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`NEW MEXICO DEPARTMENT
`OF CORRECTIONS, CENTURION
`CORRECTIONAL HEALTHCARE, LLC, and
`CORE CIVIL,
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`Defendants.
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` No. 1:16-cv-1339 JCH/WPL
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`Case 1:16-cv-01339-JCH-JHR Document 16 Filed 11/22/17 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW MEXICO
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`KARL MARX CANDELARIA
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`Plaintiff,
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`MEMORANDUM OPINION AND ORDER OF DISMISSAL
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`Before the Court is Plaintiff’s Amended Civil Rights Complaint. (Doc. 14). Plaintiff is
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`incarcerated, appears pro se, and is proceeding in forma pauperis. For the reasons set out below,
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`the Court will dismiss the Amended Complaint for failure to state a claim. The Court will also
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`impose a “strike” under 28 U.S.C. § 1915(g).
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`Plaintiff filed his original complaint on December 7, 2016. He asserts Defendants were
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`deliberately indifferent to his medical needs in violation of 42 U.S.C. § 1983 and the Eighth and
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`Fourteenth Amendments. Specifically, Plaintiff alleges the Northwest New Mexico Correctional
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`Facility (“NNMCF”) medical staff failed to treat his injuries from a fall. See Doc. 1, p. 2. The
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`medical staff also purportedly withheld pain medication following a surgery in retaliation for an
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`earlier grievance. Id. at p. 3. The complaint seeks $15 million in damages from the New Mexico
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`Department of Corrections, Centurion Correctional Healthcare, LLC, and Core Civil. Id. at p. 7.
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`The complaint does not identify any individual wrongdoers, and none of the named
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`Defendants are subject to liability. The Tenth Circuit has held that the “New Mexico
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`Case 1:16-cv-01339-JCH-JHR Document 16 Filed 11/22/17 Page 2 of 3
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`Department of Corrections is not a ‘person’ subject to suit under § 1983.” See Blackburn v.
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`Department of Corrections, 172 F.3d 62 (10th Cir. Feb. 25, 1999) (unpublished). Further,
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`private corporations like Centurion Correctional Healthcare, LLC, and Core Civil can only be
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`liable under § 1983 when the corporation’s official policy or custom caused a deprivation of
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`constitutional rights, which Plaintiff did not allege. See Hinton v. City of Elwood, Kan., 997 F.2d
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`774, 782 (10th Cir. 1993) (A private corporation performing a government function can be held
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`liable under § 1983 only where a plaintiff shows “1) the existence of a...policy or custom, and 2)
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`that there is a direct causal link between the policy or custom and the injury alleged.”).
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`For these reasons, the Court dismissed the complaint on July 19, 2017 for failing to state
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`a cognizable claim. See 28 U.S.C. § 1915(e)(2) (Courts may sua sponte dismiss an in forma
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`pauperis complaint “if … the action … fails to state a claim upon which relief may be granted.”);
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`28 U.S.C. § 1915A(b) (The Court must dismiss any inmate complaint that fails to state a
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`cognizable claim or “seeks monetary relief from a defendant who is immune…” ). Consistent
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`with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), Plaintiff was given thirty days to
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`amend his complaint to cure the pleading defects. The Court also provided guidance about what
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`the amended complaint must allege to survive initial review. In particular, the Court warned that
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`any amended complaint must “make clear exactly who alleged to have done what to whom, to
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`provide each individual with fair notice as to the basis of the claim against him or her.” Robbins
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`v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008) (emphasis in original).
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`Plaintiff filed an Amended Complaint on August 23, 2017,1 which “attach[es] (3)
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`additional pages that state laws, rules, statutes, [and] records” from “[his] file.” See Doc. 14, p.
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`1. All three pages set forth the legal standards for “Due Process Claims for Personal Injuries and
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`Property Deprivation,” “Cruel and Unusual Punishment.” “The Right to Receive Medical
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`1 The deadline to file an amended pleading was actually August 19, 2017, but the Court will overlook the delay.
`2
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`Case 1:16-cv-01339-JCH-JHR Document 16 Filed 11/22/17 Page 3 of 3
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`Treatment,” and “Conditions of Confinement.” See Doc. 14, p. 2-4. The Amended Complaint
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`does not contain new factual averments or identify any persons responsible for the alleged
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`constitutional violations. See McLaughlin v. Bd. of Trustees, 215 F.3d 1168, 1172 (10th Cir.
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`2000) (“A cause of action under section 1983 requires the deprivation of a civil right by a
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`‘person’ acting under color of state law.”). The Amended Complaint therefore fails to state a
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`claim on which relief may be granted, and this action will be dismissed with prejudice pursuant
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`to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b).
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`Such dismissal counts as a strike under the Prison Litigation Reform Act (PLRA), 28
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`U.S.C. § 1915(g). See Hafed v. Bureau of Prisons, 635 F.3d 1172, 1176-77 (10th Cir. 2011)
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`(holding that dismissal of an action as frivolous, malicious, or for failure to state a claim under §
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`1915(e)(2)(B) counts as a strike under § 1915(g)). The Court notifies Plaintiff that if he accrues
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`three strikes under the PLRA, he may not proceed in forma pauperis in civil actions before the
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`federal courts unless he is under imminent danger of serious physical injury. See § 1915(g).
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`IT IS HEREBY ORDERED that this action is DISMISSED with prejudice pursuant to
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`28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b) for failure to state a claim on which relief may
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`granted; and judgment will be entered.
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`IT IS FURTHER ORERED that a strike is IMPOSED against Plaintiff Karl Marx
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`Candelaria under 28 U.S.C. § 1915(g).
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`____________________________________
`UNITED STATES DISTRICT JUDGE
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`3
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