Case 2:11-cv-00503-MCA-CG Document 19 Filed 09/29/11 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO TIMOTHY W. YOUNG, Plaintiff, v. HIDALGO COUNTY SHERIFFS DEPT; HIDALGO COUNTY, Defendants. ORDER DISMISSING THE AMENDED COMPLAINT THIS MATTER comes before the Court sua sponte on the Courts obligation to dismiss complaints that fail to state a cognizable federal claim at any time when the plaintiff is proceeding in forma pauperis (IFP). See 28 U.S.C. 1915(e);Trujillo v. Williams, 465 F.3d 1210, 1217 n. 5 (10th Cir. 2006) (noting that dismissal of deficient complaints that have been filed without prepayment of filing fees is now mandatory). Pro-se Plaintiff Timothy W. Young, who appears to be indigent, filed his initial, deficient Complaint and an application to proceed IFP on June 10, 2011. See Docs. 1, 2. Because the Complaint failed to state a cognizable federal claim, the Magistrate Judge assigned to this case conditionally granted IFP on the filing of an amended complaint, explaining the deficiencies and requiring Young to correct them before free service of process was ordered. See June 22, 2011 Order (Doc. 4). Specifically, Judge Martinez noted that Young has stated no facts that would give rise to the Countys or the Sheriffs Departments liability for the allegedly unconstitutional acts of its officers; id. at 2; that any amended complaint against the individual officers would have to state that the criminal-trespass charge against Young was dismissed before trial, or that he was found not guilty, or that his conviction was overturned, id. at 3; that Young had failed in his attempt to bring Civ. No. 11-503 MCA/LAM

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a state-law claim against Hidalgo County for mental distress regarding the detention centers employees allegedly negligent failure to take him to the hospital for 3 hours because he had failed to state any facts to show that a Hidalgo County supervisory official was involved in the incident, because, if he was trying to bring state-law tort claims, it appeared that he had not complied with the exhaustion requirements of the New Mexico Tort Claims Act or shown that there is a waiver of immunity for the entity or its employees based on his allegations; and because New Mexico does not recognize a cause of action for negligent infliction of emotional distress unless the plaintiff can allege facts to show that the distress caused by the Defendants negligence is so severe and serious as to have physical consequences, id. at 4. Young filed an Amended Complaint on June 29, 2011. See Doc. 6. But the Clerks office inadvertently issued summonses for free service of process before the Court had an opportunity to review the Amended Complaint. In reviewing the Amended Complaint under 1915(e), the Court resolves the issue whether it states a claim on which relief may be granted by applying the same standards used in resolving motions to dismiss for failure to state a claim brought under FED. R. CIV. P. 12(b)(6). See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). This means that the Court must look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief. Rather than adjudging whether a claim is improbable, factual allegations in a complaint must be enough to raise a right to relief above the speculative level. In addition, [the Court] must construe a pro se [] complaint liberally. Id. at 1218 (internal quotation marks, original brackets, and citations omitted). But [t]he broad reading of the [pro se] plaintiffs complaint does not relieve the plaintiff of alleging sufficient facts on which a recognized legal claim could be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

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1991). [T]he [pro se] plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend his complaint. Nevertheless, conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiffs complaint, the court need accept as true only the plaintiffs well-pleaded factual contentions, not his conclusory allegations. Id. (citations omitted). As the Supreme Court noted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and the more recent case of Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009), courts must carefully scrutinize a plaintiffs complaint to determine if an actionable claim is asserted. In Twombly, the Court noted that the pleading standard of FED. R. CIV. P. 8 does not require detailed factual allegations, 550 U.S. at 555, but the Rule demands more than an unadorned defendantunlawfully-harmed-me account, Iqbal, 129 S. Ct. at 1949. The Supreme Court warned against pleadings that offer labels and conclusions or a formulaic recitation of the elements of the cause of action . . . . These, the Court stated, will not do. Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement. Id. at 557. Thus, to state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendants action harmed him or her; 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). In screening the Complaint, the Court will accept as true Youngs allegations and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Young. See Kay, 500 F.3d. at 1217. But the Court will not supply additional facts, [or] construct a legal 3

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theory for [a] plaintiff that assumes facts that have not been pleaded. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989). Youngs Amended Complaint alleges the following relevant facts: As in his original Complaint, Young states that states that, following a verbal altercation with an unidentified individual at the BelShore apartments on January 15, 2011, Young left the premises but was later pulled over by D.O.T. Officer Charles Madrid. See Am. Compl. at 2 (Doc. 6). Officer Madrid told Young that Officer Smith had contacted Tommy DePaoli1, the propertys owner, and DePaoli told Officer Smith that Young was not allowed there. Id. Young states that when he later called DePaoli, DePaoli told him that no officer contacted him and he didnt say [Young] couldnt be there. Id. On January 30, Young went back to the BelShore apartments. See id. at 3. Police were again called, and Deputy Flores and Deputy Tavizon, the arresting officer, asked Young what he was doing there. See id. When Deputy Flores asked Young if Officer Madrid had previous warned him not to trespass there, Young admitted that Officer Madrid had stopped [him] and told him that owner Tommy Depolie [sic] said [he] couldnt be there, but that Young had contacted DePaoli, who said Young could be there and [Young] wasnt doing anything wrong. Id. at 3-4. Deputy Flores called Dispatch and Officer Madrid in Youngs presence. See id. at 4. Officer Flores then stated, Dispatch confirms trespass and asked the other deputy and the other D.O.T. Officers who had also responded to the call what they wanted to do. See id. Deputy Flores then instructed Deputy Tavizon to arrest Young, at which time he was arrested, taken to jail, and charged with criminal trespass. See id. at 4-5.

