Wanton v. Prichard et al
MEMORANDUM OPINION AND ORDER dismissing 1 Complaint by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TROY WAYNE PRICHARD, RAUL A.
LOPEZ, FNU LNU, all other officers of
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under 28 U.S.C. §§ 1915(e)(2) and 1915A, on
Plaintiff Raul Wanton’s Prisoner’s Civil Rights Complaint, filed on October 11, 2016. [Doc. 1]
Plaintiff is incarcerated, appears pro se, and is proceeding in forma pauperis. For the reasons
explained below, Plaintiff’s complaint will be dismissed without prejudice as frivolous, a strike
will be assessed under 28 U.S.C. § 1915(g), and judgment will be entered.
On October 11, 2016, Plaintiff filed a Prisoner Civil Rights Complaint against
Defendants Troy Wayne Prichard, Raul A. Lopez, and “all other officers of the Court.” [Doc. 1
at 1] Plaintiff’s complaint alleges that Defendants Prichard and Lopez, attorneys who
represented Plaintiff during his state criminal proceedings, rendered ineffective assistance of
counsel, colluded with the District Attorney, and misled Plaintiff into signing a plea agreement.
Plaintiff’s complaint seeks monetary damages, immediate release from custody, the disbarment
of Defendants Prichard and Lopez, and the imposition of criminal charges against them. [Doc. 1
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under
§ 1915(e)(2) “at any time if . . . the action . . . is frivolous or malicious; [or] fails to state a claim
on which relief may be granted.” § 1915(e)(2). Additionally, the Court has an obligation under
§ 1915A to screen “a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity” and to “identify cognizable
claims or dismiss the complaint, or any portion of the complaint” if it “is frivolous, malicious, or
fails to state a claim upon which relief may be granted.” § 1915A. “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.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id.
Plaintiff 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,
935 F.2d at 1110. 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.” Id. 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
To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). It is well established that public defenders and court-appointed attorneys do “not
act under color of state law when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also
Smith v. Freestone, 188 F.3d 519, 1999 WL 510524, at *2 (10th Cir. July 20, 1999) (unpublished
table decision). However, public defenders or court-appointed attorneys do act under color of
state law when they are “engaged in a conspiracy with state officials to deprive another of federal
rights.” Tower v. Glover, 467 U.S. 914, 920 (1984). The United States Court of Appeals for the
Tenth Circuit has held that “[w]hen a plaintiff in a § 1983 action attempts to assert the necessary
‘state action’ by implicating state officials or judges in a conspiracy with private defendants,
mere conclusory allegations with no supporting factual averments are insufficient; the pleadings
must specifically present facts tending to show agreement and concerted action.”
Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983). “The standard is even stricter
where the state officials allegedly involved in the conspiracy are immune from suit. . . .” Id.
Although Plaintiff’s complaint alleges, in a conclusory fashion, that Defendants Prichard
and Lopez were in “collusion with [the] D.A.” and “conspired to make defendant sign plea
agreement,” [Doc. 1 at 1, 4] it fails to allege any facts tending to show agreement or concerted
action. See Dunn v. Harper County, 520 F. App’x 723, 726 (10th Cir. 2013) (holding that a
plaintiff’s “baseless assertions that his defense attorney conspired with court personnel and
prosecutors to deprive him of his constitutional rights . . . do not pass muster under Iqbal”)
(unpublished). Because Plaintiff’s conclusory allegations regarding the existence of a conspiracy
are insufficient, the Court concludes that Plaintiff’s complaint fails to state a claim on which
relief can be granted under §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) against Defendants Prichard
Furthermore, the Court notes that it lacks the authority to disbar Defendants Prichard and
Lopez from the practice of law or to initiate criminal proceedings against them. First, attorney
discipline in the State of New Mexico is within the exclusive jurisdiction of the Supreme Court
of New Mexico and the Disciplinary Board of the Supreme Court of New Mexico. See In re
Treinen, 131 P.3d 1282, 1284 (N.M. 2006) (noting that the Supreme Court “has the sole
authority to direct what constitutes grounds for the discipline of lawyers”) (per curiam); NMRA
17-101 (“Any attorney admitted to practice law in this state . . . is subject to the exclusive
disciplinary jurisdiction of the Supreme Court and the Disciplinary Board”).
decision to prosecute an alleged crime and what charges to file or bring “generally rest in the
prosecutor’s discretion,” United States v. Batchelder, 442 U.S. 114, 124 (1979), and the
prosecutor’s decision is not subject to judicial review, Massey v. Smith, 555 F.2d 1355, 1356-57
(8th Cir. 1977).
