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Serrano v. State

United States District Court, D. New Mexico

June 6, 2018

GILBERT ANGELO SERRANO, Plaintiff,
v.
STATE OF NEW MEXICO, SUSANA MARTINEZ, Governor, DAVID JABLONSKI, Secretary of Corrections, FNU LNU, any contract companies associated with and working for Department of Corrections concerning medical and mental health issues, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Susana Martinez's Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted (Doc. 6), and Lisette Serrano's pro se Motion To Supplement A Complaint As Requests To Add A Plaintiff (Doc. 4), which the Court liberally construes as a motion to intervene in this proceeding and to supplement the complaint under Rules 24 and 15(d) of the Federal Rules of Civil Procedure. Plaintiff Gilbert Angelo Serrano is incarcerated, appears pro se, and is proceeding in forma pauperis.

         For the reasons explained below, Defendant Martinez's motion to dismiss will be granted, Ms. Serrano's motion to intervene and supplement the complaint will be denied without prejudice, and Plaintiff's complaint will be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Plaintiff will be granted 30 days to file an amended complaint that states a claim upon which relief may be granted.

         I. BACKGROUND

         On October 17, 2017, Plaintiff filed a Complaint (Tort) in the First Judicial District Court of the State of New Mexico against the following Defendants: (1) State of New Mexico; (2) Susana Martinez, Governor; (3) David Jablonski, Secretary of Corrections; and (4) any contract companies associated with or working for Department of Corrections concerning medical and mental health issues. (Doc. 1 at 4-12.) Plaintiff's complaint does not identify specific claims against particular defendants. Rather, it is a long and rambling list of vague complaints concerning the conditions of Plaintiff's confinement. Specifically, Plaintiff complains about the following: (1) Plaintiff's property (i.e., hair clippers, art work, and homemade knitted clothing) was destroyed without his consent; (2) Plaintiff's mail was rejected and withheld in violation of the New Mexico Department of Corrections' (NMDOC) policies and procedures; (3) Plaintiff's medical needs for his hepatitis C, a head injury, nerve damage and pain are not being met; (4) Plaintiff was deprived of an impartial disciplinary process for a false accusation of receiving drugs in the mail; (5) because of the faulty disciplinary process, Plaintiff was “referred to the D.S.P. program, [1] which is not a program . . . [but] a front for cruel an[d] unusual punishments, ” (6) Plaintiff was deprived of ten days of good time in violation of NMDOC's policies and procedures; (8) Plaintiff was deprived of access to the NMDOC's grievance process; (9) confidential informants are given “unknown privileges and protections” in violation of equal protection of the law; (10) the protective custody policy doesn't “make sense”; (11) Plaintiff is being deprived of his right to freedom of speech because he is not permitted to receive certain pictures and publications in the mail; (12) Plaintiff is placed in “constant lockdown status” due to his level VI classification, even though his “points are low enough to be placed in general population”; (13) Defendant Martinez “blames us for all the problems that take place in our land of enchantment” and keeps inmates “locked in cages as long as possible”; and (14) the food Plaintiff is served is genetically modified, which “is a violation of [Plaintiff's] religious practice and belief also unsafe to [his] well being in health.” (Id.) Plaintiff's complaint seeks injunctive relief and monetary damages in the amount of $2, 500, 000.00. (Id. at 12.) Defendant Martinez removed Plaintiff's complaint to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446(a) on the basis of federal question jurisdiction. (See Doc. 1.)

         On April 19, 2018, Lisette Serrano, Plaintiff's wife and “attorney in fact, ” filed a motion to amend and/or supplement the complaint. (Doc. 4.) Ms. Serrano seeks to be added to the present civil rights action as a plaintiff, because the letters and photographs she has mailed to Plaintiff have been “thrown away, rejected, ruined, or stolen” and she has been deprived of contact visits with her husband. (See id.) Ms. Serrano also seeks to supplement the complaint with additional claims on behalf of Plaintiff as a result of his transfer from the Penitentiary of New Mexico to Guadalupe County Correctional Facility (GCCF). (See id.) Specifically, Ms. Serrano alleges that: (1) Plaintiff's property (i.e., a family photo album, art materials, a bible, and a concordance) have been lost or misplaced; (2) Plaintiff's mental health files are inaccurate because there are “seven wrong inmate numbers . . . attached to [his] name”; (3) the D.S.P. program does not comply with policies and procedures, in violation of the New Mexico Constitution; (4) Plaintiff has been deprived of “trade school opportunities” as a result of his placement in the D.S.P. program; (5) Plaintiff has been deprived of his wife's letters and photographs, as well as contact visits with his family; and (6) certain rules and policies are “not fair such as tampering with evidence by swallowing evidence.” (Id.)

