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Gutierrez v. State of New Mexico Corrections

United States District Court, D. New Mexico

July 30, 2019


          Albert Andrew Gutierrez Central New Mexico Correctional Facility Los Lunas, New Mexico Plaintiff pro se


         THIS 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.


         Gutierrez 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 alleges:

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.

         Complaint 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.


         Title 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[1] 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. § 1915A(b).

         The 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).[2]

         Where 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.

         Finally, 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.

         LAW REGARDING 42 U.S.C. § 1983

         Section 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 ...

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