United States District Court, D. New Mexico
Andrew Gutierrez Central New Mexico Correctional Facility Los
Lunas, New Mexico Plaintiff pro se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) the Plaintiff's
Complaint (Tort), filed July 16, 2019 (Doc.
1)(“Complaint”); and (ii) the Plaintiff's
Order on Application for Free Process, filed July 16, 2019
(Doc. 2)(“Motion”). Plaintiff Albert Andrew
Gutierrez alleges that the New Mexico Corrections Department
is using him as a human robot. Having carefully reviewed the
matter under 28 U.S.C. § 1915, the Court will grant the
Motion, but dismiss the Complaint with prejudice.
AND PROCEDURAL BACKGROUND
filed the Complaint on July 16, 2019. See Complaint
at 1. He is incarcerated at the Central New Mexico
Correctional Facility (“CNMCF”). See
Complaint at 4. He alleges that, during his time at CNMCF, he
is “[b]eing [a] human robot and [is sustaining] damages
from signals.” Complaint at 1. The Complaint further
I was sentance [sic] under a milatry [sic] satilite [sic] an
nothing was investigated and I got in trouble because of
being human roboted [sic] and there are law [e]nforcement
that was doing the same thing to me and other group I think
Kirkland Air Force Base and FBI should look in to this matter
and we can go from there I'm asking for a remote
nutrlized [sic] monitoring system with their Kirtland Air
Force Officer's to look in to this please and to let the
prison know other divices [sic] are hitting me from a group
of people and nothing has been dunn [sic] why or look in to.
at 2. The Prayer for Relief requests: “a settalment
[sic] in this matter for being hurt injurd [sic] and murdered
while incarsrortion [sic] and roboted [sic] loss of time with
loved one health issue and and [sic] settelment [sic] in this
matter.” Complaint at 3. Those allegations represent
the entirety of the Complaint. On July 16, 2019, Gutierrez
also filed the Motion, which the Court construes as a motion
to proceed in forma pauperis. See Motion at 1-2.
REGARDING REVIEW OF PRISONER COMPLAINTS
28 of the United States Code § 1915A imposes a mandatory
obligation on district courts to screen “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.” 28
U.S.C. § 1915A(a). Section “1915A applies to all
prison litigants, without regard to their fee status, who
bring civil suits against a governmental entity, officers, or
employee.” Plunk v. Givens, 234 F.3d 1128,
1129 (10th Cir. 2000). On review, the court must dismiss the
action if the complaint “is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
” or if it “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
standards under rule 12(b)(6) of the Federal Rules of Civil
Procedure guide review under § 1915A. See Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). To resist
dismissal under that rule, the plaintiff must frame a
complaint that contains sufficient facts, “accepted as
true, to ‘state a claim for relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(quoting Bell Atl. 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 alleged.”
Ashcroft v. Iqbal, 556 U.S. at 678. Section 1915A
expands this inquiry, however, by granting courts “the
unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims” that are
belied by the record. Neitzke v. Williams, 490 U.S.
319, 327 (1989). See Lee v. Maye, 589 Fed.Appx. 416
(10th Cir. 2015)(unpublished)(applying Neitzke v.
Williams to § 1915A).
the prisoner is proceeding pro se, the “pleadings are
to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). If the court can “reasonably read the pleadings
to state a valid claim on which the plaintiff could prevail,
it should do so despite the plaintiff's failure to cite
proper legal authority, . . . confusion of various legal
theories, . . . poor syntax and sentence construction, or . .
. unfamiliarity with pleading requirements.” Hall
v. Bellmon, 935 F.2d at 1110. At the same time, however,
it is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.”
Hall v. Bellmon, 935 F.2d at 1110.
in deciding whether to dismiss the complaint on screening,
the court must consider whether to allow the plaintiff an
opportunity to amend the complaint. See Reynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). Leave to
amend should be freely given “where deficiencies in a
complaint are attributable to oversights likely the result of
an untutored pro se litigant's ignorance of special
pleading requirements.” Reynoldson v.
Shillinger, 907 F.2d at 126. The court need not grant
leave to amend, however, if any amended claims would also be
subject to immediate dismissal under rule 12(b)(6) or §
1915A. See Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004); Hall v. Bellmon, 935 F.2d at 1109.
REGARDING 42 U.S.C. § 1983
1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., 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