United States District Court, D. New Mexico
Brandon May Southern NM Correctional Facility Las Cruces, New
Mexico Plaintiff pro se.
L. Martinez Holt Mynatt Martinez, P.C. Las Cruces, New Mexico
Attorneys for Defendant Dona Ana County Jail.
MEMORANDUM OPINION AND ORDER
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
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.
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.
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.
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.
THE COURT WILL DENY MAY'S MOTION TO
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 ...