Calvillo v. Lea County Detention Center, et.al.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO OTHON B. CALVILLO, Plaintiff, v. No. 21-cv-0892 KWR/SMV LEA COUNTY DETENTION CENTER, et al, Defendants.

ORDER TO CURE DEFICIENCIES THIS MATTER is before the Court on Plaintiff’s Letter Regarding Bribery and Conspiracy by a Public Official [Doc. 1] (“Letter-Filing”). Plaintiff is incarcerated at the Lea County Detention Center and is proceeding pro se. The Letter-Filing alleges officials in the New Mexico Adult Probation Office solicit “donations” for “dirty UA’s.” [Doc. 1] at 1–2. Said differently, the officials allegedly collect money from Plaintiff each time his urine sample tests positive for drugs. The Letter-Filing includes correspondence to the “State Ethics Commission” reporting the “pay to play” system. Id. at 4. Plaintiff asks the Court to “Please enforce our laws.” Id. at 2. In a section of the Letter-Filing titled “Remedy,” he also cites New Mexico statutes and asks “to be given a new opportunity and new probation office.” Id. at 6.

Where all parties are in New Mexico, federal courts generally only adjudicate cases that implicate federal law. See 28 U.S.C. § 1331. It is not entirely clear what federal question, if any, the Letter-Filing presents. Most prisoners assert civil rights claims under 42 U.S.C. § 1983. If the execution of a state sentence or parole violates federal law, prisoners seek relief under 28 U.S.C. § 2241. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions under § 2241 are used to attack the execution of a sentence . . . [and] may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters.”); Sutton v. Mikesell, 810 F. App’x 604, 606 (10th Cir. 2020) (applying § 2241 to review state parole board’s decision to defer a conditional grant of parole). Prisoners can also seek relief under other federal laws, but Plaintiff is reminded he cannot raise a claim under a criminal statute. “[A] private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” Diamond v. Charles, 476 U.S. 54, 64 (1986) (citation omitted).

The Court will permit Plaintiff to clarify his claims and the basis for federal subject-matter jurisdiction in an amended pleading. The Clerk’s Office will mail Plaintiff a form § 1983 civil rights complaint and a form § 2241 habeas petition. Plaintiff must complete and return an appropriate pleading (using one of those forms or his own form) no later than October 29, 2021.

The amended pleading must allege a violation of federal law or the U.S. Constitution to establish a basis for federal jurisdiction. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).

By the same deadline, Plaintiff must prepay the appropriate filing fee ($402 for a civil action, $5 for a § 2241 habeas action) or, alternatively, file an in forma pauperis motion. The Clerk’s Office will mail Plaintiff a blank in forma pauperis motion along with the form pleadings.

Any in forma pauperis motion must include a certified inmate account statement reflecting transactions between March 13, 2021, and September 13, 2021. All filings should include the case number (21-cv-0892 KWR/SMV).

If Plaintiff fails to timely file an amended pleading that raises a federal question and address the filing fee for that pleading, the Court will dismiss this case without further notice.

IT IS THEREFORE ORDERED that no later than October 29, 2021, Plaintiff file an amended pleading as set forth above.

IT IS FURTHER ORDERED that no later than October 29, 2021, Plaintiff prepay the appropriate filing fee ($402 for a civil action, $5 for a § 2241 habeas action) or, alternatively, file an in forma pauperis motion along with an inmate account statement reflecting transactions between March 13, 2021, and September 13, 2021.

IT IS FURTHER ORDERED that the Clerk’s Office send Plaintiff a form civil nights complaint; a form 28 U.S.C. § 2241 habeas petition; and a form motion to proceed in forma pauperis.

IT IS SO ORDERED.

STEPHAN M. VIDMAR United States Magistrate Judge