United States District Court, D. New Mexico
Jesus Almeida Plaintiff pro se
MEMORANDUM OPINION AND ORDER DENYING LETTER'S
MOTION TO REOPEN CASE
MATTER comes before the Court on the handwritten
Letter from the Plaintiff Rafael Jesus Almeida to the Court,
filed February 8, 2019 (Doc. 16)(“Letter”),
asking the Court to reopen this case. The Court denies the
motion to reopen.
Rafael Jesus Almeida filed his Complaint for Violation of
Civil Rights on April 17, 2017. See Complaint at 1,
filed April 17, 2017 (Doc. 1). At the time of filing, Almeida
was incarcerated at the San Juan County Detention Center.
See Complaint ¶ 1, at 2. On April 19, 2017, the
Court granted Almeida leave to proceed in forma
pauperis under 28 U.S.C. § 1915 and ordered him to
make an initial partial payment. See Order Granting
Motion for Leave at 1, filed April 19, 2017
(“Order”)(Doc. 4). The Order also notified
Almeida that, after he made the initial partial payment, he
would need to pay the full filing fee in monthly payments of
twenty percent of the preceding month's income credited
to his prisoner's account. See Order at 2.
Almeida paid the initial partial payment, but sought an
extension of time to make the requisite monthly payments.
See Motion to Extend Time, filed July 19, 2017 (Doc.
8). The Court granted Almeida's request for an extension
of time and ordered him to begin making the monthly payments
or show cause why the Court should excuse him from those
payments no later than March 15, 2018. See Order
Granting Motion to Extend Time, filed February 13, 2018 (Doc.
9)(“Second Order”). Almeida did not commence
making monthly payments or show cause why he should be
excused from making those payments.
copy of the Court's Second Order mailed to Almeida's
address of record was returned as undelivered on February 22,
2018. See Mail Returned as Undeliverable, filed
February 22, 2018 (Doc. 10). The Court then issued an Order
to Show Cause on February 28, 2018, directing Almeida to
notify the Court of a new address, or otherwise show cause
why the Court should not dismiss this case, within twenty-one
days of that Order's entry. See Order to Show
Cause, filed February 28, 2018 (Doc. 11). The copy of the
Court's Order to Show Cause mailed to Almeida's
address of record also was returned as undelivered.
See Mail Returned as Undeliverable, filed March 8,
2018 (Doc. 12). Almeida did not provide the Court with a new
address or otherwise respond to the Court's Order to Show
Court entered a Memorandum Opinion and Order on March 31,
2018, dismissing the case without prejudice under rule 41(b)
of the Federal Rules of Civil Procedure based on
Almeida's failure to commence making monthly payments and
failure to advise the Court of his correct address.
See Memorandum Opinion and Order, filed March 31,
2018 (Doc. 13). After almost one year had elapsed, Almeida
filed his letter requesting that the Court reopen this case.
See Letter at 2. Almeida's letter and envelope
show that he was incarcerated at Northwestern New Mexico
Correctional Facility. See Letter at 1-2. The Court
sent Almeida a notice, by mail, confirming the filing of his
letter request to reopen. That mailing was returned to the
Court as undeliverable on February 15, 2019. See
Mail Returned as Undeliverable, filed February 15, 2019 (Doc.
17). The Court's research confirms that Almeida has been
released from the New Mexico Corrections Department's
custody, and he has not provided the Court with a new
address. See State of New Mexico v. Rafael Jesus
Almeida, No. D-1116-CR-2017-00060; D-1116-CR-2017-00160;
Court declines to reopen this case. Reopening a case is
discretionary and is warranted only in exceptional
circumstances. See Van Skiver v. United States, 952
F.2d 1241, 1243 (10th Cir. 1991). Almeida presents no
exceptional circumstances to support the reopening of his
case. Further, even if he had presented such circumstances,
reopening the case would be futile absent a current address
for him. The Court has dismissed this case without prejudice.
If Almeida wishes to pursue his claims, he may do so by
filing a new lawsuit.
IS ORDERED that Plaintiff Rafael Jesus Almeida's
motion to reopen the case in his Letter to the Court, filed
February 8, 2019 (Doc. 16) is denied.
The Court takes judicial
notice of the official New Mexico court records in
Almeida's criminal cases. See United States v.
Ahidley,486 F.3d 1184, 1192 n.5 (10th Cir.
2007)(stating that the Court may take judicial notice of
publicly filed records in this court and other courts