Apodaca v. Smith et al

Filing 20

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DENYING AS MOOT 2 Defendant Stevi Maderas Motion for More Definite Statement and DENYING 10 Plaintiff's Motion to Amend. Plaintiff is granted leave to file an amended complaint that complies with this Memorandum Opinion and Order within thirty (30) days from the date of entry of the Memorandum Opinion and Order. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VICTOR ANDREW APODACA,
Plaintiff,
vs.

No. CV 16-01227 WJ/GJF

WARDEN R.C. SMITH, N. ALANIZ,
MRS. MALDONADO, MRS. STRUB,
MAILROOM SUPERVISOR, STEVI
MADERA, GEO GROUP, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court under 28 U.S.C. §§ 1915(e)(2)(B) and 1914A and
Fed. R. Civ. P. 12(b)(6) on the Complaint (Tort) and Amended Complaint filed by Plaintiff
Victor Andrew Apodaca Sr. and removed to this Court on November 8, 2016 (Doc. 1-1, 1-2).
Also pending before the Court is Defendant Stevi Madera’s Motion for More Definite Statement
(Doc. 2). The Court will deny Defendant Madera’s Motion as moot and will dismiss the
Complaint for failure to state a claim on which relief can be granted.
1. Factual and Procedural Background
Plaintiff Victor Andrew Apodaca, Sr., is a prisoner incarcerated at the Lea County
Correctional Facility in Hobbs, New Mexico. (Doc. 1-1 at 1). Plaintiff Apodaca filed his
Complaint (Tort) in the First Judicial District Court, County of Santa Fe, State of New Mexico
on July 6, 2016. (Doc. 1-1 at 1). Although his Complaint states that the suit is authorized under
the New Mexico Tort Claims Act, Chapter 41 N.M.S.A., Apodaca alleges violation of due
process and retaliation in violation of First, Fifth, and Fourteenth Amendment constitutional
rights. (Doc. 1-1 at 1).

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In the caption, Plaintiff Apodaca names Warden R.C. Smith, N. Alaniz, Mrs. Maldonado,
Mrs. Strub, Mailroom Supervisor, Stevi Madera, and Geo Group as Defendants. (Doc. 1-1 at 1).
Plaintiff filed an Amended Complaint on October 13, 2016, naming Secretary of Corrections
N.M.C.D. Greg Marcantel, Director Jerry Roark, Employs at L.C.C.F., and Mrs. Gomez as
additional Defendants. (Doc. 1-2 at 1).
On November 8, 2016, Defendant Stevi Madera filed a Notice of Removal, removing the
case from the State of New Mexico, First Judicial District Court to this Court. (Doc. 1).
Defendant Madera removed the case to federal court under 28 U.S.C. §§1331, 1441, and 1446 on
the grounds that Plaintiff Apodaca asserts federal constitutional claims. (Doc. 1 at 2). Defendant
Madera also filed a Motion for More Definite Statement on November 8, 2016. (Doc. 2).
2. Standards for Failure to State a Claim
Plaintiff Apodaca is proceeding pro se and in forma pauperis on civil rights claims under
42 U.S.C. § 1983. The Court has the discretion to dismiss an in forma pauperis complaint sua
sponte for failure to state a claim upon which relief may be granted under either Fed. R. Civ. P.
12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). Under Fed. R. Civ. P. 12(b)(6) the Court must accept all
well-pled factual allegations, but not conclusory, unsupported allegations, and may not consider
matters outside the pleading. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Dunn v.
White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under rule
12(b)(6) for failure to state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail
on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney
v. Oklahoma Dep’t of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must
allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

