United States District Court, D. New Mexico
Thor Kirk Penitentiary of New Mexico Santa Fe, New Mexico
Plaintiff pro se.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, pursuant to rule 4 of
the Rules Governing Section 2254 Cases in the United States
District Court, on the Petitioner's Federal Habeas Corpus
Petition, filed August 22, 2017 (Doc.
1)(“Complaint”), which is docketed as a Petition
Under 28 U.S.C. § 2254 For A Writ Of Habeas Corpus. Also
before the Court is the Prisoner's Motion And Affidavit
For Leave To Proceed Pursuant 28 U.S.C. § 1915, filed
August 22, 2017 (Doc. 2)(“1915 Motion”).
Plaintiff James Thor Kirk was incarcerated at the time of
filing and is proceeding pro se. For the following reasons,
the Court will construe Kirk's Federal Habeas Corpus
Petition liberally as a civil rights complaint under 42
U.S.C. § 1983, and then dismiss the Complaint under 28
U.S.C. § 1915A(b) for failure to state a claim on which
relief may be granted. Because Kirk has three or more strikes
under the Prison Litigation Reform Act, 42 U.S.C. §
1997e (“PLRA”), he may not proceed on this action
or in future actions in forma pauperis in the federal courts
unless he “is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
August 22, 2017, Kirk filed the present Federal Habeas Corpus
petition, which seeks to reopen “case
D-202-CV-198600516 for the purpose of investigation of the
wrongful death of my father Edward Kevin Kirk.”
Complaint at 1. Kirk contends that he received $4, 000.00 in
compensation for his father's wrongful death and he
asserts that amount “to be injustice and inadequate
compensation.” Complaint at 1. Kirk seeks to reopen the
civil case, an investigation into his father's wrongful
death, and “just financial compensation.”
Complaint at 2.
of the Rules Governing Section 2254 cases provides for the
dismissal of a habeas petition “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” Additionally, the Court has the discretion to
dismiss sua sponte a civil action filed by a prisoner if it
appears that the action is frivolous, malicious, or fails to
state a claim on which relief may be granted. See 28
U.S.C. § 1915A(b). Dismissal of a pro se pleading
“is proper only where it is obvious that the plaintiff
cannot prevail on the facts he has alleged and it would be
futile to give him an opportunity to amend.” Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
proceeding pro se and “[a] pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Therefore, “if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d at
1110. At the same time, however, it is not “the proper
function of the district court to assume the role of advocate
for the pro se litigant.” Hall v. Bellmon, 935
F.2d at 1110.
Kirk's initial pleading is titled Federal Habeas Corpus,
“characterization of the action and the claim for
relief by a pro se litigant is not dispositive on the
availability of relief in federal court.”
Roman-Nose v. New Mexico Dep't of Human Servs.,
967 F.2d 435, 437 (10th Cir. 1992). It is not the title of a
pro se pleading, but rather the relief which the pro se
litigant seeks, that determines an action's character.
See United States v. Nelson, 465 F.3d 1145, 1149
(10th Cir. 2006). In the present case, Kirk does not
challenge the judgment of conviction in his state criminal
case, or request immediate release or a speedier release from
confinement. See Preiser v. Rodriguez, 411 U.S. 475,
500 (1973)(noting that a petition for writ of habeas corpus
challenges “the very fact or duration of . . . physical
confinement” and seeks “a determination that [the
petitioner] is entitled to immediate release or a speedier
release from” confinement). Rather, Kirk challenges an
unrelated civil proceeding's validity, alleging that he
was denied adequate compensation in a 1986 wrongful death
action filed in state court and seeking to reopen that action
and be awarded additional compensation. See
Complaint at 1. Kirk's initial pleading, therefore, is
not a federal petition for writ of habeas corpus. See
Preiser v. Rodriguez, 411 U.S. at 494 (noting that money
damages are not an appropriate or available remedy in federal
habeas corpus proceedings).
extent that Kirk's Petition liberally may be construed as
a petition for writ of mandamus seeking an order from this
Court directing the state court to reopen Kirk's 1986
wrongful death action, it is subject to dismissal. The
federal courts have “no authority to issue such a writ
to direct state courts or their judicial officers in the
performance of their duties.” Van Sickle v.
Holloway, 791 F.2d 1431, 1436 n.5 (10th Cir.
1986)(internal quotation marks and citation omitted). The
Court therefore declines to recharacterize Kirk's
petition as a petition for writ of mandamus.
petition seeks monetary damages against the Defendants and,
therefore, the Court liberally will construe it as a civil
rights Complaint under 42 U.S.C. § 1983. “To state
a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Additionally, a § 1983 complaint that names multiple
governmental actors as defendants must “make clear
exactly who is alleged to have done what to
whom, to provide each individual with fair notice as
to the basis of the claims against him or her.”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008) (emphasis in original). Specifically, a party seeking
relief under § 1983 “must explain what each
defendant did to him . . .; when the defendant did it; how
the defendant's action harmed him . . .; and what
specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Complaint does not state a claim under § 1983, because
it fails to allege a violation of the United States' laws
or Constitution. Although Kirk alleges that his “father
was murdered” and that the Defendants are liable for
his father's “wrongful death, ” Complaint at
1, he fails to allege that any of the Defendants' actions
or inactions violated Kirk's federal constitutional or
civil rights. See Trujillo v. Bd. of Cty. Comm'rs of
Santa Fe Cty., 768 F.2d 1186, 1190 (10th Cir. 1985)
(holding that a mother and daughter could not recover for the
victim's alleged wrongful death under 42 U.S.C. §
1983, because they did not allege an intent to interfere with
a protected constitutional right); Dohaish v.
