Demoss v. Dona Ana County Jail

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
________________________
JOSEPH ERIC DEMOSS,
Plaintiff,
v. 	No. 24-cv-0674-MLG-KRS
DONA ANA COUNTY COMMISSIONERS, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Eric Demoss filed a civil rights action based on his previous detention at
the Doña Ana County Jail (the “Jail”). His pro se Amended Prisoner Civil Rights Complaint, Doc.
2 (“Complaint”), seeks money damages based on the alleged failure to provide adequate medical
care. Having reviewed the matter sua sponte under 28 U.S.C. § 1915A, the Court will order the
Board of County Commissioners for Doña Ana County (the “Board”) to answer the Complaint.
BACKGROUND1
In 2022, Demoss entered the Jail following his arrest on federal charges, No. 22-cr-2032
MIS. Doc. 2 at 12. At the time, he was suffering from a large hernia in his pelvis. Id. Demoss
visited the Jail’s medical department shortly after his arrival, but he was not referred to an outside
physician or hospital. Id. Jail officials purportedly requested approval from the United States
Marshal Service (“USMS”) to transfer Demoss and obtain treatment from an outside hospital. Id.
Jail officials allegedly stated that without such approval, the Sheriff’s Department (i.e., Doña Ana
1 For the purpose of this ruling, the Court accepts as true all facts in the Complaint. See Doc. 2.
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County) would have to “pay for the surgery.” Id.
After a month, the hernia grew to the size of a tennis ball and caused intense pain. Doc. 2
at 12. Demoss requested a medical appointment, but an unnamed unit officer at the Jail stated that
“medical was aware of the condition.” Id. When Demoss was later unable to walk, the medical
department informed him that the USMS denied his request to be seen by an outside
doctor/hospital. Id. at 13. Demoss alleges his condition worsened for several months, but neither
the Jail nor the USMS would approve a surgery. Id. Demoss’s defense attorney eventually raised
the issue in his criminal case. Id. The Court set a hearing in his criminal case to address Demoss’s
medical care, but Jail officials transported him to the hospital for emergency surgery before the
hearing date. Id. The hernia was repaired, but Demoss alleges that he continues to experience pain
and distorted intestinal tissue as a result of the delay in medical care. Id.
Based on these facts, the Complaint raises claims for deliberate indifference to medical
needs in violation of the Eighth Amendment and 42 U.S.C. § 1983. Doc. 1 at 3. The Complaint
also raises claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Id. Demoss
names four Defendants: (1) the Board; (2) the Doña Ana County Sheriff (the “Sheriff”); (3)
John/Jane Doe Medical Staff at the Jail (“Unnamed Medical Staff”); and (4) USMS. Id. at 2-3.
Demoss seeks $5 million in damages. Id. at 5. After filing the Complaint, Demoss filed a Motion
to Issue Summons, Doc. 13, and a Motion to Appoint Counsel, Doc. 16. Demoss paid the $405
filing fee, and the Complaint/Motions are ready for initial review under 28 U.S.C. § 1915A.
STANDARDS GOVERNING INITIAL REVIEW
Section 1915A of Title 28 requires the Court to conduct a sua sponte review of all prisoner
complaints that are filed against a government official.2 The Court must dismiss any such
2 Section 1915(e) of Title 28 contains a separate screening provision where the pro se filer is
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complaint that is frivolous, malicious, or “fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915A. 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) (quotations omitted). The plaintiff must frame a complaint that contains
“sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
Since Demoss is proceeding pro se, his “pleadings are to be construed liberally and held to
a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. While
pro se pleadings are judged by the same legal standards that apply to represented litigants, the
Court can overlook the “failure to cite proper legal authority, . . . confusion of various legal
theories, 	. . . 	poor 	syntax 	and 	sentence 	construction, 	or 	. . . 	unfamiliarity 	with 	pleading
requirements.” Id.
DISCUSSION
Construed liberally, the Complaint raises 42 U.S.C. § 1983 claims against Doña Ana
County officials (Unnamed Medical Staff; the Sheriff; and the Board) and Bivens claims against
the USMS. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (stating § 1983 “provides
a cause of action against state officials who violate constitutional or other federally protected
proceeding in forma pauperis. Because Plaintiff is not proceeding in forma pauperis, the Court
applies 28 U.S.C. § 1915A, rather than 28 U.S.C. § 1915.
