Dangim v. LNU et al

Filing 26

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, the Plaintiff's Amended Complaint For Violation of Civil Rights, 22 is dismissed without prejudice; the Plaintiff's Appendix/Supplement to his Amended Complaint, 23 is dismissed without prejudice; the Plaintiff's Letter from Christopher Scott Dangim, 24 (Motion to Appoint Counsel), is denied as moot; and Final judgment will be entered. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER SCOTT DANGIM,
Plaintiff,
vs.

No. CIV 16-0812 JB/SCY

FNU LNU, USA Law Enforcement,
FNU LNU, Rio Rancho Police,
FNU LNU, Sandoval County Sheriffs,
FNU LNU, Docs and Mental Health,
FNU SALAZAR, Officer,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court, pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A, on: (i) the Plaintiff’s Amended Complaint for Violation of Civil Rights, filed July 6,
2017 (Doc. 22)(“Amended Complaint”); (ii) the Plaintiff’s Appendix/Supplement to his
Amended Complaint, filed July 6, 2017 (Doc. 23)(“Appendix/Supplement”); and (iii) the
Plaintiff’s Letter From Christopher Scott Dangim, filed July 18, 2017 (Doc. 24)(“Motion to
Appoint Counsel”). Plaintiff Christopher Scott Dangim was incarcerated at the time of filing,
appears pro se, and is proceeding in forma pauperis. For the reasons explained below, the Court
will dismiss Dangim’s Amended Complaint and Appendix/Supplement without prejudice for
failure to state a claim upon which relief may be granted, deny his Motion to Appoint Counsel as
moot, and enter Final Judgment.
FACTUAL BACKGROUND
On July 11, 2016, Dangim filed a Prisoner’s Civil Rights Complaint, filed July 11, 2016
(Doc. 1)(“Complaint”), which appears to raise multiple constitutional claims under 42 U.S.C. §

1983 against various unidentified Defendants. See Complaint at 1. First, Dangim appears to
allege that police officers employed by the City of Rio Rancho, New Mexico, and the County of
Sandoval, New Mexico, racially profiled him, tazed him, and falsely arrested him in 2008 and
2012. See Complaint at 2-5. Second, Dangim alleges that he was deprived of his right under the
Sixth Amendment to the Constitution of the United States of America “to appear at the grand
jury in sound state of mind.” Complaint at 4. Third, Dangim alleges that he “was jumped in
prison by two guards who twisted my arm and said I was resisting and jumped and burned me.”
Complaint at 4.

Last, Dangim alleges that his right under the Eighth Amendment to the

Constitution of the United States of America to be free from cruel and unusual punishment was
violated when he was physically assaulted in county jail and denied “outside hospital treatment,”
even though his “finger was severed at the [cuticle].” Complaint at 1. In his request for relief,
Dangim requests to be exonerated of all criminal charges, released from state custody,
preliminary injunctive relief “against officers [for] racist tactics,” and compensatory damages in
the amount of five million dollars. Complaint at 6.
Attached to Dangim’s Complaint is a state court complaint, which appears to raise claims
under the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1, et seq. See Complaint at 8.
Dangim alleges that, in November 2016, Officer FNU Salazar, a guard at the Sandoval County
Detention Center, placed an unhygienic substance in his food and slammed his hand in the feed
port, severing his finger at the cuticle. See Complaint at 8-9. Dangim further alleges that he was
denied medical treatment, resulting in an infection in his finger and causing him to be
“permanently maimed.” Complaint at 9. In his prayer for relief, Dangim requests “charges of
assault” to be filed against the guard and compensatory damages in the amount of $300,000.00.
Complaint at 10.

