Chavez v. Hatch et al
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack denying 3 MOTION to Appoint Counsel and 5 PETITION For Injunctive Relife (Notice) by Rudy Chavez. 1 1983 PRISONER CIVIL RIGHTS COMPLAINT, is dismissed without prejudice for failure to state a claim on which relief can be granted. Plaintiff is granted 30 days from the date of entry of this Memorandum Opinion and order to file an amended complaint (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RUDY FERNANDO CHAVEZ JUNIOR,
No. CV 17-0177 RB/KRS
TIMOTHY HATCH, MATHEW MONTOYA,
CASSIE HARBOUR, WARDEN BROWN,
SGT GONZALES DHO, CPT GRICE,
SGT SHRINER, LT JONES,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983 filed by Plaintiff Rudy Fernando Chavez Junior on February 2, 2017 (“Complaint”).
(Doc. 1.) The Court will dismiss Chavez’s Complaint for failure to state a claim for relief, but
will grant Chavez leave to file an amended complaint within 30 days.
1. Standards for Failure to State a Claim
Plaintiff Chavez is proceeding pro se and in forma pauperis on civil rights claims under
42 U.S.C. § 1983. 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 Rule 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, 555 (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. 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 for relief or is frivolous or malicious. 28 U.S.C. §
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, 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,
32–33 (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. Id.
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.
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).
2. Claims for Relief 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).
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 co-workers 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 (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 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).
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
To state a claim against a supervisory official, it is not enough for a plaintiff to make
indefinite allegations that a defendant was in charge of other state actors who actually committed
the violation. Instead, the plaintiff must establish a deliberate, intentional act by the supervisor to
violate constitutional rights. Serna v. Colo. Dep’t. of Corr., 455 F.3d 1146, 1151 (10th Cir.
2006). To impose § 1983 liability the plaintiff must establish the supervisor’s subordinates
violated the Constitution as well as an affirmative link between the supervisor and the violation.
Id. To meet this “affirmative link” requirement a Plaintiff must show: (1) personal involvement
by the supervisor, (2) sufficient causal connection between the supervisor’s personal
involvement and the constitutional violation, and (3) a culpable state of mind on the part of the
supervisor. A plaintiff may establish the defendant-supervisor’s personal involvement by
demonstrating his personal participation in the constitutional violation, his actual exercise of
control or direction over the officials in the commission of the violation, his failure to supervise,
or his knowledge of the violation and acquiescence in it. Poolaw v. Marcantel, 565 F.3d 721,
732–33 (10th Cir. 2009); Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996). A defendant
supervisor’s promulgation, creation, implementation, or utilization of a policy that caused a
deprivation of plaintiff’s rights also may constitute sufficient personal involvement. See Meade
v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988). A plaintiff then must establish the requisite
causal connection by showing the defendant set in motion a series of events that the defendant
knew or reasonably should have known would cause others to deprive the plaintiff of his
constitutional rights. Poolaw, 565 F.3d at 732–33; see also, Snell v. Tunnell, 920 F.2d 673, 700
(10th Cir. 1990). Last, the plaintiff is required to show the supervisor had a culpable state of
mind, meaning “the supervisor acted knowingly or with ‘deliberate indifference’ that a
constitutional violation would occur.” Serna, 455 F.3d at 1151, 1154. Dodds v. Richardson, 614
F.3d 1185, 1194–96 (10th Cir. 2010).
3. Chavez’s Complaint Fails to State a Claim for § 1983 Relief
Applying the § 1915(e)(2)(B) and Rule 12(b)(6) standards, the original Complaint filed
by Chavez fails to state a claim for relief under § 1983. Chavez claims:
“On August 31st I was placed in a dry cell for 3 days. I completely
complied with Corrections Officers an provided them stool
samples at their request as well as urin. [sic] There was never any
contraband discovered in the stool samples nor the urin. [sic] However
I was still charged for possession with no tangible evidence. When
I questioned the integrity of the claim of dangerous drugs I was
denied my right to due process an held accountable on these trumped
up charges. It is pure harassment that these charges are still being
persued. [sic] An [sic] this is not the first time NENMDF has harassed
plaintiff as well as other inmates under same circumstances.”
(Doc. 1 at 2.) Plaintiff’s Request for Relief states:
“I would like to receive all the privileges that were taken from me
back, also monitary [sic] compensation for pain and suffering. Also I
want all Defendants to be held accountable for their actions an [sic]
either sanctioned or removed from employment at N.E.N.M.D.F.
and for this harassment to be stopped.”
