United States District Court, D. New Mexico
Ratigan Curry County Detention Center Clovis, New Mexico
Plaintiff pro se.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on the Plaintiff's
1983 Prisoner Civil Rights Complaint, filed October 11, 2018
(Doc. 1)(“Complaint”). Plaintiff Jacob Ratigan is
incarcerated and proceeding pro se. Because Ratigan has not
complied with the Order to Cure Deficiencies, filed October
31, 2018 (Doc. 3)(“Cure Order”), in connection
with his Complaint, the Court will dismiss the case without
filed his Complaint on October 11, 2018. See
Complaint at 1. He alleges prison officials waited
approximately twelve to sixteen hours before treating his
fractured hand. See Complaint at 2. He seeks $250,
000.00 in damages under 42 U.S.C. § 1983 and N.M. Stat.
Ann. § 42-2-22. See Complaint at 3. The Complaint
consists of three handwritten pages. See Complaint
at 1-3. The Complaint is not signed under penalty of perjury
as rule 11(a) of the Federal Rules of Civil Procedure
requires, nor is it accompanied by the $400.00 civil filing
fee or an in forma pauperis motion. See Complaint at
1-3. On October 11, 2018, the Court referred the matter to
the Honorable Karen B. Molzen, United States Magistrate Judge
for the District of New Mexico, for recommended findings and
disposition, and for entering non-dispositive orders.
See Order of Reference Relating to Prisoner Cases,
filed October 11, 2018 (Doc. 2).
Molzen entered the Cure Order on October 31, 2018.
See Cure Order at 1. The Cure Order set a deadline
of December 3, 2018, for Ratigan to submit a sworn civil
rights complaint and to address the filing fee. See
Cure Order at 2. Ratigan had the option of prepaying the $400
civil filing fee for this action or, alternatively,
submitting an application to proceed in forma pauperis.
See Cure Order at 2. The Cure Order also directed
the Clerk of Court to mail to Ratigan a form Civil Rights
Complaint -- which includes the necessary language for
signing under penalty of perjury -- and an Application to
Proceed in District Court Without Prepaying Fees or Costs.
See Cure Order at 2. The Court warned Ratigan that
the failure to timely cure the deficiencies may result in
dismissal of this action without further notice. See
Cure Order at 1. Plaintiff did not submit either document,
show cause for his failure to comply, or otherwise respond to
the Cure 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 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.” (internal quotation marks omitted)(quoting
Reed v. Bennett 312 F.3d 1190, 1195 (10th Cir.
2002)). 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.” Rogers v. Andrus Transp. Servs.,
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 plaintiffs
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).
light of Ratigan's failure to comply with, or respond to,
the Cure Order, the Court will dismiss this case without
prejudice pursuant to rule 41(b). See Olsen v.
Mapes, 333 F.3d at 1204. If Ratigan still wishes to
pursue his claims, he must file a new complaint along with
the filing fee or an in forma pauperis motion.
IS ORDERED: (i) the Plaintiffs 1983 Prisoner Civil
Rights Complaint, filed October 11, 2018 (Doc. 1), is
dismissed without prejudice; and (ii) the Court will enter a
separate Final Judgment disposing of this civil case.
Ratigan likely does not mean to cite to
N.M. Stat. Ann. § 42-2-22, as this statute relates to
flood control and in citing to it he writes, “[i]n
accordance to New Mexico guidelines (42-2-22) of the 1983
claims of tort. That all defendants are ...