United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. § 1915A on
the Amended Complaint filed by Plaintiff, Joshua Urioste, on
March 15, 2019. (Doc. 24). As is set out, below, the Court
will dismiss certain claims and parties and will order
issuance of notice and waiver of service forms directed to
the remaining Defendants.
AND PROCEDURAL BACKGROUND
Joshua Urioste filed his prisoner civil rights Complaint
against all Defendants under 42 U.S.C. § 1983. (Doc. 1).
Urioste also sought leave to proceed “without paying
filing fees or costs.” (Doc. 2). After being ordered to
cure deficiencies in his motion to proceed, Urioste filed an
amended application to proceed without prepayment of fees or
costs under 28 U.S.C. § 1915. (Doc. 4, 6). The Court
then granted Plaintiff Urioste leave to proceed in forma
pauperis under § 1915. (Doc. 9).
Urioste is proceeding under 42 U.S.C. § 1983. (Doc. 1 at
6). In his Complaint, he described the nature of his case as
“[d]enial of medical attention and care for
Plaintiff's medical issues.” (Doc. 1 at 2). Urioste
claimed Defendants subjected the Plaintiff “to needless
pain and suffering and thus denying the Plaintiff his right
to seek and obtain medical care for his issues, and thus
denying the plaintiff equal protection under the law and due
process.” (Doc. 1 at 4). He sought declaratory and
injunctive relief, compensatory damages in the amount of $75,
000 against each Defendant, and punitive damages up to $250,
000 to deter future practices. (Doc. 1 at 8-9).
January 18, 2019, the Court entered its Memorandum Opinion
and Order dismissing Urioste's claims with leave to file
an amended complaint. (Doc. 22). The Court concluded
Urioste's Complaint made only generalized allegations
against several defendants and against unspecified groups
such as “facility medical staff.” (Doc. 1 at 4).
As a result, the Complaint failed to state a sufficient claim
for relief under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §
1915(e)(2)(B). The Court granted Urioste an opportunity to
amend to remedy the defects in his pleading within 30 days.
Hall v. Bellmon, 935 F.2d at 1109. (Doc. 22 at
filed his Amended Complaint on March 15, 2019. (Doc. 24). The
Amended Complaint was not received by the Court within the
30-day time period ordered by the Court. However, Urioste
provided evidence to the Court showing that he mailed his
Amended Complaint to the Court within the 30-day deadline,
but the mailing was returned to him for unknown reasons,
requiring him to re-submit it. (Doc. 23, 24). The Court will
accept Urioste's Amended Complaint as timely filed.
Amended Complaint, Urioste names the same Defendants as his
original Complaint and adds claims against additional
correctional officers. (Doc. 24 at 1, 2). The Amended
Complaint contains sufficient factual allegations against
some Defendants, but still fails to state a claim for relief
against other Defendants. Therefore, the Court will dismiss
some of the Defendants as parties to this proceeding and will
order issuance of notice and waiver of service forms for the
LAW REGARDING FAILURE TO STATE A CLAIM
Urioste is proceeding pro se and in forma pauperis.
The Court has the discretion to dismiss an in forma
pauperis complaint, in whole or in part, sua
sponte for failure to state a claim upon which relief
may be granted under 28 U.S.C. § 1915(e)(2)(B). The
court may dismiss a complaint 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 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. 544 (2007). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
§ 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
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.
OF PLAINTIFF URIOSTE'S AMENDED CLAIMS
Claims Against Gregg Marcantell, Secretary of
Urioste again names Gregg Marcantell, Secretary of
Corrections for the State of New Mexico, as a
Defendant. (Doc. 1 at 1, 2). ...