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After certain mailings to Dangim were returned as undelivered, the Honorable Steven C.
Yarbrough, United States Magistrate Judge for the United States District Court for the District of
New Mexico, ordered Dangim to show cause why the Court should not dismiss his complaint for
failure to inform the Court of his current mailing address as D.N.M. LR-Civ. 83.6 requires. See
Order to Show Cause at 1-2, filed July 26, 2016 (Doc. 6). In response, Dangim explained that he
was unexpectedly released from state custody and informed the Court of his new mailing
address. See Response to Order to Show Cause at 1, filed August 10, 2016 (Doc. 8)(“First
Response”); Response to Cure Defects at 1, filed August 10, 2016 (Doc. 9)(“Second Response”);
Second Response to Order to Show Cause at 1, filed August 10, 2016 (Doc. 10)(“Third
Response”), Second Response to Cure Defects at 1, filed August 10, 2016 (Doc. 11)(“Fourth
Response”). Dangim also requested a change of venue to an African-American judge. See
Response at 1; Second Response at 1; Third Response at 1; Fourth Response at 1.
On August 22, 2016, Magistrate Judge Yarbrough quashed the Order To Show Cause
and liberally construed Dangim’s request for a change of venue as a motion to disqualify under
28 U.S.C. § 455(a). See Order Quashing Order to Show Cause Granting Leave to Proceed
Pursuant to 28 U.S.C. § 1915, and Denying Motion to Disqualify at 1, filed August 22, 2016
(Doc. 13)(“Quash Order”). Judge Yarbrough denied Dangim’s motion because “unsupported
and speculative assertions of bias or prejudice are insufficient to merit disqualification under §
455(a).” Quash Order at 3
On September 1, 2016, Dangim submitted 191 pages of exhibits, which include medical
and mental health records as well as various documents from his state court criminal
proceedings.

See Sealed Notice, filed August 23, 2016 (Doc. 19)(“Medical Records”).

Magistrate Judge Yarbrough determined that the information contained in these records triggered

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the obligation under rule 17(c)(2) of the Federal Rules of Civil Procedure “to inquire into the
current status of [Dangim’s] mental health to determine whether the appointment of a guardian
ad litem, or other appropriate order, is required.”

Sealed Order Requiring Supplemental

Documentation Regarding Plaintiff’s Mental Competency at 3, filed March 15, 2017 (Doc.
20)(“Supplemental Documentation Order”). Magistrate Judge Yarbrough ordered Dangim to
submit, on or before April 14, 2017, “supplemental documentation regarding the current status
of his mental health, including, but not limited to, court records, updated medical records, and
statement from treating physicians or psychiatrists.” Supplemental Documentation Order at 3
(emphasis in original). Dangim did not comply or otherwise respond to Magistrate Judge
Yarbrough’s order.
On June 2, 2017, the Court held, pursuant to Powell v. Symons, 680 F.3d 301 (3d Cir.
2012), that “sua sponte screening under §§ 1915(e)(2)(B) and 1915A generally should precede
an inquiry into a pro se litigant’s mental competence under rule 17(c).” Memorandum Opinion
and Order, filed June 2, 2017 (Doc. 21). The Court determined that Dangim’s Complaint does
not state a claim on which relief may be granted and, therefore, dismissed the Complaint
pursuant to §§ 1915(e)(2)(B)(ii) and 1915A(b). See Memorandum Opinion and Order at 14-15.
First, the Court dismissed Dangim’s § 1983 claims against Defendants Rio Rancho Police and
Sandoval County Sheriffs, because “[t]he Rio Rancho Police Department and the Sandoval
County Sheriff’s Office are governmental sub-units that are not subject to suit under § 1983.”
Memorandum Opinion and Order at 10. Second, the Court dismissed Dangim’s § 1983 claims
against “USA Law Enforcement,” because “Bivens[v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971)(“Bivens”)]1 only applies . . . to individual federal

1

In Bivens the Supreme Court recognized that an implied cause of action exists against
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officials” and because “Dangim’s complaint does not identify any individual federal officers.”
Memorandum Opinion and Order at 11. Third, the Court dismissed Dangim’s § 1983 claims
against Salazar, “[b]ecause it is unclear from the facts the Complaint alleges whether Salazar’s
conduct merely was negligent, or whether it was deliberately indifferent to Mr. Dangim’s health
or safety.” Memorandum Opinion and Order at 11. Last, the Court dismissed the remainder of
Dangim’s § 1983 claims pursuant to rule 8 of the Federal Rules of Civil Procedure, because they
failed to include “a short and plain statement of the claim showing that [Dangim] is entitled to
relief.” Memorandum Opinion and Order at 12 (quoting Fed. R. Civ. P. 8(a)(2)).
Because the deficiencies in Dangim’s Complaint could be rectified through more precise
pleading, the Court permitted Dangim an opportunity to file an amended complaint that identifies
the person or persons responsible for the alleged constitutional violations. See Memorandum
Opinion and Order at 13-15. The Court explained to Dangim that mere conclusory allegations
are insufficient to state a viable claim under § 1983 and that his amended complaint “must
explain what each defendant did to him . . . ; when the defendant did it; how the defendant’s
action harmed him . . . ; and what specific legal right the plaintiff believes the defendant
violated.” Memorandum Opinion and Order at 13 (quoting Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)).
On July 6, 2017, Dangim filed an Amended Complaint. See Amended Complaint at 1.
Dangim’s Amended Complaint names the United States of America as the sole named defendant.
See Amended Complaint at 1, 5. The factual allegations in the Amended Complaint are difficult
to discern, but Dangim alleges that he is mentally ill, that he was placed in solitary confinement,
and that he is being detained illegally. See Amended Complaint at 1-5. Dangim seeks monetary

