United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
AND PROCEDURAL BACKGROUND
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
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
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
3-1 at 3).
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.
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. 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).
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).
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
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 ...