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Kirk v. State

United States District Court, D. New Mexico

September 27, 2019

JAMES THOR KIRK, Plaintiff,
v.
STATE OF NEW MEXICO, NEW MEXICO STATE POLICE, UNIVERSITY OF NEW MEXICO HOSPITAL, VALLENCIA COUNTY DETENTION CENTER, VALENCIA COUNTY BOARD OF COMMISSIONERS, Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under 28 U.S.C. § 1915A and Fed.R.Civ.P. 12(b)(6) on the Complaint (Tort) filed by Plaintiff James Thor Kirk on May 17, 2018 in New Mexico state court and removed to this Court on June 27, 2018. (Doc. 3-1) (“Complaint”). This is at least the seventh time Kirk has brought the same claims, and they are barred by the doctrine of claim preclusion. The Court will dismiss Kirk’s Complaint.

         FACTUAL AND PROCEDURAL BACKGROUND

         At the time the Complaint was filed, Plaintiff Kirk was an inmate in the custody of the New Mexico Corrections Department. (Doc. 3-1 at 1). In his Complaint, Kirk names the State of New Mexico, New Mexico State Police, University of New Mexico Hospital, Valencia County Detention Center, and Valencia County Board of Commissioners as Defendants. (Doc. 3-1 at 1). Plaintiff Kirk alleges:

“Deprivation of Civil Rights, excessive punishment, cruel and unusual punishment, excessive force, police misconduct, illegally detained, false imprisonment, Good Time figuring sheet calculation errors, NMDOC, errors illegally detained.”

         (Doc. 3-1 at 1). In support of and as a basis for his claims, Kirk attaches a State court Judgment in No. D-1314-CR-2010-00338, documents relating to good time figuring in No. D-1314-CR-2010-00338, his Petition Under 28 U.S.C. § 2254 filed in Kirk v. Jablonski, No. CV 17-01050 JCH/CG, and various other filings relating to No. CV 17-01050 JCH/CG. (Doc. 7-1 at 4-28). In his Prayer for Relief, Kirk demands the Court issue judgment in Kirk’s favor:

“A. $400, 000 for the New Mexico State Police excessive force,
B. $3, 000, 000 for the University of New Mexico Hospital, illegal cavity search,
C. $400, 000 for New Mexico Department of Corrections, false imprisonment, $1, 200 per day illegally detained and any further Relief deemed proper and Just in the premises of violations, immediate Release from the Department of Corrections.”

         (Doc. 3-1 at 3).

         Defendants, New Mexico State Police, University of New Mexico Hospital, and New Mexico Corrections Department, filed a Motion for Summary Judgment/Motion to Dismiss on December 18, 2018. (Doc. 13). Defendants seek dismissal of the Complaint against them on the grounds of claim preclusion, time-bar of the applicable statute of limitations, and mootness. (Doc. 13 at 12-20). Plaintiff has not responded to the Motion.

         Plaintiff Kirk has prosecuted at least seven prior actions in this court arising out of the same factual allegations, CV 12-01157; CV 14-0891; CV 14-01027; CV 15-614; CV 15-00736; CV 16-00270, and CV 17-01050.[1] Kirk v. University of New Mexico Hospital, No. CV 12-01157 JP/WPL was filed November 8, 2012 (CV 12-01157 JAP/WPL, Doc. 1). It is an action under 42 U.S.C. § 1983 seeking monetary damages for physical injury and pain and suffering arising out of injuries Plaintiff allegedly sustained during the high speed chase with law enforcement officers on October 26, 2010. (CV 12-01157 JAP/WPL, Doc. 1). All identified Defendants in no. CV 12-01157, including University of New Mexico Hospital and Jeffrey Burke, New Mexico State Police Officer, were dismissed from the case. (CV 12-01157 JAP/WPL, Doc. 38, 162, 211, 216). That ruling was affirmed by the United States Court of Appeals for the Tenth Circuit on August 17, 2016. See Kirk v. Flores, No. CV 15-02219 (10th Cir. August 17, 2016).

         Kirk v. Valencia County Detention Center, No. CV 14-00891 JCH/SCY was removed to this Court on October 3, 2014. (CV 14-00891 JCH/SCY, Doc. 1). It is a civil rights and New Mexico Tort Claims Act case arising out of the same October 26, 2010 incident and raising issues including injuries sustained in the chase and the alleged illegal body cavity search. The case named some of the same defendants as those in this case, including University of New Mexico Hospital and New Mexico State Police. (CV 14-00891 JCH/SCY, Doc. 1-1). No. CV 14-00891 was dismissed by Memorandum Opinion and Order on October 17, 2014, based on the doctrine of claim splitting. (CV 14-00891 JCH/SCY, Doc. 9).

         Similarly, Kirk v. New Mexico State Police, No. CV 14-01027 MV/KK was removed from state court on November 12, 2014. (No. CV 14-01027 MV/KK, Doc. 2). Noting that, although not identical, the claims involve the same parties and claimed injury as the two prior cases, the Court dismissed CV 14-01027 MV/KK on the grounds of claim splitting. (No. CV 14-01027 MV/KK, Doc. 15). The Defendants in that case included the University of New Mexico Hospital, New Mexico State Police, and Valencia County Detention Center. The issues, again, alleged claims from the 2010 crash, deprivation of medical treatment, and an illegal body cavity search.

         In Kirk v. Marcantel, No. CV 15-00614 MV/KBM, Kirk brought a habeas corpus proceeding against the New Mexico Department of Corrections asserting that his good time credits had been improperly calculated. The Court denied Kirk relief on the merits, finding that his good time credit had been properly calculated and an habitual ...


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