United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court sua sponte under
Fed.R.Civ.P. 41(b) on the “1983 tort claim”
(“Complaint”) filed by Plaintiffs Esteven Garcia,
Loydale Kirven, and Frederick Baca on April 4, 2019 (Doc. 1).
The Court will dismiss the Complaint without prejudice for
failure to comply with Court orders and failure to prosecute.
Plaintiff Esteven Garcia:
record reflects that certain mailings to Plaintiff Esteven
Garcia were returned as undeliverable. (Doc. 4, 5, 7, 10, 11,
12, 16, 18). The Court also notes that mail to Plaintiff
Garcia has been returned as undeliverable in two other cases
in this Court, Garcia v. Kendra LNU, et al., No. CV
19-00217 KG/KK, and Garcia, et al., v. Santa Rosa
Detention Center, et al., No. CV 19-00322 MV/KRS. The
Court's research indicates that Plaintiff Garcia has been
released from the Curry County Detention Center. It appears
that Plaintiff has been transferred or released from custody
without advising the Court of his new address, as required by
D.N.M. LR-Civ. 83.6, thus severing contact with the Court.
Court issued an Order to Show Cause on April 19, 2019,
directing Plaintiff Garcia to notify the Court of a new
address, or otherwise show cause why the case should not be
dismissed, within 30 days of entry of the Order. (Doc.6).
More than 30 days has elapsed since entry of the Order to
Show Cause and Plaintiff Garcia has not provided the Court
with a new address, responded to the Court's Order, or
otherwise shown cause why the case should not be dismissed.
litigants are required to follow the federal rules of
procedure and simple, nonburdensome local rules. See
Bradenburg v. Beaman, 632 F.2d 120, 122 (10th
Cir. 1980). The local rules require litigants, including
prisoners, to keep the Court apprised of their proper mailing
address and to maintain contact with the Court. D.N.M.
LR-Civ. 83.6. Plaintiff Garcia has failed to comply with
D.N.M. LR-Civ. 83.6 and with the Court's April 19, 2019,
Order to Show Cause.
Garcia has failed to comply with the Court's Order and
failed to prosecute this action by not keeping the Court
apprised of his current address. The Court may dismiss an
action under Fed.R.Civ.P. 41(b) for failure to prosecute, to
comply with the rules of civil procedure, or to comply with
court orders. See Olsen v. Mapes, 333 F.3d 1199,
1204, n. 3 (10th Cir. 2003). Therefore, the Court
will dismiss Plaintiff Esteven Garcia's claims pursuant
to Rule 41(b) for failure to comply with the Court's
Order and failure to prosecute this proceeding.
Plaintiff Loydale Kirven:
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 April 8, 2019, the Court
ordered Kirven to pay the filing fee for this proceeding or
demonstrate why he should be allowed to proceed based on the
imminent danger exception to § 1915(g). (Doc. 2).
Kirven's payment was due no later than May 8, 2019. (Doc.
2). Kirven did not pay the fee or file a response sufficient
to meet the requirements of § 1915(g). Therefore, the
Court issued an Order to Show Cause directing Kirven to show
cause why his claims should not be dismissed under
Fed.R.Civ.P. 41(b). (Doc. 14).
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).
did not pay the filing fee as ordered by the Court. Instead,
Kirven submitted a “Memorandum Deficiency of
Admission” (Doc. 15), and a response titled “The
Kirven Shows” (Doc. 17). In his Memorandum and
response, Kirven quotes the law requiring him to make
specific, credible allegations of imminent physical danger.
However, he makes no such allegations. Instead, in his
response, Kirven states “Plaintiff was admitted to PRMC
which stem from defendants action which are stated in
complaint” and attaches a copy of a hospital admission
wrist band dated January 28, 2019 (Doc. 17 at 1-2 and Ex. 1).
The allegations regarding Plaintiff Kirven in the Complaint,
in their entirety, state, “Defendant denied Plaintiff
on numerous times medication also defendant spoke of my
medical history in front of officer.” (Doc. 1 at 2).
Plaintiff Kirven's allegations that, at some unspecified
time in the past, he was denied medications and that his
medical history was disclosed 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). Lastly, the hospital wrist
band attached as an exhibit to his response is dated three
months prior to filing of his lawsuit and does not disclose
any information tending to show that the hospitalization was
in any way related to his incarceration or prison conditions.
(Doc. 17). There is no allegation of or evidence showing
imminent danger to Kirven as a result of actions of the
filing fee for a § 1983 proceeding is $400.00. Federal
statutes mandatorily require this Court to collect the filing
fee. 28 U.S.C. § 1914(a) (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 . . . .) (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 he asks the Court to allow
him to proceed with this case without paying the fee. (Doc.
15, 17). 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 §
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). The language of
§ 1915(g), “[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 at 1231-32. Plaintiff
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 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 at 1204, n. 3.