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Milligan v. Geo Corrections and Detentions

United States District Court, D. New Mexico

December 17, 2019

ANTHONY MILLIGAN, Plaintiff,
v.
GEO CORRECTIONS AND DETENTIONS, WARDEN VINCENT HORTON, SANDRA DIETZ PROBATION AND PAROLE CHAIR, S. MARTINEZ PAROLE CASE MANAGER, J. JARAMILLO RECORDS MANAGER, M.J. CHAVEZ CLASSIFICATION MANAGER, and CASEWORKERS D. PACHECO, L. ROYBAL, R. SWAGGERT, AND SECRETARY OF CORR. DAVID JABLONSKI, Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6) on the Verified Civil Rights Complaint filed by Plaintiff Anthony Milligan. (Doc. 1). The Court concludes the Complaint fails to state a claim on which relief can be granted and dismisses this case.

         Factual and Procedural Background

         Plaintiff Anthony Milligan was sentenced to a total of 3 years in New Mexico state criminal Nos. D-202-CR-2013-05106 and 2014-04938 on two counts, aggravated fleeing of a law enforcement officer and commercial burglary. The Court ordered him to serve 18 months of the 3-year sentence in the New Mexico Department of Corrections and suspended the 18 remaining months of the sentence. The Judgment and Sentence also required him to serve 1 year on parole following release from the New Mexico Department of Corrections and 18 months of supervised probation. (Doc. 1 at 13-17). The Court has reviewed the attachments to Milligan's Complaint, as well as the official docket and filings in Milligan's state criminal cases using the New Mexico Supreme Court's Secured Online Public Access (SOPA), and takes judicial notice of the official New Mexico court records in Milligan's criminal cases. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007) (the Court may take judicial notice of publicly filed records in this court and other courts concerning matters that bear directly upon the disposition of the case at hand).

         Following his release from the New Mexico Department of Corrections and while on supervised probation, Petitioner Milligan failed to report to his probation officer and was arrested by the Bernalillo County Sheriff's Office (“BCSO”). The criminal complaint filed in New Mexico state court stated that Milligan:

“Operate[d] a motor vehicle to wit a 1999 Saab displaying Connecticut plate (4AV DEI) west on Interstate 40 at milepost 143. The vehicle clocked on front radar at 81 mph, in a posted 74 mph zone. . .the Driver (Anthony Milligan) produced a Texas driver's license with the name Robert Dans . . . when asked for a Connecticut registration the Driver became nervous . . .the Vehicle had been reported stolen on 2/16/2016 . . . I then approached the vehicle and ordered the driver to shut the vehicle off and exit the vehicle. He was given several verbal orders at gunpoint to comply with my orders. He then put the vehicle in drive. The female . . . was attempting to get down or out of the way. I then opened the passenger's door in an effort to get the female out of danger. The driver then sped off, catching my right forearm in the window frame and knocking me off balance . . . The driver drove at high speeds . . . for 6.9 miles in an effort to avoid apprehension. . . the driver continued to drive north for a ¼ mile, stopping the care and fleeing on foot . . . I chased the driver on foot for about 150 yards taking him into custody. Upon search incident to tow, I located several items that are used in Burglaries, lock picks, shaved keys, drill bits, gloves, and cutting instruments.”

(Criminal Complaint, State of New Mexico Metropolitan Court No. T4-FR-2016-01161 (March 4, 2016).[1]

         The State of New Mexico filed a motion to revoke Milligan's probation in Nos. D-202-CR-2013-05106 and 2014-04938. The state District Judge entered his Order Revoking Probation on April 6, 2016. The Order sentenced Milligan to 365 days in the custody of the Department of Corrections, credited him with time served on his probation other than 25 days of fugitive time, and required that he serve the balance of his probation concurrent with parole retake. (Doc. 1 at 18, 24).

