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Folse v. Wilson

United States District Court, D. New Mexico

December 31, 2017


          Kevin Folse Penitentiary of New Mexico Santa Fe, New Mexico Plaintiff pro se

          Tyler J. Atkins Samuel H. Walker Atkins & Walker, P.C. Albuquerque, New Mexico Attorneys for Plaintiff Oscar R. Orejel


         THIS MATTER comes before the Court on Plaintiff Kevin Folse's Complaint, filed March 29, 2017 (Doc. 1)(“Complaint”). The Court will dismiss Folse's Complaint under rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, and under rule 41(b) for failure to prosecute and to comply with the Court's Order to Show Cause, filed November 2, 2017 (Doc. 3)(“Show Cause Order”).


         Folse, proceeding pro se, filed the Complaint in this case on March 29, 2017, asserting claims for violation of civil rights under 42 U.S.C. § 1983. See Complaint ¶ 1, at 1. In the Complaint, Folse seeks to bring claims on his own behalf and on behalf of his co-Plaintiff, Oscar R. Orejel. See Complaint ¶ 3, at 2. With respect to himself, Folse alleges:

Plaintiff Kevin Folse is and was at all times mentioned herein a prisoner of the State of New Mexico in the custody of the New Mexico Department of Corrections. He is currently legally representing Oscar Orejel and is also confined in the Penitentiary of New Mexico. . . .
At all times relevant to this case, Plaintiffs Kevin Folse and Oscar Orejel lived in the same unit, 3.B.V.pod. . . .
The unprofessionalism at P.N.M. has made it difficult for Oscar to follow the (P.L.R.A.) “Prison Litigation Reforms Act”, therefore, I Kevin Folse will represent Oscar, I've taken all precautionary steps to prevent all deadlines & will continue to do so.

         Complaint ¶¶ 3, 8, 10, at 2, 4, 6. Folse requests “the Declaratory Amount of $400, 000 and Injunctive Relief which Punitively Qualifies for $50, 000.” Complaint ¶ 16, at 9.

         In the Complaint, Folse states “after receiving notification of this lawsuit making it to the Court, Folse will file the $350.00 filing fee. Enclosed is the $50.00 filing fee to begin the process.” Complaint ¶ 12, at 7. The Court docket indicates that Folse was notified of the Court's receipt of this lawsuit. The record also reflects that the Court did not receive $50.00 from Folse when the Complaint was filed. Nor did Folse submit the $350.00 filing fee to the Court. Folse made reference to proceeding “informa poperis [sic], ” Complaint ¶ 12, at 7, but did not file any application to proceed without prepayment of fees and costs under 28 U.S.C. § 1915(a).

         On November 2, 2017, the Court entered its Show Cause Order. See Show Cause Order at 1. The Court noted that the Plaintiffs are prisoners in the State of New Mexico's custody at the Penitentiary of New Mexico. See Complaint ¶¶ 3, 4, at 2. The Prison Litigation Reform Act, 28 U.S.C. § 1915(b), states: “[I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee.” 28 U.S.C. § 1915(b)(emphasis added). The Court ordered Folse, as well as Orejel, to show cause, within twenty-one days of the Show Cause Order's entry, why the Court should not dismiss this proceeding for failure to pay the required fees, or to submit an application to proceed without prepayment of fees or costs. The Court also notified the Plaintiffs that, if they failed to show cause within twenty-one days, the Court may dismiss this proceeding without further notice. See Show Cause Order at 2.

         Retained counsel entered an appearance on Orejel's behalf on November 13, 2017, and paid the filing fee for this proceeding. See Notice of Entry of Appearance at 1, filed November 13, 2017 (Doc. 4). Orejel's counsel has also filed an Amended Complaint on Orejel's behalf. See First Amended Complaint for Oscar Orejel at 1, filed November 20, 2017 (Doc. 5). Folse has not responded to the Court's Show Cause Order. The Court will now dismiss only Folse's claims, pursuant to rules 12(b)(6) and 41(b). The Court's ruling does not affect the claims that Orejel brings in this case.


         Folse is proceeding pro se on civil rights claims under 42 U.S.C. § 1983. The Court has the discretion to dismiss a pro se complaint sua sponte for failure to state a claim upon which relief may be granted as rule 12(b)(6) provides. Under rule 12(b)(6), the court must accept all well-pled factual allegations, but not legal conclusions, and it may not consider matters outside the pleadings. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under rule 12(b)(6) for failure to state a claim if “it is ‘patently obvious' that the plaintiff could not prevail on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting McKinney v. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege “enough facts to state a claim to relief that ...

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