United States District Court, D. New Mexico
Brandon May Southern New Mexico Correctional Facility,
Plaintiff pro se
Martinez Holt Mynatt Martinez P.C., Attorneys for Defendant
Board of County Commissioners of Doña Ana County
MEMORANDUM OPINION AND ORDER
STATES DISTRICT JUDGE
MATTER comes before the Court on the Defendant Board of
County Commissioners of Doña Ana County’s Motion
to Dismiss Plaintiff’s Complaint for Violations of
Civil Rights (Doc. 13) [sic], filed November 20, 2018 (Doc.
15)(“Motion”). The primary issues are: (i)
whether the Plaintiff Brandon May has stated a claim under 42
U.S.C. § 1983; and (ii) whether May has established a
waiver of immunity for his state law claims. The Court
concludes that: (i) May has not stated a claim under 42
U.S.C. § 1983; and (ii) May has not established a waiver
of immunity for his state law claims. Accordingly, Court
grants the Board of Commissioners of Doña Ana
County’s (“County Defendant”) Motion.
AND PROCEDURAL BACKGROUND
filed his Complaint (Tort) in the Third Judicial District
Court, County of Doña Ana, State of New Mexico, on
November 14, 2017 (Doc. 1-2)(“Complaint”).
“Dona Ana County Jail” [sic] removed this case to
the court on February 7, 2018. See Notice of Removal
at 1 (Doc. 1). The Dona Ana County Jail removed the case on
the grounds that it involves alleged violations of the Fifth,
Eighth, and Fourteenth Amendments of the Constitution of the
United States of America. See Notice of Removal
¶ 2, at 1.
Complaint, May alleges that unnamed prison officials showed
deliberate indifference to his treatment and therapy needs
following hand surgery, or, in the alternative, were
negligent in his medical care and treatment. See
Complaint ¶¶ 5-9, at 2-4. May alleges that the
prison officials’ actions or inactions violated his
“Constitutional Rights, Amendment 8: cruel and unusual
punishment inflicted, Amendment 5: Deprivation of life,
liberty, or property without due process, as well as
Amendment 14.” Complaint ¶ 9, at 4. May contends
that “the impact from this physical torture has drove
Plaintiff insane.” Complaint ¶ 9, at 4. May seeks
relief in the form of damages: “Punitive Damages $2.5
million dollars, Monetary $100, 000[;] Mental Anguish $50,
000[;] Exemplary Damage[s] $200, 000[;] Compensation $5,
000[;] Compensatory Damages $100, 000[;] Anxiety $10, 000[; .
. .] Annoyance $10, 000[;] (IIED) Intentional Infliction of
Emotional Distress $100, 000[;] Negligent Actions $100, 000[;
and] Deliberate Indifference $5, 000.” Complaint at 5.
Court conducted preliminary screening of the Complaint as 28
U.S.C. § 1915A requires, and entered its Memorandum
Opinion and Order on August 23, 2018. (Doc.
12)(“MOO”). In the MOO, the Court denied
May’s Motion to Remand, dismissed all of May’s
federal claims under 42 U.S.C. § 1983, and granted May
leave to file an amended Complaint within thirty days of the
MOO’s entry. See MOO at 1. The Court
specifically ruled that “Dona Ana County Jail” is
not a suable entity and noted that the proper party would
likely be the Board of County Commissioners of Doña
Ana County. See MOO at 6-7.
then filed the Plaintiff’s Response to the Courts [sic]
Memorandum Opinion and Order on September 24, 2018 (Doc.
13)(“Response”). Attached to the Response was an
amended Complaint for Violation of Civil Rights
(“Amended Complaint”). The Amended Complaint
names, as Defendants, the Board of County Commissioners of
Doña Ana County, Corizon Medical, Jail Doctor, and
Jail Nurses. See Amended Complaint at 2. The Amended
Complaint alleges “denial of necessary and adequate
medical care that caused severe pain infection of the
plaintiff’s hand and in the surgical wound and sever
[sic] muscle atrophy in plaintiff’s hand, wrist and
arm.” Amended Complaint at 7. May seeks “judgment
in favor of the Plaintiff for actual and punitive damages in
an amount to be determined by the jury at trial.”
Amended Complaint at 5.
Ana County filed its Motion to Dismiss. Doña Ana
County seeks dismissal of the claims against it in the
Amended Complaint under rule 12(b)(6) on the grounds that the
allegations do not state a claim for relief under 42 U.S.C.
§ 1983, the New Mexico Constitution, or under the New
Mexico Tort Claims Act (“NMTCA”). See
Motion at 4, 7. With respect to Plaintiff’s federal
claim, Doña Ana County argues that: (i) the Amended
Complaint’s allegations do not contain sufficient facts
to state a plausible claim for relief; (ii) May fails to
assert any Doña Ana County policy or custom leading to
a violation of constitutionally protected rights; and (iii)
May does not identify discrete, distinct actions that
Doña Ana County did sufficient to state a § 1983
claim. See Motion at 7. Doña Ana County also
contends that there is no waiver of immunity under the NMTCA
for the state law claims asserted by Plaintiff, and that the
allegations fail to state a plausible claim for relief under
the NMTCA or under the New Mexico Constitution. See
Motion at 9. Specifically, Doña Ana County notes that
May claims relief under N.M. Stat. Ann. § 41-4-1, but
the New Mexico Tort Claims Act’s waivers are only in
§§ 41-4-5 through 41-4-12. See Motion at
8. Doña Ana County notes that the only immunity waiver
for constitutional violations is found in § 41-4-12, but
contends that this waiver applies only to law enforcement
officers’ constitutional violations. See
Motion at 8 (citing Anchondo v. Corr. Dep’t,
1983-NMSC-051, ¶ 2, 100 N.M. 108, 108, 666 P.2d 1255,
1255). Doña Ana County asserts that it is not a law
enforcement officer under the statute, and so immunity has
not been waived for May’s claim against it.
See Motion at 9.
filed his Response to Defendant Board of County Comm of Dona
Ana County’s Motion to Dismiss on December 20, 2018
(Doc. 16)(“Response”). In his Response, May
argues that federal pleading standards do not bind him, that
the “essence of Defendants [sic] Motion is that the
Plaintiff did not repeat this Defendants name enough, ”
that the specifics of May’s claims will be provided
through discovery, and that May has proved a waiver of
Doña Ana County’s immunity. See
Response at 1-3.
Ana County filed its Reply in Support of the Motion to
Dismiss on January 3, 2019 (Doc. 17)(“Reply”).
Doña Ana County argues that the Response “can be
synthesized into one overreaching [sic] theme, ” that
May must follow the same pleading standards as any litigant
and that the Amended Complaint does not state any plausible
claim for relief against Doña Ana County. Reply at 1.
REGARDING FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE
Court has the discretion to dismiss a pro se complaint for
failure to state a claim upon which relief may be granted
under rule 12(b)(6) of the Federal Rules of Civil Procedure.
Under rule 12(b)(6) the Court must accept all well-pled
factual allegations, but not conclusory, unsupported
allegations, and may not consider matters outside the
pleading. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)(“Twombly”); Dunn v.
White,880 F.2d 1188, 1190 (10th Cir. 1989). The court
may dismiss a complaint under rule 12(b)(6) for failure to
state a claim if “it is ‘patently obvious’
that the plaintiff could not prevail on the facts
alleged.” Hall v. Bellmon,935 F.2d 1106, 1109
(10th Cir. 1991)(quoting McKinney v. Okla. Dep’t of
Human Serv.,925 F.2d 363, 365 (10th Cir. 1991)). A
plaintiff must allege “enough facts to state a ...