plaintiff thirty
(30) days from the entry of this Order to amend his pleading.
Governing Dismissal of Prisoner Civil Rights
Civ. P. 12(b)(6) requires the Court to accept all
well-pleaded allegations as true and view them in the light
most favorable to the plaintiff. See Zinermon v.
Burch, 494 U.S. 113, 118 (1990); Swanson v.
Bixler, 750 F.2d 810, 813 (10th Cir.1984). The complaint
must set forth the grounds of a plaintiffs entitlement to
relief through more than labels, conclusions and a formulaic
recitation of the elements of a cause of action. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
allege facts sufficient to state a plausible claim of relief.
Id. at 570. A claim is facially plausible if the
plaintiff pleads facts sufficient for the court to reasonably
infer that the defendant is liable for the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). "The
plausibility standard is not akin to a 'probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
as here, a prisoner civil rights action is removed from state
court, the Court must also perform a screening function under
28 U.S.C. § 1915 A. Under that section, the Court has
discretion to dismiss a prisoner civil rights complaint
sua sponte "if the complaint ... is frivolous,
malicious, or fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915 A(b). In conducting the
§ 1915 A review, the pleadings of the pro se
prisoner "are to be construed liberally and held to a
less stringent standard than formal pleadings drafted by
lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Courts are directed to overlook
"failure to cite proper legal authority, ... confusion
of various legal theories, ... poor syntax and sentence
construction, or ... unfamiliarity with pleading
limited purpose of this ruling, the Court assumes the
following facts taken from Plaintiffs Complaint are true.
is incarcerated at the Otero County Correction Facility
("OCCF") in Chaparral, New Mexico. See
Doc. 1-1, p. 1-2. On February 1, 2016, he "was assigned
to work in the laundry room from 5:00 AM to 10:00 AM."
See Doc. 1-1, p. 2. At some point Laundry Supervisor
J. Ramirez "needed his workers to work until twelve (12)
PM." Id. This schedule conflicted with the
Islamic religious service Plaintiff attends every Friday from
12:00 p.m. to 2:00 p.m. Id. at p. 2-3. Plaintiff
also alleges that working a seven-hour shift is not required
by OCCF policy, which allows inmates to accrue good time
credits if they perform five hours of work per shift.
Id. at p. 2. According to Plaintiff, another policy
states any overtime must be approved by the Warden.
Id. at p. 3.
Friday February 26, 2016, Plaintiff was permitted to leave
work at 10:00 a.m. to attend religious services. Id.
at p. 4. Plaintiff left two hours before the service to
shower, which is permitted by OCCF policy. Id.
Ramirez then fired Plaintiff. Id. Classification
Supervisor Nolasco reassigned Plaintiff to a Pod Porter job,
where he earned 10 cents less per hour and about $25 less per
Ramirez "began a systematic approach to falsify a
performance evaluation to cover up the real reason
[Plaintiff] was being fired." Id. at p. 3-4.
The poor evaluation was not accompanied by a disciplinary
report, as required by OCCF policy. Id. at p. 5.
Plaintiff further alleges he is African American, and Ramirez
is a "known ... racist" and "is trained to
discriminate against and abuse prisoners...."
Id. at p. 3. "Captain Ochoa, Classification
Supervisor Nolasco, and Warden Ramirez openly support
[Ramirez's] attitude and enable him to openly practice
racial and religious discrimination." Id.
Although "Warden Simmons ... personally disagrees
with" them, she is "unable to openly oppose
them" and takes no actions to protect prisoners.
filed two informal grievances after his termination from the
laundry job. Id. at p. 5. Officer Valle investigated
the matter, but Plaintiff asserts it was "impossible to
conclude what his investigation results are based on."
Id. at p. 6. However, a grievance officer (possibly
Valle) told Plaintiff he was reassigned "due to [his]
religious class interfering with your work."
Id. at p. 5.
on the foregoing, Plaintiff filed a pro se Complaint
for "racial discrimination, " "religious
discrimination, " and "defamation of
character" in New Mexico's First Judicial District
Court, case no. D-l01-CV-2017-00271. The Complaint seeks $3,
000 in damages from each Defendant and injunctive relief that
would allow him to practice his religious beliefs.
Id. at p. 7-8. Defendants removed the case to this
Court on April 12, 2017. See Doc. 1. Thereafter,
Defendants filed the Motion to Dismiss, asserting the
Complaint fails to state a claim and that the Otero County
Manager is entitled to qualified immunity. See Doc.
initial matter, Plaintiff appears to challenge this
Court's subject matter and personal jurisdiction over the
suit. See Docs. 3, 7. Federal courts have subject
matter jurisdiction over an action where: (1) the face of the
complaint raises a federal question; or (2) the parties'
citizenship is diverse and the amount in controversy exceeds
$75, 000. See 28 U.S.C. §§ 1331, 1332;
Karnes v. Boeing Co.,335 F.3d 1189, 1192 (10th Cir.
2003). Plaintiff concedes the Complaint raises federal
constitutional claims. See Doc. 3, p. 1 (Plaintiff
notes: "the question involved is both a state and
federal constitutional question"); Doc. 7, p. 1
(acknowledging "the controversy is also a matter the
federal constitutional [must] ...