United States District Court, D. New Mexico
Hue Owens, Jr. Albuquerque, New Mexico Plaintiff pro se.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court under 28 U.S.C.
§§ 1915(e)(2) and 1915A, on Plaintiff Ellie Hue
Owens, Jr.'s Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, filed August 4, 2017 (Doc.
1)(“Complaint”). Owens is incarcerated, appears
pro se, and is proceeding in forma pauperis. For the reasons
explained below, the Court will dismiss Owens' Complaint
without prejudice for failure to state a claim on which
relief may be granted under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b), and the Court will grant
Owens thirty days in which to file an amended complaint.
Complaint alleges the following facts. On February 29, 2016,
an individual named “Mr. Medrano” physically
assaulted Owens while Owens was awaiting arraignment at the
San Juan County courthouse. Complaint at 2. The assault was
racially motivated, and Correctional Officer Yates “did
not restrain Medrano until Mr. Owens had suffered a
dislocated shoulder, a broken digit, busted dentures and a
broken nose.” Complaint at 2. After the assault, Owens
was denied medical treatment, denied access to an informal
complaint, and deprived of his court appearance, because
“he could not summon his witness again until much
later.” Complaint at 3. The Complaint seeks
compensatory damages against Defendants San Juan County, San
Juan County Detention Center, and San Juan County
Sheriff's Department for the alleged violation of
Owens' rights under the Eighth and Fourteenth Amendments
of the Constitution of the United States of America.
See Complaint at 1, 6.
Court has the discretion to dismiss an in forma pauperis
complaint sua sponte under 28 U.S.C. §§
1915(e)(2)(B) and 1915A at any time if the action is
frivolous, malicious, or fails to state a claim on which
relief may be granted. See 28 U.S.C. §§
1915(e)(2)(B), 1915A(b). “Dismissal of a pro se
complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts
he has alleged and it would be futile to give him an
opportunity to amend.” Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). The burden is on the plaintiff
to frame a complaint that contains “sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. at 678. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do
not suffice.” Ashcroft v. Iqbal, 556 U.S. at
is proceeding pro se and “[a] pro se litigant's
pleadings 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). Therefore, “if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d at
1110. At the same time, however, it is not “the proper
function of the district court to assume the role of advocate
for the pro se litigant.” Hall v. Bellmon, 935
F.2d at 1110.
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988) (emphasis added). Although municipalities and local
governments are “persons” subject to suit under
§ 1983, see Monell v. Dep't of Social Serv. of
City of New York, 436 U.S. 658, 690 (1978),
“generally, governmental sub-units are not separate
suable entities that may be sued under § 1983, ”
Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir.
Jan. 25, 2010)(unpublished). San Juan County Detention Center
and San Juan County Sheriff's Department are governmental
sub-units and, therefore, they are not persons or legally
created entities capable of being sued under § 1983.
See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.
1985)(holding that “‘[t]he City of Denver Police
Department' is not a separate suable entity, and the
complaint will be dismissed as to it”). Accordingly,
the Court will dismiss Owens' § 1983 claims against
San Juan County Detention Center and San Juan County
Sheriff's Department without prejudice for failure to
state a claim on which relief may be granted under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b).
Complaint also names San Juan County as a Defendant, but a
civil rights action against a New Mexico county must be
brought against “the board of county commissioners of
the county of [the appropriate county].” N.M. Stat.
Ann. § 4-46-1. The Court will therefore liberally
construe Owens' Complaint as naming the Board of County
Commissioners of the County of San Juan as a
well established that a county cannot “be held liable
solely because it employs a tortfeasor -- or, in
other words, [it] cannot be held liable under § 1983 on
a respondeat superior theory.” Monell v.
Dep't of Social Serv. of City of New York, 436 U.S.
at 691 (emphasis in original). Rather, counties “are
subject to liability [under § 1983] only for their
official policies or customs.” Starrett v.
Wadley, 876 F.2d 808, 818 (10th Cir. 1989). See
Monell v. Dep't of Social Serv. of City of New York,
436 U.S. at 694 (“[I]t is when execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the
government as an entity is responsible under §
1983.”). Owens' Complaint does not allege that the
Board of County Commissioners of the County of San Juan had
an official policy or custom that caused the alleged
violation of his constitutional rights and, therefore, the
Court will dismiss, under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(1), Owens' § 1983 claims
against the Board of County Commissioners of the County of
San Juan for failure to state a claim on which relief may be
foregoing analysis is dispositive of all of the claims that
Owens' Complaint raises. The Court will afford Owens an
opportunity to file an amended complaint, within thirty days
of the date of this Memorandum Opinion and Order's entry,
that states a claim on which relief may be granted under 42
U.S.C. § 1983. Owens' amended complaint must
“make clear exactly who is alleged to have
done what to whom, to provide each
individual with fair notice as to the basis of the claims
against him or her.” Robbins v. Oklahoma, 519
F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original).
“[T]o state a claim in federal court, a complaint must
explain what each defendant did to him or her; when the
defendant did it, how the defendant's actions harmed him
or her; and, what specific legal right the plaintiff believes
the defendant violated.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Failure to timely file an amended complaint may result in the
dismissal of this action without prejudice without further
notice. See Fed.R.Civ.P. 41(b) (providing for
involuntary dismissal “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court
IS ORDERED that: (i) Plaintiff Ellie Hue Owens,
Jr.'s Civil Rights Complaint Pursuant to 42 U.S.C. §
1983, filed August 4, 2017 (Doc. 1), is dismissed without
prejudice; (ii) Owens is granted thirty days from the date of
this Memorandum Opinion and Order's entry to file an
amended complaint; and (iii) the Clerk of the Court is
directed to send to Owens, together with a copy of this
Memorandum Opinion and Order, a form § 1983 complaint,
If there is an amended pleading, Owens
should use the Defendant's ...