(Id. at 7.) Chavez names several individuals as Defendants and identifies the positions at
Northeastern New Mexico Detention Facility. (Id. at 1–4.) However, Chavez does not identify
what any of those individuals actually did that he claims violated the Constitution. Iqbal, 556
U.S. at 676. He does not make clear exactly who is alleged to have done what to whom, or how
those actions constituted a violation of his constitutional rights. Robbins, 519 F.3d at 1249–50.
Chavez’s Complaint fails to state a claim for relief against any identified individual. Fogarty,
523 F.3d at 1162.
Plaintiff Chavez attaches several documents to his Complaint. (Doc. 1 at 9–26.) Chavez
also makes generalized references to “Defendants.” (Id. at 7.) However, the Court is not
obligated to search through the attachments and craft legal theories for the plaintiff or to supply
factual allegations of individualized conduct to support the plaintiff’s claims. Hall, 935 F.2d at
1110. The Court will dismiss the Complaint for failure to state a claim under Fed. R. Civ. P.
12(b)(6) or 28 U.S.C. § 1915(e)(2)(B).
4. Chavez Will Be Granted Leave to Amend
The Court will grant Chavez a reasonable opportunity to remedy defects in his pleading.
Reynoldson, 907 F.2d at 126. Plaintiff Chavez will have 30 days from the date of entry of this
Order in which to file an amended complaint. Plaintiff’s amended complaint should be concise
and must allege some personal involvement by identified officials in the alleged constitutional
violation to succeed under § 1983. Fogarty, 523 F.3d at 1162. Generalized allegations against
“defendants” or “officers,” without identification of actors and their individual conduct allegedly
causing the deprivation of a constitutional right, will not state any claim for relief. Robbins, 519
F.3d at 1249–50.
The amended complaint must state the facts of each separate claim and why Plaintiff
believes his constitutional rights were violated. He should include identities of individual
defendants and their official positions, a description of their actions, and relevant dates, if
available. See Meade, 841 F.2d at 1522. To the extent he seeks to hold a supervisor liable, he
must allege facts showing personal involvement by the supervisor, causal connection, and a
culpable state of mind. Serna, 455 F.3d at 1151. If Plaintiff fails to file an amended complaint or
files an amended complaint that does not comply with these directions, the Court may dismiss
this action with prejudice and without further notice.
5. The Court will Deny Plaintiff’s Pending Motions
Plaintiff Chavez has filed two pending motions. The first is a Motion for Appointment of
Counsel. (Doc. 3.) The Court will deny the Motion. There is no right to appointment of counsel
in a civil rights case. Instead, the decision whether to request assistance of counsel rests in the
sound discretion of the Court. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir.
2003); MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988). In determining whether to
appoint counsel, the district court should consider the merits of the litigant’s claims, the nature
and complexity of the factual and legal issues, and the litigant’s ability to investigate the facts
and to present his claims. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.
2004). The Court has reviewed the complaint and subsequent filings in light of the foregoing
factors. Plaintiff appears to understand the issues in the case and to be representing himself in an
intelligent and capable manner. See Lucero v. Gunter, 52 F.3d 874, 878 (10th Cir. 1995).
Accordingly, the Court will deny the Motion for Appointment of Counsel.
Plaintiff’s second motion is a Petition for Injunctive Relief. (Doc. 5.) In his Petition,
Chavez makes generalized allegations that he “fear[s] for my over all safety because of the
pending law suit against staff member” and “[is] not treated fairly here at North Eastern New
Mexico Detention Facility.” He seeks a court order directing his “transfer to another prison.”
(Id.) A preliminary injunction is an extraordinary remedy and is generally disfavored. Attorney
Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). The party seeking a
preliminary injunction must show: (1) a likelihood of success on the merits; (2) a likelihood that
the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance
of equities tips in the movant’s favor; and (4) that the injunction is in the public interest. Little v.
Jones, 607 F.3d 1245, 1251 (10th Cir. 2010).
Plaintiff Chavez fails to make a showing of the elements necessary for a preliminary
injunction. He does not demonstrate a likelihood that he will succeed on the merits of his
Complaint, and his generalized allegation that he fears for his overall safety is speculative and
does not rise to the level of irreparable harm in the absence of preliminary relief. Little, 607 F.3d
at 1251. The Court will deny Plaintiff’s Petition for Injunctive Relief.
IT IS ORDERED:
(1) the Motion for Appointment of Counsel filed by Plaintiff Chavez (Doc. 3) is
(2) the Petition for Injunctive Relief filed by Plaintiff Chavez (Doc. 5) is DENIED;
(3) the Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 filed by Plaintiff Rudy
Fernando Chavez Junior on February 2, 2017 (Doc. 1) is DISMISSED without prejudice for
failure to state a claim on which relief can be granted; and
(3) Plaintiff is granted 30 days from the date of entry of this Memorandum Opinion and
Order to file an amended complaint.
ROBERT C. BRACK
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?