United States District Court, D. New Mexico
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 Star Joseph. (Doc. 1). The
Court determines that the Complaint fails to state a claim
for relief under 42 U.S.C. § 1983 and will be dismissed
without prejudice. The Court also grants Plaintiff Joseph
leave to file an amended complaint.
Factual and Procedural Background
Star Joseph is a prisoner incarcerated at the Otero County
Prison Facility (“OCPF”). (Doc. 1 at 2).
Plaintiff Joseph alleges deprivation of constitutional
“rights to be protected, the right to be free from harm
and the right to not be put in harms way.” (Doc. 1 at
3). Although Plaintiff does not cite to any constitutional
provision, the Court construes his Complaint as alleging
violation of 8th Amendment rights to be free from
cruel and unusual punishment. See Farmer v. Brennan,
511 U.S. 825, 832-834 (1994).
As factual support for his claims, Joseph alleges:
“On August 24th, 2017 at approx. 10:45 pm I
was physically attacked by 10-15 inmates in South Charley Pod
. . . At no time during or after the physical assult did any
members of MTC Otero County Prison Facility Staff or
Correctional Officers on duty enter South Charley Pod to
intervein or stop the assult. The physical assult took place
directly across from the glass windowed master control guard
booth and the entire incident was filmed on camera. During
the last count at 11:00 pm one of the correctional officers
notice that I was seriously injured and in need of immediate
(Doc. 1 at 6). Plaintiff Joseph contends prison staff was
deliberately indifferent and failed to render aid because he
is African-American and was being assaulted by Caucasian and
Hispanic inmates. (Doc. 1 at 4). Joseph claims that, as a
result of the attack, he sustained head trauma, extensive
bruising, broken bones in the mid-lower back, and
post-traumatic stress. (Doc. 1 at 5). Joseph seeks $700, 000
in compensatory and punitive damages for past and future
medical expenses, pain and suffering, and loss of earning
capacity. (Doc. 1 at 5, ¶ VI).
Standard for Failure to State a Claim
Joseph 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). A
claim should be dismissed where it is legally or factually
insufficient to state a plausible claim for relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
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. Twombly, 550 U.S. at 555; 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.
§ 1915(e)(2)(B) the court may dismiss the complaint at
any time if the court determines the action fails to state a
claim upon which relief may be granted. §
1915(e)(2)(B)(2). 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
Court liberally construes the factual allegations in
reviewing a pro se complaint. 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).
Analysis of ...