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570. A claim should be dismissed where it is legally or factually insufficient to state a plausible
claim for relief. Twombly, 550 U.S. at 570.
Under § 1915(e)(2)(B) the Court may dismiss the complaint at any time if the Court
determines the action fails to state a claim for relief or is frivolous or malicious. 28 U.S.C. §
915(e)(2)(B)(2). The authority granted by § 1915 permits the court the unusual power to pierce
the veil of the complaint's factual allegations and dismiss those claims whose factual contentions
are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also Hall v. Bellmon,
935 F.2d at 1109. The authority to “pierce the veil of the complaint's factual allegations” means
that a court is not bound, as it usually is when making a determination based solely on the
pleadings, to accept without question the truth of the plaintiff's allegations. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). The Court is not required to accept the truth of the plaintiff's
allegations but, instead, may go beyond the pleadings and consider any other materials filed by
the parties, as well as court proceedings subject to judicial notice. Denton, 504 U.S. at 32-33.
In reviewing a pro se complaint, the Court liberally construes the factual allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff’s
pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th
Cir. 1994). The Court is not obligated to craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiff’s claims. Nor may the Court assume the role of advocate for
the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.
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 pleadings. Reynoldson v. Shillinger,

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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).
3. Apodaca’s Complaint Fails to State a Claim
Apodaca’s Complaint is filed on a New Mexico state form for claims under the New
Mexico Tort Claims Act, N.M.Stat.Ann. § 41-4-1, et seq. However, in his Complaint and in the
Amended Complaint, Apodaca alleges violation of his rights under the First, Fifth, and
Fourteenth Amendments to the U.S. Constitution.

See Doc. 1-1 at 2; Doc. 1-2 at 1. The

Complaint does not expressly allege causes of action under 42 U.S.C. § 1983. However, 42
U.S.C. § 1983 is the exclusive vehicle for vindication of substantive rights under the
Constitution. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Albright v. Oliver, 510 U.S.
266, 271 (1994) (Section 1983 creates no substantive rights; rather it is the means through which
a plaintiff may seek redress for deprivations of rights established in the Constitution); Bolden v.
City of Topeka, 441 F.3d 1129 (10th Cir. 2006). Therefore, the Court construes Apodaca’s
claims for violation of rights under the Constitution as civil rights claims brought under 42
U.S.C. § 1983.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must assert acts by
government officials acting under color of law that result in a deprivation of rights secured by the
United States Constitution. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). There must
be a connection between official conduct and violation of a constitutional right. Conduct that is
not connected to a constitutional violation is not actionable under Section 1983. See Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 1998).

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Further, a civil rights action against a public official or entity may not be based solely on
a theory of respondeat superior liability for the actions of co-workers or subordinates. A plaintiff
must plead that each government official, through the official’s own individual actions, has
violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948 (2009).
Plaintiff must allege some personal involvement by an identified official in the alleged
constitutional violation to succeed under § 1983. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th
Cir. 2008). In a Section 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).
A. Warden R.C. Smith: Apodaca names Lea County Correctional Facility Warden
R.C. Smith as a Defendant. (Doc. 1-1 at 1). In his Complaint, Apodaca makes the following
allegations against Warden Smith:
“The retaliation started after February 2016 when I filed grievance and filed
a 1983 on Geo Group and R.C. Smith.” (Doc. 1-1 at 2);
“Warden R.C. Smith and Mrs. Maldonado & Mrs. Strub believe there idea’s
are above the courts and constitutional protected Religious Freedom.”
(Doc. 1-1 at 3).
The Amended Complaint contains no allegations relating to Warden Smith.
Neither the Complaint nor the Amended Complaint state any allegations of
individualized conduct by Warden Smith, nor do they identify any acts by Warden Smith that
violated Apodaca’s constitutional rights.

Instead, the Complaint only makes generalized,

conclusory statements that retaliation began after Plaintiff filed suit against Warden Smith and
that Warden Smith believes his ideas are above the courts and constitution. The allegations of
the Complaint and Amended Complaint are factually insufficient to state any plausible claim for
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relief against Warden Smith under § 1983.