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rights,” while Bivens “provides a private action for damages against federal officers who violate
certain constitutional rights”). The Court will address each type of claim below.
I. 	Section 1983 Claims Against Doña Ana County Officials
“A cause of action under section 1983 requires the deprivation of a civil right by a ‘person’
acting under color of state law.” McLaughlin v. Bd. of Trustees, 215 F.3d 1168, 1172 (10th Cir.
2000). The plaintiff must allege that each government official, through the official’s 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. Essentially, “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 claim against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008).
Applying these standards, the Complaint fails to state a cognizable § 1983 claim against
the Sheriff or the Unnamed Medical Staff. The alleged facts fail to connect the Sheriff to the Jail’s
medical care, and in any event, the Board is the proper defendant for claims against a sheriff’s
department. See Brown v. Sedgwick Cty. Sheriff's Office, 513 Fed. App’x 706, 707-08 (10th Cir.
2013) (the Board of County Commissioners is the appropriate defendant for claims against the
sheriff’s office); Ketchum v. Albuquerque Police Dep’t, 958 F.2d 381 (10th Cir. 1992) (police
departments are “not suable entities under § 1983, because they lack legal identities apart from the
municipality”). Demoss’s claims against the Sheriff are therefore dismissed.
While a § 1983 claim may be made against the Jail’s medical staff, the Complaint fails to
connect any individual to the alleged wrongdoing beyond listing John/Jane Doe Defendants in the
caption. See Pahls, 718 F.3d at 1225-26 (“collective allegations” regarding the alleged wrongdoing
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do not state a viable claim, nor do “active-voice yet undifferentiated contention that ‘defendants’
infringed [plaintiff’s] rights”). The Complaint also fails to provide a sufficient description that
would allow for service on any individual. See Roper v. Grayson, 81 F.3d 124, 126 (10th Cir.
1996) (noting the Tenth Circuit has “recognized the ability of a plaintiff to use unnamed defendants
so long as the plaintiff provides an adequate description of some kind which is sufficient to identify
the person involved so process eventually can be served.”). Based on the nature of the allegations,
the Court declines to dismiss any claims against Unnamed Medical Staff at this time. Demoss must
provide a description and/or the names of any unnamed Defendants within a reasonable time, and
at the latest, before any recommended disposition on dispositive motions. If Demoss fails to
identify unnamed defendants before the case is ready for a recommended disposition, the Court
may dismiss all claims against unnamed defendants with prejudice.
Finally, Demoss may proceed with a § 1983 claim against the Board. Local governmental
entities (such as a Board of County Commissioners) may not be held liable under § 1983 for the
actions of its employees based on the doctrine of respondeat superior. See Cannon v. City and
County of Denver, 998 F.2d 867, 877 (10th Cir. 1993); see also Monell v. Dep’t of Soc. Servs. of
N.Y., 436 U.S. 658, 694 (1978). To establish the liability of a board under § 1983, “a plaintiff must
show (1) the existence of a municipal custom or policy and (2) a direct causal link between the
custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993-94 (10th Cir. 1996).
For purposes of Monell, the relevant policy or custom must consist of:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a
widespread practice that, although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage with the force
of law; (3) the decisions of employees with final policymaking authority; (4) the ratification
by such final policymakers of the decisions—and the basis for them—of subordinates to
whom authority was delegated subject to these policymakers’ review and approval; or (5)
the failure to adequately train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused.
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Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations omitted).
The Complaint alleges that Jail officials failed to treat Demoss’s hernia until he was unable
to walk and required emergency surgery. Doc. 1 at 12-14. These officials allegedly delayed care
and attempted to contact the USMS so that Doña Ana County would not “have to pay for the
surgery.” Id. at 12. Construing the facts liberally, and considering Demoss’s pro se status, the
Complaint adequately alleges that the county jail and Board had an informal policy of delaying
medical care to avoid incurring costs, and such policy contributed to Demoss’s injuries. The claims
against the Board therefore survive initial review. The Clerk’s Office will issue forms notifying
the Board of the Complaint and requesting a waiver of service using the publicly available address
for the Board’s Legal Department (845 N Motel Blvd Las Cruces, NM 88007). 	If the Board
declines to waive service without good cause, the Court may impose fees/costs.
