Lusk v. Jablonski

Filing 31

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera dismissing Plaintiff's Civil Rights Complaint 1 Pursuant to 42 U.S.C. § 1983 for failure to state a claim on which relief can be granted. This dismissal is without prejudice to a petition for habeas corpus relief by Plaintiff Lusk. (baw)

Case 2:18-cv-00105-JCH-LF Document 31 Filed 07/17/20 Page 1 of 8

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

RONALD LUSK,
Plaintiff,
vs.

No. CV 18-00105 JCH/LF

SECRETARY OF CORRECTIONS
DAVID JABLONSKI,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court under 28 U.S.C. §1915A on the Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983 filed by Plaintiff Ronald Lusk (Doc. 1). The Court will dismiss the
Complaint for failure to state a claim on which relief can be granted.

1. Factual and Procedural Background
Plaintiff Ronald Lusk is a prisoner in the custody of the New Mexico Department of
Corrections. (Doc. 1 at 1). He has several New Mexico criminal convictions for armed robbery,
sexual exploitation of a child, and possession of a deadly weapon or explosive by a prisoner. See
State v. Lusk, No. D-1329-CR-2004-00116; State v. Lusk, No. D-202-CR-2009-04761; State v.
Lusk, No. D-1333-CR-2015-00003.1

 The Court has reviewed the official records in Lusk’s state court proceedings through

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the New Mexico Supreme Court’s Secured Online Public Access (SOPA). The Court takes
judicial notice of the official New Mexico court records in Lusk’s criminal cases. United States
v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007) (Court may take judicial notice of publicly
filed records in this and other courts concerning matters that bear directly upon the disposition of
the case); 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); Stack v. McCotter, 2003 WL
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Lusk’s Complaint alleges that on December 17, 2014, while on parole at La Pasada
Alternative Living House, Lusk was taken into custody by a Parole Officer for possession of
cocaine and drug paraphernalia and charged with a 4th degree felony. (Doc. 1 at 2). Lusk alleges
that the state court found no probable cause and he was “cleared of any wrongdoing.” (Doc. 1 at
2). He contends that, even though he was cleared, he is getting 85% good time because the New
Mexico Department of Corrections is punishing him for a crime he never committed based on a
policy that allows revocation of parole for a disciplinary violation. (Doc. 1 at 2). He asserts First
Amendment and double jeopardy rights and asks the Court to change his good time and force
Secretary of Corrections Jablonski to change all Corrections Department policy against parole
violators. (Doc. 1 at 3-4).

2. Standards for Dismissal for Failure to State a Claim
Plaintiff Lusk is proceeding pro se and in forma pauperis. 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,

22422416 (10th Cir.2003) (unpublished opinion) (state district court's official docket sheet is
subject to judicial notice under Fed. R. Evid. 201).
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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 570. A claim should be dismissed where it is legally
or factually insufficient to state a plausible claim for relief. Id.
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. §
1915(e)(2)(B)(ii). 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.

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3. Analysis of Plaintiff Lusk’s Claims
Plaintiff Lusk’s Complaint is brought as a civil rights action under 42 U.S.C. 1983.2 (Doc.
1 at 1). Section 1983 is the exclusive vehicle for vindication of substantive rights under the U.S.
Constitution. See 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). 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. 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. 2006).
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 (2009). Plaintiff must allege some

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  Plaintiff Lusk’s allegations could be construed as asserting a claim for habeas corpus relief.

