Ortega v. Phaneof et al
MEMORANDUM OPINION AND ORDER Related document(s): 1 Complaint. by District Judge Margaret I. Strickland.
Case 1:19-cv-00893-MIS-SMV Document 11 Filed 05/10/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MAX ORTEGA III,
No. CV 19-00893 MIS/SMV
DAVID PHANEOF, NOLBERTO DOMINGUEZ,
JOHN VALDEZ, CORY COCA, DERRICK
VALDEZ, JOHN GARCIA, JOHN/JANE DOE(S)
(7 THRU 100),
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Prisoner’s Civil Rights Complaint filed
by Plaintiff Max Ortega III (Doc. 1). The Court will dismiss Plaintiff’s Complaint as barred
by Heck v. Humphry, 512 U.S. 477, 487 (1994) but grant leave to file a 28 U.S.C. § 2254
I. Factual and Procedural Background
Plaintiff Max Ortega filed his Complaint under 42 U.S.C. § 1983 on September 25,
2019 against local officers alleging illegal search and seizure in violation of the 14th
Amendment. (Doc. 1 at 1-3). He claims that in 2018, police conducted an undercover
investigation of drug trafficking, using a confidential informant, and without probable
cause and/or a search warrant. (Doc. 1 at 3). He seeks a declaration that the acts and
omissions described in the Complaint violated his rights under the Constitution and laws
of the United States, compensatory damages against all defendants in the amount to be
determined, and costs of this proceeding. (Doc. 1 at 13).
Case 1:19-cv-00893-MIS-SMV Document 11 Filed 05/10/22 Page 2 of 4
Plaintiff Ortega does not provide any information in the Complaint regarding the
underlying state court proceedings. However, the official records of the Eighth Judicial
District Court, County of Colfax, State of New Mexico, indicate that Ortega was charged
with twelve counts of trafficking a controlled substance, possession of a controlled
substance, and tampering with evidence in Eighth Judicial District cause no. D-809-CR2018-00069.1 Ortega was convicted by a jury on all twelve counts on July 30, 2018.
Court records do not show that Ortega appealed the jury’s conviction or challenged his
conviction and sentence through any state habeas corpus proceeding.
conviction and Plaintiff Ortega’s resulting sentence have not been reversed, overturned,
or set aside.
II. Plaintiff Ortega’s Civil Claims are Barred by the Heck Doctrine
In Heck v. Humphry, 512 U.S. 477, 487 (1994), the Supreme Court addressed the
question of when a prisoner may bring a § 1983 claim relating to his conviction or
sentence. 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. Heck, 512 U.S. at 487. Similarly, although in some circumstances a
prospective injunction may be available under § 1983, to the extent a request for
The Court may take judicial notice of the official New Mexico court records in Ortega’s criminal
case. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007) (judicial notice of publicly
filed records in this court and other courts concerning matters that bear directly upon the
disposition of the case at hand); Shoulders v. Dinwiddie, 2006 WL 2792671 (W.D.Okla.2006)
(court may take judicial notice of state court records available on the world wide web including
docket sheets in district courts); Stack v. McCotter, 2003 WL 22422416 (10th Cir.2003)
(unpublished opinion) (state district court's docket sheet is an official court record subject to
judicial notice under Fed. R. Evid. 201).
Case 1:19-cv-00893-MIS-SMV Document 11 Filed 05/10/22 Page 3 of 4
declaratory or injunctive relief would necessarily invalidate the prisoner’s conviction or
sentence, declaratory and injunctive relief are also barred by the Heck doctrine.
Wilkinson v. Dotson, 544 U.S. 74, 80-81 (2005). See also Edwards v. Balisok, 520 U.S.
Plaintiff Ortega’s prayer for relief specifically asks the Court to declare that the
criminal investigation underlying his conviction and sentence violated his constitutional
rights and to award him compensatory damages for illegal search and seizure. (Doc. 1 at
3, 13). Ortega’s request for relief clearly necessitates the invalidation of his conviction.
Because a favorable ruling on Plaintiff Ortega’s claims would require treating his
conviction in Eighth Judicial District cause no. D-809-CR-2018-00069 as invalid, the civil
rights claims in the Complaint must be dismissed under the Heck doctrine. See, Beck v.
City of Muskogee Police Dept., 195 F.3d 553, 556–57 (10th Cir.1999); Wilkinson v.
Dotson, 544 U.S. at 80-81.
III. Leave to Amend
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 civil 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). Because all of Plaintiff Ortega’s § 1983 claims are
barred by the Heck doctrine, amendment of the civil Complaint would be futile in this case.
Case 1:19-cv-00893-MIS-SMV Document 11 Filed 05/10/22 Page 4 of 4
The Court will therefore dismiss all civil § 1983 claims raised in the Complaint. Such
dismissal has no impact on Plaintiff’s claims in case no. CV 21-00728, which pertain to
conditions of confinement.
Plaintiff may still be able to “attack … his conviction and sentence … [through a
habeas proceeding] under § 2254.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924
(10th Cir. 2008). Within thirty (30) days of entry of this Order, Plaintiff may amend his
pleading to assert a § 2254 habeas claim. If Plaintiff declines to timely file a § 2254
petition, the Court will dismiss this action and close the case.
IT IS ORDERED that the Prisoner’s Civil Rights Complaint filed by Plaintiff Max
Ortega III (Doc. 1) is DISMISSED as barred by Heck v. Humphry, 512 U.S. 477, 487
(1994). This dismissal is without prejudice to Plaintiff Ortega’s claims in case no. CV 2100728 and without prejudice to raising § 2254 habeas claims.
IT IS FURTHER ORDERED that within thirty (30) days of entry of this ruling,
Plaintiff may amend his pleading to raise a 28 U.S.C. § 2254 habeas claim; and the
Clerk’s Office shall MAIL Plaintiff a blank § 2254 petition.
UNITED STATES DISTRICT JUDGE
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