Kisor v. Tafoya-Lucero et al

Filing 9

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DISMISSING 1 Complaint. See Order for Specifics. (gr)

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

T. R. KISOR,
Plaintiff,
v.

No. CV 17-00737 MV/GBW

ALISHA TAFOYA-LUCERO (WARDEN),
GARY MARCIAL (DEPUTY WARDEN),
FILEMON SANDOVAL (CORRECTION’S OFFICER),
AGT ARCHIE MARTINEZ (CORRECTIONS OFFICER),
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court sua sponte under 28 U.S.C. § 1915(e)(2)(B) and Rule
12(b)(6) of the Federal Rules of Civil Procedure on the Complaint for Violation of Civil Rights
filed on July 13, 2017 by Plaintiff T. R. Kisor. (Doc. 1) (“Complaint”). The Court concludes that
the Complaint fails to state a claim on which relief can be granted and dismisses Plaintiff’s claims.
However, the Court will also grant Plaintiff Kisor leave to file an amended complaint within 60
days of service of this Memorandum Opinion and Order.
1. Factual and Procedural Background
Plaintiff Kisor asserts claims under 42 U.S.C. § 1983. (Doc. 1 at 1-3). The claims asserted
by Kisor include:
(1) DUE PROCESS; THIS IS CONCERNING THE WRITE UP I’M INCLOSING
(2) EQUAL PROTECTION; TO BE TREATED FAIRLY AND NOT HAVE TO
BE AFRAID OF THE C/O’S RETALIATION OF ME AND HARASSMENT FROM
THEM
(3) RETALIATION; THE WRITE UP I’M ENCLOSING IS RETALIATION
BECAUSE I HAVE A LAWSUIT AGAINST THE C/O THAT WROTE IT
I’VE BEEN ASKIGN TO BE MOVED LONG BEFOR HE WROTE ME UP
(4) DENIING ME ACCESS TO THE COURT’S; BY CONFISCATING MY
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LEGAL BOX WITH MY LAWSUIT’S I HAVE AGAINST THE DEPARTMENT
OF CORRECTION’S AND AGAINST C/O FILEMON SANDOVAL. (THE
SAME C/O THAT WROTE ME UP) I HAVE 2 CASE’S IN THE U.S. DISTRICT
COURT’S THERE CASE NUMBER’S ARE (1) 16-CV-01308-LH-SCY (2)
17-00381-WJ-CG AND I HAVE ONE AGAINST C/O FILEMON SANDOVAL
IN THE SUPREME COURT AND THE CASE NUMBER IS (1)S-1-SC-36415.
MY LAWSUIT’S ARE MISSING FOR SOME REASON AND NO ONE KNOW’S
WHERE THEY ARE. AND REFUSING TO GIVE ME A COPY OF THE
CONFISCATION FORM.
(5) THERE IS NO GRIEVANCE PROCEDURE’S BEING FOLLOWED THEY
DON’T ANSWER THEM OR INFORMAL’S OR LETTER’S WRITEN TO THE
SECRETARY OF CORRECTION’S
(6) CRUEL AND UNUSUAL PUNISHMENT; I FEAR FOR MY LIFE IN THE
DEPARTMENT OF CORRECTION’S BECAUSE OF THE LAWSUIT’S I HAVE
AGAINST THEM AND FEAR THERE SEGREGATION UNIT AND JUST
DISAPPEAR FROM HERE.
(7) CALLOUS AND RECKLESS INDIFFERENCE
(8) EVIL AND MALICE INTENT
(9) MENTAL ANF PHYSICAL ANGUISH
(10) NOT FOLLOWING STATE AND FEDERAL GUIDELINES
(11) DENIAL OF CONSTITUTIONAL AND CIVIL RIGHT’S
(12) TAKING PERSON PROPERTY AND LEGAL PROPERTY
(NOT FOLLOWING POLICIES)
(Doc. 1 at 12) (errors in the original). Plaintiff Kisor’s request for relief states:
(1) TO HAVE THE WRITE UP DISMISSED OFF MY PERMANENT FILE
(2) TO HAVE THE OFFICER’S INVOLVED LETTERS OF TERMINATION
FROM THE DEPARTMENT OF CORRECTIONS
(3) PROCECUTED TO THE FULLEST OF THE LAW
(4) THERE PENSION’S TAKE
(5) IM REQUESTING MONITARY DAMAGES IN THE AMOUNT OF
$20,000,000
(6) THERE NEED’S TO BE AN INVESTIGATION INTO THE DEPARTMENT
OF CORRECTION’S. ABOUT THEM FOLLOWING POLICIE’S IN THE
GRIEVANCE POLICY AND DISIPLINARY POLICIE’S FROM AN OUT
SIDE SOURCE.
(7) I WANT ALL MONITARY COMPINSATION TO BE IN THE FORM OF
A CASHIER’S CHECK AND ALLOWED TO BE TRANSPORTED TO A
BANK OF MY CHOOSING
(Doc. 1 at 14) (errors in the original).
The Court notes that Plaintiff’s instant claims are similar to those he made in three prior
cases: Kisor v. New Mexico Department of Corrections, No. CV 16-01308 LH/SCY; Kisor v.
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Judd, No. CV 17-00381 WJ/CG; and Kisor v. Department of Corrections, No. CV 17-00714
JB/KK. Case Nos. CV 16-01308 LH/SCY and CV 17-00381 WJ/CG were dismissed for failure
to state a claim on which relief can be granted. Kisor was granted leave to amend in Case. No.
CV 16-1308, but voluntarily withdrew his amended filing, claiming that it was intended to be a
new case, not an amended complaint. Kisor also voluntarily dismissed Case No. CV 17-00714
JB/KK.
2. Legal Standard
Plaintiff Kisor is proceeding pro se and in forma pauperis on civil rights claims under 42
U.S.C. § 1983. The Court has 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.” The Court may also dismiss a complaint sua sponte under
Rule 12(b)(6) if “it is patently obvious that the plaintiff could not prevail on the facts alleged, and
allowing [plaintiff] an opportunity to amend [the] complaint would be futile.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (quotations omitted). The plaintiff must 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 Atl. 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.
Because Plaintiff is pro se, his “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. While pro
se pleadings are judged by the same legal standards that apply to represented litigants, the Court
can overlook the “failure to cite proper legal authority, … confusion of various legal theories, …

