United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court, under 28 U.S.C.
§§ 1915A and 1915(e)(2)(B) and rule 12(b)(6) of the
Federal Rules of Civil Procedure, on the Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983, filed January
23, 2017 (Doc. 1)(“Complaint”). The Court will
dismiss Plaintiff John Ramos' federal civil rights claims
for failure to state a claim and for lack of § 1983
jurisdiction, and will decline to exercise supplemental
jurisdiction over any state law claims.
AND PROCEDURAL BACKGROUND
filed his Complaint against Defendants Warden Ricardo
Martinez, Dr. Naranjo, and Dr. Bruce R. Boyton (Med Dir.)
Concordia Insurance, Mississippi. See Complaint at
1-2. Ramos asserts constitutional claims under the Eight and
Fourteenth Amendments to the Constitution of the United
States of America, and medical negligence claims, arising out
of a broken thumb. See Complaint ¶ C1, at 4-5.
Ramos seeks relief “[f]or pain and suffering $100, 000.
For negligence by Dr. Naranjo and Dr. Bruce R. Boynton,
Concordia Insurance Medical Director $150, 000.”
Complaint ¶ E1, at 6. In support of his claims, Ramos
Dr. Naranjo examine my left thumb without physically touching
me/my hand. Dr. Naranjo stated he didn't think it was
broken! On 7 Jul, 016, I was Xrayed. Until 20 Jul, 016, Dr.
Naranjo basically forgot I existed. On 20 Jul, 016, I again
saw Dr. Naranjo who kept repeating “Fuck, Fuck,
Fuck!” He ordered me transported to El Paso Medical
Center (UMC), where I was examined by a Dr. Van T. Dr. Van T
stated it was a simple fix if it had been fixed immediately!
Dr. Van T send/sent back PT order for my thumb. On 6 Oct,
016, I was again Xrayed. On 4 Nov, 016, I again saw Dr.
Naranjo who informed me that a Dr. Boyton, Concordia
Insurance, Mississippi, was disapproving my PT. On 15 Nov,
016, I was again transported to UMC, saw a Dr. Gonzales, who
again ordered PT! On 21 Dec, 016, more Xrays, on 27 Dec, 016,
saw a Dr. Borrejo who stated that “PT was a waste of
time and money!”
¶ C2, at 4 (capitalization and spelling as in original).
REGARDING DISMISSAL FOR FAILURE TO STATE A
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.
A court should dismiss a claim where it is legally or
factually insufficient to state a plausible claim for relief.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556 (2007)(“Twombly”). Under rule
12(b)(6), a court must accept all well-pled factual
allegations, but not conclusory, unsupported allegations, and
may not consider matters outside the pleading. See
Twombly, 550 U.S. at 555; 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 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
liberally construes the factual allegations in reviewing a
pro se complaint. See Northington v. Jackson, 973
F.2d 1518, 1520-21 (10th Cir. 1992). Courts judge a pro se
plaintiff's pleadings by the same legal standards that
apply to all litigants, however, and a pro se plaintiff must
abide by the court's applicable rules. See Ogden v.
San Juan Cty., 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. See Hall v.
Bellmon, 935 F.2d at 1110.
GOVERNING CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. §
1983 is the exclusive vehicle for vindication of substantive
rights under the U.S. Constitution. See Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); Albright v.
Oliver, 510 U.S. 266, 271 (1994)(stating that §
1983 creates no substantive rights; rather it is the means
through which a plaintiff may seek redress for deprivations
of rights established in the Constitution); Bolden v.
City of Topeka, 441 F.3d 1129 (10th Cir. 2006). Section
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State . . . subjects or
causes to be subjected, any citizen of the United States . .
. to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law . . . .
42 U.S.C. § 1983.
is not a “person” within the meaning of 42 U.S.C.
§ 1983, and, therefore, there is no remedy against
states under § 1983. Will v. Mich. Dep't of
State Police, 491 U.S. 58, 63-64 (1989). Section 1983 is
a “remedial vehicle for raising claims based on the
violation of constitutional rights.” Brown v.
Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir.
2016)(quotation marks omitted). It does not abrogate the
states' sovereign immunity, and the states, their
agencies, and their officials who are sued solely in their
official capacity do not qualify as “persons”
under § 1983. See Will v. Mich. Dep't of State
Police, 491 U.S. at 67, 71.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must assert acts by government officials acting
under color of law that result in a deprivation of rights
which the Constitution of the United States secures.
See 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988). There must be a connection between
official conduct and violation of a constitutional right.
Conduct that is not connected to a constitutional violation
is not actionable under § 1983. See Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 2006).
a civil rights action against a public official or entity may
not be based solely on a theory of respondeat superior
liability for the actions of co-workers or subordinates. A
plaintiff must plead that each government official, through
the official's own individual actions, has violated the
Constitution. See Ashcroft v. Iqbal,556 U.S. 662,
676 (2009). Ramos must allege some identified official's
personal involvement in the alleged constitutional violation
to succeed under § 1983. See Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). To hold
private entities acting under color of state law or county
entities liable under § 1983, a plaintiff must allege a
policy or custom, and a direct causal ...