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Serrano v. State

United States District Court, D. New Mexico

December 18, 2019

GILBERT ANGELO SERRANO, Plaintiff,
v.
STATE OF NEW MEXICO, SUSANA MARTINEZ, Governor, DAVID JABLONSKI, Secretary of Corrections, FNU LNU, any contract companies associated with and working for Department of Corrections concerning medical and mental health issues, Defendants.

          MEMORANDUM OPINION AND FINAL ORDER OF DISMISSAL

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         THIS MATTER is before the Court on the Second Amended Complaint for Tort Claim Act, Violations Civil Rights Violations, and for Damages and Injunctive Relief filed by Plaintiff Gilbert Angelo Serrano.[1] (Doc. 11.) The Court will dismiss the Second Amended Complaint with prejudice for failure to state a claim on which relief can be granted and will enter final Judgment.

         On June 6, 2018, the Court entered a Memorandum Opinion and Order dismissing Governor Susana Martinez and the State of New Mexico as parties to this action, dismissing Plaintiff's original complaint (Doc. 1) without prejudice, and granting Plaintiff leave to file an amended complaint within 30 days. (Doc. 8 at 12-13.) Plaintiff did not file an amended complaint within 30 days but instead sought an extension of time to file. (Doc. 9.) On July 18, 2018, the Court granted his motion in part and ordered him to file the amended complaint within 30 days of entry of the Order. (Doc. 10.) The Court also notified him that if he did not file the amended complaint within 30 days, the Court would dismiss this proceeding. (Id. at 1.)

         Plaintiff did not file the amended complaint within 30 days of the July 18, 2018 Order, but two months later on September 18, 2018. (Doc. 11.) On the same day he filed the Second Amended Complaint, he also filed a notice stating that he had been transferred during the time the Court was ruling on his motion for an extension of time, and that he had been “stuck in lockdown status unable to use proper law library usage or any access to copy machines.” (Doc. 12.) His notice did not claim that he failed to receive the Court's July 18, 2018 Order, nor did he allege that his lockdown status prevented him from filing anything with the Court. (See id.)

         I. PLAINTIFF'S AMENDED COMPLAINT IS UNTIMELY

         The Court originally ordered Plaintiff to file his amended complaint no later than July 6, 2018. (Doc. 8.) He sought and was granted an extension of time to August 18, 2018. (Doc. 10.) He did not, however, file his Second Amended Complaint until September 18, 2018. (Doc. 11.) The Court may dismiss an action under Federal Rule of Civil Procedure 41(b) for failure to prosecute or to comply with statutes, the rules of civil procedure, local rules, or court orders. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).

         Plaintiff was notified of the deadline to file his amended complaint and of the consequences of failing to file within the appointed time. He filed his Second Amended Complaint a month after the deadline. His notice makes vague references to being on lockdown status, but he does not claim that the lockdown prevented him from filing the Second Amended Complaint in a timely manner. (Doc. 12.) Plaintiff's vague allegations about lockdown status do not excuse his untimely filing. See Morgan v. Addison, 574 Fed.Appx. 852, 852 (10th Cir. 2014). The Second Amended Complaint is untimely, and the Court will dismiss it for failure to comply with the Court's June 6, 2018, and July 18, 2018 Orders. See Olsen, 333 F.3d at 1204 n.3.

         II. SERRANO'S AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF

         Even if Plaintiff had filed his Second Amended Complaint in a timely manner, it would still be subject to dismissal for failure to state a claim on which relief can be granted. The Second Amended Complaint fails to remedy the pleading defects identified in the Court's June 6, 2018 Memorandum Opinion and Order. (See Doc. 8.) Therefore, the Court will dismiss the Second Amended Complaint, and all claims in this case, with prejudice.

         Plaintiff's original complaint named three defendants: Governor Susana Martinez, Secretary of Corrections David Jablonski, and the State of New Mexico. (Doc. 1.) The Court dismissed the claims against Governor Martinez and the State of New Mexico for failure to state a claim and dismissed Martinez and the State as parties to this action. (Doc. 8 at 12-13.) The Court dismissed all remaining claims in the case without prejudice. (Id. at 13.) The Court instructed Plaintiff to file an amended complaint that explained “what each defendant did to him . . .; when the defendant did it; how the defendant's actions harmed him . . .; and what specific legal right the plaintiff believes the defendant violated.” (Id. at 12 (quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)).)

         Plaintiff again fails to specifically identify who he is naming as a defendant in his Second Amended Complaint, and he fails to allege any actual claims or causes of action. Instead, the Second Amended Complaint is a vague and rambling collection of legal citations and generalized averments. The Second Amended Complaint fails to explain what any defendant did to Plaintiff, when they did it, how the defendant's actions harmed him, and what specific legal rights he believes the defendant violated. See Nasious, 492 F.3d at 1163.

         In its June 6, 2018 Memorandum Opinion and Order, the Court concluded that the original complaint did not state any claim against Secretary of Corrections David Jablonski because “it is not enough for a plaintiff to show a defendant was in charge of other state actors who actually committed the violation. Instead . . . the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.” (Doc. 8 at 10 (quoting Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151(10th Cir. 2006)).)

         Plaintiff includes Secretary of Corrections David Jablonski in the case caption and alleges that “Mr. Jablonski seems directly responsible since his signature remains on many, if not most, established policies” and “[t]he program is signed and approved by Mr. Jablonski.” (Doc. 11 at 1, 5-6, 10.) Serrano's request for relief seeks compensatory, special, and punitive damages against Jablonski. (Id. at 12-13.) The Second Amended Complaint still fails to show any personal involvement, a causal connection, and a culpable state of mind on the part of Jablonski in violation of Serrano's constitutional rights. See Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). The Second Amended Complaint fails to state a claim against Secretary Jablonski under 28 U.S.C. § 1915(e)(2)(B), Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. §1915A. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

         The only other individuals identified by Plaintiff in the Second Amended Complaint are Maxine Montoya, Mr. Flores, and Lt. Pete Jackson. With respect to Maxine Montoya and Mr. Flores, the allegations state that “Mr. Flores and Maxine Montoya corruptly, through acts and omissions, of the disciplinary process, failed to adhere to the rules and regulations created for their duties as public servants of D.O.C. of New Mexico.” (Doc. 11 at 5.) Plaintiff does not specify any acts or omissions and does not identify which rules or regulations Flores or Montoya failed to adhere to in their duties as public servants. Plaintiff's Amended Complaint fails to “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claim against him or her.” See ...


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