United States District Court, D. New Mexico
CARTRELL R. SMITH SR., JASON LUTZ, and ROBERT ORGAN Plaintiffs,
CORRECTIONS CORP. OF AMERICA. TORRANCE COUNTY, and CHAD MILLER, Defendants.
MEMORANDUM OPINION AND ORDER DISMISSING CLAIMS OF
PLAINTIFFS SMITH AND LUTZ
MATTER is before the Court under 28 U.S.C. § §
1915A and 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6) and 41(b)
on the Complaint for Violation of Civil Rights filed by
Plaintiffs Cartrell R. Smith, Sr. and Jason Lutz (Doc. 1) and
amended Complaint for Violation of Civil Rights filed by
Plaintiff Jason Lutz (Doc. 14). The Court will dismiss the
claims of Plaintiff Jason Lutz for failure to comply with a
Court Order and failure to prosecute. The Court will dismiss
Plaintiff Cartrell Smith's claims for failure to state a
claim for relief and for failure to comply with a Court
Complaint for Violation of Civil Rights
(“Complaint”) was filed on October 31, 2016 by
pro se Plaintiffs Cartrell R. Smith, Sr., Jason Lutz, and
Robert Organ. (Doc. 1). The Complaint asserts violation of
Plaintiffs' civil rights in connection with strip
searches conducted at the Torrance County Detention Facility.
Although the Complaint is signed by all three Plaintiffs, it
appears to have been drafted and submitted by Plaintiff
Cartrell Smith. (See, e.g., Doc. 1 at 9-10, 16, 22-23, 24).
The claims of Plaintiff Robert Organ were previously
dismissed under Fed.R.Civ.P. 41(b) for failure to comply with
a Court Order and failure to prosecute on October 27, 2017.
Lutz filed an amended Complaint on December 21, 2016 (Doc.
14). On November 14, 2017, the Court entered an Order noting
that mailings to Plaintiff Jason Lutz were being returned to
the Court. (Doc. 53). The Order directed Plaintiff Lutz to
notify the Court of any change of address or otherwise show
cause why his claims should not be dismissed. The Order was
mailed to his address of record at the Torrance County
Correctional Facility. Plaintiff Lutz's response to the
show-cause Order was due no later than December 5, 2017.
copy of the November 14, 2017 Order mailed to Plaintiff Lutz
was also returned to the Court as undeliverable. (Doc. 55).
The Court, sua sponte, undertook a search of the New
Mexico correctional system online records, which indicated
Plaintiff Lutz was now incarcerated at the Southern New
Mexico Correctional Facility. As indicated on the Court's
docket, the Court re-mailed a copy of the November 14, 2017
Order to Plaintiff Lutz at the Southern New Mexico
Correctional Facility address on November 21, 2017. Plaintiff
Lutz has never responded to the November 14, 2017 Order.
to Plaintiff Cartrell Smith were also returned to the Court
as undeliverable. On November 14, 2017, the Court entered an
Order to Show Cause, directing Plaintiff Smith to provide the
Court with a new address or show cause why his claims should
not be dismissed within 21 days of entry of the Order. (Doc.
52). The Order notified Smith that, if he failed to respond
or show cause within 21 days, the case could be dismissed
without further notice. The November 14, 2017 Order was
mailed to Smith at his address of record at the Torrance
County Detention Center. (Doc. 52).
deadline for Smith to respond to the Order was December 5,
2017. Plaintiff Smith did submit a notice of change of
address on November 21, 2017. (Doc. 56). However, mail sent
to Smith's alleged new address was also returned as
undeliverable. (Doc. 58, 60). The Court's docket reflects
that Plaintiff Smith left a message on the Court's inmate
voicemail system on December 8, 2017, claiming to want to
update his address. Smith then filed a notice of change of
address on December 15, 2017. (Doc. 61). Both the message on
the Court's inmate voicemail system and the December 15,
2017 notice were submitted after the December 5, 2017
deadline under the Court's Order to Show Cause.
