United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK UNITED STATES DISTRICT JUDGE
the Court is Steven Duane Curry's Amended Complaint (Doc.
36), supplemented by approximately 21 appendices, affidavits,
and similar filings. Also before the Court is Curry's
Motion to Amend Complaint. (Doc. 55.) Curry is incarcerated,
appears pro se, and is proceeding in forma
pauperis. For the reasons set out below, the Court will
dismiss the Amended Complaint for failure to state a claim.
The Court will also impose a “strike” under 28
U.S.C. § 1915(g).
filed his original complaint on October 30, 2017.
(See Doc. 1.) The complaint alleges the State of New
Mexico and other actors violated his constitutional rights in
connection with his arrest and prosecution for aggravated
assault on a peace officer. (See Id. at 1; State
v. Curry, D-1215-CR-2017-00473.) The original complaint is
primarily directed at District Attorney David J. Hunter, who
prosecuted his criminal case. Examples of Hunter's
alleged wrongdoing include fraud, witness tampering,
obstruction, and kidnapping. (See Doc. 1 at 2-4.)
The complaint seeks money damages for his incarceration and
for injuries to Curry's head, neck, back, and finger.
(Id. at 4.) Following the initial complaint, Curry
filed over 20 supplements, appendices, letters, and
affidavits, which averaged about 30 pages each. (See
Docs. 4-8; 11-26.)
Memorandum Opinion and Order entered January 3, 2018, the
Court struck the supplemental filings and dismissed the
complaint. (See Doc. 27.) The Court explained that
consideration of hundreds of pages of supplemental filings
would impede the screening function under 28 U.S.C. §
1915. With respect to the complaint, the Court noted that
Curry failed to name a defendant subject to liability under
42 U.S.C. § 1983, as the State is not a
“person” and the district attorney has
prosecutorial immunity. See McLaughlin v. Bd. of
Trs., 215 F.3d 1168, 1172 (10th Cir. 2000); Pfeiffer
v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th
Cir. 1991). The Court also explained that any claims that
would necessarily imply the invalidity of his conviction or
sentence were barred by Heck v. Humphry, 512 U.S.
477, 487 (1994).
with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991), Plaintiff was given 30 days to file a single
amended complaint on the Court's official §
1983 form. (See Doc. 27 at 8.) The Memorandum
Opinion and Order provided guidance about what the amended
complaint must allege to survive initial review. The Court
warned that any 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 claim against him or her.”
Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th
Cir. 2008). The Court also emphasized that Fed.R.Civ.P. 8(a)
requires a short and plain statement of the grounds for
relief, rather than a long, prolix submission “filled
with unnecessary legal arguments.” See Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007).
filed an Amended Complaint on January 17, 2018. (See
Doc. 36.) Once again, the Amended Complaint is primarily
directed at District Attorney Hunter. (See Id. at
1-3.) Curry also references Defendants David Sanchez, James
Walsh, Roxanna Esquibel, Esquibel's sister, and Joanne
Varradondo, but the extent of their wrongdoing, if any, is
unclear. (Id. at 2.) The Amended Complaint merely
alleges that Sanchez “criminal[ly] trespassed upon
[Curry's] private property” without a valid search
warrant and colluded with the others to “deny, derail,
subvert, usurp, convert, and obstruct [Curry's] natural,
unalienable . . . rights.” (Id. at 2, 5.) The
remaining allegations, which reference international criminal
enterprises, ISIS, and Al-Qaeda, are not tied to any
particular defendant. (Id. at 3-5.) Based on this
information, there is no way to determine exactly
“who is alleged to have done what to
whom, ” or whether any alleged constitutional
violations were sufficiently serious. Robbins, 519
F.3d at 1249-50.
to the Court's earlier warning, the Amended Complaint is
also accompanied by about 21 supplemental filings.
(See Docs. 37-57.) Like before, most are illegible
and/or unrelated to the Amended Complaint. One supplemental
filing, which the Court construes as a Motion to Amend, seeks
to “add Dr. Gina Gagan to the list of criminals
named” in the action because her “words . . .
prejudiced [his] attempts to be released” from prison.
(See Doc. 55.) The Court grants the Motion, but
finds the supplemental allegations still fail to state a
claim under § 1983. See Buford v. Leck, No.
92-6405, 1993 WL 125412 (10th Cir. Apr. 20, 1993)
(“[W]ords alone, no matter how reprehensible, are not
sufficient to state a constitutional violation.”);
Harris v. Rocchio, No. 97-1020, 1997 WL 787185, at
*3 (10th Cir. Dec. 24, 1997) (“Insensitive words do not
amount to an Eighth Amendment violation.”). The Court
will strike the remaining supplemental filings (Docs. 37-54;
56-57), which, in any event, do not change the outcome of
on the foregoing, the Court concludes the Amended Complaint
fails to state a cognizable claim under § 1983. The
Court will therefore dismiss this action with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b). Such dismissal counts as a strike under the Prison
Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).
See Hafed v. Bureau of Prisons, 635 F.3d 1172,
1176-77 (10th Cir. 2011) (holding that dismissal of an action
as frivolous, malicious, or for failure to state a claim
under § 1915(e)(2)(B) counts as a strike under §
1915(g)). The Court notifies Curry that if he accrues three
strikes under the PLRA, he may not proceed in forma
pauperis in civil actions before the federal courts
unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
HEREBY ORDERED that Curry's Motion to Amend (Doc. 55) is
FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)
for failure to state a claim on which relief may granted;
FURTHER ORDERED that judgment will be entered in favor of
Defendants on all claims;
FINALLY ORDERED that a strike is IMPOSED against Plaintiff
Steven Curry under 28 U.S.C. § 1915(g).