Moreno v. GEO Group et al.

Filing 10

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera dismissing Defendants GEO Group and Corizon, Inc. for failure to state a claim and granting Plaintiff 30 days to file an amended complaint. The Clerk is directed to issue notice and waiver of service forms and copies of the Tort Civil Suit Document [1-1] for Dr. Walden (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESUS MORENO,
Plaintiff,
vs.

No. CV 16-00013 JCH/SMV

GEO GROUP, CORIZON, INC.
and DR. WALDEN,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court sua sponte under Fed. R. Civ. P. 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B) on the Tort Civil Suit filed by Plaintiff Jesus Moreno. (Doc. 1-1)
(“Complaint”). The Court will dismiss the claims against Defendants GEO Group and Corizon,
Inc. under Fed. R. Civ. P. 12(b)(6) and will order the issuance of notice and waiver of service
forms directed to Defendant Dr. Walden.
Plaintiff Jesus Moreno filed his Complaint in the First Judicial District, County of Santa
Fe, State of New Mexico on September 3, 2015. (Doc. 1-1). Although titled “Tort Civil Suit,”
Moreno alleges violation of his Fourth, Eighth, and Fourteenth Amendment rights under the
United States Constitution.

(Doc. 1-1 at 2-4).

Moreno seeks compensatory damages and

declaratory relief. (Doc. 1-1 at 4). The case was timely removed to this Court by Defendant,
Corizon, Inc., on January 7, 2016 based on federal question jurisdiction under 28 U.S.C. § 1331.
(Doc. 1 at 3, ¶ 7).

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Moreno is a prisoner proceeding pro se and in forma pauperis. (Doc. 1-1).1 Moreno
alleges that he was sexually abused by Defendant Walden while incarcerated at the Northeastern
New Mexico Detention Facility in Clayton, New Mexico. (Doc. 1-1 at2-3). Moreno names as
Defendants the GEO Group, a private prison contractor, Corizon, Inc., a prison medical service
provider, and Dr. Walden. (Doc. 1-1 at 2). Moreno claims the sexual abuse by Dr. Walden
constitutes deliberate indifference to serious medical harm in violation of Eighth and Fourteenth
Amendment rights and invasion of privacy in violation of the Fourth Amendment. (Doc. 1-1 at
3-4).
Plaintiff Moreno 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).
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).
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.
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. 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.

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 Moreno was granted free process by the First Judicial District Court prior to removal and is
deemed to be proceeding in forma pauperis under 28 U.S.C. § 1915 in this Court. See Doc. 1-1
at 15; Bartelli v. Beard, 2008 WL 4363645 at *5 (M.D Pa. 2008).

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Under § 1915(e)(2)(B) the court may dismiss the complaint at any time if the court
determines the action fails to state a claim upon which relief may be granted. § 1915(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
1106, 1109 (10th Cir.1991). 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
32-33.
In 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.
In 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

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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).
Moreno’s Complaint does not expressly allege causes of action under 42 U.S.C. § 1983
and, instead, asserts violation of various federal constitutional rights. However, 42 U.S.C. §
1983 is the exclusive vehicle for vindication of substantive rights under the Constitution. See,
Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Albright v. Oliver, 510 U.S. 266, 271 (1994)
(Section 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). Therefore, the Court
construes Moreno’s claims for violation of rights under the Constitution as civil rights claims
brought under 42 U.S.C. § 1983.
To 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 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. 1998).
Further, 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 employees or subordinates. A 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). Plaintiff must allege
some personal involvement by an identified official in the alleged constitutional violation to
succeed under § 1983. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). In a Section

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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).
The Complaint names the GEO Group and Corizon, Inc., but does not make any factual
allegations against either entity. (See Doc. 1 at 1, 4, 7). The Complaint does not identify who
did what to whom and is wholly insufficient to state a claim upon which relief can be granted
against GEO Group and Corizon. Ashcroft v. Iqbal, 556 U.S. at 676; Robbins v. Oklahoma, 519
F.3d at 1249-50. Although Moreno makes generalized statements that Defendants have been
deliberately indifferent to his medical needs and created a known risk but does not allege any
specific wrongful conduct by either the GEO Group or Corizon or explain how that conduct
violates his constitutional rights. Moreno does allege that Dr. Walden sexually abused him, but
does not allege any employee or agency relationship between Dr. Walden and either GEO Group
or Corizon. Generalized allegations against entity defendants, without identification of actors
and conduct that caused the deprivation of a constitutional right, fails to state any claim for relief.
Robbins v. Oklahoma, 519 F.3d at 1249-50. Moreno’s formulaic recitations of Eighth and
Fourteenth Amendment violations are not sufficient to state a plausible claim against the GEO
Group or Corizon, Inc. Twombly, 550 U.S. at 570.
Plaintiff Moreno’s allegations fail to state any legally sufficient claim for relief against
the GEO Group or Corizon, Inc., under either Fed. R. Civ. P. 12(b)(6) or 28 U.S.C.
§ 1915(e)(2)(B). The Court will dismiss Moreno’s claims against those Defendants. The Court
will also grant Moreno leave to file an amended complaint consistent with this Memorandum
Opinion within thirty (30) days of entry of the Memorandum Opinion and Order. Hall v.

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Bellmon, 935 F.2d at 1109. If Moreno fails to file an amended complaint within thirty days or
files an amended complaint that similarly fails to state a factually and legally sufficient cause of
action, the Court may dismiss the claims against the GEO Group and Corizon, Inc., with
prejudice and without further notice. The Court determines that the Complaint does make a
threshold showing sufficient to state a plausible claim for relief against Defendant Walden and
will order the issuance of notice and waiver of service forms for Dr. Walden.
IT IS ORDERED that the claims against Defendants GEO Group and Corizon, Inc. in
the Tort Civil Suit filed by Plaintiff Jesus Moreno. (Doc. 1-1) are DISMISSED for failure to
state a claim on which relief can be granted and Plaintiff is GRANTED thirty (30) days from
entry of this Memorandum Opinion and Order to file an amended complaint.
IT IS ALSO ORDERED that the CLERK is DIRECTED TO issue notice and waiver
of service forms, with copies of the Tort Civil Suit (Doc. 1-1) for Defendant Dr. Walden.

________________________________
UNITED STATES DISTRICT JUDGE

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