United States District Court, D. New Mexico
Donnell Nickson Pro se
MEMORANDUM OPINION AND ORDER
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.
AND PROCEDURAL BACKGROUND
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,
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). 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
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.
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.
LAW REGARDING DISMISSAL FOR FAILURE TO STATE A
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.
§ 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.
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.
LAW GOVERNING NICKSON'S CLAIMS
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 ...