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Castillo v. Austin

United States District Court, D. New Mexico

June 21, 2017

CHRISTOPHER JAMES CASTILLO, Plaintiff,
v.
CODY AUSTIN, Defendant.

          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

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS 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.[1] 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 moot.

         I. Factual and Procedural Background

         On 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).

         On June 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).

         Plaintiff 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).

         Following 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).

         On 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. 59).

         Plaintiff 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).

         Plaintiff 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).

         II. 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

         In his 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 provides:

[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. The ...

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