United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
BRACK UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Prisoner's Civil Rights
Complaint filed by Plaintiff Gabriel Joseph Nevarez (Doc. 1).
The Court will dismiss the Complaint for failure to state a
claim on which relief can be granted under Fed.R.Civ.P.
12(b)(6) and 28 U.S.C. § 1915(e)(2)(B).
AND PROCEDURAL BACKGROUND
Gabriel Joseph Nevarez is a prisoner incarcerated at the
Metropolitan Detention Center. (Doc. 1 at 1.) Nevarez filed
his Complaint on April 4, 2018. (See id.) He asserts
jurisdiction under 42 U.S.C. § 1983. The sole named
Defendant is Adam Ramero, who is alleged to be an employee of
Smith's Grocery. (Id.) The allegations of the
Complaint are generally incomprehensible and state as
“At Smiths Grocerys injured both bottom of feet one
right crooked by during escort loss of tennis shoes in back
of squadron car over 2 hour in handcuff period by escort
meaning at start of March on Washington D.C. Daca move by my
being white ethniced . . .
Injured both bottom of feet escorting out of place of
bussiness for either iether color of Day 5 March 2018 White
Ethniced by how if DACA march at on Washington D.C. to rights
rights March for the attend to Washington D.C. . . .
Emotitional Distress equal to $5, 000 dollars loss of
Supporting Facts: Video proof Smiths Groceries 111 Coors Blvd
N.W. Albuquerque NM 87121 Either Iether subpening camera
video record of on March 5 2018 6-9 p.m at date on incident
counter attend due to racial discrimination now.”
(Id. at 2-3.)
TO STATE A CLAIM FOR RELIEF
Nevarez 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). 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, 555, 570 (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
pleading. 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. at 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
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