United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. § 1915A, 28
U.S.C. § 1915(e)(2)(B), and Fed. R. Civ. 12(b)(6) on the
Civil Rights Complaint Pursuant to 42 U.S.C. § 1983
(“Complaint”) filed by Plaintiff Jose Leroy
Pacheco. (Doc. 1). The Court will dismiss the Complaint for
failure to state a claim on which relief can be granted.
FOR FAILURE TO STATE A CLAIM
Pacheco is proceeding pro se and in forma pauperis.
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 (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. 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.
Twombly, 550 U.S. at 570.
§ 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.
§ 915(e)(2)(B)(2). 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
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.
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 immediate
dismissal under the rule 12(b)(6) or § 1915(e)(2)(B)
standards. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
OF PLAINTIFF'S CLAIMS
alleges claims under 42 U.S.C. § 1983 for violation of
constitutional rights under the 8th Amendment.
(Doc. 1 at 3). He claims alleged indifference to medical
treatment and physical therapy needs. (Doc. 1 at 3-4). He
names, as Defendants, Geo in Guadalupe County in Santa Rosa
N.M. (“Geo”), and Sun Rise Med. (“Sun
Rise”). (Doc. 1 at 1-2). Plaintiff Pacheco's
Complaint does not identify any individual associated with
either Geo or Sun Rise.
order to state a § 1983 claim for relief, a plaintiff
must allege some personal involvement by an identified
official in the alleged constitutional violation. Fogarty
v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.
2008). To succeed 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 secured by the
United States Constitution. 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 Section
1983. See Trask v. Franco, 446 F.3d 1036, 1046
(10th Cir. 2006).
plaintiff must plead that each government official, through
the official's own individual actions, has violated the
Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). In a Section 1983 action, it is particularly
important that a plaintiff's complaint “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.” Robbins
v. Oklahoma, 519 F.3d 1242, 1249-50 (10th
Cir. 2008) (emphasis in the original). Further, a civil
rights action against a public entity may not be based solely
on a theory of respondeat superior liability for the actions
of unnamed employees. Ashcroft v. Iqbal, 556 U.S.at
the language of § 1983, “cannot easily be read to
impose liability vicariously on government bodies solely on
the basis of the existence of an employer-employee
relationship with a tortfeasor.” Monell v.
Department of Social Services of City of New York, 436
U.S. 658, 692 (1978). As private corporations, Defendants Geo
and Sun Rise cannot be vicariously liable under 42 U.S.C.
§ 1983. See DeVargas v. Mason & Hanger-Silas
Mason Co., 844 F.2d 714, 723 (10th Cir. 1988)
(recognizing a congressional intent to avoid vicarious
liability under Section 1983). A corporation is not liable
for the constitutional tort of its employees unless the
constitutional tort was caused by a policy or custom of the
corporation. See Austin v. Paramount Parks, Inc.,
195 F.3d 715, 728 (4th Cir. 1999) (“a private
corporation is liable under § 1983 only when an
official policy or custom of the corporation causes the
alleged deprivation of federal rights” (citations
omitted; emphasis in original)); Sanders v. Sears,
Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir. 1993)
(holding that a corporation can only incur liability under
Section 1983 based on its own unconstitutional policies).
Complaint makes generalized and conclusory statements that
Geo and Sun Rise are deliberately indifferent to
Pacheco's medical needs. (Doc. 1 at 2-4). However, the
Complaint does not specify any individual or allege how that
individual acted to deprive Gonzales of an
8thAmendment constitutional right. Iqbal,
556 U.S. at 676. Further, although the Complaint names two
corporations, Geo and Sun Rise, the Complaint does not
contain any allegations of individual conduct by any employee
to support vicarious liability. DeVargas v. Mason
& Hanger-Silas Mason Co., 844 F.2d at 723.
Nor does Plaintiff identify any custom or policy of Geo or
Sun Rise that caused a deprivation of constitutional rights.
Austin v. Paramount Parks, Inc., 195 F.3d at 728.
Therefore, the Complaint fails to state a sufficient §
1983claim for relief.
determining the sufficiency of an Eighth Amendment claim for
deliberate indifference to medical needs involves a
two-pronged inquiry, comprised of an objective component and
a subjective component. Self v. Crum, 439 F.3d 1227,
1230 (10th Cir. 2006). With respect to the
objective component, a medical need is serious if it is
“one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a
doctor's attention.” Ramos v. Lamm, 639
F.2d 559, 575 (10th Cir. 1980) (internal quotation
and citation omitted). The question is not limited to whether
the inmate's symptoms render a medical need sufficiently
serious, but also extends to whether the potential harm to
the inmate is sufficiently serious. Mata v. Saiz,
427 F.3d 745, 752 (10th Cir. 2005). Pacheco claims
that he is diabetic and an infection resulted in amputation
of a toe. (Doc. 1 at 2-3). For purposes of this Memorandum
Opinion and Order, the Court accepts, as true, that Pacheco
has a serious medical need. Ramos, 639 F.2d at 575.
the subjective component, the defendant must have a
sufficiently culpable state of mind. Farmer v.
Brennan, 511 U.S. 825, 834 (1994); see also
Self, 439 F.3d at 1230-31. In other words, the plaintiff
must establish that the defendant “knew he faced a
substantial risk of harm and disregarded that risk, by
failing to take reasonable measures to abate it.”
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999)
(internal citation and quotation omitted). With regard to the
subjective component, the question for consideration by the
Court is: “were the symptoms such that a prison
employee knew the risk to the prisoner and chose (recklessly)
to disregard it?” Martinez v. Beggs, 563 F.3d
1082, 1089 (10th Cir. 2009) (quoting Mata, 427 F.3d
at 753). An official responds to a known risk in an
objectively unreasonable manner if he knew of ways to reduce
the harm but ...