Wanton v. New Mexico Department of Corrections

Filing 9

MEMORANDUM OPINION AND ORDER OF DISMISSAL of Complaint with leave to amend complaint within 30 days by District Judge Judith C. Herrera. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAUL WANTON,
Plaintiff,
vs.

No. CV 16-01058 JCH/GJF

NEW MEXICO DEPARTMENT OF CORRECTION’S
HEALTH CARE PROVIDER & ALL OTHERS,
Defendants.
MEMORANDUM OPINION AND ORDER OF DIMISSAL
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 Prisoner’s Civil Rights Complaint filed by Plaintiff Raul Wanton
on September 23, 2016 (Doc. 1). The Court will dismiss Wanton’s Complaint for failure to state
a claim on which relief can be granted.
Dismissals for Failure to State a Claim
Plaintiff Wanton 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

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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.
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.

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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
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).
The § 1983 Complaint Fails to State a Claim
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, 129 S.Ct. 1937, 1948 (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 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

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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 refers to “health care provider,” “nursing staff,” and “non-medical staff,”
but does not make any factual allegations against any identified individual. (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. Ashcroft v. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948;
Robbins v. Oklahoma, 519 F.3d at 1249-50.

Further, Plaintiff Wanton makes generalized

statements that he is being denied adequate medical care, but does not allege any specific
wrongful conduct or explain how that conduct violates his constitutional rights. 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.

Wanton’s formulaic recitations of Eighth and Fourteenth Amendment

violations are not sufficient to state a plausible claim. Twombly, 550 U.S. at 570.
Plaintiff Wanton’s allegations fail to state any legally sufficient claim for relief under
either Fed. R. Civ. P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). The Court will dismiss Wanton’s
claims. The Court will also grant Wanton 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. Bellmon, 935 F.2d at 1109. If Wanton 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 this proceeding with prejudice and without
further notice.
IT IS ORDERED that the Prisoner’s Civil Rights Complaint filed by Plaintiff Raul
Wanton on September 23, 2016 (Doc. 1) is DISMISSED for failure to state a claim on which

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relief can be granted and Plaintiff is GRANTED thirty (30) days from entry of this
Memorandum Opinion and Order to file an amended complaint.

________________________________
UNITED STATES DISTRICT JUDGE

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