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poor syntax and sentence construction, or … unfamiliarity with pleading requirements.” Id.
Further, pro se plaintiffs should ordinarily be given the opportunity to cure defects in the original
complaint, unless amendment would be futile. Id. at 1109.
3. Kisor’s Complaint Fails to State a Claim for Relief
Plaintiff’s constitutional claims are asserted pursuant to 42 U.S.C. § 1983, the “remedial
vehicle for raising claims based on the violation of [federal] constitutional rights.” Brown v.
Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). “A cause of action under section 1983 requires
the deprivation of a civil right by a ‘person’ acting under color of state law.” McLaughlin v. Bd.
of Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000). The plaintiff must allege that each government
official, through the official’s own individual actions, has personally violated the Constitution.
See Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 1998). There must also be a connection
between the official conduct and the constitutional violation. Fogarty v. Gallegos, 523 F.3d 1147,
1162 (10th Cir. 2008); Trask, 446 F.3d at 1046.
In a § 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) (emphasis in the original).

Generalized statements that defendants caused the

deprivation of a constitutional right, without plausible supporting factual allegations, do not state
any claim for relief. Id. at 1249-50.
Further, prison supervisors cannot be held liable solely because they employ or oversee a
tortfeasor. Such defendants can only be liable if they promulgate an official policy that leads to
the constitutional violation. See Dodd v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)

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(wardens and other supervisors can face § 1983 liability based on the “promulgation, creation,
implementation, or utilization of a policy that caused a deprivation of plaintiff's rights”).
Here, Plaintiff Kisor’s Complaint contains no allegations of any specific actions by any of
the named individual Defendants that violated Kisor’s constitutional rights. His Complaint
contains nothing more than vague and confusing statements regarding failure to follow grievance
procedures and policies, retaliation, and denial of access to the courts by confiscation of property.
(Doc. 1 at 12-13).

For his statement of facts in support of his Complaint, Kisor states “[p]lease

see attachments.” (Doc. 1 at 4, ¶ IV). When asked to describe the injuries he has sustained, Kisor
indicates “N/A.” (Doc. 1 at 5, ¶ V).
The Court cannot search Kisor’s attachments and guess at what facts may support his
Complaint. Moreover, without any claimed injury, Kisor is not eligible for § 1983 relief. See
Requena v. Roberts, 893 F.3d 1195, 1207 (10th Cir. 2018), cert. denied, 139 S. Ct. 800 (2019).
The Court concludes that the vague allegations of Plaintiff’s Complaint fail to state any plausible
claim for relief under § 1983. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 676.
Further, Kisor’s claimed violations by four individual Defendants, as set forth in the
attachments to his Complaint, also fail to state a claim for relief. (Doc. 1 at 13). With respect to
Warden Alisha Tafoya-Lucero and Deputy Warden Gary Maciel, Kisor asserts that they violated
his rights by “allowing” other officers to violate policies and procedures. (Doc. 1 at 13). Kisor’s
assertions do not demonstrate that either Tafoya-Lucero or Maciel was personally involved in, or
promulgated an official policy that led to, the alleged constitutional violations. Kisor’s allegations
against Tafoya-Lucero and Maciel are essentially theories of vicarious liability and thus cannot
form the basis for § 1983 claims against them. Iqbal, 556 U.S. at 676.

