Jones v. The Board of Commissioners of the County of Bernalillo et al

Filing 12

MEMORANDUM OPINION AND ORDER by District Judge David H. Urias DISMISSING 1 Complaint. (fs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILBERT JONES,
Plaintiff,
v.

No. 23-cv-0502-DHU-KRS

THE BOARD OF COMMISSIONERS
OF THE COUNTY OF BERNALILLO, et al,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court following Plaintiff Wilbert Jones’ failure to amend his
prisoner civil rights complaint to state a plausible claim, as directed. Plaintiff is incarcerated, pro
se, and proceeding in forma pauperis. The original Complaint (Doc. 2) states prison officials
removed Plaintiff from a Kosher diet because he was allegedly not practicing Judaism. See Doc. 2
at 2. The original Complaint further alleges Plaintiff was subject to excessive lockdowns and that
inmates only received about 36 hours of out-of-cell time per week. Id. at 13. Plaintiff allegedly
spent days without showering; missed visits from family and his attorney; and was unable to visit
the law library to research/draft pleadings in private. Id. The original Complaint seeks $10 million
in damages under 42 U.S.C. § 1983 from four Defendants: (1) the Board of Commissioners for
Bernalillo County (the Board); (2) MDC Chief Jason Jones; (3) Albuquerque Mayor Tim Keller;
and (4) Law Librarian Lisa Morton. Id. at 2-3, 6.
By a ruling entered September 6, 2024, the Court screened the original Complaint and
determined it fails to state a cognizable 42 U.S.C. § 1983 claim against any Defendant. See Doc.
11 (Screening Ruling); see also 28 U.S.C. § 1915(e) (requiring sua sponte dismissal of in forma
pauperis complaints that fail to state a cognizable claim for relief). Specifically, the original

Complaint fails to connect any Defendant to the alleged wrongdoing. The original Complaint sets
forth a list of Defendants; refers to them as a group;; and describes what Plaintiff experienced at
the jail. See, e.g., Doc. 2 at 13 (alleging “Defendants” are violating Plaintiff’s right to avoid cruel
treatment). “When various officials have taken different actions with respect to a plaintiff, the
plaintiff’s … passive-voice [allegations] showing that his rights ‘were violated’ will not suffice.”
Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013). “Likewise insufficient is a plaintiff’s
more active-voice yet undifferentiated contention that ‘defendants’ infringed his rights.” Id. at
1226. The Screening Ruling explained these principles and dismissed the original Complaint (Doc.
2) under 28 U.S.C. § 1915(e) and Fed. R. Civ. P. 12(b)(6).
Consistent with Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), the Court sua sponte
invited Plaintiff to amend his claims within thirty (30) days of entry of the Screening Ruling. To
assist with the amendment, the Court set out the § 1983 pleading standards related to cruel and
unusual punishment under the Eighth Amendment; violations of the First Amendment right to
religious freedom; and violations of the First Amendment right to access courts. See Doc. 11 at 46. The Screening Ruling warns that if Plaintiff fails to timely amend, the Court may dismiss this
entire case without further notice.
The deadline to file an amended complaint expired no later than October 7, 2024. Plaintiff
did not comply, show cause for such failure, or otherwise respond to the Screening Ruling.
Ordinarily, courts dismiss with prejudice where the prior complaint does not state a cognizable
claim, and the plaintiff fails to amend as directed. See, e.g., Novotny v. OSL Retail Servs. Corp.,
2023 WL 3914017, at *1 (10th Cir. June 9, 2023) (affirming dismissal with prejudice where the
district court rejected a “claim but gave [plaintiff] leave to amend, cautioning that failure to allege

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a plausible claim would result in a dismissal”). Based on the nature of these claims, Plaintiff may
survive initial review if he eventually refiles and connects each Defendant to the alleged
wrongdoing. The Court, in its discretion, will therefore dismiss this case without prejudice for
failure to state a cognizable claim under 28 U.S.C. § 1915(e) and Rule 12(b)(6). See Smith-Bey v.
Hosp. Adm’r, 841 F.2d 751, 756 (7th Cir. 1988) (construing § 1915(e) to permit screening
dismissals with or without prejudice, even where the complaint fails to state a claim).
IT IS ORDERED that this case, including each claim in Plaintiff Wilbert Jones’ original
Prisoner Civil Complaint (Doc. 1), is DISMISSED without prejudice under 28 U.S.C. § 1915(e)
and Rule 12(b)(6); and the Court will enter a separate judgment closing the civil case.

_________________________________
HON. DAVID URIAS
UNITED STATES DISTRICT JUDGE

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