United States District Court, D. New Mexico
Hue Owens, Jr. Albuquerque, New Mexico Plaintiff pro se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court, pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A, on Plaintiff's
Complaint for Violation of Civil Rights, filed May 30, 2018
(Doc. 22) (“Amended Complaint”). Owens is
incarcerated, appears pro se, and is proceeding in forma
pauperis. For the reasons explained below, the Court will
dismiss Owens' Amended Complaint without prejudice under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) for
failure to state a claim on which relief may be granted, but
will grant Owens thirty days from the date of this Memorandum
Opinion and Order's entry to file a second amended
August 4, 2017, Owens filed a civil rights complaint against
Defendants San Juan County, San Juan County Detention Center,
and San Juan County Sheriff's Department, alleging civil
rights violations under the Eighth and Fourteenth Amendments
of the Constitution of the United States of America.
See Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983 at 1, filed August 4, 2017 (Doc.
1)(“Complaint”). Owens' Complaint sought
compensatory damages for injuries he suffered during a
physical assault at the San Juan County Courthouse and the
alleged subsequent deprivation of medical care. See
Complaint at 2-3; id. ¶¶ 1-6, at 6.
3, 2018, the Court reviewed Owens' Complaint pursuant to
28 U.S.C. §§ 1915(e) and 1915A, and determined that
it failed to state a claim on which relief may be granted.
See Memorandum Opinion and Order at 5, filed May 3,
2018 (Doc. 19)(“MOO”). Specifically, the Court
dismissed Owens' claims against Defendants San Juan
County Detention Center and San Juan County Sheriff's
Department, because “governmental sub-units are not
separate suable entities that may be sued under [42 U.S.C.]
§ 1983.” MOO at 3 (quoting Hinton v.
Dennis, 362 Fed.Appx. 904, 907 (10th Cir. Jan. 25,
2010)(unpublished)). With respect to Owens' claims
against Defendant San Juan County, the Court determined that
his Complaint was deficient, because it failed to allege that
“the Board of County Commissioners of the County of San
Juan had an official policy or custom that caused the alleged
violation of his constitutional rights” in accordance
with Monell v. Dep't of Social Serv. of City of New
York, 436 U.S. 658
(1978)(“Monell”). MOO at 4. The Court
afforded Owens thirty days in which to file an amended
complaint that states a claim on which relief may be granted
under 42 U.S.C. § 1983.
MOO at 5. The Court notified Owens that his
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). “[T]o 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). Failure to timely file an amended complaint
may result in the dismissal of this action without prejudice
without further notice. See Fed.R.Civ.P. 41(b)
(providing for involuntary dismissal “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order”).
MOO at 4-5.
30, 2018, Owens filed his Amended Complaint. See
Amended Complaint at 1. Owen's Amended Complaint, like
his original Complaint, raises constitutional claims under 42
U.S.C. § 1983 arising out of the physical assault at the
San Juan Courthouse and the subsequent alleged deprivation of
medical care. See Amended Complaint at 3-6.
Additionally, Owens alleges that his trial counsel, Defendant
Corey Stackhouse, denied him adequate representation, because
he failed to help Owens “in anyway including
arraignment, sentencing, appeal.” Amended Complaint at
5. Lastly, Owens alleges that the Defendants have deprived
him of access to the grievance process, tampered with his
mail, and wrongfully convicted and sentenced him. In his
Amended Complaint, Owens seeks $8, 500, 500.00 in monetary
damages. See Amended Complaint at 6.
previously explained to Owens, the 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 or malicious, fails to state a claim
on which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief.
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). Although
“[a] pro se litigant's pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers, ” the liberal
rule of construction “does not relieve the plaintiff of
the burden of alleging sufficient facts on which a recognized
legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). It is well established
that “conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief
can be based.” Hall v. Bellmon, 935 F.2d at
Court will dismiss Owens' § 1983 claims against San
Juan Detention Center, and San Juan Sheriff's Department,
because, as previously explained, “governmental
sub-units are not separate suable entities that may be sued
under § 1983.” MOO at 3 (quoting Hinton v.
Dennis, 362 Fed.Appx. at 907). Additionally, the Court
will dismiss Owens' claims against San Juan County
because the Amended Complaint fails to allege that San Juan
County had an official policy or custom that caused the
alleged violation of his constitutional rights. See
Monell, 436 U.S. at 690 (holding that a county cannot
“be held liable solely because it employs a
tortfeasor -- or, in other words, [it] cannot be held liable
under § 1983 on a respondeat superior
theory” (italics in original)); Starrett v.
Wadley, 876 F.2d 808, 818 (10th Cir. 1989)(noting that
counties “are subject to liability [under § 1983]
only for their official policies or customs”).
Amended Complaint also names Mr. Stackhouse, a private
attorney appointed or retained to represent Owens in his
state criminal proceeding, as a defendant in his Amended
Complaint. “A prerequisite to any relief under section
1983 is that the defendant has acted under color of state
law.” Barnard v. Young, 720 F.2d 1188, 1188-89
(10th Cir. 1983)(footnote omitted). Owens' Amended
Complaint does not allege any facts indicating that Mr.
Stackhouse, a private citizen, acted under color of state
law. See Beedle v. Wilson, 422 F.3d 1059, 1071 (10th
Cir. 2005)(holding that a private citizen “can be held
liable under § 1983 only if she was a ‘willful
participant in joint action with the State or its
agents'” (quoting Dennis v. Sparks, 449
U.S. 24, 27 (1980))); Polk County v. Dodson, 454
U.S. 312, 325 (1981)(holding that “a public defender
does not act under color of state law when performing a
lawyer's traditional functions as counsel to a defendant
in a criminal proceeding” (footnote omitted)). The
Court will, therefore, dismiss Owens' § 1983 claims
against Mr. Stackhouse.
extent that Owens is challenging the constitutional validity
of his state conviction and sentence, Heck v.
Humphrey, 512 U.S. 477 (1994) bars Owens' §
1983 claims. ...