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Kirk v. Jablonski

United States District Court, D. New Mexico

June 6, 2018

JAMES THOR KIRK, Petitioner,
v.
DAVID JABLONSKI, SECRETARY OF CORRECTIONS, Respondent.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus filed by Petitioner James Thor Kirk on October 19, 2017. (Doc. 1) (“Petition”). Kirk's filing may be construed as alleging claims under both 28 U.S.C. § 2254 and 42 U.S.C. § 1983. To the extent the Petition is construed as asserting habeas corpus claims under § 2254, it is a second or successive § 2254 petition filed without authorization and must be dismissed. To the extent the Court construes the Petition as alleging § 1983 civil rights claims, this is the sixth time Kirk has brought the same claims, and they are barred by the doctrine of claim preclusion. The Court will dismiss Kirk's Petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Kirk is an inmate in the custody of the New Mexico Corrections Department. (Doc. 1 at 1). He alleges that in October, 2010, he was involved in a high-speed chase that ended in a car crash. (Doc. 1 at 1-2). Kirk claims (1) that the New Mexico State Police violated standards of operation in relation to the chase, a pit maneuver, and the crash; (2) that the University of New Mexico Hospital violated medical emergency protocol and violated Kirk's right to adequate medical care by failing to provide appropriate attention and treatment following the crash; and (3) that Valencia County violated his rights to a speedy trial and legal representation from 10-27-2010 to 03-04-2014. (Doc. 1 at 1-3).

         Plaintiff Kirk has prosecuted five prior actions in this court arising out of the same factual allegations, CV 12-01157; CV 14-0891; CV 14-01027; CV 15-00736; and CV 16-00270.[1] Kirk v. University of New Mexico Hospital, No. CV 12-01157 JP/WPL was filed November 8, 2012 (CV 12-01157 JAP/WPL, Doc. 1). It is an action under 42 U.S.C. § 1983 seeking monetary damages for physical injury and pain and suffering arising out of injuries Plaintiff allegedly sustained during the high speed chase with law enforcement officers on October 26, 2010. (CV 12-01157 JAP/WPL, Doc. 1). All identified Defendants in no. CV 12-01157 were dismissed from the case. (CV 12-01157 JAP/WPL, Doc. 38, 162, 211, 216). That ruling was affirmed by the United States Court of Appeals for the Tenth Circuit on August 17, 2016. See Kirk v. Flores, No. CV 15-02219 (10th Cir. August 17, 2016).

         Kirk v. Valencia County Detention Center, No. CV 14-00891 JCH/SCY was removed to this Court on October 3, 2014. (CV 14-00891 JCH/SCY, Doc. 1). It is a civil rights and New Mexico Tort Claims Act case arising out of the same October 26, 2010 incident and involved some of the same defendants as those in this case. (CV 14-00891 JCH/SCY, Doc. 1-1). No. CV 14-00891 was dismissed by Memorandum Opinion and Order on October 17, 2014, based on the doctrine of claim splitting. (CV 14-00891 JCH/SCY, Doc. 9).

         Similarly, Kirk v. New Mexico State Police, No. CV 14-01027 MV/KK was removed from state court on November 12, 2014. (No. CV 14-01027 MV/KK, Doc. 2). Noting that, although not identical, the claims involve the same parties and claimed injury as the two prior cases, the Court dismissed CV 14-01027 MV/KK on the grounds of claim splitting. (No. CV 14-01027 MV/KK, Doc. 15).

         Kirk v. Flores, No. CV 15-00736 JCH/LF was removed from state court on August 21, 2015. (CV 15-736 JCH/LF, Doc. 1). The complaint alleges civil rights and tort claims for damages against individual defendants arising out of the October 26, 2010 high speed chase. (CV 15-00736 JCH/LF, Doc. 1-2). Finding an identity of parties and claims, the Court dismissed Kirk v. Flores on grounds of claim splitting, claim preclusion, and the bar of the statute of limitations. (CV 15-00736 JCH/LF, Doc. 8 and 9).

         Last, in Kirk v. Flores, et al., No. CV 16-00270 JB/SCY, Kirk claimed (1) that defendant failed to administer first aid to Kirk at the scene of the accident following the chase and violated Kirk's Constitutional right to adequate medical care; (2) that a nurse practitioner at the Valencia County Detention Center, where Kirk was taken after being released from the hospital, violated Kirk's right to adequate medical care by failing to provide appropriate attention and treatment to a head injury, open wounds, and several broken bones; and (3) that John Does 1-3 violated Kirk's Constitutional right to be free from unreasonable searches. (CV 16-00270 JB/SCY, Doc. 1 at 5-7). The Court determined that the Complaint failed to state a claim for relief due to the bar of the doctrine of claim preclusion and the applicable statute of limitations. The Court dismissed Kirk's Complaint with prejudice. (CV 16-000270 JB/SCY, Doc. 7, 8).

         KIRK'S HABEAS CORPUS CLAIMS MUST BE DISMISSED AS SECOND OR SUCCESSIVE UNDER § 2254

         Kirk's Petition expressly states that it is brought “under 28 U.S.C. § 2254 for Writ of Habeas Corpus.” (Doc. 1 at 1). Kirk is in New Mexico state custody and challenges his conviction in New Mexico state No. D-1314-CR-2010-00338. (Doc. 1 at 1-2). The Court construes his allegations as an application for a writ of habeas corpus under 28 U.S.C. § 2254(b)(1).

         In a previous § 2254 proceeding, James Thor Kirk v. Gregg Marcantel, No. CV 15-00614 MV/KBM, Petitioner attacked the same state court criminal conviction, D-1314-CR-2010-00338, that is the subject of this proceeding, raising issues of Sixth Amendment right to a speedy trial, Fourth Amendment unreasonable search and seizure, Fourteenth Amendment due process, and cruel and unusual punishment/inadequate medical care. See CV 15-00614 Doc. 1, 3; See, also, Duhart v. Carlson, 469 F.2d 471, 47310th Cir. 1972) (noting that the court may take judicial notice of its own records.) The Court denied a writ of habeas corpus, concluding that all of Kirk's claims lacked merit. (CV 15-00614 Doc. 22 at 3-9; Doc. 25). The Court dismissed the petition with prejudice. (CV 15-00614 Doc. 25, 26).

         Petitioner now brings a new, second or successive, § 2254 petition. (Doc. 1). He alleges:

“James Thor Kirk respectfully challenge the final Order and Judgment pursuant to 28 U.S.C. § 2254 and 10 R.C.L. 1012. Bryan v. Chicago, R.I.&P.R. Co. (1884) 63 Iowa, 464, 19N.W. 295. Preponderance of evidence; Grounds being:
1. Necessity of instruction, rights of legal representation claim; sentenced in case D-1314-CR-2010-00338 without legal representation, after being detained in county jail Valencia County from 10-27-2010-03-04-2014, in violation of ...

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