Crist v. Nix et al
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack DENYING 5 MOTION for Discovery, 6 MOTION for Entry of Default, 18 MOTION for Default Judgment as to, 20 MOTION To Take Judicial Notice; GRANTING 2 MOTION to Proceed under 28 U.S.C. 1915, 19 MOTION To Take Judicial Notice; DISMISSING 4 MOTION of Consent as unnecessary and DISMISSING 1 Complaint without prejudice for failure to state a claim (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDWARD BRIAN CRIST,
No. CV 16-1190 RB/KBM
OFFICER JARED NIX, OFFICER TOMMY
GONZALEZ, OFFICER JOHNNY GARCIA,
SANDIA PUEBLO POLICE DEPT.,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Prisoner’s Civil Rights Complaint
(“Complaint”) filed by Plaintiff, Edward Brian Crist, on October 28, 2016. (Doc. 1.) The Court
will dismiss the Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B). Also pending before the Court are several motions filed by Plaintiff
Crist. The Court’s disposition of the motions is set out in part II, below.
Plaintiff Edward Brian Crist is proceeding pro se and in forma pauperis. He has three
pending civil rights cases in this Court.1 Edward Brian Crist v. Detective Joe Lopez #5425 was
filed by Crist on August 22, 2016. (CV 16-00950 MV/LF, Doc. 1.) Edward Brian Crist v.
Detective Joe Lopez #5425 was initially filed in New Mexico state court on August 22, 2016 and
was removed to this Court by the Defendant on October 6, 2016 (CV 16-01107 MV/KRS, Docs.
Crist also filed a Petition for Writ of Habeas Corpus, which was docketed as case no. CV 16-01276 RB/LF. The
habeas corpus proceeding was dismissed for lack of jurisdiction. (CV 16-01276 RB/LF, Doc. 21.)
1 and 1-1.) This case, Edward Brian Crist v. Officer Jared Nix, et al., was filed in this Court by
Crist on October 28, 2016. (CV 16-01190 RB/KBM, Doc. 1.)
Plaintiff Crist has a lengthy history of criminal charges and convictions in the state courts
of New Mexico. See State of New Mexico cause nos. D-101-CR-1992-00253, D-101-CR-199200394, D-202-CR-1993-01119, D-101-CR-1995-00100, D-202-CR-1999-03699, D-202-CR2000-01166, D-202-CR-2000-01537, D-202-CR-2001-01810, D-202-CR-2004-01213, D-202CR-2013-01260, and D-202-CR-2016-01969. 2 The allegations in all three of Plaintiff Crist’s
pending cases arise out of the underlying arrest and criminal prosecution of Crist in cause no. D202-CR-2016-01969. (CV 16-00950 MV/LF, Doc. 1; CV 16-01107 MV/KRS, Doc. 1-1; CV 1601190 RB/KBM, Doc. 1.)
The record shows that at approximately 4:42 pm on June 8, 2016, Albuquerque Police
Department (“APD”) officers were dispatched to the Blake’s Lottaburger at 6215 San Mateo Dr.
NE, Albuquerque, New Mexico, in reference to an armed robbery. Victims told police officers
that a male subject pointed a shotgun at them and demanded money. Based on a surveillance
video, the suspect was described as wearing prescription eyeglasses, white hoodie, black and
white shorts, maroon “van” type shoes, a white jersey with the number 19 on it, a ring on his left
hand, a bandana over his face, and tattoos on his right lower leg. (CV 16-1107 MV/KRS, Doc.
11 at 6.) A witness reported seeing the male suspect get into a white vehicle bearing New
Mexico license plate 910TNB. New Mexico Motor Vehicle Department records indicated the
vehicle was registered to Brian Edward Crist and was a white 2004 Buick four-door sedan. (CV
16-1107 MV/KRS, Doc. 11 at 6.)
The Court takes judicial notice of publicly filed records in this court and other courts concerning matters that bear
directly upon the disposition of this case. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007); Duhart
v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972).
