United States District Court, D. New Mexico
J. DANIEL GONZALES, Plaintiff,
RIO RANCHO POLICE DEPT., M. HETES, M. ADAMS, Defendants.
Daniel Gonzales Santa Fe, New Mexico Pro Se Plaintiff
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on the Prisoner's
Civil Rights Complaint, filed November 2, 2018 (Doc.
1)(“Complaint”). The Court will dismiss Plaintiff
J. Daniel Gonzales' Complaint without prejudice under
rule 41(b) of the Federal Rules of Civil Procedure for
failure to comply with statutes, rules, and Court orders, and
for failure to prosecute this proceeding.
AND PROCEDURAL BACKGROUND
is an incarcerated prisoner. He filed his Complaint on
November 2, 2018. See Complaint at 1. Gonzales also
submitted a Prisoner's Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 on November 2, 2018
(Doc. 2), but he omitted the required six-month inmate
account statement. On November 5, 2018, the Court ordered him
to cure the deficiency by submitting his account statement.
See Order to Cure Deficiency at 1, filed November 5,
2018 (Doc. 3). Gonzales then submitted his inmate account
statement. See Response to Order to Cure Defects,
filed November 14, 2018 (Doc. 5). The Court granted Gonzales
leave to proceed in forma pauperis on May 2, 2019.
See Order Granting Leave to Proceed, filed May 2,
2019 (Doc. 8)(“Order”). The Court also required
Gonzales to make an initial partial payment of $15.00 or to
show cause why he should not be required to make the payment
within thirty days of entry of the Order. See Order
responded to the Order by filing a Motion for Payment
Excused, filed May 15, 2019 (Doc. 9). In his Motion for
Payment Excused, Gonzales notified the Court that he was
going to be released from custody on June 25, 2019, and that
his inmate account was frozen. See Motion for
Payment Excused. He requested an extension of time to the
“first week of July” to make the initial partial
payment. Motion for Payment Excused. The Honorable Kirtan
Khalsa, United States Magistrate Judge for the District of
New Mexico, granted his request and ordered that he make the
initial partial payment no later than July 8, 2019.
See Order Granting Extension of Time, filed June 13
2019 (Doc. 10). The copy of the Order mailed to Gonzales at
his address of record was returned as undeliverable on June
24, 2019. See Mail Returned as Undeliverable, filed
June 24, 2019 (Doc. 11). More than twenty days elapsed after
the July 8, 2019, payment deadline, and Gonzales did not make
the initial partial payment, did not advise the Court of his
current address, and did not communicate with the Court.
29, 2019, Judge Khalsa entered an Order to Show Cause,
directing Gonzales to show cause, within thirty days of the
Order's entry, why this case should not be dismissed for
failure to comply with 28 U.S.C. § 1915(b)(1), D.N.M.
LR-Civ. 83.6, and Judge Khalsa's May 2, 2019, and June
13, 2019, Orders. See Order to Show Cause, filed
July 29, 2019 (Doc. 12). More than thirty days has elapsed
since entry of the Court's July 29, 2019, Order to Show
Cause, and Gonzales has not responded to the Order to Show
Cause or otherwise communicated with the Court.
LAW REGARDING RULE 41(b) DISMISSALS
Court may dismiss an action under rule 41(b) for failure to
prosecute, to comply with statutes, 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). Pro se litigants are also 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). In addition, the local rules require
litigants, including prisoners, to keep the Court apprised of
their proper mailing address and to maintain contact with the
Court. See D.N.M. LR-Civ. 83.6.
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
28 U.S.C. § 1915(b)(1) (emphasis added). Gonzales was
ordered to make the required partial payment under §
1915(b)(1) or to show cause why the payment should be
excused, but he did not comply with statutory requirements or
the Court's Orders. Gonzales also was required to follow
the federal rules of procedure and simple, nonburdensome
local rules, but has not done so. See Bradenburg
v. Beaman, 632 F.2d at 122. Last, Gonzales was obligated
to keep the Court apprised of his proper mailing address and
to maintain contact with the Court, but he has not provided
the Court with a current mailing address and he has not
communicated with the Court since May 15, 2019. See
D.N.M. LR-Civ. 83.6. The Court will dismiss Gonzales'
Complaint under Rule 41(b) for failure to comply with
statutes, rules, and Court orders, and failure to prosecute
IS ORDERED that the Prisoner's Civil Rights
Complaint filed November 2, 2018 (Doc. 1) ...