United States District Court, D. New Mexico
WARREN B. MARKER, Plaintiff,
PRESIDENT DONALD TRUMP, et al, Defendants.
MEMORANDUM OPINION AND ORDER
the Court is Plaintiff's Pro Se Civil Rights
Complaint (Doc. 1). Plaintiff is incarcerated, pro
se, and proceeding in forma pauperis. He
asserts 42 U.S.C. § 1983 claims against President Trump
along with the judges, prosecutors, and defense attorneys
involved in his criminal proceedings. Having reviewed the
matter sua sponte under 28 U.S.C. § 1915, the
Court will dismiss the Complaint as frivolous and for failure
to state a cognizable claim.
case arises out of two separate criminal proceedings in state
and federal court. In the first case, a jury convicted
Plaintiff of larceny, burglary, and auto theft in New
Mexico's Twelfth Judicial District Court (Twelfth
Judicial) (No. D-1226-CR-2013-240). In the second case, filed
in Federal Court, Plaintiff pled guilty to possession with
intent to distribute five grams or more of methamphetamine
(No. 12-CR-2005 RB). The Federal Court (Hon. Robert Brack)
sentenced Plaintiff to 70 months imprisonment on the federal
methamphetamine charge. The state sentence is unclear.
alleges the judges, prosecutors, and defense attorneys
involved in the above cases violated the Constitution.
Twelfth Judicial Judges Lamay and Parsons allegedly violated
Plaintiff's right to a speedy trial in the state case,
and defense attorneys Carreon, Mitchell, and Nedbalek
allegedly provided ineffective assistance. Plaintiff contends
the remaining judges (Judges Brack and Bryant) and
prosecutors (Williams and Camacho) knew about those
violations and failed to intervene. He makes the same
allegation against President Trump. Plaintiff sent a
certified “demand letter” reporting the alleged
violations to the President in 2018, but he never received a
response. Plaintiff also appears to allege that the
prosecutors were biased; he did not receive sentencing credit
for time spent in state custody; and the state court has not
yet ruled on his state habeas petitions.
Complaint raises claims under the Due Process Clause and 42
U.S.C. § 1983. Plaintiff seeks a meeting with President
Trump; dismissal of all state and federal charges; and for
the Court to implement a “ case tracking system.”
(Doc. 1 at 19-20). He also seeks $180, 000
in money damages for his “continued
incarceration.” Id. at 21.
Governing Initial Review
Court has discretion to dismiss an in forma pauperis
complaint sua sponte under § 1915(e)(2)
“at any time if … the action … is
frivolous or malicious; [or] fails to state a claim on which
relief may be granted.” The Court may also dismiss a
complaint sua sponte under Rule 12(b)(6) if
“it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing [plaintiff] an
opportunity to amend [the] complaint would be futile.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (quotations omitted). The plaintiff must frame a
complaint that contains “sufficient factual matter,
accepted as true, to ‘state a claim for relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Plaintiff is pro se, his “pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”
Hall, 935 F.2d at 1110. While pro se
pleadings are judged by the same legal standards that apply
to represented litigants, the Court can overlook the
“failure to cite proper legal authority, …
confusion of various legal theories, … poor syntax and
sentence construction, or … unfamiliarity with
pleading requirements.” Id. However, Plaintiff
must comply with the applicable rules of procedure, and the
Court will not act as his advocate. See Requena v.
Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018).
cause of action under section 1983 requires the deprivation
of a civil right by a [qualifying] ‘person' acting
under color of state law.” McLaughlin v. Bd. of
Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000). The
plaintiff must allege that each government official, through
the official's own individual actions, has personally
violated the Constitution. See Trask v. Franco, 446
F.3d 1036, 1046 (10th Cir. 1998). There must also be a
connection between the official conduct and the
constitutional violation. Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008); Trask, 446 F.3d at
these standards, the Court finds that Plaintiff's
complaint must be dismissed. The claims against President
Trump are entirely frivolous, and in any event, he is immune
from liability. See Forrester v. White, 484 U.S.
219, 225 (1988). The judicial defendants are also absolutely
immune from a civil rights suit based on actions taken in
their judicial capacity. See Mireles v. Waco, 502
U.S. 9, 11 (1991). The only exception is when a judge
“acts … without any colorable claim of
jurisdiction.” Snell v. Tunnell, 920 F.2d 673,
686 (10th Cir. 1990). The Judges here clearly had
jurisdiction over Plaintiff's criminal proceedings,
notwithstanding any alleged wrongdoing. Consequently,
Plaintiff cannot sue President Trump or Judges Brack, Bryant,
Lamay, or Parsons.
claims against prosecutors Camacho and Williams fail for
similar reasons. District attorneys are entitled to absolute
immunity in § 1983 suits for activities within the scope
of their prosecutorial duties. See Imbler v.
Pachtman, 424 U.S. 409, 420-24 (1976).
“[I]nitiating and pursuing a criminal
prosecution” fall within the scope of prosecutorial
duties, regardless of any speedy trial violations.
Snell, 920 F.2d at 686 (quotations omitted).
Further, even if Camacho and Williams were not immune, a
claim for malicious prosecution is only viable where the
underlying criminal action terminated in the plaintiff's
favor. See Wilkins v. DeReyes, 528 F.3d 790, 799
(10th Cir. 2008). Plaintiff was found guilty in each
underlying case. The claims against Camacho and Williams
defense attorneys (Carreon, Mitchell, and Nedbalek) are also
not subject to liability. As noted above, a plaintiff can
only prevail in a § 1983 action where the defendant was
“acting under color of state law.”
McLaughlin, 215 F.3d at 1172. The Supreme Court has
held that public defenders and private defense attorneys do
not act under color of state law within the meaning of §
1983. See Polk Cty. v. Dodson, 454 U.S. 312, 316
(1981); Anderson v. Kitchen, 389 Fed. App'x.
838, 841 (10th Cir. 2010) (applying the rule to private
even if Plaintiff could successfully sue Defendants, any
claim for damages is barred under Heck v. Humphry,
512 U.S. 477, 487 (1994). Heck held that the Federal
Court must dismiss a § 1983 damages claim that, if
resolved in the plaintiff's favor, would necessarily
imply the invalidity of his conviction or sentence.
Id. at 487. Plaintiff's request to be
compensated for his “continued incarceration, ”
based on the wrongful conduct of judges, prosecutors, and
defense attorneys, necessarily attacks the criminal
proceedings. See e.g., Baldwin v. O'Connor, 466
Fed. App'x 717, 717 (10th Cir. 2012) (Heck
barred § 1983 monetary claims “alleging violations
of . . . constitutional rights by . . ...