At approximately 8:42 pm on June 8, 2016, APD officers were dispatched to the Pizza
Hut located at 2640 Carlisle Blvd. NE in Albuquerque in reference to an armed robbery. A
female employee reported that a male suspect pointed a shotgun at her and demanded cash from
the register. A female customer stated that she saw two subjects enter the store. She described
the first male as tall, about 6-feet, skinny, and wearing a gray zip up hoodie, shades, and a black
and white bandana covering his face. She said that, on entering, the male ordered everyone on
the ground and racked the shotgun, chambering a round. She felt someone moving things in her
purse and, after the incident, noticed her wallet, containing her identification documents and
bank/debit cards, was missing. (CV 16-1107 MV/KRS, Doc. 11 at 7.)
At around 1:19 am on June 9, 2016, Sandia Pueblo Tribal Officer Jerade Nix was
dispatched to the Sandia Resort and Casino located at 30 Rainbow Road, Sandia Pueblo, New
Mexico, in reference to a “firearms exchange” on the fourth level of the parking structure.
Security Officer Johnny Garcia informed Officer Nix that he had reviewed video surveillance
footage and had observed the driver of a red colored Honda passenger car make a firearm
exchange with the owner/operator of a white vehicle. The video surveillance showed that a
shotgun or long rifle was placed in the trunk of a white, four-door vehicle bearing New Mexico
plate 910TNB. Officer Nix, Officer Garcia, and Officer Tommy Gonzales made their way to the
fourth level and, by the white four-door vehicle bearing plate 910NTB, located the subject shown
on the video placing the firearm in the trunk. The subject was identified as Edward Crist through
his New Mexico Driver’s License. Officers reported that Mr. Crist stated he is a convicted felon
and that there was a shotgun in the trunk of his car. During a pat-down search, a glass pipe and
three small baggies of a black substance, suspected to be black tar heroin, were located in Mr.
Crist’s right front pocket. The license plate on the vehicle was run by the officers and returned
as registered to Edward Crist. Dispatch also notified Officer Nix that APD had run the plate on
the vehicle approximately ten times earlier that night and APD stated that the vehicle was
involved in two armed robberies in Albuquerque earlier in the night. With Mr. Crist’s
permission, the officers opened the trunk and retrieved a 12 gauge model 88 Maverick shotgun,
loaded with six shotgun shells, and a military flak jacket. (CV 16-1107 MV/KRS, Doc. 11 at 1112.)
At 3:12 am on June 9, 2016, Detective Lopez met with Edward Crist and read him his
Miranda rights. Detective Lopez described Crist as wearing black, white, and grey plaid shorts,
a pink shirt, red shoes with a white sole, and prescription glasses. Lopez stated Crist had tattoos
on his lower right leg. Detective Lopez reported that Officer Nix had informed him Sandia
police officers had located a shot gun, hand gun, and methamphetamines in the vehicle during
their inventory of the vehicle and that the vehicle was going to a secure lot at Duggar’s Towing.
Officer Nix arranged to have the vehicle released by Duggar’s Towing to APD pending a search
warrant. (CV 16-01107 MV/KRS, Doc. 11 at 39–40.)
On June 10, 2016, Officer Nix filed a Criminal Complaint in the State of New Mexico,
County of Bernalillo, Metropolitan Court relating to the detention and arrest on June 9, 2016.
(CV 16-00950 MV/LF, Doc. 10 at 6.) The Criminal Complaint was docketed as case no. T-4FR-2016-003073. For unknown reasons, the case caption identified the Defendant as “Kirksey,
Robert.” (CV 16-00950 MV/LF, Doc. 10 at 6.) However, the Complaint listed the 704 Glacier
Bay St SE address for Edward Crist, and the body of the Complaint identified Edward Crist as
the suspect who was detained, arrested, and transported to the Metropolitan Detention Center.
The Complaint charged the Defendant with possession of a firearm or destructive device by a
felon and possession of a controlled substance. (CV 16-00950 MV/LF, Doc. 10 at 6.)
