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Nickson v. State

United States District Court, D. New Mexico

September 18, 2018


          Steven Donnell Nickson Pro se


         THIS MATTER comes before the Court, under 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A, and rule 12(b)(6) of the Federal Rules of Civil Procedure, on the Prisoner's Civil Rights Complaint, filed October 31, 2017 (Doc. 1)(“Complaint”). The Court will dismiss Steven Nickson's Complaint, based on immunity and failure to state a claim on which relief can be granted.


         Nickson filed his Complaint under 28 U.S.C. § 1983, on October 31, 2017. His Complaint names, as Defendants, New Mexico State, Public Defender William J. Hull, District Judge William G.W. Shoobridge (Nickson incorrectly spells the Judge's name “Shoebridge”), and Fifth Judicial District Attorneys Office. See Complaint, ¶ 6, at 3. Nickson is proceeding under 42 U.S.C. § 1983, alleging denial of his rights and violations of the canons of judicial conduct. See Complaint, ¶¶ 5, at 2; 7-10, at 4-5. Nickson alleges two counts against the Defendants: (i) “Claim I: Conflict of Interest imposed by the State of New Mexico, Fifth Judicial District Attorneys Office . . .”; and (ii) “Claim II: Conflict of Interest; Jurisdiction; Denial of Rights.” Complaint ¶¶ 5, at 2; id. ¶ 10, at 5. Nickson seeks reversal of his conviction, “Publication(s) Rights w/ full Prejudice, ” and $5, 200, 000.00 in damages. Complaint ¶ 17, at 8.

         Nickson pled guilty and was convicted on four counts of possession of a controlled substance. See State v. Nickson, No. D-506-CR-2014-00523 (State of New Mexico, County of Lea, Fifth Judicial District Court).[1] On April 11, 2017, Nickson was sentenced to seven months and six days probation with credit for time served on Counts 1 and 2, and a suspended sentence of eighteen months on Counts 3 and 4. On October 12, 2017, a Fifth Judicial District Court order revoked his probation. See Order Revoking Probation and Commitment to the Corrections Department, filed October 12, 2017.

         All of the allegations in the Complaint appear to arise from the original proceedings leading to Nickson's conviction and sentence, and not from the proceedings revoking his probation. See Complaint ¶¶ 4-5, at 2; 7-10, at 4-5. Nickson also alleges that he has a petition for writ of certiorari pending before the New Mexico's Supreme Court. See Complaint ¶ 11, at 6. The state district court record reflects the filing of a petition for writ of certiorari, but does not indicate that he presented any habeas corpus petition to the district court, or that any appealable order had been entered at the time he filed the certiorari petition. The state court record also shows that, in addition to Hull, Nickson has had four defense counsel, all of whom have either withdrawn or attempted to withdraw from the representation.

         The state court record establishes that Hull represented Nickson in the state criminal case for a period of approximately one month from September 2, 2014, to October 3, 2014. Hull withdrew when he accepted employment with the Fifth Judicial District Attorney's Office. Nickson filed a motion to dismiss based on a conflict of interest, and Nickson's substituted counsel filed a motion to disqualify Hull. The Fifth Judicial District Court, Judge William Shoobridge, denied the motion, finding:

(2) The [Fifth Judicial District Attorney's] office has proffered to the Defendant's new attorney the policies and procedures that have been put in place to ensure that the Defendant's former attorney has been effectively screened out of the prosecution of the Defendant;
(3) Counsel for the Defendant and this Court accept the proffer and the Court finds that based upon the record compiled to date that the Defendant's former counsel has been effectively screened from this prosecution and as such the motion should be denied.

See State v. Nickson, Order Denying Motion to Disqualify, entered February 26, 2015.


         Nickson is proceeding pro se and in forma pauperis. The Court has the discretion to dismiss an in forma pauperis complaint sua sponte for failure to state a claim upon which relief may be granted under either rule 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). Under rule 12(b)(6), the court must accept all well-pled factual allegations, but not conclusory, unsupported allegations, and may not consider matters outside the pleading. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under Rule 12(b)(6) for failure to state a claim if “it is ‘patently obvious' that the plaintiff could not prevail on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting McKinney v. Okla. Dep't of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 570. A claim should be dismissed where it is legally or factually insufficient to state a plausible claim for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. at 570.

         Under § 1915(e)(2)(B), the court may dismiss the complaint at any time if the court determines the action fails to state a claim for relief, or is frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B)(ii). The authority granted by § 1915 permits the court the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. See Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also Hall v. Bellmon, 935 F.2d at 1109. The authority to “pierce the veil of the complaint's factual allegations” means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). The court is not required to accept the truth of the plaintiff's allegations but, instead, may go beyond the pleadings, and consider any other materials that the parties filed, and court proceedings subject to judicial notice. See Denton v. Hernandez, 504 U.S. at 32-33.

         In reviewing a pro se complaint, the court liberally construes the factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). A pro se plaintiff's pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff must abide by the court's applicable rules. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The court is not obligated to craft legal theories for the plaintiff or to supply factual allegations to support the plaintiff's claims. Nor may the court assume the role of advocate for the pro se litigant. See Hall v. Bellmon, 935 F.2d at 1110.


         The law regarding judicial and prosecutorial immunity, § 1983 and Heck v. Humphry,512 U.S. 477 (1994) govern Nickson's claims. Absolute judicial and prosecutorial immunity bar claims against judges and prosecutors acting, respectively, in their judicial and prosecutorial roles. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Christensen v. Ward, 916 F.2d 1462, 1473-76 (10th Cir. 1990); Hunnicutt v. Sewell, 219 P.3d 529, 534-45 (N.M. Ct. App. 2009); Miller v. Spiers, 434 F.Supp.2d 1064, 1066 (D.N.M. 2006); Johnson v. Lally, 887 P.2d 1262, 1263 (N.M. Ct. App. 1994). Claimants under § 1983 must allege that government officials, acting “under color of” state law, deprived the claimant of substantive, constitutional rights. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). The He ...

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