United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK UNITED STATES DISTRICT JUDGE
MATTER is before the Court under Fed.R.Civ.P. 41(b)
on the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 by a Person in State Custody. (Doc. 1.)
The Court will dismiss the petition without prejudice for
failure to comply with Court orders, failure to comply with
statutes, and failure to prosecute.
a habeas corpus proceeding under 28 U.S.C. § 2254. The
filing fee for a § 2254 proceeding is $5.00. 28 U.S.C.
§ 1914. Petitioner did not pay the $5.00 filing fee but,
instead, filed his Application to Proceed in District Court
Without Prepaying Fees or Costs (Doc. 4), supplemented by his
six-month inmate account statement (Doc. 6.) The Court
conducted an analysis of the inmate account submitted by
Petitioner under § 1915(b)(1) and determined that
Petitioner has sufficient financial resources to prepay the
$5.00 filing fee for commencement of the action. The
six-month inmate account statement reflected deposits
totaling $267.20 over the six months preceding filing of the
action and an average balance of $49.18 during that six-month
period. (Doc. 6.)
Petitioner's December 22, 2016 Application, signed under
penalty of perjury, states, “I do not have family or
any source of incoming monies coming to me from any outside
sources.” (Doc. 4 at 1.) However, his six-month inmate
account statement, filed on January 19, 2017, in response to
the Court's Order to Cure Deficiency, clearly shows cash
receipts totaling $180.00 from “C. Martinez.”
(Doc. 6 at 1-4.) His account statement also shows that he
spends his funds in the commissary to purchase such items as
cookies, chips, and coke. (Id.) When a prisoner has
the means to pay a filing fee and instead spends his money on
amenities at the prison canteen or commissary, he should not
be excused for failing to pay the fee. Baker v.
Suthers, 9 Fed.Appx. 947, 949 (10th Cir. 2001).
Therefore, on March 7, 2017, the Court denied Petitioner
leave to proceed pursuant to § 1915 and ordered
Petitioner to pay the full $5.00 filing fee within 30 days.
March 16, 2017, Petitioner Martinez sent a letter to the
Court Clerk claiming that he was submitting “(3)
payments of 8.65 cents per month of March April and
May.” (Doc. 9 at 1.) Attached to the letter was an
Inmate's Request for Withdrawal of $33.62 signed by
Petitioner Martinez but not by any official of the Guadalupe
Correctional Facility. (Id. at 2.) The letter
further stated “[d]ue to the Inner Mail System at this
facility please credit my U.S. District Court District of New
Mexico Civil Docket for No. 16-cv-01280 RB/LAM pending 20% of
my additional payment of $500.00 Dollars process fee.”
(Id. at 1.) No. payment was included with the March
16, 2017 letter, nor has the Court ever received any payment
from Petitioner Martinez.
Martinez previously filed several cases that establish a
pattern of failure to pay filing fees. In Martinez
v. Funk, No. CV 16-00612 KG/LF (D.N.M. 2016), the Court
dismissed Petitioner's prisoner civil rights case for
failure to pay the initial partial filing fee payment of
$6.37 as ordered by the Court. CV 16-00612, Doc. 15 (D.N.M.
Jan. 3, 2017). In that case, the Court found that similar
contentions regarding the inner prison mail system at
Guadalupe County Correctional Facility were unsupported by
any factual allegations. Id. at 2. Similarly, in
Martinez v. Guadalupe County Correctional Facility,
No. CV 17-00606 JCH/WPL (D.N.M. 2017), Martinez was ordered
to make an initial partial payment of $48.24 under 28 U.S.C.
§ 1915(b) based on his six-month inmate account
statement. CV 17-00606, Doc. 6 (D.N.M. June 23, 2017).
Martinez moved the Court to reduce the amount of the initial
partial payment, and the Court granted a reduction to $15.00
based on his assurance that he could pay $15.00.
Id., Docs. 8 (D.N.M. July 5, 2017); 9 (July 15,
2017). However, rather than pay the $15.00, Martinez chose to
voluntarily dismiss the proceeding. Id., Doc. 10
(D.N.M. July 25, 2017). Finally, in Martinez v. Geo Group
Inc., No. CV 17-01141 JCH/GJF (D.N.M. 2017), Martinez
was again ordered to make an initial partial payment of $
8.09 based on his six-month inmate account statement. CV
17-01141, Doc. 9 (D.N.M. Mar. 26, 2018). Martinez, again,
voluntarily withdrew the complaint in order to avoid payment
of the initial partial filing fee. Id., Doc. 10
(D.N.M. Apr. 6, 2018).
Martinez was denied leave to proceed in forma
pauperis in this case based on his financial ability to pay
the $5.00 fee and on a false statement in his Application. He
was ordered to pay the $5.00 filing fee within 30 days. (Doc.
8.) Petitioner did not pay the $5.00 filing fee within the 30
day time period. On June 1, 2017, the Court entered an Order
to Show Cause directing Petitioner Martinez to show cause
within 21 days why this case should not be dismissed for
failure to comply with the Court's Order and failure to
prosecute. (Doc. 13.)
filed his Response to the Court's Order to Show Cause on
June 20, 2017. (Doc. 14.) In his Response, for the first
time, he contends that there is no filing fee for a §
2254 proceeding. (Id. at 1.) He also demands that
the Magistrate Judge recuse himself from “further
interference.” (Id. at 2.) Contrary to the
contentions of Petitioner Martinez, there is a statutorily
required filing fee of $5.00 for an application for writ of
habeas corpus. 28 U.S.C. § 1914(a). A prisoner litigant
must pay the filing fee as required by § 1914 or comply
with the requirements of 28 U.S.C. § 1915. Under 28
U.S.C. §§ 1914(a) and 1915(a), the Court is
required collect the $5.00 fee from the Petitioner or
authorize Petitioner to proceed without prepayment of the
fee. Despite being given multiple opportunities and
substantial time to pay the $5.00, Petitioner Martinez has
failed to comply with 28 U.S.C. §§ 1914 and 1915
and with the Court's December 14, 2016, March 7, 2017,
and June 1, 2017 Orders.
litigants are required to follow the federal statutes, rules
of procedure and simple, non-burdensome local rules. See
Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir.
1980). The Court may dismiss an action under Fed.R.Civ.P.
41(b) for failure to prosecute, to comply with statutes, the
rules of civil procedure, or court orders. See Olsen v.
Mapes, 333 F.3d 1199, 1204, n.3 (10th Cir. 2003).
Therefore, the Court will dismiss this civil proceeding
pursuant to Rule 41(b) for failure to comply with the
Court's Orders and failure to prosecute this proceeding.
IS THEREFORE ORDERED that the Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a
Person in State Custody (Doc. 1) is
DISMISSED without prejudice under
Fed.R.Civ.P. 41(b) for failure to comply with Court orders,
failure to comply with statutes, and failure to prosecute.
 This Court may take judicial notice of
its own records. Duhart v. Carlson, 469 F.2d 471,