Metropolitan Court Judge Victor Valdez made a determination on June 10, 2016, that there was
probable cause a crime had been committed, but no probable cause that the crime was committed
by the wrongly-named Defendant, Robert Kirksey. Based on the wrongly-named defendant, the
Judge ordered that Crist be released. (See T-4-FR-2016-003073.)
Also on June 10, 2016, Detective Joe Lopez filed a Criminal Complaint—Arrest Warrant
Affidavit in the Metropolitan Court. (See CV 16-01107 MV/KRS, Doc. 11.) The ComplaintArrest Warrant Affidavit was docketed as Metropolitan Court case no. T-4-FR-2016-00310. The
Complaint-Arrest Warrant Affidavit states:
“06/09/2016 0200 HRS
I was notified by APD dispatch that Officers with the Sandia Pueblo
were out on a shots fired call and they were with a male subject
who was in the vehicle bearing NM 910 NTB. I asked dispatch to give
my contact information to the officer handling the case with Sandia
Pueblo. Officer Jared Nix of Sandia pueblo called me and informed me
he was out with a male who they had in custody for shooting at another
vehicle. Officer Nix informed me the male had a shot gun during the
incident. Officer Nix described the male they had in custody as 6’01” 214
pounds wearing brown and grey plaid shorts and an orange shirt and
provided the name of Edward Crist. I informed Officer Nix the male
matched the description of robberies that had taken place on 06/08/2016
and asked if I could interview him at their office.”
(CV 16-01107 MV/KRS, Doc. 11 at 7-8.) Case T-4-FR-2016-00310 was transferred to the State
of New Mexico, Second Judicial District Court, for presentment of the criminal charges to a
The case was docketed in the Second Judicial District Court as D-202-CR02016-01969,
and Grand Jury proceedings were held in CR-2016-01969 on June 23, 2016.
Detective Joe Lopez and Defendant Edward Crist testified before the Grand Jury. (CV 16-01107
MV/KRS, Doc. 17.) Detective Lopez testified, in pertinent part, that he was contacted by
officers from the Sandia Pueblo Police Department around 2:00 am on June 9, 2016. They
advised him that they were with a male subject that was in a vehicle bearing New Mexico plate
910-MTB and that APD dispatch had informed them the vehicle was connected to an armed
robbery earlier in the day.
They advised him the subject, named Edward Crist, was
approximately 6’1, 214 pounds and was wearing brown and grey plaid shorts with an orange
shirt. Mr. Crist was then transferred over to the custody of Detective Lopez. The vehicle was
turned over to Detective Lopez on June 10, 2016. Detective Lopez obtained a search warrant for
the car and located several shotgun rounds, handgun rounds and a handgun, a bandana with black
and green camouflage, and a black and white bandana with two ends tied together. (CV 1601107 MV/KRS, Doc. 17 at 8–18.)
The Grand Jury indicted Crist on three counts of armed robbery (firearm enhancement),
six counts of aggravated assault (firearm enhancement), one count of conspiracy to commit
armed robbery and/or aggravated assault, one count of child abuse, and two counts of possession
of a firearm by a felon, including one count arising out of the June 9, 2016 incident at the Sandia
Resort and Casino. (CV 16-01107 MV/KRS, Doc. 11 at 15–18.)
On March 6, 2017, the State of New Mexico filed a nolle prosequi in D-202-CR-201601969 on the grounds that the case was being referred for federal prosecution. A federal Grand
Jury Indictment was filed against Crist on November 15, 2016, and criminal charges are pending
in this Court. (See CR 16-04356 JCH, Doc. 1.)
Plaintiff Crist filed his Complaint on October 28, 2016. (Doc. 1.) Crist names, as
Defendants, Sandia Pueblo Police Officers Jared (sic) Nix, Tommy Gonzales, and Johnny
Garcia, and the Sandia Pueblo Police Dept. (Id. at 1.) Crist alleges “Officer Nix, Gonzales,
Garcia conspired with Detective Lopez to tamper with evidence and falsify documents denying
Edward Crist his V, VIII, and XIV amendment rights.” (Id. at 2.) “Due to the gross negligence
of all officers involved from Sandia Pueblo Police Depart, Tampering with evidence, falsely
arresting, false imprisonment, falsifying documents cruel and unusual punishment, denial of due
process I demand for punitive, compensatory, and monetary damages $1,000,000 as relief
requested and dismissal of case #16-000713.” (Id. at 7.) The record indicates that “Case # 16000713” is the Offense/Incident Report number assigned by the Pueblo of Sandia Police
Department. (See id. at 13.)
