United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court, sua sponte under 28
U.S.C. §§ 1915(e)(2) and 1915A, on Plaintiff
Vincent Garduno's Complaint For Violation Of Civil
Rights, filed on December 13, 2017 [Doc. 1]. Plaintiff is
incarcerated, appears pro se, and is proceeding in forma
pauperis. For the reasons explained below, some of
Plaintiff's claims will be dismissed without prejudice
for failure to state a claim on which relief may be granted
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)
and Plaintiff will be afforded thirty (30) days in which to
file an amended complaint.
complaint alleges the following facts. On October 10, 2017,
Plaintiff was “refusing to lock down as ordered”
and throwing “things around in Pod D.” [Doc. 1 at
6] Defendant Douglas Adavalos, the warden at Hidalgo County
Detention Center, “order[ed] all responding CO's to
take [Plaintiff] down with use of force.”
[Id.] Plaintiff was “thrown face down on [the]
ground, ” “restrained behind [his] back, ”
and forcibly maneuvered down the corridor to a segregation
unit. [Id.] Defendant Adavalos grabbed the back of
Plaintiff's neck and pushed his face into the corner, as
he pulled up on Plaintiff's restraints, yelling at
Plaintiff to “say yes sir to his orders and threatening
to taze [him] if [he] refused to say yes sir.”
[Id.] Defendant Adavalos then removed
Plaintiff's restraints and “turned off all running
water to the toilet and sink” of the segregation cell
for three days, forcing Plaintiff to “relieve [himself]
on the floor.” [Id.] Plaintiff's complaint
seeks $5, 000, 000 in monetary damages and an injunction
requiring Defendants to resign from their employment.
[Id. at 5]
Court has the discretion to dismiss an in forma
pauperis complaint sua sponte under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A at any time if the
action is frivolous, malicious, or fails to state a claim on
which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(b). “Dismissal of a
pro se complaint for failure to state a claim is proper only
where it is obvious that the plaintiff cannot prevail on the
facts he has alleged and it would be futile to give him an
opportunity to amend.” Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). The burden is on the plaintiff
to frame a complaint that contains “sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
is 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.”
complaint names Mrs. Ward and Sergeant Madrid as defendants,
but fails to allege that they personally were involved in the
alleged constitutional violations. It is well established
that “[i]ndividual liability under § 1983 must be
based on personal involvement in the alleged constitutional
violation.” Foote v. Spiegel, 118 F.3d 1416,
1423 (10th Cir. 1997). This is because vicarious liability is
inapplicable to civil rights actions under 42 U.S.C. §
1983 and, therefore, “a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir.
2010) (internal quotation marks and citations omitted).
“This personal-involvement requirement does not mean,
however, that direct participation is necessary.”
Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.
2013). The United States Court of Appeals for the Tenth
Circuit has recognized that:
§ 1983 allows a plaintiff to impose liability upon a
defendant-supervisor who creates, promulgates, implements, or
in some other way possesses responsibility for the continued
operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which
“subjects, or causes to be subjected” that
plaintiff “to the deprivation of any rights ... secured
by the Constitution ....” (quoting 42 U.S.C. §
Dodds, 614 F.3d at 1199. To establish supervisor
liability, a plaintiff must demonstrate: “(1) the
defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that
(2) caused the complained of constitutional harm, and (3)
acted with the state of mind required to establish the
alleged constitutional deprivation.” Id.
complaint does not allege that Defendants Ward and Madrid
directly were involved in the alleged constitutional
violations or that they created, promulgated, implemented, or
in some other way possessed responsibility for the continued
operation of a policy that caused the alleged constitutional
violations. The Court therefore concludes that
Plaintiff's complaint fails to state a claim on which
relief may be granted against Defendants Ward and Madrid
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
complaint also names two unknown sergeants as defendants.
“Courts have generally recognized the ability of a
plaintiff to use unnamed defendants so long as the plaintiff
provides an adequate description of some kind which is
sufficient to identify the person involved so process
eventually can be served.” Roper v. Grayson,
81 F.3d 124, 126 (10th Cir. 1996). Plaintiff's complaint
fails to contain an adequate description of the two unknown
defendants for service of process and, therefore,
Plaintiff's claims against the unknown defendants will be
dismissed without prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Plaintiff's complaint seeks an injunction requiring
Defendants to resign from their employment at the Hidalgo
County Detention Facility. [Doc. 1 at 5] This type of relief
is improper because the status of Defendants' employment
is beyond the authority of the Court. See Lemmons v.
Waters, No. 11-CV-0500-CVE-PJC, 2012 WL 113686, at *4
(N.D. Okla. Jan. 13, 2012) (“Plaintiff's request
for Defendant Shaw's termination from her employment is
beyond the authority of this Court and therefore is not a
proper request for relief in this action. Accordingly, that
claim for relief shall be denied.”) (unpublished).
Therefore, Plaintiff's claim for injunctive relief will
be dismissed without prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
deficiencies in Plaintiff's complaint may be rectified
through more precise pleading and, therefore, the Court will
afford Plaintiff an opportunity to file an amended complaint.
Plaintiff's amended complaint must “make clear
exactly who is alleged to have done what to
whom, to provide each individual with fair notice as
to the basis of the claims against him or her.”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008) (emphasis in original). This is because “to state
a claim in federal court, a complaint must explain what each
defendant did to him or her; when the defendant did it, how
the defendant's actions harmed him or her; and, what
specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Thus, a
“plaintiff's facile, passive-voice showing that his
rights ‘were violated' will not suffice. Likewise
insufficient is a plaintiff's more active-voice yet
undifferentiated contention that ‘defendants'
infringed his rights.” Thomas, 718 F.3d
1225-26. “Rather, it is incumbent upon a plaintiff to
identify specific actions taken by
particular defendants in order to make out a viable
§ 1983 . . . claim.” Id. at 1226
(internal quotation marks and citations omitted; emphasis in
is advised that, if he submits an amended complaint, then the
amended complaint will supersede his original complaint.
See Gilles v. United States, 906 F.2d 1386, 1389
(10th Cir. 1990) (noting that an amended pleading
“supersedes the pleading it modifies and remains in
effect throughout the action unless it subsequently is
modified”) (internal quotation marks and citation
omitted). Therefore, Plaintiff's amended complaint must
include all of his claims against all of
the Defendants. Failure to file a timely amended complaint
may result in this case proceeding forward only on
Plaintiff's remaining claims against Defendant Adavalos.
THEREFORE ORDERED that Plaintiff's claims against
Defendants Ward, Madrid, and two unknown sergeants, as well
as Plaintiff's claim for injunctive relief, are DISMISSED
without prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1); Plaintiff is granted
thirty (30) days from the date of entry of this order in
which to file an amended complaint; and the Clerk of Court is