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Herrera v. Sena

United States District Court, D. New Mexico

April 30, 2019

JOSE SENA, in his individual capacity, Defendant.



         THIS 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.


         At the 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].

         Plaintiff 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.[2] [Doc 7].


         Rule 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.” Id.

         III. ANALYSIS

         A. 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 follows:
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 redress.

         Section 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).

         Although 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.”[3] Robertson v. Wegmann, 436 U.S. 584, 590 (1978).

         The application of state survival statutes to § 1983 cases has not always been clear. Perhaps this is because many were drafted[4] 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 ...

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