Wiggins v. Hatch et al

2023 | Cited 0 times | D. New Mexico | March 3, 2023



Plaintiff, v. No. 1:21-cv-00670-KWR-KBM T. HATCH, et al,


THIS MATTER is before the Court on Plaintiff Amended Prisoner Civil Rights Complaint (Doc. 8) (Amended Complaint). Also before the Court are his Motions Showing Cases are One Case and Request for Findings and Conclusions (Docs. 26, 27). Wiggins is incarcerated and proceeding pro se. He alleges prison officials violated a myriad of constitutional rights, but the factual basis for his claims is unclear. Having reviewed the matter sua sponte under 28 U.S.C. § 1915A, the Court will deny the motions; dismiss the Amended Complaint; and grant leave to amend.

BACKGROUND Wiggins is incarcerated at the Penitentiary of New Mexico (PNM). He initiated this case on July 20, 2021 by filing a 99-page Civil Rights Complaint. See Doc. 1. Wiggins also filed a motion for leave to proceed in forma pauperis. See Doc. 4. Because Wiggins had a balance of $1,070.97 in his inmate spending account, the Court denied the motion and directed him to prepay the $402 filing fee by October 7, 2021. See Doc. 7. It appeared Wiggins failed to comply, and the Court entered an Order of Dismissal on October 12, 2021. See Doc. 10. Wiggins sought reconsideration, but his earlier motions failed to include sufficient information showing his payment . See Docs. 12-18. Before the Court ruled on reconsideration in this case, Wiggins filed a new civil rights action, Wiggins v. LNU, 22-cv-279 JCH-KBM. The complaint in Wiggins v. LNU, 22-cv-279 JCH-KBM purports to raise the same claims implicated in this case, although as noted below, the extent of the overlap is not clear. The Court initially declined to reopen this case. See Doc. 21.

reconciliation in November of 2022, which revealed filing fee arrived at the Court on September 29, 2021. See Office filed a letter explaining that Wiggins timely complied with the payment obligation and

credited the payment to this case. Id. By an Order entered November 30, 2022, the Court reopened this case. See Doc. 25.

Wiggins then filed two letter-motions, which appear to seek: (1) a refund of $25, which is equal to the partial filing fee paid in his other case, Wiggins v. LNU, 22-cv-279 JCH-KBM; (2) consolidation of his two cases; (3) the issuance of findings and conclusions; and (4) the issuance of notice under Fed. R. Civ. P. 5.1 that he intends to challenge the constitutionality of a statute. See Docs. 26, 27. The motions also raise some substantive allegations, but it does not appear that Wiggins intended for the motions to function as an amended complaint. Id. The Court will consider which claims are pending, based on the Amended Complaint (Doc. 8), and whether those claims survive screening

STANDARDS GOVERNING INITIAL REVIEW Where, as here, a prisoner files a claim against a government official, the Court must perform a screening function under 28 U.S.C. Section 1915A. Under § 1915A, the Court has discretion to dismiss a prisoner civil rights complaint sua sponte Court may could not prevail on the facts alleged, and allowing [plaintiff] an opportunity to amend [the] Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (quotations Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable Id. Because Plaintiff is pro se Hall, 935 F.2d at 1110. While pro

se pleadings are judged by the same legal standards as others, the Court to cite proper legal authority, ... confusion of various legal theories, ..., or ... unfamiliarity with

Id. However, it is not the role of the Court to advocate, scour the record piece together a claim, or craft arguments for a pro se party. Id.

DISCUSSION A. Wiggins Fails to State a Cognizable Claim As an initial matter, Wiggins appears to raise substantive claims in several different documents. The Amended Complaint (Doc. 8) is the most recent pleading on file, but it purports to incorporate his prior complaints (Docs. 1, 3) by reference. The prior complaints include over 110 pages of argument and exhibits. Notice of Preliminary Injunction Conclusions (Doc. 27). ... to construct plaintiff McNamara v. Brauchler 743 (10th Cir. 2014). See also Fed. R. Civ. P. 8(a) (the controlling pleading must contain a short and plain statement of the grounds for relief). Moreover, it is well established that the filing of an May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019). The Court will therefore limit its review to whether damages or injunctive relief are available based on the Amended Complaint (Doc. 8), which is the most recent formal pleading on file.

Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th

cause of action under section 1983 requires the deprivation of a civil right by a McLaughlin v. Bd. of Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000). own individual actions, has personally violated the Constitution. See Trask v. Franco, 446 F.3d

1036, 1046 (10th Cir. 1998). There must also be a connection between the official conduct and the constitutional violation. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008); Trask, 446 F.3d at 1046.

