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Cardenas v. Department of Corrections

United States District Court, D. New Mexico

June 12, 2017

BRANDON JOSEPH CARDENAS, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, SANDY TRAINER, Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          ROBERT A. JUNELL SENIOR UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court sua sponte under Fed.R.Civ.P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B), and Fed.R.Civ.P. 41(b) on the Complaint (Tort) filed by Plaintiff Brandon Joseph Cardenas on April 29, 2016 (Doc. 1). Plaintiffs Complaint fails to state a claim upon which relief can be granted and Plaintiff has failed to file an amended complaint as ordered by the Court. The Court will dismiss Plaintiffs Complaint with prejudice for failure to state a claim and failure to comply with the Court's Orders.

         Plaintiff is proceeding pro se and in forma pauperis. (Doc. 10). Plaintiff filed his Complaint (Tort) on April 29, 2016. (Doc. 1). On November 4, 2016, the Court entered its Memorandum Opinion and Order dismissing Plaintiffs claims without prejudice. (Doc. 11). The Court determined that Plaintiffs claims were insufficient to state any § 1983 claim for deprivation of Eight Amendment rights under either Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Sawyer v. Jefferies, 315 F.App'x 31, 35 (10th Cir. 2008). The Court dismissed Plaintiffs Complaint without prejudice and granted Plaintiff leave to file an amended complaint within thirty (30) days of entry of the Memorandum Opinion and Order. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). The Court expressly advised Plaintiff Cardenas that, if he failed to file an amended complaint within thirty days, the Court could dismiss this proceeding with prejudice and without further notice. (Doc. 11 at 7).

         On November 30, 2016, Cardenas filed a motion requesting an extension of time to file the amended complaint, stating that, because he is housed in segregation, he cannot get the proper forms or response from the law library due to the holidays. (Doc. 12). The Court granted Cardenas an extension of time to January 25, 2017 to file the amended complaint. (Doc. 13). Cardenas did not file any amended complaint within the extension granted by the Court and, to date, Cardenas still has not filed an amended complaint or requested any further extensions of time.[1]

         The Court may dismiss an in forma pauperis complaint sua sponte for failure to state a claim upon which relief may be granted under either Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). The Court also 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 (10, h Cir. 2003).

         The Court has already ruled that Plaintiffs Complaint (Doc. 1) fails to state an Eighth Amendment claim for relief. (Doc. 11). Inmates must be provided nutritionally adequate food, prepared and served under conditions which do not present an immediate danger to the health and well-being of the inmates who consume it. Shrader v. White, 761 F.2d 975, 986 (4th Cir. 1985). However, inmates alleging Eighth Amendment violations based on prison conditions must demonstrate that prison officials were deliberately indifferent to their health or safety by subjecting them to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, (1994); Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir.1995). The Eighth Amendment standard requires proof of both an objective and a subjective component. Hudson v. McMillian, 503 U.S. 1 (1992). As the Court concluded, Plaintiffs allegations are not objectively sufficiently serious to meet the first, objective, component for an Eighth Amendment claim. Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 23, 36 (1993); Sawyer v. Jefferies, 315 F.App'x at 35. Plaintiffs claims also fail on the subjective component because Plaintiff does not allege facts that would lead a reasonable official to infer that a substantial risk of serious harm existed from serving cold food, actually made the inference that a substantial risk of serious harm to Plaintiff existed, and knowingly disregarded the risk. Farmer, 511 U.S. at 844. (Doc. 11 at 4-7).

         Consistent with Hall v. Bellmon, 935 F.2d at 1109, Plaintiff was given the opportunity to amend his Complaint to remedy the defects in his pleading. Plaintiff was also advised that, if he failed to file an amended complaint, his Complaint could be dismissed with prejudice and without further notice. (Doc. 11 at 7). Despite being granted an extension of time to do so, Plaintiff has failed to file any amended complaint. Plaintiffs Complaint (Doc. 1) fails to state a claim on which relief can be granted under both Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B). Under Fed.R.Civ.P. 41(b), Plaintiff has also failed to comply with the Court's orders to file an amended complaint and has failed to prosecute this action. The Plaintiffs Complaint will, therefore, be dismissed with prejudice. Because the Court concludes that Plaintiffs Complaint fails to state a claim for relief under § 1915(e)(2)(B), the Court will impose a strike against him as provided in the "three strikes" rule of the Prisoner Litigation Reform Act (PLRA). 28 U.S.C. § 1915(g). The Court notifies Cardenas that if he accrues three strikes, he may not proceed in forma pauperis in civil actions before federal courts unless he is under imminent danger of serious physical injury. § 1915(g).

         IT IS ORDERED that the Complaint (Tort) filed by Plaintiff Brandon Joseph Cardenas on April 29, 2016 (Doc. 1) is DISMISSED with prejudice and a STRIKE is imposed against Plaintiff Cardenas under 28 U.S.C. § 1915(g).

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Notes:

[1] A letter received from Plaintiff Cardenas, Doc. 14, relates to an extension of time to make the initial partial payment under 28 U.S.C. § 1915(b) in a different case, Cardenas v. Vigil, No. ...


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