United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING MOTION AND
AFFIDAVIT FOR LEAVE TO PROCEED ON APPEAL PURSUANT TO 28
U.S.C. § 1915 AND FED. R. APP. P. 24
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff Christopher James
Castillo's Prisoner's Motion and Affidavit for Leave
to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and
Fed. R. App. P. 24 filed November 10, 2016 (Doc. 66)
(“Motion”). For the reasons set out, below, the
Court will GRANT Plaintiff Castillo's
Motion. Also pending before the Court are two
motions for extension of time to file notices of appeal
(Docs. 60, 61), which the Court will DENY as unnecessary and
Factual and Procedural Background
March 13, 2014, Plaintiff Christopher James Castillo
commenced this proceeding pro se in the Third
Judicial District Court, Doña Ana County, New Mexico
as an action under the New Mexico Tort Claims Act, N.M. Stat.
Ann. § 41-4-1, et seq. (1978). (Doc. 1-2 at 1).
The case was removed to this Court by the Defendants, Las
Cruces Police Department and Police Officer Cody Austin, on
May 1, 2014, under 28 U.S.C. § 1441. (Doc. 1). The
Defendants filed an Answer to Plaintiff's Complaint on
May 5, 2014. (Doc. 3).
17, 2015, the Court entered a sua sponte Memorandum
Opinion and Order dismissing some of Plaintiff's claims.
(Doc. 25). The Court construed Plaintiff's allegations
under the New Mexico Tort Claims Act as civil rights claims
under 42 U.S.C. § 1983. The Court dismissed the Las
Cruces Police Department on the grounds that the allegations
were for municipal liability against the City of Las Cruces
and the complaint failed to state a claim of municipal
liability. (Doc. 25 at 2-3). The Court also dismissed
Plaintiff's claims of illegal search, seizure, and arrest
without reasonable suspicion or probable cause for failure to
state a claim on which relief can be granted, but ruled that
Plaintiff's physical/sexual abuse claims during
Plaintiff's initial search would be permitted to go
forward against Defendant Cody Austin. (Doc. 25 at 3). Last,
the Court dismissed Plaintiff's claim for reversal of his
conviction, without prejudice, because Plaintiff's only
avenue for relief from his conviction is under the habeas
corpus statutes. (Doc. 25 at 3-4).
filed a Notice of Appeal, appealing the Court's June 17,
2015 Memorandum Opinion and Order, on July 24, 2015. (Doc.
28). On July 27, 2015, the United States Court of Appeals for
the Tenth Circuit issued an Order to Show Cause as to why the
appeal should not be dismissed (1) because Plaintiff was
seeking to appeal a non-final, interlocutory order or, in the
alternative (2) because, if the appeal was from a final
order, the appeal was untimely in that it was filed more than
thirty days after entry of the Memorandum Opinion and Order.
(Doc. 31). The Tenth Circuit Court of Appeals concluded that
Plaintiff had not submitted a sufficient response to the
Order to Show Cause and dismissed Plaintiff's appeal on
August 25, 2015 for lack of prosecution. (Doc. 32-1).
dismissal of Plaintiff's appeal, the Court ordered
Defendant Austin to file a report under Martinez v.
Aaron, 570 F.2d 317, 318-19 (10th Cir. 1978). (Doc. 36).
Defendant filed the Martinez Report and a Motion for
Summary Judgment based on qualified immunity on December 18,
2015. (Docs. 37-39). Plaintiff filed his Response to the
Motion for Summary Judgment and Objections to the
Martinez Report on February 29, 2016. (Docs. 45,
46). The parties then filed several replies, supplements, and
additional motions related to the Motion for Summary Judgment
and the Martinez Report. (Docs. 47-56). The
Magistrate Judge also directed Plaintiff to file a factual
statement detailing the alleged physically and sexually
abusive conduct of Defendant Austin. (Doc. 55). Plaintiff did
not file the factual statement, but did send the Court a
letter inquiring as to the status of the case. (Doc. 56).
September 8, 2016, the Magistrate Judge made Proposed
Findings and a Recommended Disposition (“PFRD”).
(Doc. 57). The PFRD recommended that the Defendant's
Motion for Summary Judgment based on qualified immunity be
granted and that the case be dismissed with prejudice. The
PFRD concluded that there were no genuine disputes of
material fact and the Defendant was entitled to summary
judgment as a matter of law, in part, because of
Plaintiff's failure to submit the factual statement
requested by the Court. (Doc. 57 at 1-2 and n.6). The PFRD
also contained the following statement in boldface type:
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended
Disposition they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no
appellate review will be allowed.
(Doc. 57 at 10). The PFRD was mailed to Plaintiff at his
address of record on September 8, 2016 by the Clerk of the
Court as required by 28 U.S.C. § 636(b)(1)(C). Plaintiff
did not file any objections to the PFRD, nor did he seek any
extension of time to file objections. On September 28, 2016,
the Court entered its Order Adopting Magistrate Judge's
Proposed Findings and Recommended Disposition (Doc. 58) and
its Judgment dismissing the Complaint with prejudice. (Doc.
filed his Notice of Appeal on October 13, 2016, appealing the
Memorandum Opinion and Order and Judgment entered September
28, 2016. (Doc. 62). Plaintiff's Notice of Appeal raises
concerns about sending and receiving mail through the prison
mail facilities. The Notice also indicates the appeal is
“based on points and authorities and Declaration of
Facts” but does not specifically identify any
particular issue Plaintiff is raising on appeal. (Doc. 62).
submitted his Motion seeking leave to proceed in forma
pauperis on appeal under 28 U.S.C. § 1915 on
November 10, 2016. (Doc. 66). This Motion specifies the
issues he intends to raise on appeal as follows:
“sexual misconduct and sexual abuse by Police Officer
Cody Austin, Appellants Fourth Amendment claims for illegal
search and seizure, false arrest, and never waived his right
to appellate review.” (Doc. 66 at 1).
Plaintiff's Prisoner's Motion and Affidavit for
Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915
and Fed. R. App. P. 24
Motion, Plaintiff seeks to proceed on appeal without
prepayment of fees or costs under the provisions of 28 U.S.C.
§ 1915 and Fed. R. App. P. 24. Section 1915 of Title 28
[A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefore, by a person who
submits an affidavit that includes a statement of all assets
such prisoner possesses that the person is unable to pay such
fees or give security therefore. Such affidavit shall state
the nature of the action, defense or appeal and affiant's
belief that the person is entitled to redress.
28 U.S.C. § 1915(a)(1). Rule 24 of the Federal Rules of
Appellate Procedure similarly states:
[A]ny party to a district-court action who desires to appeal
in forma pauperis must file a motion in the district court.