United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
the Court is Plaintiffs Petition for Writ of Habeas Corpus
(Doc. 17). Plaintiff appears to have filed the Petition in
lieu of an amended civil rights complaint. After reviewing
the Petition under 28 U.S.C. § 1915A and Fed.R.Civ.P.
12(b)(6), the Court will dismiss the existing civil rights
action, but allow Plaintiff to raise his new, unrelated
claims in a separate case.
an inmate at the Otero County Correction Facility
("OCCF"), filed his original Complaint in state
court on February 1, 2017. See Doc. 1-1. The
Complaint alleges prison officials fired Plaintiff from his
laundry job after he left work early to attend Islamic
religious services. Id. at p. 2-4. It further
alleges prison officials falsified Plaintiffs performance
evaluation and discriminated against him based on race.
Id. at 4-6. The Complaint raises constitutional
claims for racial discrimination, religious discrimination,
and defamation of character. Id. at 7-11. Defendants
removed the action to this Court and moved to dismiss the
complaint for failing to state a cognizable claim.
See Docs. 1, 2.
Memorandum Opinion and Order entered March 27, 2018, the
Court dismissed the Complaint pursuant to Fed.R.Civ.P.
12(b)(6) and 28 U.S.C. § 1915A. See Doc. 11.
The Court explained the Complaint fails to state a claim
under 42 U.S.C. § 1983 because most of the Defendants
are not subject to liability. See Doc. 11 at 5-6;
see also McLaughlin v. Bd. of Trustees, 215 F.3d
1168, 1172 (10th Cir. 2000) ("A cause of action under
section 1983 requires the deprivation of a civil right by a
'person' acting under color of state law."). As
to the primary wrongdoer, Officer Ramirez, the Court also
found the Complaint did not allege sufficient facts to state
a claim for religious discrimination, racial discrimination,
or defamation. See Doc. 11 at 6-8.
with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991), Plaintiff was given thirty days to file an amended
complaint. See Doc. 11 at 8. The Memorandum Opinion
and Order provided detailed guidance about what the amended
complaint must allege to survive initial review. The Court
warned that any amended complaint must "make clear
exactly who 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)
(emphasis in original). The Court also set forth the legal
standards for free exercise claims, religious retaliation
claims, equal protection claims, and defamation. See
Doc. 11 at 6-8.
receiving several extensions to file his amendment, Plaintiff
filed the Petition for Writ of Habeas Corpus on June 20,
2018. See Doc. 17. The Petition challenges a
disciplinary proceeding that took place on November 9, 2017,
well after this case was commenced and removed. Id.
at 1, 8, 10. Plaintiff was charged with possession of
dangerous drugs on that date, and he appears to allege prison
officials failed to adhere to OCCF disciplinary policies.
Id. at 8-10, 12-14. He also alleges prison officials
failed to follow proper protocol when collecting his urine
sample. Id. The Petition does not mention Plaintiffs
prior Complaint or any prior claims. See Doc. 17.
Memorandum Opinion and Order allowed Plaintiff to cure the
defects in his original Complaint. The Court did not grant
leave to "make the complaint a 'moving
target'" or "salvage a lost case by untimely
suggestion of new theories of recovery." Minter v.
Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006)
(quoting Viernow v. Euripides Dev. Corp., 157 F.3d
785, 800 (10th Cir. 1998). It is unreasonable to expect the
Court or the Defendants to continually adapt as the plaintiff
raises new grievances or locates new defendants. Allowing
Plaintiff to abandon his original theories and raise new,
unrelated grievances in this proceeding would also run afoul
of the restrictions on prison litigation and in forma
pauperis actions. See, e.g., 28 U.S.C.
§§ 1915A and 1915(g).
these reasons, the Court will strike the Petition, without
prejudice to filing a separate habeas proceeding or §
1983 action raising the new claims contained in the Petition.
If Plaintiff seeks damages based on the disciplinary action,
he should refile his claims as a § 1983 action. See
Rueb v. Brown, 504 Fed.Appx. 720, 722 (10th Cir. 2012).
If Plaintiff wishes to challenge the execution of his
sentence, he should refile his claims as a habeas action.
See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.
2000); Overturfv. Massie, 385 F.3d 1276, 1278 (10th
Cir. 2004). Based on Plaintiffs failure to cure the defects
in his Complaint, the Court will dismiss the existing civil
rights action, including all claims raised in the original
Complaint, with prejudice for failure to state a claim.
IS THEREFORE ORDERED that the Court STRIKES
Plaintiffs Petition for Writ of Habeas Corpus (Doc. 17)
without prejudice to refiling the new claims
raised in the Petition in a separate habeas proceeding or
§ 1983 action.
IS FURTHER ORDERED that this action, including all
claims raised in the original Complaint, is DISMISSED
with prejudice pursuant to 28 U.S.C. § 1915A
and Fed.R.Civ.P. 12(b)(6) for failure to state a claim on
which relief may granted; and judgment will be entered in
favor of Defendants on all claims raised in the original
Complaint (Doc. 1-1).
IS FURTHER ORDERED that the Clerk's Office is
directed to mail to Plaintiff, together with a copy of this
Order, a form § 1983 Complaint; a form habeas petition
under § 2241, and a form ...