United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff’s Pro
Se Prisoner Civil Rights Complaint (Doc. 1-3). Also
before the Court is Defendant Judd’s Motion to Dismiss
(Doc. 2) and several miscellaneous motions filed by Plaintiff
(Docs. 3-4, 9-10). Plaintiff contends prison officials
violated his due process rights and inflicted cruel and
unusual punishment by placing him in the Predatory Behavior
Management Program. Having reviewed the matter under 28
U.S.C. § 1915A, the Court will dismiss the Complaint;
grant leave to amend; and deny Plaintiff’s pending
was previously incarcerated at Northwest New Mexico
Correctional Facility (NNMCF). In early 2018, prison
officials became suspicious that a nurse was smuggling drugs
to Plaintiff. On April 27, 2018, Plaintiff visited the
medical unit following an alleged spider bite. Prison
officials were monitoring a video recording of the visit and
observed the nurse passing a box to Plaintiff. Officers Ray
and Andrade asked to see the box as they escorted Plaintiff
back to his housing unit. When Andrade tried to look inside
the box, Plaintiff purportedly became angry and reached out
to take it back. Officer Ray stepped in front of Andrade and
directed Plaintiff to move away, but Plaintiff continued
moving forward and made contact with Ray’s torso. When
prison officials searched the box, they discovered suboxine,
marijuana, a brown substance that looked like heroin, and a
letter from the nurse. Plaintiff later surrendered another
balloon containing heroin and tested positive for seven
officials charged Plaintiff with assault and introduction of
contraband. They placed him in the restrictive housing unit
at NNMCF while the charges were pending. On June 11, 2018,
Warden Judd referred Plaintiff to the Predatory Behavior
Management Program (PBMP). The attachments to the Complaint
reflect Plaintiff was served with the Notice of Contemplated
Action (Notice) on June 13, 2018. See Doc. 1-3 at
10. The Notice directed Plaintiff to appear at a hearing on
June 15, 2018. In the “Justification” section,
the Notice contains a handwritten notation stating:
“see attached.” A narrative summary describing
the incident appears on the next page of Plaintiff’s
exhibits. Id. at 11-12. Plaintiff alleges he never
received a copy of the narrative summary. However, elsewhere
in the Complaint, he states the narrative summary was changed
after he signed the Notice on or about June 13, 2018. At the
June 15 hearing, the contraband charge was dismissed, but
prison officials determined he was responsible for assault.
remained in NNMCF custody until about September 7, 2018, when
a bed opened up at the Penitentiary of New Mexico (PNM). PNM
administers the PBMP program. Plaintiff alleges a NNMCF
official stated he would receive credit for the time he spent
waiting for a bed. However, a different official stated such
decisions are made on a case by case basis and denied the
credit. Plaintiff also alleges he was not permitted to appeal
the PBMP placement; however, the attachments to his Complaint
reflect German Franco, Director of Adult Prisons, denied his
appeal on October 1, 2018.
remained in the PBMP for about 9 months. During that time, he
was permitted three showers per week and one hour of
yard-time (recreation) between Monday and Friday. He also ate
his meals in his cell and was not allowed radio, television,
or telephone priviledges for the first four months of the
program. PBMP does not offer any work assignments, aside from
keeping a journal. Plaintiff alleges these conditions caused
him to suffer from mood swings, anxiety attacks, nervous
breakdowns, and sleep deprivation. He also believes he will
carry a lifelong stigma because the program title includes
the word “predator, ” and people may think he is
a sex offender.
filed his Civil Rights Complaint (Doc. 1-3) on October 22,
2018 in New Mexico’s Thirteenth Judicial District
Court. He seeks at least $347, 547 in damages under 42 U.S.C.
§ 1983, the Eighth Amendment, the Due Process Clause,
and the New Mexico Torts Claims Act. The Complaint names
Warden Judd; Deputy Warden Ortiz; Unit Manager Woodard; and
Director Franco. Judd removed the Complaint to this Court on
November 29, 2018, within thirty days of service. (Doc. 1).
Judd also filed a Motion to Dismiss (Doc. 2) under
Fed.R.Civ.P. 12(b)(6). Thereafter, Plaintiff filed a series
of motions to appoint counsel and amend his complaint. (Docs.
3, 4, 9, and 10).
Standard of Review
Court has discretion to dismiss an in forma pauperis
complaint sua sponte under § 1915A “is
frivolous or malicious; [or] fails to state a claim on which
relief may be granted.” The Court may also dismiss a
complaint under Rule 12(b)(6) if “it is patently
obvious that the plaintiff could not prevail on the facts
alleged, and allowing [plaintiff] an opportunity to amend
[the] complaint would be futile.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(quotations omitted). The plaintiff must frame a complaint
that contains “sufficient factual matter, 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 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 alleged.”
Plaintiff is pro se, his “pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”
Hall, 935 F.2d at 1110. 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.” Id. Further, if
the initial pleading is defective, pro se plaintiffs
should be given a reasonable opportunity to file an amended
pleading, unless amendment would be futile. Reynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir.
1990); Hall, 935 F.2d at 1109.
Screening the Complaint
appears to raise three claims (due process; cruel and unusual
punishment; and negligence) based on the PBMP placement. The
Court will address each claim below.