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In the attachments to his Complaint, Kisor also makes allegations against C/O Filemon
Sandoval and Sgt. Archie Martinez. (Doc. 1 at 13). Specifically, Plaintiff claims that C/O
Sandoval “has been harassing me ever since I got back to this prison.” (Doc. 1 at 13). Plaintiff
does not however, identify the facts that he concludes are “harassing,” identify any specific
incidents of harassment, or allege any injury or harm as a result of the harassment. Absent any
plausible factual allegations that C/O Sandoval caused a constitutional deprivation, the Complaint
does not state any claim for relief against him. Plaintiff further contends that Sgt. Martinez took
Plaintiff’s legal property box and refused to give him a confiscation form, per policy. (Doc. 1 at
13). Kisor again fails to state how these alleged actions by Sgt. Martinez resulted in any
constitutional injury, and thus does not state a claim for relief against him.
Notably, to the extent that Kisor bases any of his claims on allegations that certain prison
officials have failed to follow New Mexico Department of Corrections’ grievance policies and
procedures (Doc. 1 at 12), those claims are not cognizable. Prison grievance procedures do not
create a protected liberty interest and, accordingly, do not implicate a prisoner's due process rights.
See Murray v. Albany Cty. Bd. of Cty. Comm’rs, No. 99–8025, 2000 WL 472842, at *2 (10th Cir.
Apr. 20, 2000) (“[P]rison grievance procedures do not ‘give rise to a protected liberty interest
requiring the procedural protections envisioned by the fourteenth amendment.’”) (quoting Buckley
v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)); Anderson v. Colo. Dep’t of Corr., No. 98–1477,
1999 WL 387163, at *2 (10th Cir. June 14, 1999) (holding that a state prisoner's § 1983
“allegations relating to the requirements of the Department of Corrections grievance procedure do
not support a due process claim because those procedures do not create any liberty interest in the
incarcerated petitioner”). To the extent that Plaintiff Kisor complains that his grievances were

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improperly handled in violation of his right to due process, he fails to state a claim upon which
relief may be granted.
Finally, Kisor makes generalized claims of retaliation and harassment. (Doc. 1 at 12, 13).
Prison officials may not retaliate against an inmate based on the inmate’s exercise of his or her
constitutional rights, including filing internal prison grievances or initiating lawsuits. Fogle v.
Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006); Smith v. Maschner, 899 F.2d 940, 947–48 (10th
Cir. 1990). The elements of a retaliation claim are: (1) the plaintiff engaged in constitutionally
protected activity; (2) the defendant responded by causing an injury that “would chill a person of
ordinary firmness from continuing to engage in that activity,” and (3) the defendant’s action was
substantially motivated as a response to the plaintiff’s protected activity. Gee v. Pacheco, 627
F.3d 1178, 1182, 1195 (10th Cir. 2010) (internal quotation marks omitted). An inmate is “not
inoculated from the normal conditions of confinement experienced by convicted felons serving
time in prison merely because he has engaged in protected activity.” Peterson v. Shanks, 149 F.3d
1140, 1144 (10th Cir. 1998). To state a retaliation claim, a plaintiff must allege specific facts
showing that “but for the retaliatory motive, the incidents to which he refers, including any
disciplinary actions would not have taken place.” Id. (quotations omitted); Sherratt v. Utah Dep't
of Corr., 545 F. App’x 744, 747 (10th Cir. 2013).
Kisor’s allegations that he is being retaliated against for filing grievances and court actions
against correctional officers are sufficient to state the first prong of a retaliation claim. His
allegations are too general, however, to establish the second or third prong of a retaliation claim,
namely, that prison officials engaged in specific incidents of retaliation and harassment with a
retaliatory motive. Absent such specific factual allegations, Kisor’s Complaint fails to state a
§1983 claim for retaliation.

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4. Kisor Will Be Granted Leave to Amend His Complaint
As detailed above, Plaintiff fails to state a claim for relief because his Complaint contains
no allegations of individualized acts, fails to state any specific facts of any conduct, and fails to
explain how any conduct violated his constitutional rights. The Tenth Circuit counsels that “if it
is at all possible that the party against whom the dismissal is directed can correct the defect in the
pleading or state a claim for relief, the court should dismiss with leave to amend.” Reynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). Accordingly, the Court will give Kisor an
opportunity to amend his Complaint to remedy the defects identified in this Opinion. Kisor may
file an amended complaint within sixty (60) days of service of this Opinion.
In any amended complaint, Kisor must identify specific individual defendants, must make
clear exactly who is alleged to have done what to whom (including names, titles, and dates, if
possible), and must specify how those individuals and actions violated his constitutional rights.
Kisor may not refer to attachments to support his claims. Instead, the specific facts supporting his
claims must be set out in a short, plain, statement in the body of the amended complaint. Kisor
may not rely on prison officials’ failure to follow grievance procedures as a basis for his claims.
If Kisor fails to file an amended complaint within sixty (60) days of service of this Opinion, or if
he files an amended complaint that does not comply with the requirements set forth herein, the
Court may dismiss this case with prejudice and without further notice.
IT IS ORDERED:
(1) the Complaint for Violation of Civil Rights filed July 13, 2017 by Plaintiff T. R. Kisor.
(Doc. 1) is DISMISSED without prejudice for failure to state a claim under 28 U.S.C. §
1915(e)(2)(B) and Rule 12(b)(6) of the Federal Rules of Civil Procedure; and
(2) Plaintiff Kisor is granted leave to file an amended complaint consistent with this

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Memorandum Opinion and Order within sixty (60) days of service of this Memorandum Opinion
and Order.

________________________________________
MARTHA VÁZQUEZ
United States District Judge

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