United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court sua sponte under 28
U.S.C. § 1915, Fed.R.Civ.P. 12(b)(6), and Fed.R.Civ.P.
41(b) on the Complaint for Violation of Civil Rights
(Prisoner Complaint) filed by Loydale Kirven and Ignacia
Kirven on December 5, 2016. (Doc. 1)
(“Complaint”). The Court will dismiss the
Complaint without prejudice for failure to comply with the
Court's December 22, 2016 Order, for failure to
prosecute, and for failure to state a claim on which relief
can be granted.
Loydale Kirven and Ignacia Kirven, filed their Complaint for
Violation of Civil Rights on December 5, 2016. (Doc. 1). The
allegations of the Complaint indicate that Loydale Kirven is
a prisoner incarcerated at the Curry County Detention Center.
(Doc. 1 at 2). Loydale Kirven alleges that his civil rights
were violated when Curry County Detention officials read
and/or took certain family pictures and mail. (Doc. 1 at
3-6). The Complaint contains no allegations relating to
Plaintiff Ignacia Kirven.
did not pay the $400 filing fee for this civil proceeding.
Instead, Plaintiff Loydale Kirven filed an application to
proceed without prepayment of fees and costs under 28 U.S.C.
§ 1915 on December 5, 2016 (Doc. 2). Plaintiff Loydale
Kirven previously has filed three or more civil actions while
incarcerated, which have been dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted. See Kirven v. Curry County
Detention Center, No. 06-CV-1212-JB-WDS, Docs. 55,
56 (D.N.M. December 31, 2008); Kirven v. McIlwain,
No. 07-CV-00958-JB-CEG, Docs. 18, 19 (D.N.M. February 19,
2008); Kirven v. Romero, et al., No.
08-CV-00187-WJ-RLP, Doc. 47 (D.N.M. September 16, 2009).
Under the terms of 28 U.S.C. § 1915(g), his prior
dismissals prevent him from proceeding in forma
pauperis unless he is under imminent danger of serious
physical injury. Kirven v. State of New
Mexico, 14-CV-0209-LH-RHS, Doc. 3 (D.N.M. March 7, 2014)
(denying Plaintiff's motion for leave to proceed in forma
pauperis and ordering Plaintiff to pay the full amount of the
KIRVEN HAS FAILED TO COMPLY WITH THE COURT'S ORDER AND TO
PROSECUTE THIS CASE
Kirven's application to proceed (Doc. 2) did not show
that he is under imminent danger of serious physical injury.
Therefore, on December 22, 2016, the Court entered an Order
directing Loydale Kirven to, within thirty days of entry of
the Order, either pay the $400 filing fee for this proceeding
or show cause why his claims should not be dismissed. (Doc.
4). Plaintiff Loydale Kirven did not pay the filing fee, did
not file a response to the Court's Order, and did not
otherwise show cause why his claims should not be dismissed.
Court may dismiss an action under Fed.R.Civ.P. 41(b) for
failure to prosecute, to comply with the rules of civil
procedure, or to comply with court orders. See Olsen v.
Mapes, 333 F.3d 1199, 1204, n. 3 (10th Cir.
2003). More than thirty days has elapsed since the Court
entered the December 22, 2016 Order and the Order was mailed
to Loydale Kirven at his address of record. Loydale Kirven
has failed to comply with the Court's Order and, by not
paying the $400 filing fee, has failed to prosecute this
action. Pursuant to Fed.R.Civ.P. 41(b) the Court will dismiss
Loydale Kirven's Complaint based on his failure to comply
with the Court's December 22, 2016 Order and to prosecute
COURT WILL DISMISS IGNACIA KIRVEN'S COMPLAINT FOR FAILURE
TO STATE A CLAIM FOR RELIEF
Court has the discretion to dismiss an in forma
pauperis complaint sua sponte for failure to
state a claim upon which relief may be granted under
Fed.R.Civ.P. 12(b)(6). A claim should be dismissed where it
is legally or factually insufficient to state a plausible
claim for relief. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Under Fed.R.Civ.P. 12(b)(6) the Court
must accept all well-pled factual allegations, but not
conclusory, unsupported allegations, and may not consider
matters outside the pleading. Twombly, 550 U.S. at
555; Dunn v. White, 880 F.2d 1188, 1190
(10th Cir. 1989). The court may dismiss a
complaint under Rule 12(b)(6) for failure to state a claim if
“it is ‘patently obvious' that the plaintiff
could not prevail on the facts alleged.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting
McKinney v. Oklahoma Dep't of Human Services,
925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
reviewing a pro se complaint, the Court liberally construes
the factual allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San
Juan County, 32 F.3d 452, 455 (10thCir.
1994). The court is not obligated to craft legal theories for
the plaintiff or to supply factual allegations to support the
plaintiff's claims. Nor may the court assume the role of
advocate for the pro se litigant. Hall v. Bellmon,
935 F.2d at 1110.
deciding whether to dismiss the complaint, in whole or in
part, the court is to consider whether to allow plaintiff an
opportunity to amend the complaint. Pro se plaintiffs should
be given a reasonable opportunity to remedy defects in their
pleadings. Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). The opportunity to amend
should be granted unless amendment would be futile. Hall
v. Bellmon, 935 F.2d at 1109. An amendment is futile if
the amended claims would also be subject to immediate
dismissal under the rule 12(b)(6) or § 1915(e)(2)(B)
standards. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
Complaint identifies Ignacia Kirven as a Plaintiff in the
caption of the case and in the signature block. (Doc. 1 at 1,
11). The body of the Complaint, however, is devoid of any
allegations relating to Ignacia Kirven. Absent even a single
factual allegation that Ignacia Kirven is incarcerated or
that any official acted in violation of Ignacia Kirven's
constitutional rights, the Complaint fails to state a claim
on which relief can be granted on behalf of Ignacia Kirven.
Twombly, 550 U.S. at 570. Therefore, the Court will
dismiss Ignacia Kirven's Complaint for failure to state
claim for relief under Fed.R.Civ.P. 12(b)(6). The Court will
also dismiss without leave to amend on the grounds that, in
light of the absence of any factual allegations on her
behalf, allowing an opportunity for Ignacia Kirven to amend
would be futile. Hall v. Bellmon, 935 F.2d at 1109.
ORDERED that the Complaint for Violation of Civil Rights
filed by Plaintiffs Loydale Kirven and Ignacia Kirven on
December 5, 2016 (Doc. 1) is DISMISSED without prejudice for
failure to comply with a Court Order, for ...