United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
A. JUNELL SENIOR UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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).
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).
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).
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).
 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. ...