Tenorio v. Coriz et al

Filing 9

MEMORANDUM OPINION AND ORDER dismissing 5 Petition for 2241 Relief by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JARRETT TENORIO,
Petitioner,
vs.

No. CIV 18-0240 JB/CG

JIM GERLACH; DANIEL CORIZ;
KENNETH AGULAR; and JAVIN
CORIE,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner Jarrett Tenorio’s failure to
prosecute his Amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, filed March
30, 2018 (Doc. 5)(“Amended Petition”). Tenorio alleges that Santa Domingo Pueblo officials
deprived him of due process and his right to counsel in connection witha tribal conviction.
Tenorio recently severed contact with the Court and has not provided a forwarding address.
Having reviewed applicable law and the record, the Court will dismiss the case without prejudice.
PROCEDURAL BACKGROUND
Tenorio initiated this action on March 12, 2018, by filing a handwritten “Writ of Habeas
Corpus Relief from Tribal Court Conviction,” filed March 12, 2018 (Doc. 1)(“Letter Petition”).
The Court, thereafter, referred the matter to the Honorable Carmen Garza, Chief United States
Magistrate Judge for the United States District Court for the District of New Mexico, for
recommended findings and disposition, and to enter non-dispositive orders. See Order Referring
Case at 1, filed March 13, 2018 (Doc. 2). Tenorio’s original Letter Petition indicated that he was
imprisoned at the Grady County Law Enforcement Center (“Grady Center”) in Chickasha,

Oklahoma. See Letter Petition at 1. The Letter Petition is not on the proper habeas form, is not
sworn, and does not contain a clear request for relief. See Letter Petition at 1.
On March 14, 2018, Chief Magistrate Judge Garza entered an Order to Cure Deficiencies
(Doc. 3)(“Cure Order”). The Cure Order explained that, to pursue habeas relief under 28 U.S.C.
§ 2241, Tenorio must submit an amended habeas petition on the proper form and either prepay the
$5.00 filing fee or, alternatively, submit an application to proceed in forma pauperis. See Cure
Order at 1. The Clerk of the Court also mailed Tenorio blank copies of the form § 2241 petition
and the form motion to proceed in forma pauperis. See Cure Order at 2. Tenorio filed his
Amended Petition on March 30, 2018. He also filed an Application to Proceed in District Court
Without Prepaying Fees or Costs, filed March 30, 2018 (Doc. 6)(“In Forma Pauperis
Application”).
After filing the Amended Petition, Tenorio was released from custody or transferred to
another facility without providing his new address, as D.N.M. LR-Civ. 83.6 requires. Tenorio
does not appear on the Grady Center Jail Log, http://www.gclec.com:81/45790001/jailwebip.html.
He is also absent from the inmate-locator websites for the Oklahoma Department of Corrections,
https://okoffender.doc.ok.gov/,
https://search.cd.nm.gov/.

and

the

New

Mexico

Corrections

Department,

The Court takes “judicial notice of th[e] information regarding

[Tenorio’s] release that is available to the public on the . . . inmate locator” websites. United
States v. Robles-Ortega, No. 08-2143, 2009 WL 1969936, *1 n. 1 (10th Cir. July 9,
2009)(unpublished).1 See also Triplet v. Franklin, No. 06-6247, 365 F. App’x 86, 92 n.8 (10th
1

The Court relies on this and other unpublished Tenth Circuit opinions to the extent their
reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A)(“Unpublished
opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit
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Cir. Feb. 5, 2010)(unpublished)(taking judicial notice of Oklahoma Department of Corrections’
website); N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n. 22 (10th Cir.
2009)(taking judicial notice of information on “[t]he websites of two federal agencies”).
By an Order entered February 3, 2020, the Court directed Tenorio to notify the Clerk of his
new address or to show cause why the Court should not dismiss this action without prejudice. See
Order to Show Cause, filed February 3, 2020 (Doc. 7). The Order to Show Cause warns that the
“[f]ailure to timely comply will result in dismissal of this action.” Order to Show Cause at 1.
The show-cause deadline was March 3, 2020. Tenorio has not updated his address, and the Order
to Show Cause was returned as undeliverable with the notation: “Not in Grady County Jail.
Return to Sender.” Returned Envelope, filed February 24, 2020 (Doc. 8).
ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the involuntary dismissal of
an action “[i]f the plaintiff fails to prosecute or to comply with the [Federal Rules of Civil
Procedure] or a court order.” Fed. R. Civ. P. 41(b). See also AdvantEdge Bus. Grp. v. Thomas
E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009)(“A district court undoubtedly
has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply
with local or federal procedural rules.”)(internal citation omitted). As the United States Court of
Appeals for the Tenth Circuit has explained, “the need to prosecute one’s claim (or face dismissal)
is a fundamental precept of modern litigation.” Rogers v. Andrus Transp. Services, 502 F.3d

has stated: “In this circuit, unpublished orders are not binding precedent, . . . and . . . citation to
unpublished opinions is not favored . . . . However, if an unpublished opinion . . . has persuasive
value with respect to a material issue in a case and would assist the court in its disposition, we
allow a citation to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).
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1147, 1152 (10th Cir. 2007). “Although the language of Rule 41(b) requires that the defendant
file a motion to dismiss, the Rule 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.” Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).
“Dismissals pursuant to Rule 41(b) may be made with or without prejudice.” Davis v.
Miller, 571 F.3d 1058, 1061 (10th Cir. 2009). If dismissal is made without prejudice, “a district
court may, without abusing its discretion, enter such an order without attention to any particular
procedures.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d
1158, 1162 (10th Cir. 2016).

Because “[d]ismissing a case with prejudice, however, is a

significantly harsher remedy -- the death penalty of pleading punishments -- [the Tenth Circuit
has] held that, for a district court to exercise soundly its discretion in imposing such a result, it
must first consider certain criteria.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty.
Justice Ctr., 492 F.3d at 1162. Those criteria include: the degree of actual prejudice to the
defendant; the amount of interference with the judicial process; the culpability of the litigant;
whether the court warned the party in advance that dismissal of the action would be a likely
sanction for noncompliance; and the efficacy of lesser sanctions. See Nasious v. Two Unknown
B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d at 1162 (citing Olsen v. Mapes, 333 F.3d
at 1204).
Here, Tenorio is no longer in custody at his address of record, and he has not provided an
updated address. In light of this omission, the Court will dismiss this case pursuant to rule 41(b)
for failure to prosecute. See Olsen v. Mapes, 333 F.3d 1199 at 1204. The dismissal will be
without prejudice, after considering the factors in Nasious v. Two Unknown B.I.C.E. Agents, at
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Arapahoe County Justice Center. The Court will also deny the In Forma Pauperis Motion as
moot.
IT IS ORDERED that: (i) Plaintiff Jarrett Tenorio’s Amended Petition for a Writ of
Habeas Corpus Under 28 U.S.C. § 2241, filed March 30, 2018 (Doc. 5), is dismissed without
prejudice; (ii) the Application to Proceed in District Court Without Prepaying Fees or Costs, filed
March 30, 2018 (Doc. 6), is denied; and (iii) the Court will enter a separate Final Judgment
disposing of this civil case.

________________________________
UNITED STATES DISTRICT JUDGE

Parties:
Jarrett Tenorio, # 124-508-983
Grady County Law Enforcement Center
Chickasha, Oklahoma
Pro se petitioner

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