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May v. Dona Ana County Jail

United States District Court, D. New Mexico

August 23, 2018

BRANDON MAY, Plaintiff,

          Brandon May Southern NM Correctional Facility Las Cruces, New Mexico Plaintiff pro se.

          Damian L. Martinez Holt Mynatt Martinez, P.C. Las Cruces, New Mexico Attorneys for Defendant Dona Ana County Jail.


         THIS MATTER comes before the Court under 28 U.S.C. § 1915A on the Plaintiff's Complaint (Tort), filed in federal court February 7, 2018 (Doc. 1-2)(“Complaint”), which was removed from the Third Judicial District Court, County of Dona Ana, State of New Mexico. See Notice of Removal at 1, filed February 7, 2018 (Doc. 1). Also before the Court are the Plaintiff's Motion To Remand, filed March 8, 2018 (Doc. 6)(“Remand Motion”) and the Defendant's Motion to Dismiss Plaintiff's Complaint to Recover Damages Due to Personal Injury and Deprivation of Civil Rights Violations of the United States and New Mexico Constitutions, filed February 7, 2018 (Doc. 2)(“MTD”). Plaintiff Brandon May is incarcerated and proceeds pro se. For the reasons explained below, the Court will deny May's Remand Motion, deny as moot Defendant Dona Ana County Jail's MTD, dismiss without prejudice May's federal claims under 42 U.S.C. § 1983 for failure to state a claim on which relief may be granted, and grant May thirty days in which to file an amended complaint.


         On November 14, 2017, May filed a Complaint against Dona Ana Jail and Defendant Corizon Medical in the Third Judicial District Court. See Complaint ¶ 4, at 2. In his Complaint, May alleges that, after his arrest on or about August 8, 2016, he was sent to the Dona Ana Jail, where he was deprived of adequate medical care. Specifically, May alleges that he was deprived of post-operative care for his hand, including wound cleaning and occupational therapy. As a result, May developed a fungal infection in his hand, a loss of muscle mass, and a loss of flexibility in his wrist. May contends that the alleged deprivation of medical care violated the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 (“NMTCA”), as well as May's “Constitutional Rights Amendment 8; cruel and unusual Punishment inflicted. Amendment 5: Deprivation of life, liberty or property without due process, as well as Amendment 14.” Complaint ¶ 9, at 4. May seeks monetary damages. See Complaint at 5.


         On February 7, 2018, Dona Ana Jail removed May's case to the Court on the basis of federal-question jurisdiction. See Notice of Removal at 1. Dona Ana Jail also filed the MTD, asking the Court to dismiss Dona Ana Jail, because, as a subsidiary of the County of Dona Ana, it “cannot be sued pursuant to 42 U.S.C. Section 1983.” MTD at 5. In response, May contends that Dona Ana Jail is amenable to suit under the NMTCA. See Plaintiff's Response to Defendant Dona Ana County Jail's Motion to Dismiss at 1-2, filed March 8, 2018 (Doc. 7). Dona Ana Jail replies that “[t]he New Mexico Tort Claims Act is not applicable to this case.” Reply in Support of Defendant's Motion to Dismiss at 2-3, filed March 15, 2018 (Doc. 8)(“Reply”).

         On March 8, 2018, May filed the Remand Motion, asking the Court to remand the case to the Third Judicial District Court. See Remand Motion at 1. May contends that the Court lacks subject matter jurisdiction over his claims, because “[t]he cause of action is limited to a New Mexico state cause of action filed in state court pursuant to the Tort Claims Act” and does not “assert any causes of action under 42 U.S.C. 1983.” Remand Motion at 2. Dona Ana Jail responds that May's Complaint alleges the violation of May's “U.S. Constitutional civil right[s] . . . under the 5th, 8th and 14th Amendments, ” and that 42 U.S.C. § 1983 is the “mechanism to protect civil rights violations under the U.S. Constitution or federal law.” Response to Plaintiff's Motion to Remand at 2, filed March 15, 2018 (Doc. 10)(“Remand Response”). Dona Ana Jail therefore asks the Court to deny May's Remand Motion. See Remand Response at 3.


         The Court will first address the merits of May's Remand Motion, because it challenges the Court's subject-matter jurisdiction. The Court will then proceed to screen the merits of May's Complaint under 28 U.S.C. § 1915A.


         An action initially brought in a state court may be removed to a federal district court pursuant to the authority set forth in 28 U.S.C. § 1441, which provides, in pertinent part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a). “The party invoking federal jurisdiction has the burden to establish that it is proper and there is a presumption against its existence.” Salzer v. SSM Health Care of Oklahoma, Inc., 762 F.3d 1130, 1134 (10th Cir. 2014)(internal quotation marks and citation omitted). Indeed, a district court must remand a case “[i]f at any time before final judgment it ...

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