United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court under Fed.R.Civ.P. 41(b) and 28
U.S.C. § 1915(g) on the handwritten Complaint filed by
Plaintiff Loydale Kirven on October 15, 2018, (Doc. 1). The
Court denied Plaintiff Loydale Kirven leave to proceed in
forma pauperis and, on November 15, 2018, ordered Kirven
to pay the $400.00 filing fee. (Doc. 4). Kirven did not pay
the filing fee and the Court ordered him to show cause why
this case should not be dismissed for failure to comply with
the Court's November 15, 2018, Order. (Doc. 9). Kirven
has not shown cause and the Court will dismiss this
proceeding without prejudice under Fed.R.Civ.P. 41(b).
a pro se prisoner civil rights proceeding under 42 U.S.C.
§ 1983. Plaintiff Loydale Kirven has had at least 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. 3). 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 asked 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). The Court determined that Plaintiff
Kirven's allegations that, at some unspecified time in
the past, kitchen staff punched him and a detention officer
called him a snitch 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 1226, 1231-32 (10th
Cir.1998). 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.
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.
Court denied Plaintiff Kirven's Motion to Proceed
Deficience and ordered Kirven to show cause why the case
should not be dismissed for failure to comply with the
Court's orders to pay the filing fee. (Doc. 9). In
response to the Court's Order to Show Cause, Kirven filed
a “Motion to Show Cause” arguing that he should
be allowed to proceed without paying the fee.
filing fee for a § 1983 proceeding is $400.00. Federal
statutes mandatorily require this Court to collect the filing
fee. Specifically, “The clerk of each district court
shall require the parties
instituting any civil action or proceeding in such court,
whether by original process, removal or otherwise, to pay a
filing fee . . . .” 28 U.S.C. § 1914(a) (emphasis
added). The Court may permit a prisoner to proceed without
prepayment of the fee but only in compliance with the
provisions of 28 U.S.C. § 1915. Plaintiff Kirven
acknowledges that he has accrued three strikes under §
1915(g), but asks the Court to allow him to proceed with this
case without paying the fee because he is a United States
citizen and alleges his constitutional rights have been
violated. (Doc.10). However, the Court does not have
discretion to allow a prisoner who has accrued three strikes
to proceed without paying the filing fee. The 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 . . . .
28 U.S.C. § 1915(g) (emphasis added). Section 1915(g)
provides that “[i]n no event shall a prisoner bring a
civil action” is non-discretionary and precludes this
Court from allowing Plaintiff Kirven to proceed without
paying the filing fee. See Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1179-80 (10th Cir. 2011);
White v. Colorado, 157 F.3d 1226, 1231-32 (10th
Kirven has not paid the filing fee for this case and has not
shown cause why the case should not be dismissed based on his
failure to comply with the statutes and Court orders.
Therefore, the Court will deny Kirven's Motion to Show
Cause dismiss this proceeding without prejudice under
Fed.R.Civ.P. 41(b) for failure to comply with Court orders
and failure to prosecute the case. See Olsen v.
Mapes, 333 F.3d 1199, 1204, n. 3 (10th Cir.
2003) (stating court may dismiss action under Rule 41(b) for
failure to comply with rules of procedure or court orders).
IT IS ORDERED:
(1) Plaintiff Loydale Kirven's Motion to Allow Jury Trial
filed November 26, 2018, (Doc. 7) is DENIED as moot in light
of the ...