Davila v. Curry County Jail et al

Filing 10

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 2 Plaintiff's Application to Proceed In Forma Pauperis; and dismissing without prejudice 1 Plaintiff Josh Davila's Prisoner's Civil Rights Complaint. Plaintiff's amended complaint due on or before 12/8/2017. (tah)

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

JOSH DAVILA,
Plaintiff,
v.

No. 17-CV-00746-KG-SCY

CURRY COUNTY JAIL FACILITY,
ANTHONY PARRARA,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court, sua sponte under 28 U.S.C. §§ 1915(e)(2) and 1915A, on
Plaintiff Josh Davila’s Prisoner’s Civil Rights Complaint [Doc. 1] and Application To Proceed
In Forma Pauperis [Doc. 2], filed on May 10, 2017. Plaintiff is incarcerated, appears pro se, and
is seeking permission to proceed in forma pauperis. For the reasons explained below, the Court
will grant Plaintiff’s Application To Proceed In Forma Pauperis and dismiss Plaintiff’s 42
U.S.C. § 1983 claims without prejudice for failure to state a claim on which relief may be
granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The Court will grant Plaintiff
leave to file an amended complaint within thirty (30) days from the date of entry of this
Memorandum Opinion and Order.
I.

BACKGROUND
On May 10, 2017, Plaintiff filed his Prisoner’s Civil Rights Complaint and Application

To Proceed In Forma Pauperis in the United States District Court for the Eastern District of
Texas. [Docs. 1, 2] The Honorable K. Nicole Mitchell, United States Magistrate Judge,

transferred Plaintiff’s civil rights action to this Court because “a substantial portion of the events
or omissions giving rise to Plaintiff’s claim occurred in Curry County, New Mexico, which is in
the United States District Court for the District of New Mexico.” [Doc. 7 at 1]
In his Prisoner’s Civil Rights Complaint, Plaintiff alleges that Defendant Curry County
Jail Facility failed to protect him against a physical assault committed by another inmate,
Defendant Anthony Parrara. [Doc. 1 at 3, 4] Specifically, Plaintiff alleges that “[o]n or about 429-2015 the Curry County Jail administration failed to maintain possession of a toilet brush,
which resulted in the plaintiff being assaulted by the defendant Anthony Parrara and being care
flighted from the jail to the hospital with serious injuries.” [Doc. 1 at 4] Plaintiff seeks
compensatory damages, punitive damages, and court costs and fees. [Doc. 1 at 5]
II.

DISCUSSION
The Court first will address Plaintiff’s Application To Proceed In Forma Pauperis and

then will proceed to screen Plaintiff’s Prisoner’s Civil Rights Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A.
A.

Plaintiff’s Application To Proceed In Forma Pauperis Will Be Granted
The Court is authorized to excuse prepayment of the filing fee “by a person who submits

an affidavit that includes a statement of all assets such prisoner possesses that the person is
unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). Based on Plaintiff’s
affidavit and the financial information he has provided, the Court will grant Plaintiff’s
Application To Proceed In Forma Pauperis and waive an initial partial payment under 28 U.S.C.
§ 1915(b)(1).
Plaintiff was a prisoner at the time he filed his complaint and, therefore, he is required to
pay the full amount of the $350 filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff must “make

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monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s
account,” 28 U.S.C. § 1915(b)(2), until the $350 filing fee is paid in full. See Johnson v. Smith,
668 F. App’x 837, 838 (10th Cir. 2016) (noting that “28 U.S.C. § 1915(a), does not permit
litigants to avoid payment of filing and docketing fees, only prepayment of those fees”). Failure
to make the requisite monthly payments, or to show cause why the payments should be excused,
may result in the dismissal of this action without further notice. See Cosby v. Meadors, 351 F.3d
1324, 1327 (10th Cir. 2003) (holding that “[i]f a prisoner has the means to pay, failure to pay the
filing fee required by § 1915(b) may result in the dismissal of a prisoner’s civil action”).
B.

Plaintiff’s § 1983 Claims Will Be Dismissed For Failure To State A Claim On Which
Relief May Be Granted
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under