The Amended Complaint contains a list of Defendants - T. Hatch, Beninger, Montoya, Martin, Jaramillo, Trujillo, and Vandiver - but Wiggins fails to describe how any of them were personally involved in the alleged wrongdoing. The Amended Complaint merely cites a list of claims and . [the] will not suffice. Pahls v. Thomas, 718 F.3d 1210, 1225 26 (10th Cir. 2013). See also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (A successful § 1983 complaint must 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 claims against him or her The Amended Complaint therefore fails to state a cognizable claim against any named Defendant.

Alternatively, even if the Amended Complaint tied Defendants to the alleged wrongdoing, the pleading lacks sufficient factual detail to support any claim. Wiggins alleges:

(1) He (2) The New Mexico Corrections Department liberty, and substantive due process ; and the

, and presume innocence.

[his] [his] charge

(4) CD Policy 150500.2 constitutes a punishment; violates the First Amendment

Doc. 8 at 2-4.

the Court cannot discern what circumstances gave rise to this lawsuit. Bledsoe v. Carreno, 53 F.4th 589, 606 (10th Cir. 2022). The Amended Complaint therefore fails to state a cognizable claim under any theory. The Court will dismiss the Amended Complaint (Doc. 8) under 28 U.S.C. § 1915A. Pro se prisoners are ordinarily be given an Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). Accordingly, Wiggins may file a

single, amended complaint that does not exceed 25 pages within thirty (30) days of entry of this Order. If Wiggins prefers to proceed in Wiggins v. LNU, 22-cv-279 JCH-KBM - which as noted below, is not subject to consolidation at this time he need not respond to this Order. The failure to timely file a single amended complaint that complies with Rule(a) and the above instructions will result in dismissal of this case without prejudice to proceeding in Wiggins v. LNU, 22-cv-279 JCH-KBM.

B. Wiggins also asks the Court to issue a refund, consolidate cases, refer this case to the Magistrate Judge for proposed findings, and issue notice or service forms. As to the first request, Wiggins argues failure to apply the $402 filing fee in this case prompted him to file Wiggins v. LNU, 22-cv-279 JCH-KBM. Because Wiggins paid a $25 partial filing fee in Wiggins v. LNU, 22-cv-279 JCH-KBM, he asks the Court to refund $25 in this case.

Bruce v. Samuels, 577 U.S. 82, 89 90 (2016) (quotations omitted). Wiggins elected to file a new action, rather than waiting for a resolution of the filing fee issue in this case. While the situation may be frustrating, there is no authority permitting a refund under these circumstances. The Policy, which is persuasive authority, prohibits refunds:

§ 650.10 Applicability been broadly interpreted to generally prohibit refunds of fees due upon filing, even if a party filed the case in error or the court dismissed the case or proceeding. Guide to Judiciary Policy, Vol. 4, Ch. 6, § 650.10, available at ttps://jnet.ao.dcn/policyguidance/ guide-judiciary-policy/volume-4-court-and-case-administration/ch-6-fees#650_10, site last visited March 1, 2023. See also In re Sony BM , 564 F.3d 1, 7 (1st Cir. 2009) (noting the Guide is persuasive authority because it codifies the policies promulgated by the Director of the therefore declines to refund $25 of the $402 filing fee paid in this case.

With respect to consolidation, such relief is only appropriate The purpose of

Cooper Clark Found. v. Oxy USA Inc. As noted above, the facts and law governing this case have yet to be defined. Even if Wiggins intended to file the same claims here and in Wiggins v. LNU, 22-cv-279 JCH-KBM, it would not be economical to consolidate before he files a cognizable pleading in this case. The Court will therefore deny the request for consolidation without prejudice. serve notice regarding the constitutionality of a statute are also premature. Prisoner cases are not referred to a Magistrate Judge for findings and conclusions unless and until the claims survive initial review. See 28 U.S.C. § 1915A (requiring sua sponte screening of claims); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (When a pleading states a claim, courts often order a Martinez report, i.e., . Similarly, the Court does not aid in serving defendants unless a prisoner is proceeding in forma pauperis and the operative pleading states a cognizable federal claim. See 42 U.S.C. § 1997e(g)(1)- (2) a defendant is not required to reply to any action brought by an inmate until the Court orders a response ; Fed. R. Civ. P. 4(c) (permitting court-supplied service where a plaintiff is proceeding in forma pauperis). Wiggins is not proceeding in forma pauperis in this case, and no pleading has survived initial review. The Court will therefore deny without prejudice notice, service, or findings/conclusions on substantive claims.

IT IS ORDERED that Prisoner Civil Rights Complaint (Doc. 8) is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A; and Wiggins may file an amended complaint within thirty (30) days of this Order. IT IS FURTHER ORDERED Cases are One Case (Doc. 26) and Request for Findings and Conclusions (Doc. 27) are DENIED.


_________________________________ KEA W. RIGGS UNITED STATES DISTRICT JUDGE

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