Staake v. State of New Mexico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARK STAAKE,
Plaintiff,
v. Civ. No. 24-1246-KG-KK
ALISHA TAFOYA LUCERO, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Amended Prisoner Civil Complaint. (Doc. 4)
(Amended Complaint). Also before the Court are his Motions to Proceed In Forma Pauperis; to
Appoint Counsel; and for Entry of Default. (Docs. 19, 20, 27). Plaintiff was previously
incarcerated and is proceeding pro se. He alleges, inter alia, that prison officials miscalculated his
state sentence in violation of an order/amended judgment. (Doc. 4) at 7. This allegedly caused
Plaintiff to serve additional time in state prison beyond the expiration of his criminal sentence. Id.
The Amended Complaint seeks damages under 42 U.S.C. § 1983 for violating the U.S.
Constitution, including the Eighth Amendment and the Due Process Clause. The Amended
Complaint names the following Defendants: (1) Alisha Tafoya Lucero; (2) Warden Vincent Horton;
(3) Warden Mark Bowen; (4) Warden Jessica Vigil Richards; (5) the New Mexico Corrections
Department (NMCD); and (6) the State of New Mexico (State). (Doc. 4) at 1-3. Accepting the
allegations as true, the Court finds the Amended Complaint is not subject to summary dismissal
under 28 U.S.C. § 1915A. Tafoya Lucero, Warden Horton, Warden Bowen, and NMCD (together,
the “Counseled Defendants”) filed an answer on March 20, 2026 through Ortiz and Zamora,
Attorneys at Law. (Doc. 26). The Court will refer this matter to the assigned Magistrate Judge to
conduct a Martinez investigation, if appropriate. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th
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Cir. 1991) (A Martinez report is “a court-authorized investigation and report by prison officials”
aimed at ferreting out the “factual or legal bases for [pro se] claims”).
The remaining Defendants (Warden Vigil Richards and the State) have not filed an answer.
The Amended Complaint survives initial review as to Warden Vigil Richards for the reasons above.
The Amended Complaint does not provide an address for service on that Defendant. If the Ortiz
and Zamora Law Firm also plans to represent Warden Vigil Richards, the attorney should enter his
or her appearance and file a supplemental answer within thirty (30) days of entry of this Order.
Otherwise, the Court may require Plaintiff to provide an address for service.
As to the State, Section 1983 relief is not available. It is well settled that “a State is not a
person within the meaning of [Section] 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64
(1989). To the extent the Amended Complaint also generally alleges the State violated the laws of
New Mexico, this is not enough to raise any additional claims against that Defendant. (Doc. 4) at
1, 10; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a “plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions”). The
claims against the State will therefore be dismissed.
Plaintiff also filed procedural motions to proceed in forma pauperis; to appoint counsel; and
for an entry of default against certain Defendants. The Court will grant the Motion to Proceed In
Forma Pauperis (Doc. 19), in part. Plaintiff has already paid the filing fee in connection with his
first in forma pauperis motion, but he may take advantage of other benefits of the in forma pauperis
statute, 28 U.S.C. § 1915, such as assistance with service. To the extent Plaintiff seeks an entry of
default against any Defendant, the request is denied. Most Defendants have filed an answer, and in
any event, parties are not required to respond in a prisoner action unless and until the Court orders
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the response. See 42 U.S.C. § 1997e (g)(1)-(2) (noting “[a]ny defendant may waive the right to
reply to any action brought by a prisoner[,]” absent a court order). Finally, the Court finds there
are no grounds to grant the Motion to Appoint Counsel at this time. The claims are relatively
straightforward, and Plaintiff appears capable of prosecuting this case. See Rachel v. Troutt, 820
F.3d 390, 397 (10th Cir. 2016) (when considering motions to appoint counsel, relevant factors
include “the merits of the claims, the nature of the claims, plaintiff’s ability to present the claims,
and the complexity of the issues”).
IT IS ORDERED:
1. Within thirty (30) days of entry of this Order, Ortiz and Zamora Law Firm shall enter an
appearance for Warden Vigil Richards, if the firm intends to represent that party.
2. All claims in the Amended Complaint (Doc. 4) against the State of New Mexico are
dismissed without prejudice.
3. Plaintiff’s second Motion to Proceed In Forma Pauperis (Doc. 19) is granted, in part, as
set forth above.
4. Plaintiff’s Motion to Appoint Counsel (Doc. 20) and Request for Entry of Default (Doc.
27) are denied without prejudice.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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