federal officials for constitutional violations. See Bivens, 403 U.S. at 388.
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damages in the amount of fifty billion dollars, to withdraw his guilty plea in his state court
criminal proceeding, and issuance of a writ of habeas corpus. See Amended Complaint at 2, 3, 9.
On July 6, 2017, Dangim submitted a copy of a NMTCA complaint filed in the
Thirteenth Judicial District Court, County of Cibola, State of New Mexico, on June 19, 2017,
which was docketed as an Appendix/Supplement to his Amended Complaint.

See

Appendix/Supplement at 1. The factual allegations in Dangim’s Appendix/Supplement are
similar to those in his original Complaint,2 as are the defendants (i.e., “Rio Rancho Police,
Sandoval County, Sheriffs, Las Vegas Mental Health, MDC, MHTC Las Lunas, and Judge
McDonald”). Appendix/Supplement at 1. Dangim’s Appendix/Supplement seeks, in relevant
part, immediate release from custody and compensatory and punitive damages in the amount of
fifty billion dollars. See Appendix/Supplement at 3.
On July 18, 2017, Dangim filed a letter, which was docketed as his Motion to Appoint
Counsel. See Motion to Appoint Counsel at 1. In his Motion to Appoint Counsel, Dangim
requests appointment of counsel, because he is a “poor person” with “no income.” Motion to
Appoint Counsel at 1. Dangim’s Motion to Appoint Counsel also appears to raise additional

2

Dangim alleges the following facts in his complaint’s “FACTS” section:

I have injuries and permanent scars from police and correction staff permanently
scaring and ripping my arms and wrist head injuries and leg injuries from being
assault by white racist cops. I also was forced injections of bad drugs and
strangled and choked and head stomped by Sandoval County Sheriffs and tazed
with 5 tazers by Rio Rancho Police. I have be racially profiled in this state by law
enforcement and mental health techs violating my patient rights as well as the
Judge McDonald violating the [M’Naghten] law only saying it is illegal to detain
me and would not conduct constitutional amendment rights in illegally sentencing
me. I asked to withdraw my plead to not guilty under the [M’Naghten] law and
the Judge Public Defender and District Attorney violated my 3rd 4th 5th 6th 8th and
13th amendment and still suffer from headaches from assault by officers because I
am a [unintelligible] muslim”
Appendix/Supplement at 1.
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civil rights claims, alleging that his constitutional rights have been violated, because his life has
been threatened, he has been physically assaulted, and feces have been put in his food. Motion
to Appoint Counsel at 2.
ANALYSIS
As a preliminary matter, the Court must identify the operative pleading for the purpose of
its review under 28 U.S.C. §§ 1915(e) and 1915A. The Court received and docketed Dangim’s
Amended Complaint and his Appendix/Supplement, which is a form New Mexico Tort Claims
Act complaint, on the same date -- July 6, 2017.

See Amended Complaint at 1;

Appendix/Supplement at 1. It is unclear whether Dangim filed his Appendix/Supplement in an
attempt to raise additional claims in this civil rights action or whether Dangim simply wants to
notify the Court that a state court action is pending. The Court will resolve this ambiguity in
favor of the former interpretation, given that Dangim’s Appendix/Supplement states that he
“want[s] a federal judge for this federal lawsuit.” Appendix/Supplement at 5. The Court,
therefore, will construe both the Amended Complaint and the Appendix/Supplement together as
the operative pleading. To the extent that Dangim seeks to raise additional constitutional,
statutory, or common-law claims in his Motion to Appoint Counsel, the Court will not consider
these claims, because Dangim’s Motion to Appoint Counsel is not in the form of a complaint and
was filed without the “opposing party’s consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
See also Fed. R. Civ. P. 10(a), (b) (requiring all pleadings to have “a caption with the court’s
name, a title, a file number, and a Rule 7(a) designation,” and all claims to be set forth “in
numbered paragraphs, each limited as far as practicable to a single set of circumstances”).
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under
§§ 1915(e)(2)(B) and 1915A at any time if the action is frivolous, malicious, or fails to state a

