United States District Court, D. New Mexico
Woodrow Dunn, Jr., Northeast New Mexico Detention Facility
Clayton, New Mexico Plaintiff pro se.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiff's Motion
to Reconsider, filed September 6, 2018 (Doc.
18)(“Motion”). Plaintiff Woodrow Dunn, Jr. is
incarcerated and proceeding pro se. Dunn asks the Court to
set aside the Final Judgment, filed August 28, 2018 (Doc.
17), dismissing his Civil Rights Complaint, filed June 7,
2018 (Doc. 1)(“Complaint”), for failing to comply
with Court orders. Because Dunn does not demonstrate grounds
for reconsideration pursuant to rule 59 of the Federal Rules
of Civil Procedure, the Court will deny the Motion.
filed his Complaint on June 7, 2018. See Complaint
at 1. He seeks money damages against Defendant state public
defender Bryan Collopy for allegedly making
“unprofessional error[s]” and providing
ineffective assistance in connection with Dunn's criminal
trial. Complaint at 1-3. On June 7, 2018, the Court referred
the matter to the Honorable Steven C. Yarbrough, United
States Magistrate Judge for the District of New Mexico, for
recommended findings and disposition, and to enter
non-dispositive orders. See Order of Reference
Relating to Prisoner Cases, filed June 7, 2018 (Doc. 2).
Judge Yarbrough entered his first Order to Cure Deficiency on
June 14, 2018. See Doc. 3 (“Order”). The
Order set a deadline of July 14, 2018, for Dunn to prepay the
$400.00 civil filing fee for this action or, alternatively,
to submit an application to proceed in forma pauperis along
with a certified copy of his inmate account statement for the
period between December 6, 2017, and June 6, 2018.
See Order at 1. The Order also directed the Clerk of
Court to mail to Dunn a form Application to Proceed in
District Court Without Prepaying Fees or Costs, which
includes instructions on providing a six-month account
statement. See Order at 2.
timely filed an in forma pauperis application, but he did not
attach a certified six-month account statement. See
Application to Proceed in District Court Without Prepaying
Fees or Costs, filed June 25, 2018 (Doc.
7)(“Application”). Instead, he included a blank
offender account activity statement with his own handwritten
notes reflecting that his balance did not exceed ninety-six
cents between January 10, 2018, and June 1, 2018.
See Application at 5. The submission did not comply
with the in forma pauperis statute, which provides: “A
prisoner seeking to bring a civil action . . . without
prepayment of fees . . . shall submit a certified copy of the
trust fund account statement (or institutional equivalent)
for . . . the 6-month period immediately preceding the filing
of the complaint . . . .” 28 U.S.C. § 1915(a)(2).
Second Order, entered July 13, 2018, Magistrate Judge
Yarbrough set a second deadline of August 13, 2018, to submit
a certified inmate account statement reflecting all
transactions during the six-month period immediately
preceding this action. See Second Order to Cure
Deficiency, filed July 13, 2018 (Doc. 11)(“Second
Order”). The Second Order again warned that the
“[f]ailure to timely comply may result in dismissal of
this action without further notice.” Second Order at 1.
Dunn did not submit any additional account statement or show
cause for his failure to comply. Instead, he sent three
handwritten submissions arguing the merits of his case.
See Supplement to Complaint, filed July 17, 2018
(Doc. 12); Letter by Woodrow Dunn, filed July 18, 2018 (Doc.
13); Supplement to Complaint, filed July 19, 2018 (Doc. 14).
August 28, 2018, the Court entered a Memorandum Opinion and
Order of Dismissal (Doc. 16)(“MOO”), along with
the Final Judgment. The Court observed:
Rule 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.” (citation omitted)). As the United
States Court of Appeals for the Tenth Circuit explained,
“the need to prosecute one's claim (or face
dismissal) is a fundamental precept of modern
litigation.” See Rogers v. Andrus Transp.
Services, 502 F.3d 1147, 1152 (10th Cir. 2007).
“Although the language of 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[s']
orders.” Olsen v. Mapes, 333 F.3d 1199, 1204
n.3 (10th Cir. 2003).
In light of Dunn's failure to comply with two prior court
orders, and because he has still not sufficiently explained
his refusal to provide a certified trust account statement,
the Court will dismiss this case without prejudice pursuant
to rule 41(b). See Olsen v. Mapes, 333 F.3d 1199 at
MOO at 2-3 (alterations in original).
September 6, 2018, Dunn filed the Motion, which primarily
addresses the merits of his civil rights case. See
Motion at 1-7. Thereafter, he filed a series of appendices,
supplements, and letters seeking reconsideration of the
dismissal order. See Appendix/Supplement to Motion
for Reconsideration, filed September 7, 2018 (Doc. 19);
Appendix/Supplement to Account Balance Records, filed
September 7, 2018 (Doc. 20); Amended Appendix/Supplement to
Complaint, filed September 11, 2018 (Doc. 21);
Appendix/Supplement of New Evidence, filed September 13, 2018
(Doc. 22); Notice of Professional Code of Conduct, filed
September 17, 2018 (Doc. 23); Notice of New Evidence, filed
September 17, 2018 (Doc. 24); Letter by Woodrow Dunn, filed
September 19, 2018 (Doc. 25)(“Sept. 19 Letter”);
Appendix/Supplement Requesting a Hearing, filed September 19,
2018 (Doc. 26); Letter by Woodrow Dunn, filed September 24,
2018 (Doc. 27)(“Sept. 24 Letter”). The filings
attach various copies of his six-month account statement,
which he initially refused to provide. See,
e.g., Appendix/Supplement to Account Balance Records
at 4; Sept. 19 Letter at 2. Dunn appears to argue that the
Court should set aside the dismissal order based on his
belated compliance with the Court's previous cure orders.
See Sept. 24 Letter at 2. He also seeks
reconsideration based on “new evidence, ” which
consists of an emergency room record from 2013. See
Notice of New Evidence at 2-5.
motion to alter or amend a judgment filed within twenty-eight
days of its entry is generally analyzed under rule 59(e).
See Manco v. Werholtz,528 F.3d 760, 761 (10th Cir.
2008); Van Skiver v. United States, 952 F.2d 1241,
1243 (10th Cir. 1991). Grounds for setting aside the judgment
include: “(1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). A district court ...