PLAINTIFF CRIST’S PENDING MOTIONS
Before the Court are seven motions filed by Plaintiff Crist. First, Crist has filed an
Application to Proceed in the District Court without Prepaying Fees and Costs. (Doc. 2.) The
Court finds that Plaintiff Crist has shown a financial inability to prepay the costs of this
proceeding and will grant his Application under 28 U.S.C. § 1915(b).
Two of Crist’s pending motions, the Motion to Request Entry of Default (Doc. 6) and the
Motion for Default Judgment (Doc. 18), are in the nature of requests that the Court enter a
default judgment against the Defendants for failure to file an answer to the Complaint. The
Court has not ordered service of process on Defendants and, therefore, Defendants are not in
default. See Fed. R. Civ. P. 55(a). The Court will deny these two motions.
One of the pending motions, the Motion for Disclosure of Discovery (Doc. 16), is in the
nature of a request for discovery. Because the Court dismisses the case for failure to state a
claim, the Court will deny the Motion requesting discovery as moot.
Plaintiff Crist has also filed two motions asking the Court to take judicial notice. Under
Fed. R. Evid. 201(b), the Court may take judicial notice of publicly filed records in this court and
other courts concerning matters that bear directly upon the disposition of the case at hand. United
States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir. 2007); Duhart v. Carlson, 469 F.2d 471,
473 (10th Cir. 1972). See also, Shoulders v. Dinwiddie, 2006 WL 2792671 (W.D. Okla. 2006)
(court may take judicial notice of state court records available on the world wide web including
docket sheets in district courts); Stack v. McCotter, 2003 WL 22422416 (10th Cir. 2003)
(concluding a state district court’s docket sheet is an official court record subject to judicial
notice under Fed. R. Evid. 201).
In his first Motion for Request for Judicial Notice (Doc. 19), Plaintiff asks the Court to
take notice of filings in United States v. Crist, CR 16-04356 JCH. The court records and filings
are public records properly subject to judicial notice under Fed. R. Evid. 201. Ahidley, 486 F.3d
at 1192 n. 5. Accordingly, the Court will grant the Motion and take judicial notice of the
documents filed in CR 16-04356 JCH. The Court’s granting of the Motion, however, should not
be construed as approval of the conclusory allegations and statements contained in Crist’s
In his second Motion for Judicial Notice (Doc. 20), Plaintiff asks the Court to take
judicial notice of a letter sent to Crist by his Assistant Federal Public Defender. The letter is not
a public record subject to judicial notice. Hynoski v. Columbia Cty. Redevelopment Auth., 941 F.
Supp. 2d 547, 557 (M.D. Pa. 2013) (letters of counsel do not satisfy the requirements of Fed. R.
Evid. 201(b)). The Court will deny Plaintiff Crist’s second Motion for Judicial Notice.
Last, Plaintiff Crist has filed a Motion of Consent (Doc. 4), consenting to referral of this
case to Magistrate Judge Karen B. Molzen under the provisions of 28 U.S.C. §§ 636(b)(1)(B)
and (b)(3). In the context of prisoner civil rights cases, Plaintiff Crist’s consent is not necessary
for reference of the case to a Magistrate Judge under §§ 636(b)(1)(B) and (b)(3). The Court will
dismiss Crist’s Motion of Consent as unnecessary.
PLAINTIFF CRIST’S COMPLAINT FAILS TO STATE A § 1983 CIVIL RIGHTS
CLAIM ON WHICH RELIEF CAN BE GRANTED
Plaintiff, Edward Brian Crist, is proceeding pro se and in forma pauperis. (Doc. 9.) 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). 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. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); 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. Okla. Dep’t of Human
Servs., 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. A claim should be
dismissed where it is legally or factually insufficient to state a plausible claim for relief. Id. at
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 for relief or is frivolous or malicious. 28 U.S.C. §
1915(e)(2)(B)(ii). 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,
935 F.2d at 1109. “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 (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 Cty, 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, 935 F.2d at 1110.
