United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING “MOTION TO
PROCEED DEFICIENCE” AND ORDER TO SHOW CAUSE
MATTER is before the Court under Fed.R.Civ.P. 41(b)
and 28 U.S.C. § 1915(g). The Court denied Plaintiff
Loydale Kirven leave to proceed in forma pauperis
and ordered Kirven to pay the $400.00 filing fee. (Doc. 4).
Kirven responded to the Court's Order by filing his
Motion to Proceed Deficience. (Doc. 8). The Court denies
Kirven's Motion and orders him to show cause why this
case should not be dismissed for failure to comply with the
Court's November 15, 2018, Order.
a civil rights proceeding under 42 U.S.C. § 1983. The
filing fee for a § 1983 proceeding is $400.00. Plaintiff
did not pay the $400.00 filing fee but, instead, filed his
Application to Proceed in District Court Without Prepaying
Fees or Costs. (Doc.3). When it enacted the in forma
pauperis statute, Congress recognized that “no
citizen should be denied an opportunity to commence,
prosecute, or defend an action, civil or criminal, in any
court of the United States, solely because his poverty makes
it impossible for him to pay or secure the costs.”
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 342 (1948). However, Congress also recognized that a
litigant whose filing fees and court costs are assumed by the
public, unlike a paying litigant, lacks an economic incentive
to refrain from filing frivolous, malicious, or repetitive
lawsuits. Neitzke v. Williams, 490 U.S. 319, 324
(1989). Congress noted that prisoner suits represent a
disproportionate share of federal filings and enacted a
variety of reforms designed to filter out the bad claims and
facilitate consideration of the good. Jones v. Bock,
549 U.S. 199, 202-204 (2007). Those reforms have included the
three-strike rule of the Prison Litigation Reform Act, 28
U.S.C. § 1915(g).
three-strike rule of § 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
Loydale Kirven has had three (3) prior cases dismissed on the
grounds that they failed to state a claim upon which relief
may be granted or were frivolous. See Loydale Kirven v.
Tory Sandoval, No. CV 14-00209 LH/RHS (Doc.
Plaintiff Kirven may no longer proceed in forma
pauperis in this Court unless he is in imminent
danger of serious physical injury. 28 U.S.C. § 1915(g).
As a consequence, on November 15, 2018, the Court denied
Kirven's Application to Proceed in District Court Without
Prepaying Fees or Costs and ordered Kirven to pay the full
$400.00 filing fee for this proceeding within 30 days. (Doc.
4). Kirven's payment was due no later than December 17,
2018. (Doc. 4).
did not pay the filing fee as ordered by the Court. Instead,
Kirven submitted his Motion to Proceed Deficience (Doc. 8).
In his Motion, Kirven asks the Court to grant him leave to
proceed under § 1915(g) “due to imment danger and
possible physical.” (Doc. 8 at 1). Kirven claims:
“While in Curry County Detention Center Plaintiff was
assaulted by kitchen staff punching him twice, another
incident is were Sgt Stamfield a Detention Officer called
plaintiff a ‘snitch' out loud in front of a whole
(Doc. 8 at 1).
prisoner who has accrued three strikes under § 1915(g)
may only proceed by prepaying the full filing fee. The only
exception to the prepayment requirement in § 1915(g)
applies to a prisoner who “is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). To
meet that exception, a prisoner is required to make
“specific, credible allegations of imminent danger of
serious physical harm.” Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1179-80 (10th Cir. 2011). The
language of the statute requires that the prisoner allege an
imminent danger at the time he filed his complaint. See
Hafed, 635 F.3d at 1179-80; Andrews v.
Cervantes, 493 F.3d 1047, 1053-54 (9th Cir.2007);
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir.2003); Malik v. McGinnis, 293 F.3d 559, 562-63
(2d Cir.2002); Abdul-Akbar v. McKelvie, 239 F.3d
307, 313 (3d Cir.2001) (en banc); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir.1999); Ashley
v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998);
Baños v. O'Guin, 144 F.3d 883, 885 (5th
Cir.1998) (per curiam). Moreover, the imminent danger of
serious physical injury must arise from the alleged actions
of the named defendants in the case. See White v.
Colorado, 157 F.3d 1226, 1231-32 (10th Cir.1998).
Kirven's alleges that, at some unspecified time in the
past, kitchen staff punched him and a detention officer
called him a snitch. These allegations do not constitute
credible allegations of imminent danger either at the time he
filed his Complaint or at present. Further, his Motion is not
signed under penalty of perjury or supported by any sworn
factual allegations. White v. Colorado, 157 F.3d at
1231-32. Last, even if he had made credible allegations of
imminent danger, Kirven's claims are against “CYFD,
” an agency of the State of New Mexico and are wholly
unrelated to his incarceration or prison conditions. (Doc.
1). Instead, his Complaint alleges that CYFD induced his wife
to divorce him and seeks damages against the State. (Doc. 1
at 2-3). Therefore, the asserted danger is not as a result of
actions of the Defendant CYFD, and allowing him to proceed in
this case would never afford him any relief from the alleged
imminent danger. Id.  The Court will deny Plaintiff
Kirven's Motion to Proceed Deficience.
Court will also order Plaintiff Kirven to show cause why this
case should not be dismissed under Fed.R.Civ.P. 41(b) for
failure to comply with the Court's November 15, 2018,
Order. More than 30 days has elapsed since entry of the
Court's Order and Plaintiff has not paid the $400 filing
fee. Under 28 U.S.C. §§ 1914(a) and 1915(g), the
Court is required to collect the filing fee from the
Plaintiff. Plaintiff was ordered to pay the fee within 30
days, but he has failed to do so. The Court may dismiss an
action under Fed.R.Civ.P. 41(b) for failure to prosecute, to
comply with the statutes or rules of civil procedure, or to
comply with court orders. See Olsen v. Mapes, 333
F.3d 1199, 1204, n. 3 (10th Cir. 2003). The Court
will Order Plaintiff Loydale Kirven to show cause within
twenty-one (21) days of the date of entry of this Order why
this proceeding should not be dismissed under Fed.R.Civ.P.
41(b) for failure to comply with the requirements of 28
U.S.C. §§ 1914 and 1915 and with the Court's
November 15, 2018, Order. If Plaintiff does not show cause
within twenty-one (21) days, the Court may dismiss this case
without further notice.
IS ORDERED that the Motion to Proceed Deficience
(Doc. 8) is DENIED; and
IS FURTHER ORDERED that Plaintiff Loydale Kirven
show cause, within 21 days of entry of this Order, why this
case should not be dismissed under Fed.R.Civ.P. 41(b) for