Robbins v. Oklahoma, 519 F.3d at 1249-50;

Twombly, 550 U.S. at 570. The claims against Warden Smith will be dismissed for failure to
state a claim for relief.
B. N. Alaniz and Stevi Madera: Apodaca also identifies N. Alaniz and Stevi Madera
as Defendants. (Doc. 1-1 at 1). However, Apodaca makes no factual allegations, whatsoever,
against N. Alaniz or Stevi Madera in either the Complaint or the Amended Complaint. The
Complaint and Amended Complaint wholly fail to state any claim for relief against N. Alaniz or
Stevi Madera and they will be dismissed. Ashcroft v. Iqbal, 556 U.S. at 676.
C. Mrs. Maldonado and Mrs. Strub: Mrs. Maldonado and Mrs. Strub are also named
as Defendants by Plaintiff Apodaca. As noted, above, the only allegations made against Mrs.
Maldonado and Mrs. Strub are that the “believe there idea’s are above the courts and
constitutional protected Religious Freedom.” (Doc. 1-1 at 3). The vague and conclusory
allegations against Mrs. Maldonado and Mrs. Strub, again, do not state any factually plausible
claim for relief under § 1983. Fogarty v. Gallegos, 523 F.3d at 1162.
D. Geo Group: As set out, above, Apodaca’s Complaint claims that retaliation against
him began after he filed a § 1983 suit against Geo Group. (Doc. 1-1 at 2). The only other
allegation made by Apodaca is that he “fought for the rights that the New Mexico Corrections
Department and Geo Group, Corizon Corp, and Staff and its Corrections Officers violate.” (Doc.
1-1 at 4). The Complaint does not identify any involvement by an identified Geo Group official
in an alleged constitutional violation nor does it specify how the Geo Group violates any of
Apodaca’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. at 676. Formulaic recitations that
Defendants violated constitutional rights are not sufficient to state a plausible claim. Twombly,

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550 U.S. at 570. The Complaint and Amended Complaint do not state any claim against the Geo
Group. Fogarty v. Gallegos, 523 F.3d at 1162.
E. Secretary of Corrections NMCD Gregg Marcantel and Director Jerry Roark:
The Amended Complaint adds New Mexico Corrections Department Secretary Gregg
Marcantel and Director Jerry Roark as named Defendants. (Doc. 1-2 at 1). To the extent
Plaintiff Apodaca names Secretary Marcantel or Director Roark in their official capacities, those
claims are construed to be claims against the State of New Mexico. Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 63-64 (1989). Section 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom,
or usage of any State . . .subjects or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law . . .”
42 U.S.C. § 1983 (emphasis added). The State is not a “person” within the meaning of 42 U.S.C.
§ 1983 and there is no remedy against the State under § 1983. Will v. Michigan Dep’t of State
Police, 491 U.S. at 63-64. Therefore, any official capacity claims against Secretary Gregg
Marcantel and Director Jerry Roark will be dismissed.
To the extent that Apodaca’s claims are against Secretary Marcantel and Director Roark
in their individual capacities, the Amended Complaint claims that Defendants Marcantel and
Roark are “liable for there [sic] policy and actions that hinder or violate the U.S. Constitution”
and “are in control over every legal aspect policy making.” (Doc. 1-2 at 1, 2). The Amended
Complaint, however, does not identify any individualized actions by either Defendant nor does it
specify any policy made by either Defendant that violates Apodaca’s constitutional rights. The
Amended Complaint is factually insufficient to state any § 1983 claim for relief against Secretary
Marcantel or Director Roark. Ashcroft v. Iqbal, 556 U.S. at 676.