Plaintiff Crist brings this action as a prisoner civil rights case 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).
Plaintiff Crist alleges:
“Officer Nix, gonzales, garcia conspired with Detective Lopez
to tamper with evidence [sic] and falsify documents denying Edward
Crist of his V, VIII, XIV amendment rights, conspiracy to commit
all of the above.”
(Doc. 1 at 2.) Crist further claims:
“On June 9th 2016 officer Jared nix did arrest Edward Brian Crist
for a felon in possession of a firearm and possession of a controlled
substance at Sandia Casino on the 4th floor of the parking structure.
Edward Crist was transported to MDC by officer Tommy Gonzales
of Sandia Police Dept. and booked into MDC under the fictitious
name of Robert Kirksey #T-4-FR-16-003073 or Sandia case #
16-000713. Sandia Pueblo Police Dept had jurisdiction on this
arrest and should have transported Mr. Crist to Sandoval County
to be held and tried by the United States District Court.”
(Doc. 1 at 3.)
Crist’s allegations do not state a constitutional claim. The Offense/Incident Report in
Sandia case #16-000713 clearly identified “Mr. Edward Crist” as the offender and did not
mention the name “Robert Kirksey.” Crist was identified by his photo ID at the time of his arrest
by the Sandia Pueblo Tribal Officers. (Doc. 1 at 14.) Although the Criminal Complaint filed in
Metropolitan Court by Sandia Pueblo Officer Nix did have the wrong name of “Robert Kirksey”
in the case caption, the Judge in Metropolitan Court case #T4FR-2016-003073 found probable
cause that Crist’s actions, as set out in the body of the Complaint, constituted a crime. (See T-4FR-2016-003073.) The mistaken use of “Robert Kirksey” in the caption of the case actually
benefited Crist in that the Judge ordered the release of Crist due to the use of the “wrong name.”
(T-4-FR-2016-003073.) Crist’s allegations relating to use of the fictitious name “Robert
Kirksey” do not state a plausible claim for relief under Fed. R. Civ. P. 12(b)(6) or under 28
U.S.C. § 1915(e)(2)(B).
Nor do Crist’s allegations regarding jurisdiction and transport state a claim for relief.
The Court takes judicial notice that, although Crist was arrested by Sandia Pueblo police officers
on lands owned by Sandia Pueblo, the Sandia Resort and Casino is located within the geographic
boundaries of Bernalillo County. See United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980)
(“[g]eography has long been peculiarly susceptible to judicial notice for the obvious reason that
geographic locations are facts which are not generally controversial and thus it is within the
general definition contained in Fed. R. Evid. 201(b)”). The decision of the Sandia Pueblo police
officers to transport him to the Bernalillo County Metropolitan Detention Center, rather than the
Sandoval County Detention Center, does not state a constitutional violation.
Plaintiff Crist also alleges:
“According to Request for Forensic Services 16-005-2248 a
shot gun was tested for latent prints in connection with alleged
crimes in CR 16-1969. CR 16-1969 is a fraudulent document
and can be proven as such. There was no shots fired call
where Mr. Crist was in custody for shooting at a motor vehicle
and a shot gun was not found as a result of a shots fired call. . .
Plaintiff contends that Sandia Pueblo allowed evidance [sic] in case
#16-000713 to be tampered with or moved into a different
case # 16-1969. Advertantly the fictitious criminal complaint
was RoRed freeing up the shot gun as evidance [sic] in case
#16-000713 or T-4-FR-16 00373 and allowing Detective
Lopez to make the false statements and testify illegally
to a shotgun that is not in evidance [sic] in APD.”
(Doc. 1 at 4–5.) Although Crist contends that Sandia Pueblo allowed evidence to be
tampered with, he does not identify any individual acts by Defendants Nix, Gonzales, or Garcia.
