United States District Court, D. New Mexico
JOSEPH P. SUAZO, Plaintiff,
STATE OF NEW MEXICO, Defendant.
MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM
MATTER comes before the Court on Defendant's Motion to
Dismiss for Failure to State a Claim, filed March 29, 2019
(Doc. 5). Having reviewed the parties'
pleadings and the applicable law, the Court finds that
Defendant's motion is well-taken in part and, therefore,
is GRANTED IN PART. Plaintiff's
complaint is DISMISSED with leave to amend.
filed his complaint in state court on February 14, 2019 while
out of custody. Doc. 2-1. Plaintiff alleges
that Defendant violated his federal constitutional rights,
his “New Mexico rights”, Due Process rights, and
committed negligence and “other violations.”
Doc. 2-1, p. 2. Plaintiff also asserts he
fractured his hip while incarcerated “for no
reason”, lack of justice, unlawful arrest, and pain and
suffering. Plaintiff did not name any individual defendants.
Defendant removed this case to this Court on March 22, 2019.
Id. Plaintiff failed to respond to
the motion to dismiss.
Court construes Plaintiff's complaint as asserting (1)
negligence; (2) deliberate indifference to medical need
pursuant to the Eighth Amendment; (3) False or wrongful
arrest pursuant to the Fourth Amendment; and (4) a Due
Process violation. Plaintiff does not allege any facts to
support his claims, aside from the allegation that he broke
his hip while in custody.
reviewing a Fed.R.Civ.P. 12(b)(6) dismissal, a court must
accept as true all well-pleaded facts, as distinguished from
conclusory allegations, and those facts must be viewed in the
light most favorable to the non-moving party.” Moss
v. Kopp, 559 F.3d 1155, 1159 (10th Cir. 2010). “To
withstand a motion to dismiss, a complaint must contain
enough allegations of fact ‘to state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
Plaintiff proceeds pro se, the Court liberally
construes the factual allegations. See Northington v.
Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).
However, the pleadings are still judged by the same legal
standards that apply to all litigants. Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994). The Court is
not obligated to craft legal theories for the plaintiff or
assume the role of advocate. Hall, 935 F.2d at 1110.
asserts several constitutional violations. 42 U.S.C. §
1983 is the statutory vehicle for asserting violations of the
United States constitution. A cause of action under section
1983 requires the deprivation of a civil right by a
‘person' acting under color of state law.”
McLaughlin v. Bd. of Trustees, 215 F.3d 1168, 1172
(10th Cir. 2000). Plaintiff must allege that each government
official, through the official's own individual actions,
has personally violated the Constitution. See Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 1998). There must
also be a connection between the official conduct and the
constitutional violation. Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008); Trask, 446 F.3d at
State of New Mexico is not an appropriate
State of New Mexico is not a permissible party under §
1983. Rather, Plaintiff must assert a § 1983 claim
against an individual. See, e.g., McLaughlin v. Bd. of
Trs. of State Colls. of Colo., 215 F.3d 1168, 1172 (10th
Cir. 2000) (“A cause of action under section 1983
requires the deprivation of a civil right by a
‘person' acting under color of state law.”).
A governmental entity such as the State of New Mexico is not
a “person” under § 1983. Id.
Because Plaintiff failed to name any individual as a
defendant, Plaintiff's complaint failed to state a
plausible claim for relief for the federal constitutional
Plaintiff also asserts various state law claims against the
State of New Mexico, including negligence and other unnamed
New Mexico state claims. The New Mexico Tort Claims Act
appears to apply. Under that act, New Mexico governmental
entities and public employees “acting within the scope
of duty are granted immunity from liability for any tort
except as waived…” NMSA § 41-4-4(a).
Plaintiff only names the State of New Mexico. Under the New
Mexico Tort Claims Act, a plaintiff may sue a public employee
as well as “the agency or entity for whom the public
employee works.” Abalos v. Bernalillo Cty. Dist.
Atty's Office, 1987-NMCA-026, ¶ 20, 105 N.M.
554, 559, 734 P.2d 794, 799. To name a public entity,
Plaintiff should allege (1) an employee whose actions meets
one of the waiver exceptions under NMSA § 41-4-1 et
al., and (2) a governmental entity that has immediate
supervisory responsibilities over that employee. Abalos
v. Bernalillo Cty. Dist. Atty's Office,
1987-NMCA-026, ¶ 20, 105 N.M. 554, 559, 734 P.2d 794,
799. Generally, the “immediate supervisory entity of
the public employee involved” is the entity that should
be named in the suit. Id. Here, the complaint ...