Kisor v. Judd et al

Filing 14

MEMORANDUM OPINION AND FINAL ORDER OF DISMISSAL by Chief District Judge William P. Johnson, denying as moot 11 MOTION to Compel a Response by Plaintiff T.R. Kisor and dismissing 1 Complaint. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
T.R. KISOR,
Plaintiff,
vs.

No. CV 17-00381 WJ/CG

B. JUDD, WARDEN,
CORE CIVIC,
DEPARTMENT OF CORRECTIONS,
and ALL STAFF ET AL.,
Defendants.

MEMORANDUM OPINION AND FINAL ORDER OF DISMISSAL
THIS MATTER is before the Court sua sponte on the Complaint for Violation of Civil
Rights filed by Plaintiff T.R. Kisor on March 27, 2017 (“Complaint”). (Doc. 1). The Court
previously dismissed the Complaint without prejudice for failure to state a claim and with leave
to amend. Plaintiff has failed to timely amend and the Court now dismisses the Complaint with
prejudice.
Factual and Procedural Background
At the time of the events underlying his Complaint, Plaintiff T.R. Kisor was a prisoner at
the Northwest New Mexico Correctional Facility (“NNMCF”) in Grants, New Mexico. (Doc. 1
at 2). Plaintiff Kisor filed his civil rights Complaint against Defendants B. Judd, Warden of
NNMCF, Core Civic, operator of NNMCF, the New Mexico Department of Corrections, and “all
staff.” (Doc. 1 at 2-3). His Complaint lists 33 alleged constitutional and civil rights violations,
including “evil and malice intent,” “no jobs,” and “making me send my T.V. home.” (Doc. 1 at
12-13). Kisor’s request for relief states:
“My relief is 20,000,000. They need to start following policy and
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procedures and need a federal monitor put in place and a dietician
appointed. Programs in education and all higher authority replaced.
They don’t follow policy or procedures the kitchen is a mess
and all staff are improperly trained in all aspects of there jobs.”
(Doc. 1 at 5). He also alleges:
“I have no confidence in any of the staff at this prison and feel
my life is in danger in this prison or any of the New Mexico state
prisons due to my law suits against Department of Corrections.
I would like to be moved to a federal facility for my safety.”
(Doc. 1 at 13). The Complaint fails to identify any official other than Warden Judd and is devoid
of any factual allegations of conduct by an individual official to support any of the 33 claimed
civil rights violations.
The Court dismissed the New Mexico Department of Corrections as a party and
dismissed Plaintiff Kisor’s Complaint without prejudice on the grounds that the Complaint fails
to state any claim for relief under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B). (Doc.
13). Consistent with Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), the Court advised
Kisor of the deficiencies in his Complaint and granted him leave to file an amended complaint
within 30 days of entry of the Court’s Memorandum Opinion and Order. (Doc. 13 at 5-7). The
Court also notified Kisor that, if he did not file an amended complaint within the 30-day time
period, the Court could dismiss the Complaint with prejudice. (Doc. 13 at 7). More than 30 days
has elapsed since entry of the Court’s June 4, 2018 Memorandum Opinion and Order, and
Plaintiff Kisor has failed to file an amended complaint or otherwise respond to the Court’s order.
The Court Will Dismiss With Prejudice for Failure to
State a Claim and Failure to Amend
The Court dismissed Plaintiff Kisor’s claims on the grounds that the allegations of his
Complaint fail to state a claim for relief under 42 U.S.C. § 1983. Although Kisor’s Complaint
identifies Warden Judd, the Complaint is devoid of any factual allegations of conduct on the part
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of Warden Judd. Kisor does not allege any act done by Warden Judd, much less an act that
violated any constitutional right. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
Additionally, Kisor’s generalized references to “all staff” fail to identify any specific official and
are factually insufficient to make clear who is alleged to have done what to whom. Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Last, the Complaint fails to state any claim for relief against Core Civic under
§1983 in the absence of any factual allegations of conduct by individual employees of Core
Civic that violated Kisor’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The
Complaint is factually insufficient and fails to state any claim for relief. Twombly, 550 U.S. at
570.
The Court granted Kisor the opportunity to file an amended complaint specifying
individuals and the individualized actions at NNMCF that he claims resulted in violation of his
constitutional rights. Hall v. Bellmon, 935 F.2d at 1110, nt. 3 (pro se litigants are to be given
reasonable opportunity to remedy defects in their pleadings). The Court notified Kisor that the
amended complaint must state the facts of each separate claim and why Plaintiff believes his
constitutional rights were violated. See Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir.1988).
(Doc. 13 at 5-7). Kisor did not file an amended complaint and has not responded to the Court’s
June 4, 2018 Memorandum Opinion and Order or otherwise communicated with the Court.
Because the Complaint fails to state a claim for relief and Plaintiff Kisor has not filed any
amended complaint or attempted to respond to the Court’s Memorandum Opinion and Order, the
Court declines to grant Plaintiff further leave to amend and will dismiss this case with prejudice.
See, Calderon v. Kan. Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1186-87 (10th Cir.1999);
Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993).

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The Court Will Impose a Strike Under 28 U.S.C. § 1915(g)
When it enacted the in forma pauperis statute, Congress recognized that “no citizen
should be denied an opportunity to commence, prosecute, or defend an action, civil or criminal,
in any court of the United States, solely because his poverty makes it impossible for him to pay
or secure the costs.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948).
However, Congress also recognized that a litigant whose filing fees and court costs are assumed
by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
Congress noted that prisoner suits represent a disproportionate share of federal filings and
enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of
the good. Jones v. Bock, 549 U.S. 199, 202-204 (2007). Those reforms have included the threestrike rule of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g).
The three-strike rule of § 1915(g) states:
“In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.”
Because the Court concludes that Kisor’s Complaint in this case fails to state a claim for relief
under § 1915(e)(2)(B), the Court will impose a strike against him under the Prison Litigation
Reform Act § 1915(g). Kisor is notified that, if he accrues three strikes, he may not proceed in
forma pauperis in any future civil actions before federal courts unless he is under imminent
danger of serious physical injury. 28 U.S.C. § 1915(g).
IT IS ORDERED:

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(1) the Motion to Compel a Response filed by Plaintiff T.R. Kisor on January 9, 2018
(Doc. 11) is DENIED as moot;
(2) the Complaint for Violation of Civil Rights filed by Plaintiff T.R. Kisor on March 27,
2017 (Doc. 1) and all claims and causes of action are DISMISSED with prejudice for failure to
state a claim on which relief can be granted;
(3) a STRIKE is imposed against Plaintiff T.R. Kisor under 28 U.S.C. § 1915(g); and
(4) final judgment will be entered.

_______________________________________
CHIEF UNITED STATES DISTRICT JUDGE

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