Arthur v. Harrison
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales dismissing with prejudice 1 Prisoner's Civil Rights Complaint. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BERDINO J. ARTHUR,
No. CV 16-1220 KG/LF
GEORGE A. HARRISON,
MEMORANDUM OPINON AND ORDER
THIS MATTER is before the Court under 28 U.S.C. § 1915(e)(2) on the Prisoner’s
Civil Rights Complaint filed by Plaintiff Berdino J. Arthur on November 7, 2016. (Doc. 1). The
Court will dismiss the Complaint for failure to state a claim on which relief can be granted and
will impose a “strike” under 28 U.S.C. § 1915(g).
Plaintiff Berdino J. Arthur pled guilty/no contest to charges of child abuse resulting in
great bodily harm and aggravated battery against a household member in New Mexico cause no.
D-116-CR-2008-00611. 1 Judgment on his conviction and sentence was entered on October 28,
2008. Following entry of Judgment on his conviction, Arthur sought to withdraw his guilty/no
contest plea. The Court denied his Motion. Arthur then filed a New Mexico Petition for Writ of
Habeas Corpus, alleging ineffective assistance and constitutional violations by his defense
The Court takes judicial notice of the official New Mexico court records in Arthur’s
criminal case, D-116-CR-2008-00611. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th
Cir. 2007) (court may take judicial notice of publicly filed records in this court and other courts
concerning matters that bear directly upon disposition of case at hand); Shoulders v. Dinwiddie,
2006 WL 2792671 (W.D.Okla.2006) (court may take judicial notice of state court records
available on world wide web including docket sheets in district courts); Stack v. McCotter, 2003
WL 22422416 (10th Cir.2003) (unpublished opinion) (finding state district court's docket sheet is
official court record subject to judicial notice under Fed.R. Evid. 201).
counsel, George A. Harrison. The Petition was denied by the District Court, and the New
Mexico Supreme Court declined to grant a writ of certiorari to review the District Court’s ruling.
See D-116-CR-2008-00611. At the time his Complaint was filed, Plaintiff Arthur was
incarcerated at the Guadalupe County Correctional Facility on the sentence imposed in D-116CR-2008-00611. (Doc. 1 at 1).
Plaintiff Arthur filed his Prisoner’s Civil Rights Complaint on November 7, 2016. (Doc.
1). In his Complaint, Arthur names Attorney George A. Harrison as the sole Defendant. (Doc. 1
at 1, ¶ 2). Arthur alleges that Defendant Harrison was his private attorney in case no. D-116-CR2008-00611, and that Attorney Harrison “violated the Rules of Professional Conduct by
misrepresentation [sic] me and false statements of material fact on my behalf.” (Doc. 1 at 1).
Arthur contends the misrepresentation and false statement violated his due process rights. (Doc.
1 at 2). He seeks an order vacating his criminal conviction and sentence and $50,000,000 in
damages. (Doc. 1 at 5).
1. Failure to State a Claim: Plaintiff Arthur is proceeding pro se and in forma
pauperis on civil rights claims under 42 U.S.C. § 1983. The Court may dismiss an in forma
pauperis complaint 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
accepts well-pled factual allegations, but not conclusory, unsupported allegations, and may not
consider matters outside the pleading.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). A claim should be dismissed where
it is legally or factually insufficient to state a plausible claim for relief. Twombly, 550 U.S. at
570; Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Under § 1915(e)(2)(B) the Court may dismiss the complaint if the Court determines the
action fails to state a claim for relief or is frivolous or malicious. 28 U.S.C. § 915(e)(2)(B)(2).
The authority granted by § 1915 permits the court the 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 at 1109. The
Court is not required to accept the truth of the plaintiff's allegations but may go beyond the
pleadings and consider any other materials filed by the parties. Denton v. Hernandez, 504 U.S.
25, 32-33 (1992).
Although the Court liberally construes the factual allegations, 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. Northington v. Jackson, 973 F.2d 1518, 1520-21
(10th Cir. 1992); 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.
2. Arthur’s Complaint Fails to State a Claim for § 1983 Relief: 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). 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). A plaintiff’s complaint must
“make clear exactly who is alleged to have done what to whom.” Robbins v. Oklahoma, 519 F.3d
1242, 1249-50 (10th Cir. 2008). Generalized allegations against “defendants” or “officers,”
without identification of individual actors and conduct that caused the deprivation of a
constitutional right, do not state any claim for relief. Robbins v. Oklahoma, 519 F.3d at 1249-50.