The Court uses the spelling that Mr. DePaoli used in attachment 1 to the Amended Complaint. See Doc. 6, Att 1. 4

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Young states that, on January 30, 2011, he told unknown employees at the Hidalgo County Detention Center that he had anxiety, high blood pressure, and chronic back pain, and that he needed to take medications at that time. Am. Compl. at 6. They placed him in a holding cell, and when the shifts changed, no one notified the new officers of Youngs medical problems or request for medication. See id. When Young banged on his door and told Officer Verdugo that he was having an anxiety attack, had high blood pressure, and needed his medications, Officer Verdugo apologized and made arrangements to transport [Young] to Gila Regional Medical Center, where Young was given his medications and was released back to custody when his blood pressure decreased. Id. at 7. Young was held until February 1, 2011, when he posted bond. See id. at 5. The criminal charges were dropped on May 10, 2011. See id. at 4. Youngs first claim is against the Sheriffs Department for false imprisonment in violation of the Fourth and Fourteenth Amendments. See id. at 5. His second claim is against the County for causing illness incurred/mental distress in violation of Youngs right to medical treatment while confined. Id. at 7. A review of Youngs Amended Complaint shows that he has again failed to allege sufficient facts to go forward against Hidalgo County and its Sheriffs Office, which are the only named Defendants. While the Amended Complaint more fully sets out the events that precipitated this suit, and also alleges that the criminal-trespass charge against Young was dropped, thereby allowing his case to go forward under Heck v. Humphrey,512 U.S. 477, 486-87 (1994), it still improperly names only the county and its sheriffs department as defendants. In addition, the Amended Complaint alleges, and the attached police report confirms, that Deputy Flores checked with dispatch and Officer Madrid to make sure a trespass warning had been

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issued before instructing Deputy Tavizon to arrest Young for trespass, and confirmed with Young that Officer Madrid had, indeed, warned Young not to go on the BelShore property again. Although Young attaches a statement purportedly signed by Tommy DePaoli stating I never told anyone that Tim Young was not allowed at the BelShore Apartments at any time, Am. Compl. Att. 1, the subsequent statement does not negate the Deputies probable cause to reasonably believe that Young was committing criminal trespass in their presence based on information from Dispatch, Officer Madrid, and Young himself. A police officer may arrest a person without a warrant if he has probable cause to believe that person committed a crime. Probable cause exists if facts and circumstances within the arresting officers knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense. When a warrantless arrest is the subject of a 1983 action, the defendant arresting officer is entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest the plaintiff. Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). [C]laims of false arrest, [and] false imprisonment must be premised on a lack of probable cause. See State v. Johnson, 122 N.M. 696, 930 P.2d 1148, 1153 (N.M. 1996) (stating that a warrantless arrest by a police officer with probable cause to believe that an offense has been committed does not become unlawful if the arrestee is later found to be innocent); Weststar Mortgage Corp. v. Jackson, 133 N.M. 114, 61 P.3d 823, 832 (N.M. 2002) (stating that a judicial determination to bind a plaintiff over for a criminal trial constitutes prima facie evidence of the existence of probable cause for detention) Hoffman v. Martinez, No. 03-2000, 92 Fed. Appx 628, 631, 2004 WL 226287, **3 (10th Cir. Feb. 6, 2004) (unpublished) (affirming sua sponte dismissal under 1915(e) where defendant arrested and charged with breaking and entering told officers before arrest that he shared the house with his girlfriend but where defendant was bound over for trial on a finding of probable cause). Here, Young makes no allegations that any of the arresting officers lied about whether probable cause 6

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existed, and it appears that they reasonably relied on Dispatch, and, through Officer Madrid, on the statements of another Officer that the property owner did not want Young on his property. Therefore, even if the Court allowed Young yet another opportunity to amend his complaint, he could not state a cognizable federal claim against the Hidalgo County Sheriffs Department or its deputies. Judge Martinezs opinion properly notes that there is no state-law cause of action for negligent infliction of emotional distress arising from a short delay in providing medicine and medical treatment. See Doc. 6 at 4. Further, a 1983 claim cannot be brought against the County because there are no allegations that a county supervisor or policy was involved; Young alleges no permanent or substantial harm from the delay; and Youngs allegations establish that Officer Verdugo was not deliberately indifferent to Youngs medical needs. See Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (noting that [a] prison officials deliberate indifference to an inmates serious medical needs is a violation of the Eighth Amendments prohibition against cruel and unusual punishment, and stating that a delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm). Youngs Amended Complaint against these Defendants fails to state a cognizable federal claim even though he was given an opportunity to amend in accordance with the Courts instructions. It therefore appears that allowing further amendment would be futile, and his Amended Complaint will be dismissed with prejudice. See Trujillo, 465 F.3d at 1217 n. 5, 1224. IT IS ORDERED that Youngs Amended Complaint [Doc. 6] is DISMISSED with prejudice. DATED this 28th day of September, 2011 in Albuquerque, New Mexico.

_____________________________________ M. CHRISTINA ARMIJO United States District Judge 7