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claim upon which relief may be granted. See §§ 1915(e)(2)(B), 1915A(b). “Dismissal of a pro
se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The burden is on the plaintiff to 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.” Ashcroft v. Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. at 678.
Dangim is proceeding pro se, and “[a] pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, “if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” 935 F.2d at
1110. At the same time, however, it is not “the proper function of the district court to assume the
role of advocate for the pro se litigant.” 935 F.2d at 1110.
Dangim’s Amended Complaint names the United States as a defendant. See Amended
Complaint at 1, 5. As previously explained in the Court’s June 2, 2017, Memorandum Opinion
and Order, although an implied cause of action exists against federal officials for constitutional
violations under Bivens, neither the United States nor its agencies are proper defendants in a

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Bivens action. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994); Dahn v.
United States, 127 F.3d 1249, 1254 (10th Cir. 1997)(“The United States and its agencies are not
subject to suit under Bivens.”). The Court therefore will dismiss Dangim’s Bivens claim against
the United States for failure to state a claim on which relief may be granted under §
1915(e)(2)(B)(ii) and 1915A(b).
Dangim’s Appendix/Supplement names the Rio Rancho Police, Sandoval County
Sheriffs, Las Vegas Mental Health Unit, Metropolitan Detention Center (“MDC”), and the
Mental Health Treatment Center (“MHTC”) at the Central New Mexico Correctional Facility in
Los Lunas, New Mexico as Defendants.

Appendix/Supplement at 1.

To the extent that

Dangim’s Appendix/Supplement raises constitutional claims against these Defendants under 42
U.S.C. § 1983,3 the Court has previously explained to Dangim in its June 2, 2017, Memorandum
Opinion and Order, that the Rio Rancho Police Department and the Sandoval County Sheriff’s
Office are governmental sub-units, which are not subject to suit under § 1983.

See

Memorandum Opinion and Order at 10. Similarly, Las Vegas Mental Health Unit, MDC, and
MHTC are governmental sub-units, which are not subject to suit under § 1983. See Hinton v.
Dennis, 362 F. App’x 904, 907 (10th Cir. 2010)(unpublished). The Court, therefore, will dismiss
Dangim’s § 1983 claims against these Defendants for failure to state a claim on which relief may
be granted under § 1915(e)(2)(B)(ii) and 1915A(b).
Dangim’s Appendix/Supplement also names as a Defendant the Honorable Judge
McDonald, Chief New Mexico State Judge for the Thirteenth Judicial District, because he is the
judge who presided over his state court criminal case. See Appendix/Supplement at 1. Dangim

3

Dangim’s Appendix/Supplement alleges the violation of his “US constitutional” rights
under the “3rd 4th 5th 6th 8th and 13th amendments.” Appendix/Supplement at 1.
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appears to allege that Chief Judge McDonald violated his rights under the United States
Constitution by refusing to permit Dangim to withdraw his guilty plea in violation of the
M’Naghten rule4 and imposing an illegal sentence.

Appendix/Supplement to Amended

Complaint at 2. It is well established, however, that “[a] judge is absolutely immune from
liability for his judicial acts even if his exercise of authority is flawed by the commission of
grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978). Dangim’s § 1983
claims are predicated on Judge McDonald’s judicial acts and, therefore, the doctrine of absolute
judicial immunity bars them.
Regardless, to the extent that Dangim seeks to recover under § 1983 for alleged
constitutional errors that occurred during his state court criminal case, Heck v. Humphrey, 512
U.S. 477 (1994)(“Heck”), bars his claims. In Heck, the Supreme Court of the United States held
that:
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction
or sentenced has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate the conviction or sentence already
has been invalidated.
Heck, 512 U.S. at 486-87 (emphasis in original)(footnote omitted). Dangim’s § 1983 claims
necessarily imply the invalidity of his state court conviction, but he does not allege that his
4