The Complaint filed by Arthur fails to state a claim for relief under the § 1915(e)(2)(B)
and Fed. R. Civ. P. 12(b)(6) standards. Section 1983 states:
Every person who, under color of any statue, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law . . . .
42 U.S.C. § 1983 (emphasis added). The United States Supreme Court has held that attorneys
acting as criminal defense counsel cannot be sued under § 1983 because they do not act under
color of state law. See Polk County. v. Dodson, 454 U.S. 312, 315, 102 S.Ct. 445, 70 L.Ed.2d
509 (1981). An attorney does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding. Polk, 454 U.S. at 325.
The Complaint makes no allegations against Defendant Harrison other than that he was
performing a lawyer’s traditional functions as defense counsel to Arthur in the state criminal
proceeding. Because Arthur’s claims all are based on allegations regarding the functions of
counsel in his criminal case, Defendant Harrison is not a state actor and the complaint against
him fails to state a § 1983 claim for relief. Polk, 454 U.S. at 325.
In addition to the lack of action under color of state law, Arthur’s Complaint fails to state
a claim for relief because it is barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). In Heck,
the Supreme Court addressed the question of when a prisoner may bring a § 1983 claim relating
to his conviction or sentence. 512 U.S. at 487. The Court held that 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. Id. Similarly, although in some circumstances a prospective
injunction may be available under § 1983, to the extent a request for declaratory or injunctive
relief would necessarily invalidate the prisoner’s conviction or sentence, declaratory and
injunctive relief also are barred by the Heck doctrine. Wilkinson v. Dotson, 544 U.S. 74, 80-81
(2005); see also Edwards v. Balisok, 520 U.S. 641 (1997).
Arthur’s Prayer for Relief specifically asks the Court to vacate and set aside his criminal
sentence and award him damages. (Doc. 1 at 5). Arthur’s request for relief clearly necessitates
the invalidation of his sentence. Because a favorable ruling on Arthur’s claims would require
treating his sentence in D-116-CR-2008-00611 as invalid, the civil rights claims in the
Complaint fail to state a claim upon which relief can be granted and must be dismissed under the
Heck doctrine. See Beck v. City of Muskogee Police Dept., 195 F.3d 553, 556–57 (10th Cir.
3. Arthur Will Not Be Granted Leave to Amend his Complaint:
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 Court will dismiss Arthur’s Complaint without leave to amend because the Court
determines that amendment of the Complaint would be futile. Hall v. Bellmon, 935 F.2d at 1109.
Any amendment to Arthur’s claims would still be barred under the Heck doctrine and would be
subject to immediate dismissal. Therefore, the Court will dismiss without leave to amend.
Bradley v. Val-Mejias, 379 F.3d at 901.
4. The Court Will Impose a Second § 1915(g) Strike: When it enacted the in forma
pauperis statute, Congress recognized that a citizen should not be denied an opportunity to
commence a civil action in any court of the United States solely because he is unable to pay or
secure the costs. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948). Indeed, a
citizen should have an opportunity to pursue a meritorious claim. However, Congress also
recognized that a litigant whose filing fees and court costs are assumed by the public, unlike a
paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Noting that prisoner suits
represent a disproportionate share of federal filings, Congress enacted a variety of reforms
designed to filter out deficient claims. Jones v. Bock, 549 U.S. 199, 202-04 (2007).
Those reforms include the three-strike rule of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g). The three-strike rule provides:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
§ 1915(g). Because the Court concludes that Arthur’s Complaint in this case fails to state a
claim for relief under § 1915(e)(2)(B), the Court will impose a strike against him under the
PLRA § 1915(g). The Court also notes that a previous Complaint filed by Arthur, Berdino Joe
Arthur v. State of New Mexico, et al., No. CV 16-00843 MCA/LF, was dismissed for failure to
state a claim (CV 16-00843 Doc. 14), and so that dismissal constitutes another strike under §
1915(g). Arthur is notified that if he accrues three strikes, he may not proceed in forma pauperis
in any future civil actions before federal courts unless he is under imminent danger of serious
physical injury. 28 U.S.C. § 1915(g).
IT IS ORDERED:
(1) the Prisoner’s Civil Rights Complaint filed by Plaintiff Berdino J. Arthur on
November 7, 2016 (Doc. 1) is DISMISSED with prejudice for failure to state a claim on which
relief can be granted; and
(2) a second STRIKE is imposed against Plaintiff Arthur under 28 U.S.C. § 1915(g).
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?