Gooden v. New Mexico Department of Corrections, et al.

Filing 38

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, this action is dismissed without prejudice, and judgment will be entered; and the Clerk of the Court is directed to change Gooden's mailing address to 3300 Ceasar Chavez Blvd, Clovis, New Mexico 88101 and to also send a copy of this Memorandum Opinion and Order and of the Final Judgment to Gooden's new mailing address (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAMES EDWARD GOODEN, Jr.,
Plaintiff,
vs.

No. CIV 16-0934 JB/SCY

NEW MEXICO DEPARTMENT OF
CORRECTIONS; HEALTHCARE
PROVIDER; CHARLES BIVEN, Dr., and
JOHN DELORENZO, Physical Therapist,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE
THIS MATTER comes before the Court on the Court’s Memorandum Opinion and
Order, filed February 24, 2017 (Doc. 37)(“MOO”), dismissing without prejudice the Plaintiff’s
Amended Prisoner’s Civil Rights Complaint, filed December 13, 2016 (Doc. 27), for failure to
state a claim upon which relief can be granted under 28 U.S.C. § 1915(e)(2). The Court afforded
Plaintiff James Edward Gooden thirty days, from the date of the MOO’s entry, to file an
amended complaint. See MOO at 15. The Court notified Gooden that “[f]ailure to file an
amended complaint that complies with the standards set forth [in the Court’s MOO] may result
in the dismissal of this action without further notice.” MOO at 13.
Gooden’s amended complaint was due on or before March 27, 2017. As of this date,
however, Gooden has not filed an amended complaint or otherwise responded to the Court’s
February 24, 2017, MOO. Rule 41(b) of the Federal Rules of Civil Procedure authorizes a
district court to dismiss an action sua sponte “[i]f the plaintiff fails to prosecute or comply with
these rules or a court order.” Fed. R. Civ. P. 41(b). See Olsen v. Mapes, 333 F. 3d 1199, 1204
n.3 (10th Cir. 2003)(noting that rule 41(b) of the Federal Rules of Civil Procedure “has long been
interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to prosecute or

comply with the rules of civil procedure or court’s orders”). Because Gooden has not filed an
amended complaint in compliance with the Court’s MOO, the Court will, pursuant to rule 41(b),
dismiss this action without prejudice.
In letters dated January 20, 2017, and January 26, 2017, Gooden informed this Court that
he would be released from Central New Mexico Correctional Facility on March 17, 2017, and
that, after that date, all future correspondence should be sent to him at 3300 Ceasar Chavez Blvd,
Clovis, New Mexico 88101. See Letter, filed January 20, 2017 (Doc. 34); Letter, filed January
30, 2017 (Doc. 36). The Court will direct the Clerk of the Court to update Gooden’s mailing
address on the docket and also send a copy of this Memorandum Opinion and Order and the
Final Judgment to Gooden’s new mailing address.
IT IS ORDERED that: (i) this action is dismissed without prejudice, and judgment will
be entered; and (ii) the Clerk of the Court is directed to change Gooden’s mailing address to
3300 Ceasar Chavez Blvd, Clovis, New Mexico 88101 and to also send a copy of this
Memorandum Opinion and Order and of the Final Judgment to Gooden’s new mailing address.

_________________________________
UNITED STATES DISTRICT JUDGE

Parties:
James Edward Gooden, Jr.
Los Lunas, New Mexico
Plaintiff pro se
Charles Biven, Dr.
John Delorenzo, Physical Therapist
Defendants

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