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F. Mrs. Gomez: Last, in the Amended Complaint, Plaintiff names the Lea County
Correctional Facility Grievance Officer, Mrs. Gomez, as a Defendant. Apodaca alleges:
“Mrs. Gomez be able to be held liable for her actions of not following proper
procedures in the Grievance Process that is essential in the Due process of law . . .
Mrs. Gomez be added to this civil suit as [she is] in control over every legal
aspect of policy making.”
(Doc. 1-2 at 1-2). As with the other named Defendants, Apodaca does not allege any actual
conduct on the part of Mrs. Gomez, much less conduct that somehow violated his constitutional
rights. The Amended Complaint does not state a claim on which relief can be granted against
Mrs. Gomez under § 1983. Robbins v. Oklahoma, 519 F.3d at 1249-50.
G. Unnamed Individuals: Plaintiff’s Complaint and Amended Complaint do not allege
any factually sufficient claim under 42 U.S.C. § 1983 that any named Defendant engaged in
individualized conduct in violation of Plaintiff Apodaca’s constitutional rights. See 42 U.S.C. §
1983; West v. Atkins, 487 U.S. 48. However, Plaintiff also makes passing references to other
unnamed individuals in his filings and exhibits to the filings. None of the references is factually
sufficient to state a claim for relief, and the Court will not search through documents and craft
Plaintiff’s claims for him. Hall v. Bellmon, 935 F.2d at 1110. Plaintiff Apodaca’s Complaint and
Amended Complaint fail to state a claim for relief and will be dismissed. Fed. R. Civ. P.
12(b)(6); 28 U.S.C. §§ 1915(e)(2)(B); Twombly, 550 U.S. at 570.
4. Pending Motions
Pending before the Court is Defendant Madera’s Motion for More Definite Statement
(Doc. 2). Because the Court determines that the Complaint fails to state a claim for relief against
any Defendant and will be dismissed, the Court denies Madera’s Motion as moot.
Also pending is Plaintiff Apodaca’s letter motion to amend the Complaint with an
attached amended complaint. (Doc. 10). In his letter motion to amend, Apodaca seeks to assert
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class action claims relating to his incarceration at Lea County Correctional Facility. The Court
has already denied Apodaca leave to bring any class action claims in this case. (Doc. 7). The
Court will deny Apodaca’s letter motion to amend for the same reasons set out in its prior
Memorandum Opinion and Order.
5. Apodaca Will Be Granted Leave to Amend
The Court will grant Plaintiff Apodaca a reasonable opportunity to remedy defects in his
pleading. Reynoldson v. Shillinger, 907 F.2d at 126. Plaintiff Apodaca will have thirty (30) days
from the date of entry of this Order in which to file an amended complaint. If Plaintiff fails to
file an amended complaint or files an amended complaint that does not comply with the
following directions, the Court may dismiss this action with prejudice and without further notice.
Plaintiff's amended complaint should be concise and must allege some personal
involvement by each identified official in the alleged constitutional violation to succeed under §
1983. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). Generalized allegations
against “defendants” or “officers”, without identification of actors and their individual conduct
allegedly causing the deprivation of a constitutional right, will not state any claim for relief.
Robbins v. Oklahoma, 519 F.3d at 1249-50.

The amended complaint must state the

individualized facts against each individual and why Plaintiff believes his constitutional rights
were violated by each individual. He should include identities of individual defendants and their
official positions, a description of their actions, and relevant dates, if available. See Meade v.
Grubbs, 841 F.2d 1512, 1522 (10th Cir.1988).
IT IS ORDERED:
(1) Defendant Madera’s Motion for More Definite Statement (Doc. 2) is DENIED as
moot;

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(2) Plaintiff Victor Andrew Apodaca Sr.’s letter motion to amend (Doc. 10) is DENIED;
(3) Plaintiff Victor Andrew Apodaca Sr.’s Complaint (Doc. 1-1) and Amended
Complaint (Doc. 1-2) are DISMISSED without prejudice for failure to state a claim on which
relief can be granted; and
(3) Plaintiff Apodaca is granted leave to file an amended complaint that complies with
this Memorandum Opinion and Order within thirty (30) days from the date of entry of the
Memorandum Opinion and Order. Failure to file an amended complaint that complies with
this Memorandum Opinion and Order shall result in the Court entering an order
dismissing this case.

______________________________________
UNITED STATES DISTRICT JUDGE

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