Wright v. Bowen et al
Filing
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MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge Kea W. Riggs. The 14 Amended Claims and Complaint filed by Plaintiff, Shavis Wright is DISMISSED WITHOUT PREJUDICE under Fed. R. Civ. P. 41(b) for failure to comply with the Court's 13 Memorandum Opinion and Order entered on November 15, 2019. (ve)
Case 1:17-cv-00953-KWR-LF Document 17 Filed 08/18/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SHAVIS WRIGHT,
Plaintiff,
vs.
No. 17-cv-00953-KWR-LF
WARDEN BOWEN, WARDEN HATCH,
GREG MORRIS WARDEN, MAJOR
MONTOYA, SEC. GREG McCENTILE,
FIRE & SAFETY MS. EARPP,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court under Fed. R. Civ. P. 41(b) on the Amended Claims
and Complaint filed by Plaintiff Shavis Wright (Doc. 14) (“Amended Complaint”). The Court
will dismiss the Amended Complaint without prejudice for failure to comply with a Court Order.
On November 15, 2019, the Court dismissed Plaintiff Wright’s Complaint without
prejudice for failure to state a claim on which relief can be granted. (Doc. 13 at 4-7). The Court
also granted Plaintiff Wright leave to file an amended complaint to remedy the defects in his
pleading. (Doc. 13 at 7-8). The Court set a deadline of 30 days for Wright to file the amended
complaint. (Doc. 13 at 8).
Because December 15, 2019 was a Sunday, the deadline for Wright to file his amended
complaint was Monday, December 16, 2019. Wright’s Amended Complaint was not received by
the Court until Wednesday, December 18, 2019. (Doc. 14). Wright did not seek an extension of
time to file the Amended Complaint, nor did he request leave to file the Amended Complaint after
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the deadline. The Amended Complaint does not include any certificate of mailing and does not
contain any statement, declaration, or certification in compliance with the prison mailbox rule.
Wright’s Amended Complaint is untimely unless it was mailed in compliance with the
prison mailbox rule. To obtain the benefit of the prison mailbox rule, the prisoner mandatorily
must comply with the requirements of the rule. United States v. Smith, 182 F.3d 733, 734 n. 1 (10th
Cir.1999). The prison mailbox rule was adopted by the Supreme Court in Houston v. Lack, 487
U.S. 266, 276 (1988). As the Court held in Houston v. Lack, a pro se prisoner’s notice of appeal
will be considered timely if given to prison officials for mailing prior to the filing deadline,
regardless of when the court itself receives the documents. See also Fed. R. App. P. 4(c)(1).
The mailbox rule has clearly been extended to inmate 42 U.S.C. § 1983 filings, including the filing
of a civil rights complaint. See Price v. Philpot, 420 F.3d 1158, 1163-1166 (10th Cir. 2005).
An inmate who places a federal civil rights complaint in the prison’s internal mail system
will be treated as having “filed” that complaint on the date it is given to prison authorities for
mailing to the court. See Houston, 487 U.S. at 276. However, in order to obtain the benefit of the
rule, the inmate mandatorily must attest that such a timely filing was made. See United States v.
Ceballos–Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). Plaintiff must establish the date on
which he or she gave the papers to be filed with the court to a prison official in one of two ways.
Id. at 1144–45.
First, if the prison has a legal mail system that records the dates of submission and mailing
of inmate mail, then the prisoner must use it as the means of proving compliance with the mailbox
rule. Id. at 1144; see also United States v. Leonard, 937 F.2d 494, 495 (10th Cir.1991). The second
mechanism for establishing a filing date for purposes of the mailbox rule must be used if the inmate
does not have access to a legal mail system—or if the existing legal mail system is inadequate to
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satisfy the mailbox rule. In either of these circumstances, the “mandatory method by which a
prisoner ... proves compliance with the mailbox rule” is to “submit a declaration that meets the
requirements of 28 U.S.C. § 1746 or notarized statement setting forth the notice’s date of deposit
with prison officials and attest that first-class postage was pre-paid.” Ceballos–Martinez, 387 F.3d
at 1145; United States v. Smith, 182 F.3d 733, 735 n. 1 (10th Cir.1999). An inmate, then, must
establish timely filing under the mailbox rule by either (1) alleging and proving that he or she made
timely use of the prison’s legal mail system if a satisfactory system is available, or (2) if a legal
system is not available, then by timely use of the prison’s regular mail system in combination with
a notarized statement or a declaration under penalty of perjury of the date on which the documents
were given to prison authorities and attesting that postage was prepaid. Ceballos–Martinez, 387
F.3d at 1144–45.
This is the sixth case Plaintiff Wright has filed with the Court. See Wright v. Bravo, No.
CV 13-00429 JCH/CG; Wright v. Bravo, No. CV 10-00736 JCH/CG; Wright v. Hatch, No. CV
17-00392 MV/GJF; Wright v. Hatch, No. CV 17-00519 MV/GJF; Wright v. Jablonski, No. CV
17-00409 WJ/KBM. Plaintiff Wright is not unfamiliar with court rules and procedures. Plaintiff
Wright’s Amended Complaint was received by the Court after the deadline for submission under
the Court’s November 15, 2019 Order. The Amended Complaint does not include any proof that
Wright used a prison legal system, nor did Wright submit a statement of declaration under penalty
of perjury as to the date he submitted the Amended Complaint to prison authorities or that postage
was prepaid. See Doc. 14. Nor does Wright’s February 21, 2020 letter include any statement or
declaration that would comply with the requirements of the prison mailbox rule. (Doc. 16).
Wright’s filing does not comply with the requirements necessary to invoke the benefit of the prison
mailbox rule. Ceballos–Martinez, 387 F.3d at 1144–45; 28 U.S.C. § 1746.
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Plaintiff Wright’s Amended Complaint was not filed within 30 days as required by the
Court’s November 15, 2019 Order (Doc. 13).The Court may dismiss an action under Fed. R. Civ.
P. 41(b) for failure to prosecute or to comply with statutes, the rules of civil procedure, local rules,
or court orders. See Olsen v. Mapes, 333 F.3d 1199, 1204, n.3 (10th Cir. 2003). The Court will
dismiss this case for Plaintiffs’ failure to comply with the Court’s November 15, 2019 Order. The
Court notes that the alleged date of the occurrence for Wright’s claims is October 2018 and,
therefore, he is arguably still within the statute of limitations for filing his claims. See Varnell v.
Dora Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th Cir. 2014). Therefore, the Court will dismiss
the Amended Complaint without prejudice to Wright’s instituting a new proceeding by filing a
new complaint.1
IT IS ORDERED that the Amended Claims & Complaint filed by Plaintiff Shavis Wright
(Doc. 14) is DISMISSED WITHOUT PREJUDICE under Fed. R. Civ. P. 41(b) for failure to
comply with the Court’s November 15, 2019 Memorandum Opinion and Order.
Wright’s original Complaint alleged 2016 events, but his Amended Complaint raises 2018
claims. (Doc. 1 at 6; Doc. 14 at 2). The Court also notes that Plaintiff Wright, through counsel,
brought related claims in New Mexico state court. Those claims were resolved and dismissed with
prejudice by stipulation of the parties. See Wright v. Centurion Correctional Healthcare of New
Mexico LLC, No. D-1314-CV-2017-01064.
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