United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
MATTER is before the Court under Federal Rule of
Civil Procedure 41(b) on the Prisoner's Civil Rights
Complaint filed by Plaintiff Myrtis Paulo Hart, on March 4,
2019. (Doc. 1.) The Court dismisses this case without
prejudice for failure to comply with statutes and Court
Orders and failure to prosecute.
pro se, Plaintiff filed this civil rights proceeding
under 42 U.S.C. § 1983 on March 4, 2019. At the time he
filed his Complaint, Hart was a prisoner incarcerated at the
Curry County Detention Center. (Doc. 1 at 1, 2, 5.) Plaintiff
did not pay the $400.00 filing fee. On March 4, 2019, Hart
also filed a Prisoner's Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915. (Doc. 2.) The
Court granted Hart leave to proceed without prepayment of
fees or costs and ordered him to make an initial partial
payment of $17.03 under 28 U.S.C. § 1915(b) on April 10,
2019. (Doc. 4.) The April 10, 2019 Order directed Hart to pay
the initial partial payment of $17.03 or demonstrate why he
should be relieved of the obligation to make the payment
within 30 days of entry of the Order. (Id.)
than 30 days have elapsed after entry of the April 10, 2019
Order, and Plaintiff did not pay the initial partial payment
or otherwise respond to the Order. The Court then entered an
Order to Show Cause on May 15, 2019. (Doc. 5.) The Order
directed Plaintiff to show cause why the case should not be
dismissed for his failure to make the initial partial payment
required by 28 U.S.C. § 1915(b) and the Court's
April 10, 2019 Order. (See id.) Plaintiff did not
make the initial partial payment, show cause, or otherwise
respond to the Court's May 15, 2019 Order to Show Cause.
The copy of the Order to Show Cause sent to Plaintiff's
address of record was returned to the Court as undeliverable.
(Doc. 6.) The Court's research indicates that Plaintiff
was released from the custody of the Curry County Detention
Center on April 26, 2019, and did not notify the Court of any
change of address.
prisoner is granted leave to proceed in forma
pauperis, § 1915 provides:
The court shall assess and, when
funds exist, collect, as a partial payment of any court fees
required by law, an initial partial filing fee of 20 percent
of the greater of (A) the average monthly deposits to the
prisoner's account; or (B) the average monthly balance in
the prisoner's account for the 6-month period immediately
preceding the filing of the complaint or notice of appeal.
28 U.S.C. § 1915(b)(1) (emphasis added). Plaintiff's
6-month inmate account statement shows that Plaintiff had an
account balance sufficient to pay the initial partial payment
but spends his money on commissary purchases. (Doc. 2 at
4-6.) See Shabazz v. Parsons, 127 F.3d 1246, 1248-49
(10th Cir. 1997). “[W]hen a prisoner has the means to
pay an initial partial filing fee and instead spends his
money on amenities at the prison canteen or commissary, he
should not be excused for failing to pay the initial partial
filing fee.” Baker v. Suthers, 9 Fed.Appx.
947, 949 (10th Cir. 2001). Plaintiff has not paid the $17.03
initial partial payment or shown cause why he should be
relieved of the obligation to pay.
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 has failed to comply with D.N.M.
Court's April 10, 2019 and May 15, 2019 Orders directed
Plaintiff to make the required partial payment under §
1915(b)(1) or show cause why the payment should be excused.
(Docs. 4; 5.) Plaintiff has failed to make the initial
partial payment and to comply with the Court's Orders.
Plaintiff has also failed to keep the Court apprised of his
mailing address and has failed to prosecute this case. The
Court may dismiss an action under Rule 41(b) for failure to
prosecute or to comply with statutes, the rules of civil
procedure, local rules, or court orders. See Olsen v.
Mapes, 333 F.3d 1199, 1204, n.3 (10th Cir. 2003). The
Court will dismiss this case for Plaintiffs failure to comply
with 28 U.S.C. § 1915(b), D.N.M. LR-Civ. 83.6, and the
Court's April 10, 2019 and May 15, 2019 Orders and for
failure to prosecute this proceeding.
IS ORDERED that the Prisoner's Civil Rights
Complaint filed by Myrtis Paulo Hart, on March 4, 2019 (Doc.
1) is DISMISSED without prejudice under Rule
41(b) for failure to comply with 28 U.S.C. § 1915(b),
D.N.M. LR-Civ. 83.6, the Court's April 10, ...