United States District Court, D. New Mexico
Carnell Hunnicutt Southern New Mexico Correctional Facility
Las Cruces, New Mexico Plaintiff pro se
D. White Yenson, Allen & Wosick, P.C. Albuquerque, New
Mexico Attorneys for Defendants The Geo Group, Inc., M.
Valeriano, Katherine Brodie and P. Valdez
Michael D. Russell Yenson, Allen & Wosick, P.C.
Albuquerque, New Mexico Attorneys for Defendants M.
Valeriano, Katherine Brodie and P. Valdez
L. Nault Deputy General Counsel New Mexico Corrections
Department Santa Fe, New Mexico Attorney for Defendant German
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
MATTER comes before the Court, under 28 U.S.C.
§ 1915A, on the Plaintiff's Complaint (Tort), filed
in the County of Lea, Fifth Judicial District Court, State of
New Mexico December 21, 2017, filed in federal court July 12,
2018 (Doc. 1-1)(“Complaint”), and the
Plaintiff's Motion in Opposition for Removal of Civil
Action, filed August 9, 2018 (Doc. 6)(“Motion to
Remand”). Defendant The GEO Group, Inc., removed the
case to the Court on July 12, 2018. See Notice of
Removal, filed July 12, 2018 (Doc. 1). The Court dismisses
Plaintiff Carnell Hunnicutt's copyright and prison
grievance claims in the Complaint, and concludes that
Hunnicutt has stated a 42 U.S.C. § 1983 claim against
Defendants Destinee Moore, Raymond Smith, Stacey Beaird, and
Katherine Brodie for violation of his First Amendment to the
Constitution of the United States of America rights. With
federal claims remaining, the Court will not remand the case
and, thus, the Court denies the Motion to Remand.
AND PROCEDURAL BACKGROUND
filed his Complaint in the County of Lea, Fifth Judicial
District Court, State of New Mexico, on December 21, 2017.
See Complaint at 1. The Complaint states that the
“Fifth Judicial District Court has jurisdiction in Tort
actions pursuant to the New Mexico Tort Claims Act N.M.S.A.
Chapter 41.” Complaint ¶ 2, at 1. The Complaint
describes the nature of this action as “Copyright
infringement, censorship, interference with outgoing mail,
retaliatory punishment, negligence and infractions for
criticizing prison conditions and personnel in outgoing
correspondence.” Complaint ¶ 1(a), at 1. Hunnicutt
further alleges that the Defendants “blame the
Plaintiff for exercising his First Amendment Rights
pertaining to his outgoing correspondence.” Complaint
¶ 5, at 2. Last, Hunnicutt avers that “[a]ll of my
allegations are based on the copyright protection and the
Defendants knowing and intentional arrogation of power and
violating New Mexico Corrections Department Regulations and
NMSA 1978, 33-1-6 and 33-2-10.” Complaint ¶ 11, at
Group removed the case from state court to the Court on July
12, 2018. See Notice of Removal at 1. The GEO Group
states that “[t]he Complaint is subject to the
jurisdiction of this Court pursuant to 28 U.S.C. § 1331
because Plaintiff asserts claims for copyright infringement
pursuant to the Copyright Act of 1976 [and] . . . pursuant to
42 U.S.C. § 1983 for violation of Plaintiff's First
Amendment rights.” Notice of Removal ¶ 5, at 2
(citations omitted). The Geo Group filed its Answer.
See Defendant The GEO Group, Inc.'s Answer to
Plaintiff's Complaint, filed July 13, 2018 (Doc.
filed the Motion to Remand, in which Hunnicutt moves to
remand the case to state court. See Motion to Remand
¶ 6, at 1. Hunnicutt does not dispute that he asserts
federal copyright and civil rights claims, but argues that
the Court should remand this case, because his state law
claims “substantially predominate” over the
federal claims. Motion to Remand ¶ 5, at 1. Defendants
The GEO Group, M. Valeriano, Brodie, and P. Valdez respond in
opposition to the case's remand. See Defendants
Geo, Valeriano, Brodie and Valdez' Response in Opposition
to Plaintiff's Motion in Opposition for Removal of Civil
Act (Doc. 6), filed August 16, 2018 (Doc.
Group also sought a protective order, requesting the Court to
relieve it of the obligation to respond to Hunnicutt's
discovery until the Court completes its preliminary review of
the case. See The GEO Defendants' Motion for
Protective Order ¶ 8, at 2, filed September 14, 2018
(Doc. 12)(“Protective Order Motion”). Hunnicutt
did not respond to the Protective Order Motion but, instead,
filed Plaintiff's Motion to Request Discovery from the
Defendants' [sic], filed September 28, 2018 (Doc.
13)(“Discovery Motion”), seeking to compel the
Defendants to respond to discovery requests. See
generally, Discovery Motion. Pending before the Court
are the Protective Order Motion, the Discovery Motion, The
GEO Defendants' Motion for Summary Judgment and
Memorandum of Law in Support, filed October 12, 2018 (Doc.
16), Plaintiff's Motion that Defendants' Motion for
Summary Judgment be Denied or Stayed Until Plaintiff had
Sufficient Opportunity to Obtain the Necessary Facts, and the
Court's Initial Review is Completed, filed November 29,
2018 (Doc. 20), and the Plaintiff's Motion for Extension
of Time to Respond to GEO Defendants Motion for Summary
Judgment and Memorandum of Law in Support, filed January 22,
2019 (Doc. 29). Under 28 U.S.C. § 1915A, the Court is
obligated to conduct an initial screening of Hunnicutt's
Complaint. In this Memorandum Opinion and Order, the Court
conducts an initial screening of Hunnicutt's Complaint,
and denies the Motion to Remand. The rest of the motions
remain pending for later decision.
LAW GOVERNING § 1915A REVIEW AND FAILURE TO STATE A
the Prison Litigation Reform Act, 42 U.S.C. § 1997(e),
the court is obligated to preliminarily screen the Complaint.
See 28 U.S.C. § 1915A. Whenever a prisoner
brings a civil action against government officials, the Court
must screen the prisoner's complaint or petition. 28
U.S.C. § 1915A. Section 1915A states:
The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
. . . .
On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint --
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(a)-(b).
conducting the § 1915A review, 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.
See 28 U.S.C. § 1915A(b)(1). 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);
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 Atl. 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 Atl. Corp. v. Twombly, 550 U.S. at 570.
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). 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
advocate's role for the pro se litigant. See Hall v.
Bellmon, 935 F.2d at 1110.
LAW GOVERNING CIVIL RIGHTS CLAIMS UNDER 42 ...