However, Plaintiff Lusk has filed a habeas corpus proceeding before the Court. See Lusk v. Miller,
No. CV 19-01048 WJ/CG. Therefore, the Court declines to construe the filing as a habeas corpus
proceeding and will analyze it as civil rights claim in accordance with Lusk’s designation of it as
a case under § 1983.
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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). Nor do generalized statements that defendants caused the deprivation of a constitutional
right, without plausible supporting factual allegations, state any claim for relief. Robbins v.
Oklahoma, 519 F.3d at 1249-50.
The only defendant named in this case is Secretary of Corrections, David Jablonski. (CV
doc. 1). It is unclear from the Complaint whether Plaintiff Lusk is suing Secretary Jablonski in his
official or individual capacity. To the extent Lusk sues Jablonski in his official capacity, the claims
are barred by 11th Amendment immunity. To the extent Lusk seeks to assert individual claims
against Jablonski, the Complaint fails to state a claim for relief.
The New Mexico Corrections Department is a state agency. As such, the claims against it
are claims against the State of New Mexico, as are the claims against the Secretary of Corrections,
Jablonski, in his official capacity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63-64
(1989). The State is not a “person” within the meaning of 42 U.S.C. § 1983 and, therefore, there
is no remedy against the State under § 1983. Section 1983 is a “remedial vehicle for raising claims
based on the violation of constitutional rights.” Brown v.Buhman, 822 F.3d 1151, 1161 n.9 (10th
Cir. 2016) (quotation marks omitted). It does not abrogate the states’ sovereign immunity and
neither the states nor their agencies qualify as “persons” under § 1983. See Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 67, 71 (1989); Wood v. Milyard, 414 F. App’x 103, 105 (10th Cir.

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2011) (unpublished). Therefore, the official capacity claims against Secretary of Corrections,
David Jablonski will be dismissed. Will v. Michigan Dep’t of State Police, 491 U.S. at 63-64.
To the extent Lusk intends to assert claims against Secretary Jablonski in his individual
capacity, Lusk’s Complaint fails to state a § 1983 claim upon which relief can be granted.
Nowhere in his Complaint does Lusk allege any violation of a constitutional right by Secretary
Jablonski. The allegations against Jablonski are that, by virtue of his position as Secretary of
Corrections, he is responsible for all Corrections Department policies, including the policy that
allows use of prison disciplinary violations even when court charges are dismissed. (Doc. 1 at 3).
Lusk’s Complaint does not identify any other individual defendant. Nor does he allege
some personal involvement by any identified official in any alleged constitutional violation.
Fogarty v. Gallegos, 523 F.3d at 1162. Therefore, the Complaint fails to state any § 1983 claim
for relief and the Court will dismiss Lusk’s claims. Ashcroft v. Iqbal, 556 U.S. at 676.
It is unclear from Lusk’s Complaint whether he seeks relief invalidating his sentence.
However, to the extent Lusk may seek to invalidate his sentence, any such relief is 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 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.

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641 (1997). Any claims by Lusk seeking to invalidate his sentence are barred by Heck and,
therefore, fail to state a claim upon which relief can be granted under Rule 12(b)(6).

4. The Court Will Not Grant 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 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).
The Court will dismiss Lusk’s Complaint without leave to amend because the Court
determines that amendment of the Complaint would be futile. Hall v. Bellmon, 935 F.2d at 1109.
Any amendment to Lusk’s claims would still be barred under Eleventh Amendment immunity or
under the Heck doctrine and would be subject to immediate dismissal. Moreover, Lusk may seek
the relief he requests in a habeas corpus case. The record reflects that his habeas corpus proceeding
in this Court has been dismissed under Younger based on pending New Mexico State probation
and parole proceedings. See No. CV 19-01048 WJ/CG. Once the state court proceedings are
concluded, Lusk may again seek habeas corpus relief from this Court. Therefore, the Court will
dismiss without leave to amend and without prejudice to any future request for habeas corpus relief
by Lusk. Bradley v. Val-Mejias, 379 F.3d at 901.

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IT IS ORDERED that the Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 filed by
Plaintiff Ronald Lusk (Doc. 1) is DISMISSED for failure to state a claim on which relief can be
granted. This dismissal is without prejudice to a petition for habeas corpus relief by Lusk.

____________________________________
UNITED STATES DISTRICT JUDGE

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