§§ 1915(e)(2)(B) and 1915A at any time if the action is frivolous, malicious, or fails to state a
claim on which relief may be granted. See §§ 1915(e)(2)(B), 1915A(b). “Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The burden is on the plaintiff to 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 Atlantic
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. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id.
Plaintiff is proceeding pro se and “[a] pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v.
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Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, “if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. At the
same time, however, it is not “the proper function of the district court to assume the role of
advocate for the pro se litigant.” Id.
Plaintiff’s complaint appears to allege that Defendants Curry County Jail Facility and
Anthony Parrara have violated Plaintiff’s right to be free from cruel and unusual punishment
under the Eighth Amendment to the United States Constitution. “[P]rison officials have a duty . .
. to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511
U.S. 825, 833 (1994) (internal quotation marks and citation omitted). “It is not, however, every
injury suffered by one prisoner at the hands of another that translates into constitutional liability
for prison officials responsible for the victim’s safety.” Id. at 834. Instead, to establish a violation
of the Eighth Amendment, an inmate must satisfy two requirements: (1) “that he is incarcerated
under conditions posing a substantial risk of serious harm”; and (2) that the prison official has a
“sufficiently culpable state of mind,” i.e., “one of deliberate indifference to inmate health or
safety.” Id. (internal quotation marks and citation omitted). To establish deliberate indifference,
an inmate must demonstrate that “the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
at 837.
Constitutional claims challenging the conditions of a prisoner’s confinement must be
brought in a civil rights action under 42 U.S.C. § 1983. See Palma-Salazar v. Davis, 677 F.3d

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1031, 1035 (10th Cir. 2012). “To a state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988) (emphasis added). A private citizen can be held liable under §
1983 only if he “was a willful participant in joint action with the State or its agents.” Beedle v.
Wilson, 422 F.3d 1059, 1071 (10th Cir. 2005) (internal quotation marks and citation omitted).
Plaintiff’s complaint fails to allege any facts indicating that Defendant Parrara, a fellow inmate at
the Curry County Jail Facility, was a willful participant in joint action with the State or its agents
at the time of the assault. Therefore, Plaintiff’s § 1983 claims against Defendant Parrara will be
dismissed without prejudice for failure to state a claim on which relief may be granted under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Plaintiff’s complaint also fails to state a claim under § 1983 against Defendant Curry
County Jail Facility. “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 of State
Colleges of Colorado, 215 F.3d 1168, 1172 (10th Cir. 2000). Although municipalities and local
governments are “persons” who may be sued under § 1983, see Monell v. Dep’t of Soc. Servs. Of
City of New York, 436 U.S. 658, 690 (1978), “[g]enerally, governmental sub-units are not
separate suable entities that may be sued under § 1983.”1 Hinton v. Dennis, 362 F. App’x 904,
907 (10th Cir. 2010) (unpublished). Defendant Curry County Jail Facility, as a governmental
sub-unit, “is not a person or legally created entity capable of being sued.” Aston v. Cunningham,
No. 99-4156, 2000 WL 796086 at *4 n.3 (10th Cir. June 21, 2000); see also White v. Utah, 5 F.

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New Mexico state law governs the capacity of a governmental entity to be sued. See Fed. R. Civ. P. 17(b). Under
New Mexico law, counties are granted the same powers as municipalities and, therefore, may sue and be sued. See
NMSA 1978, §§ 3-18-1(A); 4-37-1. However, suits against a New Mexico county must be brought against “the
board of county commissioners of the county of [the appropriate county].” NMSA 1978, § 4-46-1.

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App’x 852, 853 (10th Cir. 2001). Therefore, Plaintiff’s § 1983 claim against Defendant Curry
County Jail Facility will be dismissed without prejudice.
The Court will grant Plaintiff leave to file an amended complaint within thirty (30) days
of the date of entry of this Memorandum Opinion and Order. Plaintiff’s amended complaint must
identify the person or persons responsible for the alleged violation of Plaintiff’s Eighth
Amendment rights and “must explain what each defendant did to him . . . ; when the defendant
did it; how the defendant’s action harmed him . . . ; and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007); see also Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013) (holding
that “the plaintiff’s facile, passive-voice showing that his rights ‘were violated’ will not suffice.
Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated contention that
‘defendants’ infringed his rights. . . . Rather, it is incumbent upon a plaintiff to identify specific
actions taken by particular defendants in order to make out a viable § 1983 . . . claim”) (internal
quotation marks and citations omitted). Failure to timely file an amended complaint may result
in the dismissal of this action without further notice.
III.

CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Application To Proceed In Forma

Pauperis [Doc. 2] is GRANTED, the initial partial payment is WAIVED, and Plaintiff is ordered
to file monthly financial certificates and make monthly payments of twenty (20%) of the
preceding months income credited to his account or show cause why the payments should be
excused;
IT IS FURTHER ORDERED that Plaintiff’s § 1983 claims are DISMISSED without
prejudice; and Plaintiff is granted thirty (30) days from the date of entry of this Memorandum

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Opinion and Order in which to file an amended complaint;
IT IS FURTHER ORDERED that the Clerk of the Court is directed to mail to Plaintiff,
together with a copy of this Memorandum Opinion and Order, a post-filing financial certificate
and a form § 1983 complaint, with instructions.

________________________________
UNITED STATES DISTRICT JUDGE

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