         On March 31, 2017, Milligan filed a Motion to Amend Judgment and Sentence, arguing that, at his probation revocation hearing, he had entered into a guilty plea to serve 365 days in the Department of Corrections running concurrent to the parole retake and with no additional parole thereafter. (Motion to Amend Judgment and Sentence, No. D-202-CR-2013-05106 and 2014-04938, March 31, 2017). On November 8, 2017, the state District Judge dismissed Milligan's Motion to Amend Judgment and Sentence. In his Order, the state court Judge directed Milligan to resubmit his post-conviction motion “in the form of a Petition for Writ of Habeas Corpus, pursuant to the requirements of NMRA Rule 5-802 . . . within 45 days of the date this Order is mailed to the Defendant.” (No. D-202-CR-2013-05106 and 2014-04938, Order Dismissing Post-Conviction Motion, November 8, 2017). Rather than submitting a habeas corpus petition as directed by the state court, Milligan instead filed his Verified Civil Rights Complaint (“Complaint”) in this Court on December 8, 2017. (Doc. 1).

         In his Complaint, Plaintiff Milligan states that he is proceeding under 42 U.S.C. § 1983. (Doc. 1 at 1). He presents essentially the same arguments that he raised in his state court Motion to Amend Judgment and Sentence. Milligan names, as Defendants, Geo Corrections and Detentions, Warden Vincent Horton, Probation and Parole Chair Sandra Dietz, Parole Case Manager S. Marquez, Records Manager J. Jaramillo, Classification Manager M. J. Chavez, Caseworkers D. Pacheco, L. Roybal and B. Swaggert, and Secretary of Corrections David Jablonski/Greg Mercantile[2]. (Doc. 1 at 1). Milligan asserts claims for deliberate indifference, cruel and unusual punishment, negligence, and negligent supervision, alleging that Defendants violated his constitutional right to be free from wrongful imprisonment. (Doc. 1 at 11). Milligan contends Defendants violated his rights by failing to recalculate the end dates of his sentences, wrongfully prolonging his incarceration, placing Plaintiff on an illegal term of parole, and “doctoring” paperwork related to stopping of Plaintiff's good time credits. (Doc. 1 at 10). Plaintiff seeks declaratory relief, injunctive relief, damages in the amount of “$5, 000 a day for each day he was held after his original kickout date, ” and punitive damages. (doc. 1 at 12).

         Dismissals for Failure to State a Claim

         Plaintiff Milligan is proceeding pro se and in forma pauperis. (Doc. 8). The Court has the discretion to dismiss an in forma pauperis complaint sua sponte for failure to state a claim upon which relief may be granted under either Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). Under Fed.R.Civ.P. 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. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190 (10thCir. 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. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim should be dismissed where it is legally or factually insufficient to state a plausible claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. at 570.

         Under § 1915(e)(2)(B) the court may dismiss the complaint at any time if the court determines the action fails to state a claim for relief or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(ii). The authority granted by § 1915 permits the court the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also Hall v. Bellmon, 935 F.2d at 1109. The authority to “pierce the veil of the complaint's factual allegations” means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). The court is not required to accept the truth of the plaintiff's allegations but, instead, may go beyond the pleadings and consider any other materials filed by the parties, as well as court proceedings subject to judicial notice. Denton, 504 U.S. at 32-33.

         In reviewing a pro se complaint, the Court liberally construes the factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff's pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff must abide by the applicable rules of court. 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 to supply factual allegations to support the plaintiff's claims. Nor may the court 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, in whole or in part, the court is to consider whether to allow plaintiff an opportunity to amend the complaint. Pro se plaintiffs should be given a reasonable opportunity to remedy defects in their pleadings. Reynoldson v. Shillinger,907 F.2d 124, 126 (10th Cir. 1990). The opportunity to amend should be granted unless amendment would be futile. Hall v. Bellmon, 935 F.2d at 1109. An amendment is futile if the amended claims would also be subject to ...


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