Aicher v. New Mexico Department of Corrections, et al

Filing 72

MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack DISMISSING WITHOUT PREJUDICE 69 Amended Complaint. (yc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC AICHER,
Plaintiff,
vs.

No. 18-cv-474 RB/SMV

NEW MEXICO DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Mr. Aicher’s Amended Prisoner Civil Rights Complaint. (Doc. 69.) Mr.
Aicher is incarcerated and proceeds pro se. For the reasons set out below, the Court will dismiss
the Amended Complaint for failure to state a claim.
Mr. Aicher filed his original complaint in New Mexico’s First Judicial District Court, Case
No. D-101-CV-2018-01224. (Doc. 1-1.) There, he alleged that New Mexico Department of
Corrections (NMDOC) and Corizon Health Care (Corizon) failed to protect him from an assault by
a fellow inmate. 1 The attack occurred in 2015, when he was incarcerated at the Lea County
Correctional Facility (LCCF). (Id. at 1.) Fellow inmate John Archibeque struck Mr. Aicher with a
cane and repeatedly punched and kicked his face until he lost consciousness. (Id.) He alleged that
a correctional officer allegedly passed by his door, looked in, and “continued without noticing
[him].” (Id.) The original complaint raised claims under the Eighth Amendment and the Due

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The original complaint also alleged unnamed prison officials were deliberately indifferent to Mr.
Aicher’s medical needs. (Doc. 1-1 at 2–3.) However, the Amended Complaint does not recite these
allegations or provide the name of any medical officials. (See Doc. 69.) Any deliberate-indifference
claims have therefore been abandoned.

Process Clause against the NMDOC and Corizon. 2 (Id. at 9.) Corizon removed the complaint to
Federal Court and sought dismissal under Federal Rule of Civil Procedure 12(b)(6). (Docs. 1; 37.)
The Court screened the original complaint pursuant to 28 U.S.C. § 1915A and Rule 12(b)(6)
and determined it failed to state a claim against either Defendant. (Doc. 68.) The “[NMDOC] is not
a ‘person’ subject to suit under § 1983.” Blackburn v. Dep’t of Corr., 172 F.3d 62, at *1 (10th Cir.
1999) (citations omitted); see also Jordan v. Doe, 15 F. App’x 564, 566 (10th Cir. 2001) (same).
Further, Mr. Aicher failed to sufficiently allege that Corizon deprived him of his constitutional
rights pursuant to an official corporate policy or custom. See Hinton v. City of Elwood, Kan., 997
F.2d 774, 782 (10th Cir. 1993) (A private corporation performing a government function can be
held liable under § 1983 only where a plaintiff shows “1) the existence of a . . . policy or custom,
and 2) that there is a direct causal link between the policy or custom and the injury alleged.”). The
ruling alternatively observed that, even if Mr. Aicher identified the individuals who failed to protect
him from attack, his allegations were insufficient to establish an Eighth Amendment violation. The
original complaint gives no indication that any state actor was subjectively aware of the risk of
attack. See Wilson v. Falk, 877 F.3d 1204, 1209 (10th Cir. 2017). For these reasons, the Court
dismissed the original complaint without prejudice.
Consistent with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), the Court gave Mr.
Aicher thirty days to amend. He timely filed the Amended Complaint on March 5, 2019. (Doc.
69.) 3 In an effort to cure the pleading defects, Mr. Aicher alleges federal constitutional claims

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Mr. Aicher initially also named the GEO Group, Inc., but he sought to remove that Defendant.
(Doc. 1-1 at 9; see also Docs. 40; 41.)
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That same month, Mr. Aicher also filed an “Objection to the Memorandum Opinion and Order.”
(Docs. 69; 70.) In the Memorandum Opinion and Order, the Court discerned that a friend helped
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against three new defendants: (1) inmate John Archibeque; (2) inmate Matthew Dilly Jr., and
(3) inmate Robert Eby. (Id. at 2–4.) Archibeque attacked Mr. Aicher while Dilly and Eby allegedly
allowed the attack and/or insulted Mr. Aicher. (Id.) Dilly also allegedly stole his property. (Id. at
9.) Beyond the inmates, the Amended Complaint again names the NMDOC. (Id. at 5.)
Having carefully reviewed the new allegations, the Court again finds the Amended
Complaint fails to state a constitutional claim. As previously noted, Mr. Aicher cannot assert
§ 1983 claims against NMDOC as a matter of law. See Blackburn, 172 F.3d at 62; Jordan, 15 F.
App’x at 566. Further, “section 1983 requires the deprivation of a civil right by a ‘person’ acting
under color of state law.” McLaughlin v. Bd. of Trs., 215 F.3d 1168, 1172 (10th Cir. 2000). Inmates
do not act under color of state law, and the constitutional claims against Archibeque, Dilly, and
Eby fail.
Based on the foregoing, the Amended Complaint will be dismissed with prejudice under 28
U.S.C. § 1915A and Rule 12(b)(6). Such dismissal resolves all claims against NMDOC and
Corizon that are traceable to the attack by Archibeque. To the extent the Amended Complaint raises
any pure state-law claims against: (1) Archibeque, (2) Dilly, or (3) Eby, the Court declines to
exercise supplemental jurisdiction. Such state-law claims will be dismissed without prejudice. The
Court will also direct the Clerk’s Office to send Mr. Aicher a file-stamped copy of his Amended
Complaint, in response to his letter filed March 18, 2019. (Doc. 71.)
IT IS ORDERED that this civil action (Doc. 69) is DISMISSED with prejudice pursuant
to 28 U.S.C. § 1915A and Rule 12(b)(6); except, to the extent the Amended Complaint (Doc. 69)

Mr. Aicher return to his cell after the attack. (Doc. 69 at 1.) The Objection clarifies: “this is incorrect
and not true.” (Doc. 70 at 2.) The distinction makes no difference to the outcome of this case, but
the Court notes the correction for the record.
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raises any pure state-law claims against: (1) Archibeque, (2) Dilly, or (3) Eby, those state-law
claims against those three Defendants are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Court will enter a separate judgment resolving the
civil case.
IT IS FINALLY ORDERED that the Clerk’s Office shall MAIL Mr. Aicher a filestamped copy of this ruling and his Amended Complaint (Doc. 69).

________________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE

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