Plaintiff’s complaint also names “all other officers of the court” as defendants. It is
unclear to which officers of the court Plaintiff’s complaint refers, but the Court notes that the
judges, prosecutors, and judicial staff involved in Plaintiff’s state criminal proceeding are
entitled to absolute immunity from suit. See Stump v. Sparkman, 435 U.S. 349, 362-63 (1978)
(holding that judges are absolutely immune from suit when acting in their official judicial
capacity); Imbler v. Pachtman, 424 U.S. 409, 424-29 (1976) (holding that prosecutors are
absolutely immune from suit for initiating and prosecuting a criminal action); Valdez v. City and
County of Denver, 878 F.2d 1285, 1288 (10th Cir. 1989) (holding that “court officers sworn to
execute court orders are shielded by absolute immunity in the performance of their duty”).
Therefore, to the extent that Plaintiff’s complaint includes § 1983 claims against the judges,
prosecutors, and judicial staff involved in his state criminal case, his claims must be dismissed as
frivolous under §§ 1915(e)(2)(B)(i) and 1915A(b)(1).
Moreover, Plaintiff’s § 1983 claims against Defendants Prichard, Lopez, and “all other
officers of the Court” are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the
United States Supreme Court 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 sentence 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 has already been
Id. at 486-87 (footnote omitted; emphasis in original). Plaintiff § 1983 claims necessarily imply
the invalidity of his conviction and sentence, but Plaintiff has failed to allege that his conviction
and sentence have been invalidated on direct appeal, by executive order, or by a state or federal
tribunal. Therefore, Plaintiff’s § 1983 claims will be dismissed without prejudice as frivolous
under §§ 1915(e)(2)(B)(i) and 1915A(b)(1). See Fottler v. United States, 73 F.3d 1064, 1065
(10th Cir. 1996) (“When a § 1983 claim is dismissed under Heck, the dismissal should be
without prejudice” because if the plaintiff “is later successful in overturning his conviction, he
should be allowed to bring his § 1983 action at that time”).
To the extent that Plaintiff seeks the “immediate termination of [his] sentence” [Doc. 1 at
5] and release from custody, the Court notes that this relief is unavailable in a § 1983 proceeding.
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”); see also 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 Plaintiff wishes to challenge the validity of his state criminal conviction
or sentence, he must do so by filing a writ of habeas corpus.
For the foregoing reasons, Plaintiff’s Prisoner’s Civil Rights Complaint will be dismissed
as frivolous under §§ 1915(e)(2)(B)(i) and 1915A(b)(1). The dismissal of Plaintiff’s Prisoner’s
Civil Rights Complaint counts as a strike under the Prison Litigation Reform Act (PLRA) 28
U.S.C. § 1915(g). See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir.
2011) (holding that the dismissal of an action as frivolous, malicious, or for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2)(B) or 1915A counts as a strike under § 1915(g)). This is
Plaintiff’s second strike under the PLRA, since Plaintiff’s Prisoner’s Civil Rights Complaint in
Wanton v. New Mexico Department of Corrections, et al., 16-CV001058-JCH-GJF, Docs. 10, 11
(D.N.M. January 24, 2017) was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to
state a claim on which relief may be granted. The Court notifies Plaintiff that, if he accrues a
third strike 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).
IT IS THEREFORE ORDERED that Plaintiff’s Prisoner’s Civil Rights Complaint [Doc.
1] is DISMISSED without prejudice as frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(1); a STRIKE is assessed under § 1915(g); and judgment will be entered.
CHIEF UNITED STATES DISTRICT JUDGE
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