Apodaca v. Judd
| Decision Date | 15 January 2021 |
| Docket Number | No. CIV 19-0388 JB/GJF,CIV 19-0388 JB/GJF |
| Parties | VICTOR ANDREW APODACA, Plaintiff, v. FNU LNU, BETTY JUDD, FNU VALDEZ, A. JIM, D. BROWN, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Prisoner Civil Tort Complaint Pursuant to the New Mexico Tort Claims Act, Chapter 41 N.M.S.A., filed March 21, 2019 (Doc. 1-1)("Complaint"). Plaintiff Victor Andrew Apodaca is incarcerated and proceeding pro se. See Complaint at 2. Apodaca asserts that prison officials violated his right to access courts by refusing to provide more than two free stamps per week, when his inmate account was in arrears. See Complaint ¶ 1 at 1. Having carefully reviewed the matter under 28 U.S.C. § 1915A and rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court will dismiss the Complaint, but grant leave to amend.
Apodaca is a state inmate at the Northwest New Mexico Correctional Facility ("NNMCF") in Grants, New Mexico. See Complaint ¶ 3, at 2. In this action, he challenges NNMCF's enforcement of CD Policy 151200, which governs prison correspondence. See Complaint ¶ 1 at 1. CD Policy 151200 provides, relevant part:
New Mexico Corrections Department (NMCD) Correspondence Regulation, CD Policy 151200 (attached to Complaint at 7)(emphasis in original).
The Complaint does not specify whether NNMCF is a Level I, II, III, IV, V, or VI facility. However, Apodaca alleges "here at [NNMCF] they give[] two stamped envelopes. . . ." Complaint ¶ 5, at 4. The Court discerns that NNMCF provides postage for Apodaca to send at least two letters per week and that he must pay for additional postage unless he is indigent. See Complaint ¶ 1, at 1. In January, 2019, Apodaca placed three un-stamped letters in the outgoing mail bin at NNMCF. See Complaint ¶ 5, at 5. He directed the letters to the United States Board of Veteran's Appeals; the Supreme Court of the United States; and New Mexico's Fifth Judicial District Court. SeeComplaint at 5. On or about January 14, 2019, Valdez allegedly issued a rejection notice and declined to supply free postage for the letters. See Complaint ¶ 5, at 5. The notice, which is attached to the Complaint, states: "Your legal mail has been rejected due to insufficient funds." CCA-Northwest New Mexico Correctional Center Inmate Request, (attached to the Complaint at 13). The notice further states Apodaca is in arrears and owes NNMCF $238.50 for unpaid copies; $64.41 for unpaid postage; and ten dollars for unpaid property. See CCA-Northwest New Mexico Correctional Center Inmate Request, attached to the Complaint at 13. Apodaca told Valdez that he is indigent, but she allegedly stated: "You are not indigent[,] you have .47 cents on your account." Complaint ¶ 5, at 5. It is unclear whether Apodaca could access those funds, which may have been frozen because of his arrears. See Complaint ¶ 5, at 3-4.
Apodaca further complains that, beyond the refusal to exceed postage limits in January, 2019, "every paycheck goes to" litigation costs, including "court order[ed] [filing fee] deductions and postage and copies." Complaint ¶ 5, at 4. Apodaca is pursing litigation before the Court;1 the Board of Veterans Appeals in Washington, District of Columbia; the United States Supreme Court; New Mexico's Fifth Judicial District Court; and New Mexico's Eighth Judicial District Court. See Complaint at 3. Apodaca attaches a copy of his financial records to the Complaint, which reflect that he earned an average of about $44.00 per month between July, 2018, and January, 2019, and nearly all of his expenditures are for postage or filing fees in various cases. See Account Transaction History from 07/01/2018 to 1/23/2019, attached to Complaint at 17-19. Because of his litigation expenses, Apodaca purportedly cannot buy "t-shirts, shoes, socks,sweat[s] top[s] or bottom[s], razors, music, food, [or] ... healthcare items" from the prison canteen. Complaint ¶ 5, at 4. He only has access to the items that NNMCF issues, i.e., "two stamped envelopes and two piece[s] of paper, a bar" of "motel soap[] and motel shampoo, one razor, and a small tube of toothpaste and two rolls of toilet paper." Complaint ¶ 5, at 4. It appears Apodaca receives these items each week, but the Complaint is not entirely clear on this point. See Complaint ¶ 5, at 4. Apodaca alleges that the limited distribution of free personal items is "criminal." Complaint ¶ 5, at 4-5. When Apodaca complained, Warden Smith allegedly told Apodaca that he "must choose between legal mail or his coffee." Complaint ¶ 5, at 4. Apodaca also contends that his former prison, the Lea County Correction Facility, only distributed two free 42 U.S.C. § 1983 litigation packets to each inmate and that he had to purchase any additional packages. See Complaint ¶ 5, at 4.
Based on these facts, the Complaint alleges claims for violation of the right to access courts under the United States Constitution; the New Mexico Constitution; 42 U.S.C. § 1983; and the New Mexico Tort Claims Act, N.M.S.A. 1978 § 41-4-1, et. seq. See Complaint ¶ 1, at 2. Construed liberally, the Complaint also may raise an Eighth Amendment claim for cruel-and-unusual punishment, as a result of the limited provision of free personal items. See Complaint ¶ 5, at 4-5. Plaintiff seeks at least $50,000 in damages from each of the following Defendants: (i) New Mexico Corrections Department ("N.M.C.D"); (ii) Deputy Secretary of Operations "Jane or John;" (iii) Current Jane or John Doe Secretary of Corrections; (iv) CoreCivic Warden Betty Judd; (v) Ms. Valdez; (vi) "Accounts Ms. A. Jim;" and (vii) Mr. D-Brown. Complaint ¶ 1-3, at 2; id. ¶ 5, at 6. Apodaca also appears to seek an injunction "mak[ing] all legal mail, copies, [and] notar[ies] free." Complaint ¶ 5, at 6.
Apodaca originally filed the Complaint in New Mexico's Thirteen Judicial District Court,Case No. D-1333-CV-2019-00092. See Complaint ¶ 1, at 1. It appears that he only served Judd, Jim, and Valdez (the "CoreCivic Defendants"). Notice of Removal at 3, filed April 26, 2020 (Doc. 1)("Notice of Removal"). The CoreCivic Defendants removed the Complaint to this Court on April 26, 2020, within thirty days after service. See Notice of Removal at 2. The CoreCivic Defendants paid the filing fee, and the matter is ready for initial review under 28 U.S.C. § 1915A.
Section 1915A of Title 28 of the United States Code requires the court to conduct a sua sponte review of all civil complaints where the plaintiff is incarcerated and seeks relief from a government official. See 28 U.S.C. § 1915A. The court must dismiss any in forma pauperis complaint that is frivolous, malicious, or "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915A(b). The court also may dismiss a complaint sua sponte under rule 12(b)(6) if "it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing [plaintiff] an opportunity to amend [the] complaint would be futile." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)(internal quotation marks omitted). In other words, the same standard of review applies under rule 12(b)(6) and § 1915(e).
Rule 12(b)(6) tests the "sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991)). A complaint's sufficiency is a question of law, and when reviewing the complaint, a court must accept as true all of a complaint's well-pled factual allegations, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007) ; Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) .
A complaint need not set forth detailed factual allegations, but "[a] pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action'" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556...
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