United States District Court, D. New Mexico
KEVIN FOLSE and OSCAR R. OREJEL, Plaintiffs,
D'ANGELO CHAPARO WILSON; AARON VIGIL and DEPARTMENT OF CORRECTIONS, Defendants.
Folse Penitentiary of New Mexico Santa Fe, New Mexico
Plaintiff pro se
J. Atkins Samuel H. Walker Atkins & Walker, P.C.
Albuquerque, New Mexico Attorneys for Plaintiff Oscar R.
MEMORANDUM OPINION AND ORDER DISMISSING PLAINTIFF
KEVIN FOLSE'S CLAIMS
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”).
AND PROCEDURAL BACKGROUND
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.
¶¶ 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.
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).
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.
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.
STANDARDS FOR FAILURE TO STATE A CLAIM
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 ...