Under the M’Naghten rule, a defendant generally is considered to be legally insane when
the crime was committed if “he was suffering from a mental disease or defect rendering him . . .
unable to differentiate between right and wrong or . . . unable to understand the nature and
consequences of his act.” Dietsel v. Hines, 506 F.3d 1249, 1272 (10th Cir. 2007)(internal
quotation marks and citation omitted).
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conviction has been invalidated on direct appeal, by executive order, or by a state or federal
tribunal. The Court will, therefore, dismiss these claims for failure to state a claim on which
relief may be granted under § 1915(e)(2)(B)(ii) and 1915A(b).
Furthermore, as previously explained to Dangim in the Court’s June 2, 2017,
Memorandum Opinion and Order, the Court lacks the authority under 42 U.S.C. § 1983 to
invalidate his state court criminal conviction or release him from state custody. See Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973)(holding that “a state prisoner challenging his underlying
conviction and sentence on federal constitutional grounds in a federal court is limited to habeas
corpus”); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012)(“In this circuit, a
prisoner who challenges the fact or duration of his confinement and seeks immediate release or a
shortened period of confinement, must do so through an application for habeas corpus.”). If
Dangim wishes to challenge the validity of his state court criminal conviction or sentence, he
must do so by filing a writ of habeas corpus.
Last, to the extent that Dangim’s Amended Complaint and Appendix/Supplement raise
constitutional claims arising under § 1983 regarding the alleged conditions of his confinement or
the events leading up to his arrest and conviction,5 these claims fail to state a claim on which
relief may be granted because it is unclear “who is alleged to have done what to whom.”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)(emphasis in original).

As

previously explained to Dangim, “[w]hen various officials have taken different actions with
respect to a plaintiff, the plaintiff’s facile, passive-showing that his rights ‘were violated’ will not
suffice. . . . Rather it is incumbent upon a plaintiff to identify specific actions taken by particular
5

For example, Dangim alleges in his Amended Complaint that he was “beaten by
guards,” improperly placed in solitary confinement, denied his rights under the Eighth
Amendment of the Constitution of the United States of America, and tazed and arrested at a
WalMart. Amended Complaint at 6, 8, 9. See footnote 1, supra.
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defendants in order to make out a viable § 1983 claim.” Memorandum Opinion and Order at 13
(internal quotation marks and citations omitted).

Dangim’s Amended Complaint and

Appendix/Supplement do not identify specific actions that particular defendants took and,
therefore, they fail to state a viable claim under § 1983.
The foregoing analysis disposes of Dangim’s Bivens and § 1983 claims. Nonetheless,
the Court recognizes that Dangim’s Appendix/Supplement raises various claims arising under
New Mexico state law. Section 1367(c)(3), of Title 28 of the United States Code, provides that
the Court “may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district
court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
The Tenth Circuit has noted that, “[w]hen all federal claims have been dismissed, the court may,
and usually should, decline to exercise jurisdiction over any remaining state law claims.” Smith
v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998). In light of the
dismissal of Dangim’s federal claims, the Court declines to exercise supplemental jurisdiction
over his remaining state law claims.
In conclusion, for the foregoing reasons, the Court will dismiss Dangim’s Bivens and §
1983 claims without prejudice for failure to state a claim on which relief may be granted under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b), and the Court will decline to exercise
supplemental jurisdiction over Dangim’s remaining state law claims. The Court will dismiss,
therefore, Dangim’s Amended Complaint and Appendix/Supplement without prejudice in their
entirety, deny his Motion to Appoint Counsel as moot, and enter Final Judgment.
IT IS ORDERED that: (i) the Plaintiff’s Amended Complaint For Violation of Civil
Rights, filed July 6, 2017 (Doc. 22), is dismissed without prejudice; (ii) the Plaintiff’s
Appendix/Supplement to his Amended Complaint, filed July 6, 2017 (Doc. 23), is dismissed

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without prejudice; (iii) the Plaintiff’s Letter from Christopher Scott Dangim, filed July 18, 2017
(Doc. 24)(“Motion to Appoint Counsel”), is denied as moot; and (iv) Final judgment will be
entered.

________________________________
UNITED STATES DISTRICT JUDGE
Parties:
Christopher Scott Dangim
Rio Rancho, New Mexico
Plaintiff pro se
FNU LNU, USA Law Enforcement
Defendant pro se
FNU LNU, Rio Rancho Police
Defendant pro se
FNU LNU, Sandoval County Sheriffs
Defendant pro se
FNU LNU, Docs and Mental Health
Defendant pro se
FNU SALAZAR, Officer
Defendant pro se

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