United States District Court, D. New Mexico
T.R. KISOR, Plaintiff,
B. JUDD, WARDEN, CORE CIVIC, DEPARTMENT OF CORRECTIONS, and ALL STAFF ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under Fed.R.Civ.P. 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B) on the Complaint for Violation of
Civil Rights filed by Plaintiff T.R. Kisor on March 27, 2017
(“Complaint”). (Doc. 1). The Court will dismiss
the Complaint for failure to state a claim on which relief
can be granted, but will grant Plaintiff Kisor the
opportunity to file an amended complaint.
AND PROCEDURAL BACKGROUND
T.R. Kisor is a prisoner at the Northwest New Mexico
Correctional Facility (“NNMCF”) in Grants, New
Mexico. (Doc. 1 at 2). Plaintiff Kisor filed his civil rights
Complaint against B. Judd, Warden of NNMCF, Core Civic,
operator of NNMCF, the New Mexico Department of Corrections,
and “all staff.” (Doc. 1 at 2-3). His Complaint
contains a list of 33 alleged constitutional and civil rights
violations, ranging from “evil and malice intent”
to “making me send my T.V. home.” (Doc. 1 at
12-13). As his request for relief, Kisor states:
“My relief is 20, 000, 000. They need to start
following policy and procedures and need a federal monitor
put in place and a dietician appointed. Programs in education
and all higher authority replaced.
They don't follow policy or procedures the kitchen is a
mess and all staff are improperly trained in all aspects of
(Doc. 1 at 5). He also alleges:
“I have no confidence in any of the staff at this
prison and feel my life is in danger in this prison or any of
the New Mexico state prisons due to my law suits against
Department of Corrections. I would like to be moved to a
federal facility for my safety.”
(Doc. 1 at 13). His Complaint does not identify any
individual official other than Warden Judd and contains no
factual allegations of conduct to support any of his 33
claimed civil rights violations.
FOR FAILURE TO STATE A CLAIM
Kisor 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.
§ 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, 32-33 (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 notice. Denton, 504 U.S. at
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.
deciding whether to dismiss the complaint, in whole or in
part, the court is to consider whether to allow plaintiff an
opportunity to amend the complaint. Pro se plaintiffs should
be given a reasonable opportunity to remedy defects in their
pleadings. Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). The opportunity to amend
should be granted unless amendment would be futile. Hall
v. Bellmon, 935 F.2d at 1109. An amendment is futile if
the amended claims would also be subject to immediate
dismissal under the Rule 12(b)(6) or § 1915(e)(2)(B)
standards. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
OF PLAINTIFF ...