United States District Court, D. New Mexico
Chacon Torrance County Detention Center Estancia, New Mexico
Plaintiff Pro Se.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiff's Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983, filed
March 1, 2017 (Doc. 1)(“Complaint”). Plaintiff
Jorge Chacon is incarcerated, appears pro se, and is
proceeding in forma pauperis. He asserts that
Defendants Benjamin Daffron and Jonathan Franco, who are
Police Officers with the Albuquerque Police Department
(“APD”), used excessive force during his
December, 2015, arrest. Having reviewed the matter sua sponte
under 28 U.S.C. § 1915A, the Court will dismiss the
Complaint for failure to state a cognizable claim, but grant
leave to amend.
limited purposes of this ruling, the Court assumes the
following facts from the Complaint are true. On December 3,
2015, Daffron and Franco approached Chacon in an alley near
California Street in southeast Albuquerque, New Mexico.
See Complaint at 2. They instructed Chacon to stop
and to get on the ground. See Complaint at 2. As he
was attempting to comply, one of the officers grabbed Chacon,
slammed him down to the ground, and thrust his knees into
Chacon's head and ribs. See Complaint at 2. The
officer also directed Chacon to “quit resisting,
” although Chacon alleges that he was not resisting
arrest. See Complaint at 2. The officer then grabbed
Chacon's right arm, forced it up towards Chacon's
head until it made a popping sound, and thrust his knee into
Chacon's back. See Complaint at 2. Chacon
informed the officer that he recently had open heart surgery,
and was experiencing pain in his chest and elbow.
See Complaint at 2. The officer initially refused to
listen, but eventually called an ambulance. See
Complaint at 2. When Chacon arrived at the University of New
Mexico Hospital, the medical providers discovered a fracture
in his right elbow. See Complaint at 2. At some
point Chacon inquired why he was arrested, but the Daffron
and Franco refused to answer. See Complaint at 2.
After Chacon was transported to the Metropolitan Detention
Center, he learned that Daffron and Francisco arrested him
for a crime he did not commit. See Complaint at 2.
The state court eventually dismissed the case, but Chaco
“still did time.” Complaint at 2.
on the foregoing, Chacon raises claims under 42 U.S.C. §
1983, and assault against Defendant Albuquerque Police
Department, Daffron, and Franco. See Complaint at 1.
See Complaint at 1. Chacon's claims include
excessive force, false arrest, and assault. See
Complaint at 1-4. Chacon seeks five million dollars in
damages. See Complaint at 5.
REGARDING REVIEW OF PRISONER COMPLAINTS
28 of the United States Code, § 1915A, imposes a
mandatory obligation on district courts to screen
“before docketing, if feasible, or in any event, as
soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915(A)(a). Section
“1915A applies to all prison litigants, without regard
to their fee status, who bring civil suits against a
governmental entity, officers, or employee.” Plunk
v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000). On
review, the court must dismiss the action if the complaint
“is frivolous, malicious, or fails to state a claim
upon which relief may be granted, ” or if it
“seeks monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. § 1915A(b).
standards used for rule 12(b)(6) of the Federal Rules of
Civil Procedure guide review under § 1915A. See Kay
v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). To
resist dismissal under that rule, the plaintiff must frame a
complaint that contains sufficient facts to
“‘state a claim for relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(quoting Bell Atl. 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.”
Ashcroft v. Iqbal, 556 U.S. at 678. Section 1915A
expands this inquiry, however, by granting courts “the
unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims” that the
record belies. Neitzke v. Williams, 490 U.S. 319,
327 (1989)(construing 28 U.S.C. § 1915(d)(1988), which
is now 28 U.S.C. § 1915(e)(2)(B)(i)). See Lee v.
Maye, 589 Fed. App'x 416 (10th Cir. Jan. 7,
2015)(Gorsuch, J.)(applying Neitzke v. Williams to
the prisoner is proceeding pro se, the “pleadings are
to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”
Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir.
1991). 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, . . . confusion of various legal
theories, . . . poor syntax and sentence construction, or . .
. unfamiliarity with pleading requirements.” Hall
v. Bellman, 935 F.2d at 1110. 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.” Hall v. Bellman, 935 F.2d at 1110.
in deciding whether to dismiss the complaint on screening,
the Court must consider whether to allow the plaintiff an
opportunity to amend the complaint. See Reynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). The
Court should freely give leave to amend “where
deficiencies in a complaint are attributable to oversights
likely the result of an untutored pro se litigant's
ignorance of special pleading requirements . . . .”
Reynoldson v. Shillinger, 907 F.2d at 126. The Court
need not grant leave to amend, however, if any amended claims
would also be subject to immediate dismissal under rule
12(b)(6) or § 1915A. See Hall v. Bellman, 935
F.2d at 1109; Bradley v. Val-Mejias, 379 F.3d 892,
901 (10th Cir. 2004).
REGARDING 42 U.S.C. § 1983
1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects,
or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party