Calderon, et al. v. Lea County Correctional Facility et al.

Filing 23

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera dismissing case with prejudice and imposing a strike against Plaintiff Noel Calderon under 28 U.S.C. § 1915(g). (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

NOEL CALDERON,
Plaintiff,
v.

No. 1:16-cv-00938 JCH/KBM

LEA COUNTY CORRECTIONAL
FACILITY, et al,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Before the Court is Plaintiff’s civil rights complaint (Doc. 1, supplemented by Docs. 9, 13
and 14). Plaintiff is incarcerated, appears pro se, and is proceeding in forma pauperis. For the
reasons set out below, the Court will dismiss the complaint for failure to state a claim and failure to
prosecute. The Court will also impose a “strike” under 28 U.S.C. § 1915(g).
On August 16, 2016, Plaintiff filed a civil rights complaint challenging his treatment at the
Roswell Correctional Center (“RCC”) and the Lea County Correctional Facility (“LCCF”). The
complaint alleges RCC officials made lewd, abusive comments towards him. (Doc. 1, p. 6).
When Plaintiff filed a sexual harassment complaint, the officials allegedly waged a “campaign of
terror” against him, which included framing him for an attack on another inmate, strip searches,
threats, and public shaming. (Doc. 1, p. 6-7; Doc. 13, p. 1, 3). Plaintiff was transferred to LCCF
a few days later, where he alleges prison officials violated his due process rights in connection with
a disciplinary proceeding and wrongfully placed him in segregation. (Doc. 13, p. 4, 7). The
complaint seeks $370,000 in damages from 16 named and unnamed individuals at RCC and LCCF1

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From RCC, Plaintiff names: (1) the warden; (2) Sergeant Ramirez; (3) Mary Christian, a deputy warden and PREA
investigator; (4) Lieutenant Briscoe; (5) Officer Sena; (6) Lieutenant Rivera; (7) Captain Castillo; (8) Officer Juertta,

pursuant to 42 U.S.C. § 1983 and the Fourth, Eighth, and Fourteenth Amendments.
By a Memorandum Opinion and Order entered September 22, 2017 (Doc. 21), the Court
dismissed the complaint sua sponte for failing to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). Specifically, it was unclear which claims
Plaintiff was asserting against which defendants for which actions. (Doc. 21, p. 5-6). Plaintiff’s
submissions also appeared to contain conflicting facts. (Doc. 21, p. 6). The ruling cited relevant
Tenth Circuit cases describing how to cure these defects and state a claim for cruel and unusual
punishment and/or the violation of due process in connection with prison disciplinary proceedings.
See, e.g. Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2013) (To demonstrate an Eighth
Amendment violation, the alleged abuse must be objectively serious and harmful, and the
government official must “act[] with a sufficiently culpable state of mind.”); Estate of DiMarco v.
Wyo. Dep't of Corr., Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007) (setting out factors to
determine whether placement in segregation threatens a protected liberty interest); Gwinn v.
Awmiller, 345 F.3d 1211, 1219 (10th Cir. 2004) (describing due process requirements for a prison
disciplinary proceeding).
Consistent with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), Plaintiff was
given thirty days (i.e., until October 23, 2017) to amend his complaint. The Court advised that if
he failed to timely file an amended complaint, the case could be dismissed with prejudice and
without further notice. Plaintiff did not file an amended complaint or otherwise respond to the
Memorandum Opinion and Order. It also appears that Plaintiff has been transferred or released
from custody with advising the Court of his new address as required by D.N.M. LR-Civ. 83.6, thus
sometimes spelled “Guerrta”; (9) Lieutenant Reyes; and (10) Officer Croker. See Doc. 1, p. 3-5. From LCCF,
Plaintiff names: (1) Warden Smith; (2) Caseworker Prieto; (3) Lieutenant Rivas; (4) Lieutenant Richardson; (5) Miss
Beard; and (6) Captain Herrera. Id.

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severing contact with the Court. (Doc. 22). This action will therefore be dismissed with
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) for failure to state a claim on
which relief may be granted and under Fed. R. Civ. P. 41(b) for failure to prosecute.
Such dismissal counts as a strike under the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g). See Hafed v. Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir. 2011)
(holding that dismissal of an action as frivolous, malicious, or for failure to state a claim under §
1915(e)(2)(B) counts as a strike under § 1915(g)). The Court notifies Plaintiff that if he accrues
three strikes under the PLRA, he may not proceed in forma pauperis in civil actions before the
federal courts unless he is under imminent danger of serious physical injury. See § 1915(g).
For the foregoing reasons, IT IS HEREBY ORDERED that this action is DISMISSED
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b) for failure to state a claim
on which relief may granted; and judgment will be entered.
IT IS FURTHER ORERED that a strike is IMPOSED against Plaintiff Noel Calderon
under 28 U.S.C. § 1915(g).

______________________________________
UNITED STATES DISTRICT JUDGE

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