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Hunnicutt v. Moore

United States District Court, D. New Mexico

March 28, 2019

CARNELL HUNNICUTT, Plaintiff,
v.
DESTINEE MOORE; RAYMOND SMITH; GEO CORP.; LCCF; M. VALERIANO; STACEY BEAIRD; KATHERINE BRODIE; P. VALDEZ; T. FOSTER, and GERMAN FRANCO, Defendants.

          Carnell Hunnicutt Southern New Mexico Correctional Facility Las Cruces, New Mexico Plaintiff pro se

          April 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

          Kevin L. Nault Deputy General Counsel New Mexico Corrections Department Santa Fe, New Mexico Attorney for Defendant German Franco

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND

         THIS 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Hunnicutt 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 4.

         The GEO 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. 2)(“Answer”).

         Hunnicutt 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. 10)(“Response”).

         PENDING MOTIONS

         The GEO 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.

         THE LAW GOVERNING § 1915A REVIEW AND FAILURE TO STATE A CLAIM

         Under 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 governmental entity.
. . . .
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 such relief.

28 U.S.C. § 1915A(a)-(b).

         In 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.

         In 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.

         THE LAW GOVERNING CIVIL RIGHTS CLAIMS UNDER 42 ...


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