Velasquez v. Arias

Filing 8

MEMORANDUM OPINION AND ORDER by Senior District Judge C. LeRoy Hansen dismissing without prejudice Plaintiff's Complaint re 1 Notice of Removal and allowing Plaintiff to file an amended complaint within 30 days of this Memorandum Opinion and Order. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ALEXANDER A VELASQUEZ,
Plaintiff,
v.

No. 17-CV-00274-LH-WPL

STEVEN ARIAS,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court, sua sponte under 28 U.S.C. § 1915A, on Plaintiff
Alexander A Velasquez’s Complaint To Recover Damages For Injury, which was removed from
the Second Judicial District Court of the State of New Mexico pursuant to 28 U.S.C. §§ 1441(a)
and 1446(a) on March 1, 2017. [Doc. 1] Plaintiff is incarcerated and appears pro se. For the
reasons explained below, Plaintiff’s complaint will be dismissed without prejudice and Plaintiff
will be granted thirty (30) days from the date of entry of this order to file an amended complaint.
I.

BACKGROUND
On January 10, 2017, Plaintiff filed a Complaint to Recover Damages for Injury against

Defendant Steven Arias, an officer employed by the Albuquerque Police Department, in the
Second Judicial District Court of the State of New Mexico. [Doc. 1-1] Plaintiff’s complaint
alleges that Defendant Arias “used excessive and unnecessary force” when he arrested Plaintiff
for an alleged homicide on May 31, 2016. [Doc. 1-1 at 1] Specifically, Plaintiff’s complaint
alleges that Defendant Arias deliberately and indifferently handcuffed him in such a manner as to
cause “excruciating pain” and “visible disfigurement of [his] left wrist.” [Doc. 1-1 at 2]

Attached to Plaintiff’s complaint was a transcription of Plaintiff’s interview with the police,
which reflects that Plaintiff’s wrist was assessed by paramedics after his arrest and it was
determined that Plaintiff “did not need to be transported to any local hospitals,” but should treat
his discomfort with ice.1 [Doc. 2-1 at 20] Plaintiff seeks compensatory and punitive damages in
the amount of $25,000. [Doc. 1-1 at 4] On March 1, 2017, Defendant Arias removed the case to
this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446(a) on the basis of federal question
jurisdiction. [Doc. 1 at 2]
Title 28 of the United States Code, section 1915A(a) provides that the Court “shall
review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a government entity.” 28 U.S.C. § 1915A(a). “On review, the
court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,”
in relevant part, if it “is frivolous, malicious, or fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b). “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.

1

In assessing the sufficiency of a complaint, the Court may consider documents attached to a complaint and
incorporated by reference. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).

2

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 v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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 litigant.” Id.
Construed liberally, Plaintiff’s complaint appears to seek recovery under 42 U.S.C. §
1983 for Defendant Arias’ alleged use of excessive force in handcuffing Plaintiff.2 “To state a
claim under § 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). The Fourth
Amendment to the United States Constitution, which is applicable to the states via the Fourteenth
Amendment, protects individuals from unreasonable seizures. See U.S. Const. amend. IV.
“[A]ll claims that law enforcement officers have used excessive force . . . in the course of an
arrest . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989). The “inquiry in an excessive force case is an
objective one: the question is whether the officers’ actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard to underlying intent or motivation.”
Id. at 396. To determine whether an officer’s use of force was objectively reasonable under the

2

Plaintiff’s complaint does not appear to challenge the constitutionality of Plaintiff’s arrest; rather it appears to
allege only that the manner in which the arrest was effectuated violated Plaintiff’s constitutional right to be free
from excessive force. See Cortez v. McCauley, 478 F.3d 1108, 1127-28 (10th Cir. 2007) (recognizing that the
constitutional claims of unlawful arrest and excessive force are “separate and independent”) (en banc).

