United States District Court, D. New Mexico
Chand, Guadalupe County Correctional Facility Santa Rosa, New
Mexico Plaintiff pro se.
M. Charlebois The Charlebois Law Firm, LLC Santa Fe, New
Mexico Attorney for Defendants.
MEMORANDUM OPINION AND ORDER REMANDING CASE
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.
AND PROCEDURAL BACKGROUND
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 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.
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
REGARDING DISMISSAL FOR FAILURE TO STATE A
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.
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.
REGARDING 42 U.S.C. § 1983 CIVIL RIGHTS
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.
state a claim against a person in their individual capacity
upon which relief can be granted under § 1983, a
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 ...