United States District Court, D. New Mexico
JOSEPH P. SUAZO, Plaintiff,
STATE OF NEW MEXICO, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS
MATTER comes before the Court on Defendant's Motion to
Dismiss, filed July 31, 2019 (Doc. 9).
Having reviewed the parties' pleadings and the applicable
law, the Court finds that Defendant's motion is
well-taken and, therefore, is GRANTED. All
claims against Defendant are dismissed with prejudice.
filed his original complaint in state court on February 14,
2019 while out of custody. Doc. 2-1. Plaintiff alleged 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 asserted 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.
filed a motion to dismiss, but Plaintiff failed to respond.
The Court dismissed the complaint under Fed.R.Civ.P. 12(b)(6)
for (1) failing to identify a party against whom relief could
be granted, and (2) failing to state any facts whatsoever in
support of his claims. See Doc. 7. The Court sua
sponte granted Plaintiff leave to amend, as Plaintiff
could conceivably state a claim if he asserted facts and
identified individuals responsible for the alleged
constitutional violations or torts. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (pro
se plaintiffs should normally be given a reasonable
opportunity to remedy defects in their pleadings, unless
amendment would be futile).
10, 2019, Plaintiff filed a letter, which the Court construes
as an amended complaint. In his amended complaint, Plaintiff
appears to allege that he was (1) arrested (or searched)
without a warrant; (2) falsely imprisoned; (3) tampering with
evidence; (4) failure to provide discovery in his criminal
case in violation of his due process rights; and (5) harmed
or injured by misconduct or negligence. However, Plaintiff
did not allege any additional facts in support his claim.
subsequently filed a second motion to dismiss. Plaintiff
failed to respond to the second motion to dismiss.
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
appears to allege a mix of federal constitutional claims
pursuant to § 1983 and New Mexico state law claims
pursuant to the New Mexico Tort Claims Act. As noted above,
the Court previously identified two deficiencies in his
complaint which Plaintiff has failed to fix in his amended
complaint. Doc. 7.
continues to name the State of New Mexico as the sole
defendant. As explained in the Court's prior Memorandum
Opinion and Order (Doc. 7), the State of New Mexico, under
these circumstances, is not an entity against ...