THE CLAIMS OF JASON LUTZ WILL BE DISMISSED FOR FAILURE TO
COMPLY WITH A COURT ORDER AND FAILURE TO
November 14, 2017, the Court entered an Order noting that the
record reflects that certain mailings to Plaintiff Jason Lutz
were returned as undelivered (see Doc. 45, 46, 53).
The Court stated that “[i]t appears that Plaintiff has
been transferred or released from custody without advising
the Court of his new address, as required by D.N.M. LR-Civ.
83.6, thus severing contact with the Court.” (Doc. 53).
The Order required Plaintiff Lutz to show cause why this
action should not be dismissed. See Bradenburg v.
Beaman, 632 F.2d 120, 122 (10th Cir. 1980)
(“It is incumbent on litigants, even those proceeding
pro se, to follow the federal rules of procedure. . . The
same is true of simple, nonburdensome local rules . .
..” (citation omitted)). The Order notified Plaintiff
Lutz that failure to comply with the Order may result in
dismissal without further notice. The Court's Order was
also returned as undelivered. (Doc. 55).
not obligated to do so, the Court undertook to find a new
address for Plaintiff Lutz. Upon locating the Southern New
Mexico Correctional Facility address, the Court mailed a copy
of the Order to that address. That mailing was not returned
to the Court. Plaintiff Lutz, however, did not respond to the
November 14, 2017 Order.
Lutz has failed to notify the Clerk in writing of his current
address, show cause why the action should not be dismissed,
respond to the Court's Order to Show Cause, or otherwise
communicate with the Court. The Court may dismiss an action
under Fed.R.Civ.P. 41(b) for failure to prosecute, to comply
with the rules of civil procedure, or to comply with court
orders. See Olsen v. Mapes, 333 F.3d 1199, 1204, n.
3 (10th Cir. 2003). Therefore, the Court will
dismiss all claims by Plaintiff Jason Lutz for failure to
comply with the Court's Order and for failure to
prosecute this proceeding. Fed.R.Civ.P. 41(b).
THE CLAIMS OF PLAINTIFF SMITH WILL BE DISMISSED FOR FAILURE
TO STATE A CLAIM AND TO COMPLY WITH A COURT
Cartrell Smith is proceeding pro se and in forma
pauperis on civil rights claims under 42 U.S.C. §
1983. The Court has the discretion to dismiss an in forma
pauperis complaint sua sponte for failure to
state a claim upon which relief may be granted under either
Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B).
Under Fed.R.Civ.P. 12(b)(6) the Court must accept all
well-pled factual allegations, but not conclusory,
unsupported allegations, and may not consider matters outside
the pleading. 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 is
plausible on its face.” Twombly, 550 U.S. at
570. A claim should be dismissed where it is legally or
factually insufficient to state a plausible claim for relief.
Twombly, 550 U.S. at 570.
§ 1915(e)(2)(B) the Court may dismiss the complaint at
any time if the Court determines the action fails to state a
claim for relief or is frivolous or malicious. 28 U.S.C.
§ 915(e)(2)(B)(2). The authority granted by § 1915
permits the court the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless. Neitzke
v. Williams,490 U.S. 319, 327 (1989). See also Hall
v. Bellmon, 935 F.2d at 1109. The authority to
“pierce the veil of the complaint's factual
allegations” means that a court is not bound, as it
usually is when making a determination based solely on the
pleadings, to accept without question the truth of the
plaintiff's allegations. Denton v. Hernandez,504 U.S. 25, 32-33 (1992). The Court is not required to
accept the truth of the plaintiff's allegations but,
instead, may go beyond the pleadings and consider any other
materials filed by the parties, as well as court proceedings
subject to judicial notice. Denton, 504 U.S. at
32-33. In reviewing a pro se complaint, the Court liberally
construes the factual allegations. See Northington v.
Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).
However, a pro se plaintiff's pleadings are judged by the
same legal standards that apply to all litigants and a pro se
plaintiff must ...