         On April 20, 2018, Defendant Martinez moved to dismiss Plaintiff's complaint for failure to state a claim on which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 6.) Defendant Martinez contends that “Plaintiff fails to allege any specific facts as to the involvement of Governor Martinez in either his Complaint or his Motion to Supplement” and, therefore, Plaintiff has failed to provide “fair notice” of his claims in violation of Rule 8 of the Federal Rules of Civil Procedure. (Id. at 2, 3.) Alternatively, Defendant Martinez contends that Plaintiff's claims should be dismissed for failure to state a claim on which relief may be granted because she “was not personally involved in any of the alleged wrongs noted in the Complaint and the Motion to Supplement.” (Id. at 4.)

         II. DISCUSSION

         Plaintiff and Ms. Serrano are 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.” Id. 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.” Id. “The broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id. A. Ms. Serrano's Motion To Intervene And Supplement The Complaint Will Be Denied Ms. Serrano, a non-party to this proceeding, moves the Court to be added as “an additional plaintiff.” (Doc. 4 at 2.) A motion to intervene under Rule 24 of the Federal Rules of Civil Procedure is the proper avenue by which a non-party should seek to join a pending proceeding. See Fed. R. Civ. P. 24. Therefore, the Court liberally will construe Ms. Serrano's pro se motion as a motion to intervene under Rule 24 of the Federal Rules of Civil Procedure.

         Rule 24(a) provides that the Court must permit anyone to intervene who, on timely motion, “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). Rule 24(b) provides that the Court may permit anyone to intervene who, on timely motion, “has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). Regardless of the type of intervention sought, Rule 24(c) requires the motion to intervene to: (1)“be served on the parties as provided in Rule 5”; (2) “state the grounds for intervention”; and (3) “be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed.R.Civ.P. 24(c).

         Ms. Serrano's motion to intervene is deficient because it was not served on the parties nor was it accompanied by a proposed pleading, as required by Rule 24(c). In the absence of a proposed pleading setting out her claims, the Court cannot determine whether Ms. Serrano “has the right to intervene, and, if not, whether permissive intervention should be granted.” Miami Cty. Nat'l Bank of Paola, Kan. v. Bancroft, 121 F.2d 921, 926 (10th Cir. 1941) (explaining the purpose of Rule 24(c)); see also Sec. & Exchange Comm'n v. Clayton, 253 Fed.Appx. 752, 755 (10th Cir. 2007) (noting that the failure to attach a proposed pleading as required by Rule 24(c) may be “grounds for denial of the motions as procedurally inadequate”). Accordingly, Ms. Serrano's motion to intervene will be denied without prejudice for failure to comply with the procedural requirements of Rule 24(c).

         Ms. Serrano also moves to supplement Plaintiff's complaint with additional claims based on Plaintiff's transfer to a different facility after the filing of the complaint. Rule 15(d) of the Federal Rules of Civil Procedure provides, in relevant part, that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P. 15(d) (emphasis added). Ms. Serrano, however, is not a party to the present proceeding, nor is she an attorney licensed to practice law in the State of New Mexico. It is well established that “[a] litigant may bring his own claims to federal court without counsel, but not the claims of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000). “This is so because the competence of a layman is clearly too limited to allow him to risk the rights of others.” Id. (internal quotation marks and citation omitted). Ms. Serrano cannot represent the interests of Plaintiff in this proceeding and, therefore, her motion to supplement Plaintiff's complaint will be denied without prejudice to Plaintiff's right to move to file a supplemental complaint under Rule 15(d).

         B. Defendant Martinez's Motion To Dismiss Will Be Granted

         Defendant Martinez moves to dismiss Plaintiff's Complaint (Tort) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6), the Court may dismiss a complaint if it fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss, the Court must “accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). “The Court's function on a Rule 12(b)(6) motion is not to weigh the potential evidence that the parties might present at trial, but to assess whether the plaintiff's ...


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