Tooley, 670 F.2d 934, 936-37 (10th Cir. 1982)(noting
that a “§ 1983 civil rights action is a personal
suit. It does not accrue to a relative, even the father of
the deceased, ” and, therefore, the father lacked
standing to sue on behalf of his murdered son because the
father had not alleged a “violation of his civil rights
whatsoever”). Regardless, even if a violation of
Kirk's federal constitutional or civil rights had been
alleged, Kirk does not identify any “specific
actions taken by particular defendants” and,
therefore, does not “make out a viable [claim under]
§ 1983.” Pahls v. Thomas, 718 F.3d 1210,
1225-26 (10th Cir. 2013)(emphasis in original; internal
quotation marks and citation omitted). Because Kirk's
Complaint does not state a claim on which relief may be
granted, the Court will dismiss it pursuant to 28 U.S.C.
Court concludes that it would be futile to give Kirk an
opportunity to amend his Complaint, because the pertinent
statute of limitations bars his § 1983 claims. See
Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir.
2010)(holding that the district court properly dismissed
without an opportunity to amend the plaintiff's §
1983 claims that the statute of limitations barred, because
“amending those claims would be futile”).
“[T]he pertinent limitations period for section 1983
claims in New Mexico is that found in N.M. Stat. Ann. §
37-1-8 (1978), which provides that actions for an injury to
the person must be brought within three years.”
Jackson v. City of Bloomfield, 731 F.2d 652, 653
(10th Cir. 1984). “Section 1983 claims accrue, for the
purpose of the statute of limitations, when the plaintiff
knows or has reason to know of the injury which is the basis
of his action.” Johnson v. Johnson Cty. Comm'n
Bd., 925 F.2d 1299, 1301 (10th Cir. 1991). Kirk has
known of the alleged facts supporting his wrongful death
claim and the compromise of that claim for the past
thirty-one years. The Court therefore concludes that the
three-year statute of limitations bars Kirk's § 1983
dismissal of Kirk's Complaint, under 28 U.S.C.
§1915A(b), for failure to state a claim on which relief
may be granted constitutes a strike under the PLRA. See
Hafed v. Fed. Bur. of Prisons, 635 F.3d 1172,
1176 (10th Cir. 2011)(“When an action or appeal is
dismissed as frivolous, as malicious, or for failure to state
a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal
counts as a strike.”). The Court will take judicial
notice of the fact that this dismissal is not Kirk's
first strike. See St. Louis Baptist Temple, Inc. v. Fed.
Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979)(noting that the United States Court of Appeals for the
Tenth Circuit “has held that a court may, sua sponte,
take judicial notice of its own records and preceding
records”). Indeed, a review of the docket for the
United States District Court for the District of New Mexico
reveals that Kirk has had at least three other civil actions
dismissed under 28 U.S.C. §§ 1915(e)(2)(B) and/or
1915(A)(b) as frivolous, malicious, or for failure to state a
claim on which relief may be granted. See Kirk v.
Flores, No. CIV 16-00270 JB\SCY (D.N.M. August 31, 2016)
(Doc. 7)(dismissing, under 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b), Kirk's civil rights complaint
for failure to state a claim on which relief may be granted);
Kirk v. New Mexico State Police, No. CIV
14-01027 MV\KK (D.N.M., January 9, 2015)(Doc. 15)(dismissing
Kirk's complaint under 28 U.S.C. § 1915A(b));
Kirk v. Valencia Cty. Detention Ctr., No. CIV
14-00891 JCH\SCY (D.N.M., October 17, 2014)(Doc.
9)(dismissing, under 28 U.S.C. § 1915(e)(2)(B),
Kirk's complaint). Title 28 of the United States Code,
§ 1915(g), provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Kirk has accrued at least four
strikes under § 1915(g) and, therefore, he can no longer
proceed in forma pauperis in the federal courts unless he is
“under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
IS ORDERED that: (i) the Prisoner's Motion And
Affidavit For Leave To Proceed Pursuant 28 U.S.C. §
1915, filed August 22, 2017 (Doc. 2), is denied; (ii) the
Petitioner's Federal Habeas Corpus Petition, filed August
22, 2017 (Doc. 1), which the Court construes as a civil
rights Complaint under 42 U.S.C. § 1983, is dismissed
for failure to state a claim on which relief may be granted
under 28 U.S.C. § 1915A(b), and all pending motions are
denied as moot; and (iii) the Petitioner may not proceed in