Kirk v. United States of America
MEMORANDUM OPINION AND ORDER Dismissing 1 Complaint by District Judge James O. Browning. (cmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAMES THOR KIRK,
No. CIV 22-0106 JB/CG
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiff James Thor Kirk’s failure to
prosecute his Wrongful Death Lawsuit, filed February 15, 2015 (Doc. 1)(“Complaint”). The
Honorable Carmen Garza, Chief United States Magistrate Judge for the United States District
Court for the District of New Mexico, directed Kirk to prepay the $402.00 civil filing fee or,
alternatively, to file a motion to proceed in forma pauperis. See Order to Cure Deficiencies, filed
May 18, 2022 (Doc. 4)(“Cure Order”). Because Kirk has not complied with the Cure Order and
has severed contact with the Court, and having reviewed applicable law and the record, the Court
will dismiss the Complaint without prejudice.
Kirk was previously detained at the Cibola County Correctional Institution, and initiated
this case on March 7, 2022, by filing the handwritten Complaint. See Complaint at 1. The
Complaint seeks at least $7.5 million in damages based on the wrongful death of Kirk’s father.
See Complaint at 3-4.
The Court referred the matter to Chief Magistrate Judge Garza for
recommended findings and disposition, and to enter non-dispositive orders.
Reference Relating to Prisoner Cases, filed March 1, 2022 (Doc. 2).
See Order of
Chief Magistrate Judge Garza entered the Cure Order on May 18, 2022. See Cure Order
at 1. Consistent with 28 U.S.C. § 1915(a), Chief Magistrate Judge Garza directed Kirk to prepay
the $402.00 civil filing fee or, alternatively, file a motion to proceed in forma pauperis. See Cure
Order at 1. The Clerk’s Office mailed Kirk a blank motion to proceed in forma pauperis with
instructions. See Cure Order at 1. The Cure Order warned that the failure to address timely the
filing fee may result in dismissal of this action without further notice. See Cure Order at 1.
The deadline to comply with the Cure Order was June 17, 2022. See Cure Order at 1.
Kirk does not address the filing fee or otherwise respond to the Cure Order, which Cibola
Correctional returned as undeliverable with the notation “gone.” Return Mailing Envelope, filed
May 27, 2022 (Doc. 5). A search of the New Mexico Corrections Department and Bureau of
Prison records reflects that Kirk has now been released from Cibola Correctional, and is no longer
in State or federal custody. Kirk has not contacted the Court and has not advised the Clerk of his
new address, as D.N.M. LR-Civ. 83.6 requires. The Court will analyze whether to dismiss this
case for failure to prosecute and to comply with the Cure Order.
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 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.’”(quoting Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
2002))). As the United States Court of Appeals for the Tenth Circuit explains, “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 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)(emphasis in original).
“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 Cnty. Just. 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
Cnty. Just. 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 Cnty. Just. Ctr., 492 F.3d at 1162.
Here, Kirk has not addressed the civil filing fee or updated his address, as 28 U.S.C.
§ 1915(a), D.N.M. LR-Civ. 83.6, and the Cure Order require. In light of these failures, 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 Arapahoe County. Justice Center.
IT IS ORDERED that: (i) the Wrongful Death Lawsuit, filed February 15, 2022 (Doc. 1),
is dismissed without prejudice; and (ii) the Court will enter a Final Judgment disposing of this civil
UNITED STATES DISTRICT JUDGE
James Thor Kirk
Milan, New Mexico
Plaintiff pro se
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