II. 	Bivens Claim Against the USMS
Construed liberally, the Complaint also asserts a Bivens claim against the USMS. See
Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009) (stating that Bivens actions are the “federal analog”
to § 1983 actions). Bivens provides a remedy for certain constitutional violations committed by
federal actors. See Ingram v. Faruque, 728 F.3d 1239, 1243 (10th Cir. 2013) (noting Bivens
recognized “an implied private action for damages against federal officers alleged to have violated
a citizen’s constitutional rights”). A “Bivens claim can be brought only against federal officials in
their individual capacities.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009). “Bivens
claims cannot be asserted directly against the United States . . . or federal agencies.” Id. Because
the Complaint here asserts a Bivens claim against the USMS (i.e., the federal agency itself), the
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claim must be dismissed.3
CONCLUSION
For the reasons above, Demoss’s 42 U.S.C. § 1983 claims against the Board of County
Commissioners for Doña Ana County survive initial review under 28 U.S.C. § 1915A. The Clerk’s
Office shall mail the Complaint, Doc. 2, a copy of this ruling; and forms providing notice and a
request to waive service to the following address:
Board of County Commissioners for Doña Ana County
c/o Doña Ana County Legal Department and County Attorney Cari Neill
845 N Motel Blvd
Las Cruces, NM 88007
The Court therefore grants Demoss’s Motion to Issue Summons, Doc. 13, in part, to the extent he
seeks to start the service process on the Board.
Demoss’s claims against the Sheriff and the USMS are dismissed without prejudice.
Demoss must identify the names or a description of any unnamed Defendants, including Unnamed
3 It is also unlikely that Demoss can maintain a Bivens claim against individual U.S. Marshals. “In
[Bivens], the [Supreme] Court broke new ground by holding that a person claiming to be a victim
of an unlawful arrest and search [in his home] could bring a Fourth Amendment claim for damages
against the responsible agents even though no federal statute authorized such a claim.” Hernandez
v. Mesa, 589 U.S. 93 (2020) (“Hernandez II”). After Bivens, the Supreme Court extended the
remedy for damages in Bivens to two other cases. See Egbert v. Boule, 596 U.S. 482, 490 (2022)
(discussing Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980)). Since
then, the “[Supreme] Court has made clear that expanding the Bivens remedy is now a ‘disfavored’
judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Iqbal, 556 U.S. at 675
(2009)). Indeed, “[o]ver the past 42 years,” the Supreme Court has “declined 11 times to imply a
similar cause of action for other alleged constitutional violations.” Egbert, 596 U.S. at 483.
Hernandez II, 589 U.S. at 742–3 (noting that the Supreme Court “ha[s] consistently rebuffed
requests to add to the claims allowed under Bivens”). Other courts have therefore declined to
expand Bivens to instances involving U.S. Marshals. See Williford v. Pennsylvania, No. 25-CV-
4608, 2025 WL 2936896, at *8–11 (E.D. Pa. Oct. 14, 2025) (declining to recognize a Bivens claim
against U.S. Marshals); Bravo v. U.S. Marshals Serv., 684 F. Supp. 3d 112, 125–26 (S.D.N.Y.
2023) (dismissing federal pretrial detainee’s deliberate indifference Bivens claim against U.S.
Marshals).
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Medical Staff, before any recommended disposition on dispositive motions.
To the extent Demoss requests the appointment of counsel, that motion will be denied
without prejudice. “Courts are not authorized to appoint counsel in 1983 . . . cases; instead, courts
can only ‘request’ an attorney to take the case” on a pro bono basis. Rachel v. Troutt, 820 F.3d
390, 397 (10th Cir. 2016). The record is not yet developed enough to ask local attorneys to appear
pro bono. Demoss may renew the request at a later time, particularly if the case proceeds to trial.
Demoss’s Motion to Appoint Counsel, Doc. 16, is denied without prejudice.
It is so ordered.
_______________________________________
UNITED STATES DISTRICT JUDGE
MATTHEW GARCIA
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