Apodaca v. Lnu

• Decision Date: 27 February 2021
• Docket Number: No. CIV 19-0388 JB/GJF,CIV 19-0388 JB/GJF
• Citation: 545 F.Supp.3d 1051
• Parties: Victor Andrew APODACA, Plaintiff, v. FNU LNU, FNU Valdez, Betty Judd, A. Jim, and D. Brown, Defendants.
• Court: U.S. District Court — District of New Mexico

545 F.Supp.3d 1051

Victor Andrew APODACA, Plaintiff,

v.FNU LNU, FNU Valdez, Betty Judd, A. Jim, and D. Brown, Defendants.

No. CIV 19-0388 JB/GJF

United States District Court, D. New Mexico.

Filed February 27, 2021

Victor Apodaca, Grants, New Mexico, Plaintiff pro se.

Daniel P. Struck, Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC, Chandler, Arizona --and-- Deborah D. Wells, Debra J. Moulton, Kennedy, Moulton & Wells, PC, Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court following Plaintiff Victor Apodaca's failure to amend his defective pleading. Apodaca is incarcerated and proceeding pro se. See 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)("Original Complaint"). The Court previously dismissed Apodaca's Original Complaint, which raises First Amendment access-to-court claims and Eighth Amendment conditions-of-confinement claims, for failure to state a claim upon which relief may be granted, but granted leave to amend. See Memorandum Opinion and Order, filed January 15, 2021 (Doc. 14)("Screening MOO"). Because Apodaca failed to file an amended complaint, the Court will dismiss this action with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

Apodaca is a state inmate at the Northwest New Mexico Correctional Facility ("NNMCF") in Grants, New Mexico. See Original Complaint at 2. In the Original Complaint, Apodaca challenges NNMCF's enforcement of CD Policy 151200, which governs prison correspondence. See Original Complaint at 2. CD Policy 151200 provides, in relevant part:

A. Limits on Correspondence:

When the inmate bears the mailing cost, there is no limit on the volume of letters the inmate can send or receive ....

B. Postage and Writing Materials:

...

2. All inmates in Level II, III, IV, V, and VI security facilities will receive postage for two (2) First-class letters per week for personal, legal, or privileged correspondence.

3. Indigent inmates in Level I security facilities will receive postage for two (2) First-class letters per week.

4. Inmates will pay the cost of any additional mail by attaching a debit memo.

5. A reasonable amount of postage for the following categories of mail will be supplied by the facilities for indigent inmates:

Attorneys, recognized agencies that provide legal assistance, the courts and disciplinary appeals addressed to the disciplinary appeals officer, classification appeals ..., Parole Board members, the Secretary of Corrections, Department staff located at Central Office, federal and state legislators, and the Governor of New Mexico.

New Mexico Corrections Department ("NMCD") Correspondence Regulations, CD Policy 151200, attached to Original Complaint at 7 (emphasis in original).

In the Original Complaint, Apodaca does not specify whether NNMCF is a Level I, II, III, IV, V, or VI facility. However, the Plaintiff alleges "here at [NNMCF] they give[ ] two stamped envelopes ...." Original Complaint 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 Original Complaint at 4-5. In January of 2019, Apodaca placed three un-stamped letters in the outgoing mail bin at NNMCF. See Original Complaint at 5. He directed the letters to the United States Board of Veteran's Appeals; the United States Supreme Court; and New Mexico's Fifth Judicial District Court. See Original Complaint at 5. On or about January 14, 2019, Ms. Valdez allegedly issued a rejection notice and declined to supply free postage for the letters. See Original Complaint at 5. The notice, which is attached to the Original Complaint, states: "Your legal mail has been rejected due to insufficient funds." See CCA-Northwest New Mexico Correctional Center Inmate Request, attached to Original Complaint at 13. The notice further states that Apodaca is in arrears and owes NNMCF $238.50 for unpaid copies; $64.41 for unpaid postage; and $10.00 for unpaid property. See CCA-Northwest New Mexico Correctional Center Inmate Request, attached to Original Complaint at 13. Apodaca told Ms. Valdez that he was indigent, but she allegedly stated: "You are not indigent[,] you have .47 cents on your account." Original Complaint at 5. It is unclear whether Apodaca could access those funds, which may have been frozen due to his arrears. See Original Complaint at 3-4.

In the Original Complaint, Apodaca further alleges that, beyond NNMCF's refusal to exceed postage limits in January of 2019, "every paycheck goes to" litigation costs, including "court order[ed] [filing fee] deductions and postage and copies." Original Complaint at 4. Apodaca is pursuing litigation before this 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 Original Complaint at 3. The Original Complaint attaches a copy of Apodaca's financial records, which reflect that he earned an average of about $44.00 per month between July of 2018 and January of 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 Original 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. Original Complaint at 4. He alleges that he only has access to the items 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 to toilet paper." Original Complaint at 4. It appears that Apodaca receives these items each week, but the Original Complaint is not entirely clear on this point. The Original Complaint alleges the limited distribution of free personal items is "criminal." See Original Complaint at 4-5. When Apodaca complained, Warden Smith allegedly told Apodaca that he "must choose between legal mail or his coffee." Original Complaint at 4. The Original Complaint also alleges that Apodaca's former prison, the Lea County Correction Facility, only distributed two free 42 U.S.C. § 1983 litigation packets to each inmate, and he had to purchase any additional packages. See Original Complaint at 4.

Applying liberal construction, the Court determined that the Original Complaint raises claims for violation of the right to access courts under the U.S. 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 Original Complaint at 2. The Court also assumed Apodaca intends to raise an Eighth Amendment claim for cruel and unusual punishment, based on the limited provision of free personal items. See Original Complaint at 5. The Original Complaint seeks at least $50,000 in damages from each of the following Defendants: (i) NMCD; (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. See Original Complaint at 2, 6. The Original Complaint also appears to seek an injunction "mak[ing] all legal mail, copies, [and] notar[ies] free." Original Complaint at 6.

Apodaca initially filed the Original Complaint in New Mexico's Thirteenth Judicial District Court, Case No. D-1333-CV-2019-00092. See Original Complaint at 1. It appears he only served Defendants Judd, Jim, and Valdez (the "CoreCivic Defendants"). See Notice of Removal at 3, filed April 26, 2020 (Doc. 1)("Notice of Removal"). The CoreCivic Defendants removed the Original Complaint to this Court on April 26, 2019, within thirty days after service. See Notice of Removal at 2. On January 15, 2021, the Court issued its Screening MOO, which held that the Original Complaint: (i) fails to state a cognizable claim for violation of the right to access courts; and (ii) fails to state a cognizable claim for cruel and unusual punishment, based on Apodaca's conditions of confinement. See Screening MOO at 1.

Consistent with Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and Apodaca's status as a pro se prisoner, the Court sua sponte granted leave to file an amended complaint. See Screening MOO at 18-19. The deadline to amend was February 14, 2021. See Screening MOO at 19. Apodaca did not comply, show cause for such failure, or otherwise respond to the Screening MOO. The Court will, therefore, summarize the reasons for dismissing the Original Complaint and dismiss this action with prejudice.

LAW REGARDING INITIAL REVIEW OF PRISONER COMPLAINTS

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 may also 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...