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circumstances, the Court should consider the following factors: “the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
The United States Court of Appeals for the Tenth Circuit has recognized that “in nearly
every situation where an arrest is authorized, or police reasonably believe public safety requires
physical restraint, handcuffing is appropriate.” Fisher v. City of Las Cruces, 584 F.3d 888, 896
(10th Cir. 2009). However, even where handcuffing is appropriate, the “manner of handcuffing
may render the application of force excessive.” Id. (emphasis in original). Specifically, “unduly
tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from
the handcuffing and alleges that an officer ignored a plaintiff’s timely complaints (or was
otherwise made aware) that the handcuffs were too tight.” Cortez v. McCauley, 478 F.3d 1108,
1129 (10th Cir. 2007) (en banc). The plaintiff’s actual injury may be either “physical or
emotional,’ but it must be more than de minimus. Id. For example, a plaintiff’s complaint of
“fleeting discomfort” or “red marks or swelling that disappear in a few hours or days,” Fisher,
584 F.3d at 900, “is insufficient, as a matter of law, to support an excessive force claim if the use
of handcuffs is otherwise justified,” Cortez, 478 F.3d at 1129.
In the present case, the factual allegations in Plaintiff’s complaint are insufficient to
support an excessive force claim. First, Plaintiff fails to allege that he made a timely complaint
to Defendant Arias about the handcuffs or that Defendant Arias otherwise was made aware that
the handcuffs were too tight. See Lyons v. City of Xenia, 417 F.3d 565, 576 (6th Cir. 2005)
(holding that the plaintiff failed to state a claim for excessive force, in relevant part, because the
plaintiff failed to complain about the tightness of the handcuffs to the officers). Second, the
allegations in Plaintiff’s complaint fail to rise to the level of an actual injury. Although Plaintiff

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alleges that the tightness of the handcuffs caused him physical pain and left visible marks on his
wrists, these allegations, standing alone, are “insufficient, as a matter of law, to support an
excessive force claim.” Cortez, 478 F.3d at 1129. Therefore, Plaintiff’s § 1983 claim against
Defendant Arias will be dismissed without prejudice for failure to state a claim on which relief
may be granted under 28 U.S.C. § 1915A(b)(1).
Because Plaintiff’s complaint fails to state a claim for the alleged violation of Plaintiff’s
Fourth Amendment rights under the United States Constitution, it also fails to state a claim for
personal and bodily injury arising out of the alleged Fourth Amendment violation under the New
Mexico Tort Claims Act. See N.M.S.A. 1978, § 41-4-12 (providing that law enforcement
officers acting within the scope of their duties are not immune from liability for personal or
bodily injury resulting from, in relevant part, “the deprivation of any rights, privileges or
immunities secured by the constitution and laws of the United States”); see also Wells v.
Valencia County, 644 P.2d 517, 521 (N.M. 1982) (holding that “the federal remedy under
Section 1983 for deprivation of constitutional rights is supplementary to a state remedy”);
Benavidez v. Shutiva, 350 P.3d 1234, 1247-48 (N.M. App. 2015) (analyzing the plaintiff’s §
1983 excessive force handcuffing claim and his derivative New Mexico Tort Claims Act claim
under the Cortez standard). Thus, to the extent that Plaintiff’s complaint raises a claim against
Defendant Arias for personal and bodily injury under the New Mexico Tort Claims Act, this
claim also will be dismissed under § 1915A(b)(1) for failure to state a claim on which relief may
be granted.
Plaintiff may be able to cure the deficiencies in his complaint with additional factual
allegations and, therefore, the Court will permit Plaintiff an opportunity to file an amended
complaint within thirty (30) days of the date of entry of this Memorandum Opinion and Order.

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Failure timely to file an amended complaint may result in the dismissal of this action without
further notice.
III.

CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Complaint To Recover Damages For

Injury [Doc. 1-1] is DISMISSED without prejudice and Plaintiff may file an amended complaint
within thirty (30) days of the date of entry of this Memorandum Opinion and Order;
IT IS FURTHER ORDERED that the Clerk of the Court is directed to send to Plaintiff,
together with a copy of this Memorandum Opinion and Order, a form § 1983 complaint, with
instructions.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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