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Lucero v. Medical Staff at C.M.R.U.

United States District Court, D. New Mexico

September 17, 2018




         THIS MATTER is before the Court under 28 U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6) on the amended Complaint (Tort) (“Amended Complaint”) filed November 27, 2017, by Plaintiff, Patricio Lucero. (Doc. 6.) The Court determines that the allegations of Plaintiff Lucero's Amended Complaint fail to state a claim for relief under 42 U.S.C. § 1983, the Court declines to exercise supplemental jurisdiction over any state law claims, and the Court will dismiss Lucero's Amended Complaint without prejudice to the state court action.

         Factual and Procedural Background

         Plaintiff Lucero filed this civil action as a Notice of Claim under the New Mexico Tort Claims Act on October 16, 2017, alleging issues relating to his medical care. (Doc. 1.) Liberally construing his filing as raising civil rights claims under 42 U.S.C. § 1983, the Court ordered him to remedy defects in his original filing and sent him a § 1983 complaint form. (Doc. 4.) Plaintiff filed his Amended Complaint on November 27, 2017. (Doc. 6.) However, instead of using the § 1983 form provided by the Court, Lucero filed a combined New Mexico state court form complaint under the New Mexico Tort Claims Act, N.M. Stat. Ann. Chapter 41, and portions of the § 1983 form. (See id.)

         In his Amended Complaint, Lucero states that the nature of his action is “Negligence and Falsifying Medical records.” (Id. at 1.) He also asserts that the federal constitutional or statutory rights he claims have been violated are “Prison Litigation Reform Act Constitutional Amendment 8 Article #5 Article #8 Article #25.” (Id. at 4-5.) Lucero names as Defendants “B. Smith L.P.N. (Nurse Verge, Laurie St Jacques H-S-A Centurion Medical Services.” (Id. at 1.) He also identifies Tiffany Peralta as a Defendant in the body of his Amended Complaint. (Id. at 3.)

         In support of his claims, Plaintiff Lucero alleges[1]:

Dec. 2016-July-2017 and ongoing (Patricio Lucero #65913) this prisoner has a neurological disorder that manifst itself by uncontrolable seizure, and the whole body shaking for hours at this Facility. The Nursing staff, even though it's mandated by law do not follow the Mars sheet, the documentation that list all medications, that have been prescribed by a licensed provider. Because this disorder causes other conditions (stomach problems, gastrointestinal decomfort) and requires a great deal of treatment, the Nurses, not all of them, but to name a few, (Verge Linsey, Nurse Ms Di (that's what this person goes by) N.P. Tiffany Peralta), with held treatment which includes incorrect medications, shorting the prescribed amount (which causes shaking Episodes) passing on fictitious facts to other nurses which creates the appearance of this prisoner being a malinger.

(Id. at 2);

I, Patricio Lucero, Inmate was given the wrong medication by Nurses more than once since I have been here at CMRU my problem has gotten worse. Nurse B. Smith & other Nurses have falsified my medical records, to show they gave me my Meds when they had not giving them to me. My Eight Amendment of the Constitution has been violated.

(Id. at 6);

This steams all the way back to 12-20-2016 and it has gone on almost a year. Nurse Verge was one of the first Nurse that would give me my Meds. It was like she would give me the wrong meds to see what would happen to me. . . . The Nurse would give me the wrong meds & at times I go in to these shaking spells, at times they'll last up to 4 hours. At times (Tiffany Peralta) previous provider, insisted that I only received my Meds twice a day instead of three times a day as I had been for quite a while. This change in my Med time, also had a change in my seizures. I would be fine one minute and the next I would go to shaking real bad. I followed CO police 032201. Nurse Verge also made the commit about my Meds it was like a Box of chocolates, you never know what you'll get. . . . I have blacked out and fallen more than once a week. I now have a fractured hand due to my falls. And blacking out from my Meds being tampered with and recieving the wrong Meds. . . . I would like Millions of Dollars. If it would stop the pain and suffering I go Humiliation they have put me through. All of the arguing the Nurses would do just to keep from doing the job the Doctor told them to do. Yes I want Millions of Dollars.

(Id. at 7).

         Pending Motions

         Plaintiff Lucero has filed two requests for appointment of counsel. (Docs. 2; 12.) There is no right to appointment of counsel in a civil rights case. Instead, the decision whether to request assistance of counsel rests in the sound discretion of the Court. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003); MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988). In determining whether to appoint counsel, the district court should consider the merits of the litigant's claims, the nature and complexity of the factual and legal issues, and the litigant's ability to investigate the facts and to present his claims. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The Court has reviewed the complaint, amended complaint, and subsequent filings in light of the foregoing factors. Plaintiff appears to understand the issues in the case and to be ...

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