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Kisor v. Judd

United States District Court, D. New Mexico

June 4, 2018

T.R. KISOR, Plaintiff,
v.
B. JUDD, WARDEN, CORE CIVIC, DEPARTMENT OF CORRECTIONS, and ALL STAFF ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff 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 there jobs.”

(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.

         STANDARDS FOR FAILURE TO STATE A CLAIM

         Plaintiff 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.

         Under § 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 32-33.

         In 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.

         In 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).

         ANALYSIS OF PLAINTIFF ...


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