United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
H. RITTER UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendant Jose Sena's
Motion to Dismiss Based on Death of Defendant. [Doc
7]. The Court, having considered the parties'
submissions, the relevant law, and being otherwise fully
advised in the premises finds that the motion is well taken
and should be granted.
FACTUAL AND PROCEDURAL BACKGROUND
relevant time Plaintiff was an inmate at the Springer
Correctional Facility in Springer, New Mexico and Mr. Sena
was an officer with the New Mexico Corrections Department.
[Doc. 1, ¶¶ 4-5]. Plaintiff alleges that she was
the object of unwanted romantic and sexual advances by Mr.
Sena. [Doc. 1, ¶¶ 6-7]. Plaintiff further alleges
that Mr. Sena became angry that she did not return his
apparent romantic and/or sexual interest in her and
threatened that if Plaintiff did not “give in to his
advances, he would take it out on her and other
inmates.” [Doc. 1, ¶ 8]. According to Plaintiff,
Mr. Sena ultimately forced her into a staff bathroom,
sexually assaulted her, and threatened to retaliate if she
reported the incident. [Doc. 1, ¶¶ 9-11].
filed her Complaint for Civil Rights Violations
(“Complaint”) on August 9, 2018, asserting that
Mr. Sena violated her “established constitutional right
to be secure in her bodily integrity and free from sexual
attacks by prison staff” thereby violating her rights
under the Eighth Amendment to the United States Constitution.
[Doc. 1, ¶¶ 20, 22]. Mr. Sena was served with a
copy of the Complaint on August 14, 2018. [Doc. 3]. Mr. Sena
passed away on August 24, 2018. [Doc. 6]. The Motion to
Dismiss Based on Death of Defendant was filed on October
8, 2018. [Doc. 7]. The Motion, brought under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, raises three primary
issues: (1) whether Plaintiff's claims under 42 U.S.C.
§ 1983 survive Mr. Sena's death, pursuant to the
applicable New Mexico survival statute, NMSA 1978, §
37-2-4 (1884); (2) whether allowing the continuation of this
§ 1983 action deprives Defendant of substantive due
process; and (3) whether allowing the continuation of this
§ 1983 action otherwise violates the United States
Constitution. [Doc 7].
12(b)(6) requires the Court to accept all well-pleaded
allegations as true and view them in the light most favorable
to the plaintiff. See Zinermon v. Burch, 494 U.S.
113, 118 (1990); Swanson v. Bixler, 750 F.2d 810,
813 (10th Cir. 1984). The complaint must set forth the
grounds of a plaintiff's entitlement to relief through
more than labels, conclusions and a formulaic recitation of
the elements of a cause of action. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a
Rule 12(b)(6) motion to dismiss, a plaintiff must allege
facts sufficient to state a plausible claim of relief.
Id. at 570. A claim is facially plausible if the
plaintiff pleads facts sufficient for the court to reasonably
infer that the defendant is liable for the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
The Relevant Law Governing the Survival of Plaintiff's
Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides in pertinent part as
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof 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
1983 does not create substantive rights; it merely provides
remedies for deprivations of rights established elsewhere.
See Oklahoma City v. Tuttle, 471 U.S. 808, 817
(1985). To state a claim for relief under 42 U.S.C. §
1983, a plaintiff must assert acts by state 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 § 1983. See Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 2006).
federal law determines whether a federal claim survives upon
the death of a party, claims under § 1983 are silent on
the issue of survivorship. Thus, in accordance with 42 U.S.C.
§ 1988, whether a § 1983 action abates at the death
of a party is determined by the law of the forum state, as
long as that law is not “inconsistent with the federal
policy underlying the cause of action under
consideration.” Robertson v. Wegmann, 436 U.S.
584, 590 (1978).
application of state survival statutes to § 1983 cases
has not always been clear. Perhaps this is because many were
drafted before the emergence of civil rights
litigation under § 1983 which, despite being passed in
1871, “languished in relative obscurity until 1961,
when the Supreme Court decided Monroe v. Pape[, 365
U.S. 167 (1961) ].” Kaminski v. Coulter, 865
F.3d 339, 345-46 (6th Cir. 2017); see Id. at 346
(“Monroe opened the gates for ...