United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. § 1915A, 28
U.S.C. § 1915(e)(2)(B), and Fed.R.Civ.P. 12(b)(6) on the
Complaint filed by Plaintiff, Joshua Urioste (Doc. 1). The
Complaint fails to state a claim on which relief can be
granted. The Court will be dismiss the Complaint without
prejudice and grant leave to file an amended complaint within
thirty (30) days.
and Procedural Background
Plaintiff Joshua Urioste filed his Complaint against all
Defendants on June 29, 2016. (Doc. 1). Urioste also sought
leave to proceed “without paying filing fees or
costs.” (Doc. 2). After being ordered to cure
deficiencies in his motion to proceed, Urioste filed an
amended application to proceed without prepayment of fees or
costs under 28 U.S.C. § 1915. (Doc. 4, 6). The Court
then granted Plaintiff Urioste leave to proceed in forma
pauperis under § 1915. (Doc. 9).
Urioste is proceeding under 42 U.S.C. § 1983. (Doc. 1 at
6). He describes the nature of his case as “[d]enial of
medical attention and care for Plaintiff's medical
issues.” (Doc. 1 at 2). Urioste claims Defendants
subjected the Plaintiff “to needless pain and suffering
and thus denying the Plaintiff his right to seek and obtain
medical care for his issues, and thus denying the plaintiff
equal protection under the law and due process.” (Doc.
1 at 4). He seeks declaratory and injunctive relief,
compensatory damages in the amount of $75, 000 against each
Defendant, and punitive damages up to $250, 000 to deter
future practices. (Doc. 1 at 8-9).
for Failure to State a Claim
Urioste 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
Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). A
claim should be dismissed where it is legally or factually
insufficient to state a plausible claim for relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Fed.R.Civ.P. 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. Twombly, 550 U.S. at 555; 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. Oklahoma
Dep't of Human Services, 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.”
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 upon which relief may be granted. §
1915(e)(2)(B)(2) 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. Neitzke
v. Williams, 490 U.S. 319, 327 (1989). See also Hall
v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). 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 filed by the parties, as well as court proceedings
subject to judicial notice. Denton, 504 U.S. at
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). However, 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 applicable rules of court. 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. Hall v. Bellmon,
935 F.2d at 1110.
deciding whether to dismiss the complaint, in whole or in
part, the court is to consider whether to allow plaintiff an
opportunity to amend the complaint. Pro se plaintiffs should
be given a reasonable opportunity to remedy defects in their
pleadings. Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). The opportunity to amend
should be granted unless amendment would be futile. Hall
v. Bellmon, 935 F.2d at 1109. An amendment is futile if
the amended claims would also be subject to immediate
dismissal under the rule 12(b)(6) or § 1915(e)(2)(B)
standards. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
of the Plaintiff's Claims
Urioste's claims are brought under 32 U.S.C. § 1983.
The exclusive remedy for vindication of constitutional
violations is under § 1983. See, Baker v.
McCollan, 443 U.S. 137, 144 n. 3 (1979); Albright v.
Oliver, 510 U.S. 266, 271 (1994). To state a claim for
relief under 42 U.S.C. § 1983, a plaintiff must assert
acts by government officials acting under color of law that
result in a deprivation of rights secured by the United
States Constitution. 42 U.S.C. § 1983; West v.
Atkins, 487 U.S. 42, 48 (1988). There must be a
connection between official conduct and violation of a
constitutional right. Conduct that is not connected to a
constitutional violation is not actionable under Section
1983. See Trask v. Franco, 446 F.3d 1036, 1046
(10th Cir. 1998).
a civil rights action against a public official or entity may
not be based solely on a theory of respondeat superior
liability for the actions of co-workers or subordinates. A
plaintiff must plead that each government official, through
the official's own individual actions, has violated the
Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). Plaintiff must allege some personal involvement by an
identified official in the alleged constitutional violation
to succeed under § 1983. Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008). In a Section
1983 action, it is particularly important that a
plaintiff's complaint “make clear exactly
who is alleged to have done what to whom,
to provide each individual with fair notice as to the basis
of the claim against him or her.” Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008) (emphasis in the original).
appears to allege claims under 42 U.S.C. § 1983 for
violation of constitutional rights under the 8th
and 14th Amendments. (Doc. 1 at 2-4). He claims
his rights to equal protection and to be free from cruel and
unusual punishment have been violated by alleged indifference
to serious medical needs. (Doc. 1 at 2-8). The Eighth
Amendment protects against the infliction of cruel and
unusual punishments. U.S. Const. Amend. VIII. The Eighth
Amendment's prohibition against cruel and unusual
punishment encompasses deliberate indifference by prison
officials. Howard v. Waide, 534 F.3d 1227, 1235
(10th Cir.2008) (citing Estelle v. Gamble, 429 U.S.
97, 105 (1976)). Deliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment.
Deliberate indifference may be manifested by prison doctors
in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical
care or intentionally interfering with ...