United States District Court, D. New Mexico
Herbert Manygoat San Juan County Adult Detention Center
Farmington, New Mexico Plaintiff pro se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiff's Petition
for Writ of Habeas Corpus, filed May 9, 2018 (Doc.
1)(“Petition”). Plaintiff Herbert Manygoat is
incarcerated and proceeds pro se. Because he failed to comply
with two orders directing him to pay the filing fee or to
file a properly supported in forma pauperis application, the
Court will dismiss the case without prejudice.
filed the Petition on May 9, 2018. See Petition at
1. He did not pay any filing fee for the action. Although
styled as a habeas petition, the pleading appears to raise a
civil rights violation and seeks redress pursuant to 42
U.S.C. § 1983. The Petition alleges that prison
officials placed Manygoat in solitary confinement without
providing an explanation or following the prescribed
disciplinary procedure. See Petition at 1-2. Exhibit
4 to the Petition reiterates this theory, alleging a prison
disciplinary officer violated his procedural due process
rights by imposing such punishment. See Petition at
10. Further, Manygoat did not check the box on the Petition
to indicate that he seeks to vacate or correct his sentence.
See Petition at 1.
11, 2018, the Court referred the matter to the Honorable
Jerry H. Ritter, United States Magistrate Judge, for
recommended findings and disposition, and to enter
non-dispositive orders. See Order of Reference
Relating to Prisoner Cases at 1, filed May 11, 2018 (Doc. 2).
Magistrate Judge Ritter entered his first Order to Cure
Deficiency, filed June 7, 2018 (Doc. 4)(“First
Order”). After observing that the Petition raises civil
rights claims instead of seeking habeas relief, the First
Order set a deadline of July 9, 2018 to refile a complaint on
the proper form, and either prepay the $400.00 civil filing
fee or, alternatively, submit an application to proceed in
forma pauperis along with a certified copy of Manygoat's
inmate account. See First Order at 1. The First
Order also directed the Clerk of Court to mail to Manygoat a
form Application to Proceed in District Court Without
Prepaying Fees or Costs, which also includes instructions on
providing a six-month account statement. See First
Order at 2.
filed a handwritten response. See Letter from
Herbert Manygoat at 1, filed June 19, 2018 (Doc.
5)(“Extension”). The Extension appears to request
an extension of the July 9, 2018 deadlines. See
Extension at 1. Manygoat alleges that he requested a
six-month account statement to support his in forma pauperis
application, see 28 U.S.C. § 1915(a)(2), but
commissary Colleen Rivas “obstructed” that
request, Extension at 1-2. Manygoat also invited the Court to
“consent” to his acquittal in an upcoming jury
trial so that, after his release, he could “use a
different form for my free process and communicating with
you.” Extension at 2.
filed a second response. See Letter from Herbert
Manygoat, filed June 27, 2018 (Doc.
6)(“Response”). He again alleges that Rivas would
not produce his inmate account statement and notes that a
lieutenant instructed him instead to go through the legal
department. See Response at 1. The Response also
includes arguments about the merits of his due process
claims. See Response at 2-3.
Judge Ritter granted Manygoat's request for an extension.
See Order Extending Cure Deadline at 1, filed June
28, 2018 (Doc. 7)(“Second Order”). The Second
Order permits Manygoat to file -- within thirty days of the
Second Order's entry, i.e., by July 30, 2018 --
a complaint on the proper form, and either prepay the $400.00
civil filing fee or, alternatively, submit an application to
proceed in forma pauperis along with a certified copy of his
inmate account. See Second Order at 1. Manygoat did
not comply or otherwise respond to the Second Order.
41(b) of the Federal Rules of Civil Procedure authorizes the
involuntary dismissal of an action “[i]f the plaintiff
fails to prosecute or to comply with the “[Federal
Rules of Civil Procedure] or a court order.”
Fed.R.Civ.P. 41(b). See also AdvantEdge Bus. Grp. v.
Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233,
1236 (10th Cir. 2009)(“A district court undoubtedly has
discretion to sanction a party for failing to prosecute or
defend a case, or for failing to comply with local or federal
procedural rules.” (citations omitted)). As the United
States Court of Appeals for the Tenth Circuit has explained,
“the need to prosecute one's claim (or face
dismissal) is a fundamental precept of modern
litigation.” Rogers v. Andrus Transp. Servs.,
502 F.3d 1147, 1152 (10th Cir. 2007). “Although the
language or Rule 41(b) requires that the defendant file a
motion to dismiss, the Rule has long been interpreted to
permit courts to dismiss actions sua sponte for a
plaintiff's failure to prosecute or comply with the rules
of civil procedure or court orders.” Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003). In
light of Manygoat's failure to comply with two prior
orders, and because he still has not paid any filing fee or
submitted an application to proceed in forma pauperis, the
Court will dismiss this case without prejudice pursuant to
IS ORDERED that the Plaintiffs Petition for Writ of
Habeas Corpus, filed May 9, 2018 (Doc. 1), ...