To state a claim for relief under 42 U.S.C. § 1983, 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 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). Crist’s
allegations of tampering with evidence do not identify personal acts by any of the individual
Sandia Pueblo police officers and fail to state a claim for relief against Defendants Nix,
Gonzales, or Garcia. Id.
Further, to the extent there are discrepancies between reports by the Sandia Tribal Police
and Detective Lopez’s reporting of information provided to him by APD Dispatch and the
Sandia Pueblo police officers, those discrepancies do not necessarily render the statements
“false” as alleged by Crist, nor does Crist specify how those discrepancies constitute actions in
violation of his constitutional rights. West, 487 U.S. at 48. Crist’s allegations fail to state a claim
on which relief can be granted under Rule 12(b)(6) and § 1915(e)(2)(B)(ii).
Crist’s allegations relate to evidentiary discrepancies arising out of the arrest underlying
his pending criminal charges. Crist’s claims are premature at this time and the evidentiary
discrepancies should be litigated in the first instance in his pending criminal action. See Smith v.
Holt, 87 F.3d 108 (3d Cir. 1996) (claims that would necessarily imply the invalidity of a future
conviction that might be entered on a pending criminal charge do not accrue so long as the
potential for a judgment in the pending criminal prosecution continues to exist), cert. denied, 519
U.S. 1041 (1996); Covington v. City of New York, 171 F.3d 117 (2d Cir. 1999) (same). Any
claims by Crist are premature and speculative until judgment has been entered on his pending
Last, Crist also names the Sandia Pueblo Police Department as a Defendant. The Sandia
Pueblo Police Department is not a “person” within the meaning of 42 U.S.C. § 1983. There is no
remedy against the Sandia Pueblo Police Department under § 1983 and the Complaint fails to
state a claim for relief against the Sandia Pueblo Police Department Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 63–64 (1989). In addition, although the Court does not reach the
question, an issue exists as to whether Sandia Pueblo Tribal police officers act under color of
state law and are subject to liability under § 1983. Compare Burrell v. Armijo, 456 F.3d 1159,
1174 (10th Cir. 2006) (tribal officers act under color of tribal law, not state law) and Evans v.
McKay, 869 F.2d 1341, 1348–49 (9th Cir. 1989) (tribal officials acting in concert with state
officials act under color of state law).
THE COURT WILL NOT GRANT LEAVE TO AMEND
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, 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 Court will not grant Plaintiff Crist leave to amend his Complaint. First, Crist already
has multiple cases in this Court based on the same factual allegations. It is unlikely that any
amendment would do more than repeat the same allegations. Moreover, Crist’s Complaint is not
being dismissed due to defects in his pleading.
Instead, it is being dismissed under the
§ 1915(e)(2)(B) standard because the record in his pending cases establishes a lack of factual
support for his claims. Because further amendments would still be factually insufficient, any
amendment he might file would be futile. Bradley, 379 F.3d at 901. Last, because Crist’s claims
are premature and speculative until judgment has been entered on his pending criminal charges,
leave to amend at this stage would, again, be futile. See Smith, 87 F.3d 108; Covington, 171 F.3d
IT IS ORDERED:
(1) Plaintiff Edward Brian Crist’s Motion for Disclosure of Discovery (Doc. 5), Motion
to Request Entry of Default (Doc. 6), Motion for Default Judgment (Doc. 18), and Motion to
Take Judicial Notice (Doc. 20) are DENIED;
(2) Plaintiff Crist’s Application to Proceed in the District Court Without Prepaying Fees
and Costs (Doc. 2) and Motion to Take Judicial Notice (Doc. 19) are GRANTED;
(3) Plaintiff Crist’s Motion of Consent (Doc. 4) is DISMISSED as unnecessary; and
(4) Plaintiff Crist’s Prisoner’s Civil Rights Complaint (Doc. 1) is DISMISSED without
prejudice for failure to state a claim on which relief can be granted under Fed. R. Civ. P. 12(b)(6)
and 28 U.S.C. § 1915(e)(2)(B).
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
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