Crespin v. Metropolitan Detention Center et al

Filing 10

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 9 Motion for Leave to Proceed in forma pauperis and dismissing 1 Civil Rights Complaint without prejudice under Fed. R. Civ. P. 41(b) for failure to prosecute or to comply with 28 U.S.C. §§ 1914 and 1915 and with the Court's March 12, 2018 and April 19, 2018 Orders. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

CHRISTOPHER LEE CRESPIN,
Plaintiff,
vs.

No. CV 18-00227 JCH/KRS

METROPOLITAN DETENTION CENTER,
ABRAHAM GALLARDO,
Defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court under Fed. R. Civ. P. 41(b) on the Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983 filed by Plaintiff Christopher Lee Crespin on March 7,
2018. (Doc. 1). The Court will dismiss the Complaint without prejudice for failure to comply
with 28 U.S.C. §§ 1914 and 1915, failure to comply with Court orders, and failure to prosecute
this case.
Plaintiff, Christopher Lee Crespin, filed this civil rights proceeding under 42 U.S.C. §
1983 on March 7, 2018. (Doc. 1). Plaintiff did not pay the $400.00 filing fee or submit an
application to proceed without prepayment of fees or costs pursuant to 28 U.S.C. § 1915. On
March 12, 2018, the Court ordered Plaintiff to cure this deficiency within 30 days by either
paying the $400.00 filing fee or submitting an application to proceed in forma pauperis. (Doc.
2). The Order advised Plaintiff that, if he failed to cure the deficiency within the 30-day time
period, the Court could dismiss this proceeding without further notice. (Doc. 2 at 1). The Court
also sent Plaintiff the forms for submitting an application under § 1915. (Doc. 2 at 2). More
than 30 days elapsed after entry of the Court’s Order to Cure Deficiency and Plaintiff did not pay

the $400 filing fee, submit an application to proceed under § 1915, or otherwise respond to the
Court’s March 12, 2018 Order.
On April 19, 2018, the Court entered an Order to Show Cause. (Doc. 4). The Order
directed Plaintiff Crespin to show cause within 21 days why the case should not be dismissed for
failure to comply with the Court’s March 12, 2018 Order. (Doc. 4 at 2). On May 9, 2018,
Crespin sent a letter response to the Court stating that “my filing fee for my case against Lt.
Gallardo was waived my paperwork said.” (Doc. 5 at 1). Crespin attached a State of New
Mexico, Second Judicial District Court Order on Application for Free Process. (Doc. 5 at 2-3).
As indicated, Plaintiff Crespin’s Complaint was filed in this federal Court on March 7, 2018.
(Doc. 1). The Court takes note that he filed a substantially identical tort complaint in the State of
New Mexico, Second Judicial District Court on March 28, 2018, along with an application for
free process, which was granted by the state court. See Christopher Lee Crespin v. Metropolitan
Detention Center and Abraham Gallardo, No. D-202-CV-2018-02484.1
On May 18, 2018, seven days after the deadline for Crespin to respond to the Order to
Show Cause, Crespin filed a packet of additional materials. In his transmittal letter, Crespin
stated “It’s 5 separate envelopes, but together it equals “one “packet of the information need to
proceed with my tort claim. . .” (Doc. 7) (emphasis added). The packet included a State of New
Mexico, Second Judicial District Court Complaint (Tort), Summons, Motion for Free Process,
and Court Annexed Arbitration Certification. (Doc. 8 at 21-36). Nothing filed by Crespin was

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  Crespin has a pattern of filing prisoner civil rights complaints in this Court and then filing

essentially duplicative proceedings in state court. See Christopher Lee Crespin v. Albuquerque
Police Department, 2nd Judicial, Public Defender Department, No. CV 18-00260 WJ/CG and
Christopher Lee Crespin v. New Mexico Public Defender Department, No. D-202-CV-201802936, Christopher Lee Crespin v. Albuquerque Police Department, No. D-202-CV-201802937, and Christopher Lee Crespin v. Second Judicial District Court, No. D-202-CV-201802941.
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responsive to this Court’s Order to Show Cause but, instead, indicated intent by Crespin to
prosecute his New Mexico state court action.
Under 28 U.S.C. §§ 1914(a) and 1915(a), the Court is required collect the federal filing
fee from the Plaintiff or authorize Plaintiff to proceed without prepayment of the fee. Plaintiff
has failed to either pay the $400.00 filing fee or submit an application to proceed under § 1915.
The Court ordered Crespin to either pay the filing fee or submit an application to proceed under
§ 1915. The Court also provided Crespin with the § 1915 application form. (Doc. 2). Crespin did
not pay the fee, file an application to proceed, or even respond to the Court’s Order.
When the Court ordered Crespin to show cause why the case should not be dismissed, he
tried to claim that the fee had been waived based on the state court’s order granting him free
process. (Doc. 5). The state court’s grant of free process in his separate state court action has no
application to this federal court case.

Crespin’s May 18, 2018 packet was untimely, and

demonstrates that, rather than prosecute a federal civil rights case in this court, Crespin intends to
pursue his New Mexico state tort action. (Doc. 7, 8). Crespin has failed to comply with the
requirements of 28 U.S.C. §§ 1914 and 1915, with the Court’s March 12, 2018 Order to Cure
Deficiency, and with the Court’s April 19, 2018 Order to Show Cause.
The Court may dismiss an action under Fed. R. Civ. P. 41(b) for failure to prosecute, to
comply with the statutes or rules of civil procedure, or to comply with court orders. See Olsen v.
Mapes, 333 F.3d 1199, 1204, n. 3 (10th Cir. 2003).  Therefore, the Court will dismiss this civil
proceeding pursuant to Rule 41(b) for failure to comply with 28 U.S.C. §§ 1914, 1915, failure to
comply with the Court’s Orders of March 12, 2018 and April 19, 2018, and failure to prosecute
this proceeding. The Court’s dismissal is without prejudice to Crespin’s right to proceed on his
tort action pending in the New Mexico Second Judicial District Court.

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Also before the Court is the Application to Proceed in District Court Without Prepaying
Fees or Costs filed by Plaintiff Crespin on June 12, 2018 (Doc. 9). The Court will deny the
Application to Proceed on several grounds. First, the Application does not comply with the
requirements of 28 U.S.C. § 1915(b) in that it does not include Crespin’s 6-month inmate
account statement. Second, the Court ordered Crespin to file an application to proceed in forma
pauperis no later than April 12, 2018. (Doc. 2). The Application is filed two months after the
Court’s deadline, without any explanation for his failure to file within the time limit or any
request for an extension of time. Last, the Application to Proceed is moot in light of the Court’s
Rule 41(b) dismissal of the Complaint.
IT IS ORDERED:
(1) the Application to Proceed in District Court Without Prepaying Fees or Costs filed by
Plaintiff Christopher Lee Crespin on June 12, 2018 (Doc. 9) is DENIED; and
(2) the Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 filed by Plaintiff
Christopher Lee Crespin on March 7, 2018 (Doc. 1) is DISMISSED without prejudice under
Fed. R. Civ. P. 41(b) for failure to prosecute or to comply with 28 U.S.C. §§ 1914 and 1915 and
with the Court’s March 12, 2018 and April 19, 2018 Orders.

__________________________________
UNITED STATES DISTRICT JUDGE

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