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Chand v. Corizon Medical

United States District Court, D. New Mexico

March 18, 2019

NAREND CHAND, Plaintiff,
CORIZON MEDICAL; DR. ROGER ANES, in his official and individual capacity; DENTAL ASSISTANT MS. ROMERO, in her individual and official capacity; THE GEO GROUP, INC., and SECRETARY OF NMDOC, Defendants.

          Narend Chand, Guadalupe County Correctional Facility Santa Rosa, New Mexico Plaintiff pro se.

          Nicole M. Charlebois The Charlebois Law Firm, LLC Santa Fe, New Mexico Attorney for Defendants.


         THIS MATTER comes before the Court, under 28 U.S.C. § 1915A, on the Plaintiff's Complaint for Damages and Personal Injury and for Violation of Federal and State Law, filed in state court June 29, 2018, filed in federal court July 30, 2018 (Doc. 1-1)(“Complaint”); and Corizon's Motion to Dismiss, filed August 10, 2018 (Doc. 6)(“Motion”). The Court will grant Defendant Corizon Medical's Motion, will dismiss Plaintiff Narend Chand's federal civil rights claims under 42 U.S.C. § 1983, and will remand the case to state court for adjudication of Chand's state-law claims.


         Chand filed his Complaint in the Fourth Judicial District Court, County of Guadalupe, State of New Mexico, on June 29, 2018. See Complaint at 1. The Complaint names Corizon Medical, Dr. Roger Anes, Dental Assistant Ms. Romero, Geo Group, Inc., and Secretary of NMDOC[1] as the Defendants. See Complaint at 1. The Complaint states that the Court has jurisdiction over the subject matter “under section 41-4-1 [of the New Mexico Tort Claims Act], and Art. II, Section 10, of [sic] New Mexico Constitution.” Complaint ¶ 1, at 1. The Complaint's claims are for “negligence, medical malpractice, negligent hiring, training, negligence per se, breach of contract, and violation of his civil rights under the Eigth [sic] Amendment, and Fourteenth Amendments to the U.S. Constitution” arising out of dental care provided to Chand at the Guadalupe County Correctional Facility, Santa Rosa, New Mexico. Complaint at 1. The Complaint requests relief in the form of compensatory, special, and punitive damages, pre- and post-judgment interest, and attorney fees. See Complaint at 7.

         Corizon Medical removed the case to the Court from the Fourth Judicial District Court on July 30, 2018. See Notice of Filing of Removal, filed July 30, 2018 (Doc. 1-2). Corizon Medical then filed its Motion on August 10, 2018. See Motion at 1. Corizon Medical seeks dismissal on the grounds that the events giving rise to the Complaint occurred on or after July 7, 2016, and Corizon Medical ceased providing dental services at the Guadalupe Correctional Facility as of May 31, 2016. See Motion at 1-2. In his Motion to Join Centurion LLC as Defendants [sic] Rule 21 Joinder and Now Joinder of Parties, filed August 16, 2018 (Doc. 7)(“Joinder Motion”), Chand concedes that dismissal of Corizon is proper. See Joinder Motion at 1-2.


         The court has the discretion to dismiss a pro se complaint sua sponte for failure to state a claim upon which relief may be granted under rule 12(b)(6) of the Federal Rules of Civil Procedure. 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(“Twombly”); 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.” 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 Twombly, 550 U.S. at 570.

         The court liberally construes the factual allegations in reviewing a pro se complaint. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). The same legal standards that apply to all litigants, however, judge a pro se plaintiff's pleadings, and a pro se plaintiff must abide by the court's applicable rules. See Ogden v. San Juan Cty., 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 the pro se litigant's advocate. See Hall v. Bellmon, 935 F.2d at 1110.


         Section 1983 is the exclusive vehicle for vindication of substantive rights under the Constitution of the United States. See Albright v. Oliver, 510 U.S. 266, 271 (1994)(holding that § 1983 creates no substantive rights; rather, it is the means through which a plaintiff may seek redress for deprivations of rights established in the Constitution); Baker v. McCollan, 443 U.S. 137, 14 n.3 (1979); Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006). Section 1983 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 . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

         To state a claim against a person in their individual capacity upon which relief can be granted under § 1983, a plaintiff

must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation; (2) proximately caused); (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[, ] or usage, of any State or Territory or the District of Columbia.

Martinez v. Martinez, No. CIV 09-0281 JB\KBM, 2010 WL 1608884, at *11 (D.N.M. March 30, 2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The Supreme Court of the United States of America has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675 (holding that regarding individual-capacity claims for alleged constitutional violations under § 1983, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). A § 1983 civil rights action against a public official or entity, thus, may not be based solely on a theory of respondeat superior liability for co-workers' or subordinates' actions; a plaintiff must show an “affirmative link between the supervisor's conduct and the constitutional deprivation”; a plaintiff must show that “a supervisory defendant, expressly or otherwise, authorized, supervised, or participated in conduct which caused the constitutional deprivation.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990). The plaintiff must allege some personal involvement by an identified official in the alleged constitutional violation to succeed under § 1983. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008)(“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” (internal quotation marks omitted)(quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)). In a § 1983 action, it is particularly important that a plaintiff's complaint “make clear exactly who is alleged to ...

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