Garcia v. Smith

Filing 5

MEMORANDUM OPINION AND ORDER denying 2 MOTION for Leave to Proceed in forma pauperis and 1 Petition for 2254 Relief by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESSE L. GARCIA,
Plaintiff,
vs.

No. CIV 16-1040 JB/SCY

R.C. SMITH, WARDEN,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE
THIS MATTER comes before the Court, under 28 U.S.C. § 1915 and rule 41(b) of the
Federal Rules of Civil Procedure, on: (i) the Plaintiff’s Motion for a Peremptory Writ of
Mandamus, filed September 19, 2016 (Doc. 1)(“Motion”); and (ii) the Plaintiff’s Application to
Proceed in District Court Without Prepaying Fees or Costs, filed September 19, 2016 (Doc.
2)(“Application”). The Court will deny Garcia’s Motion and Application without prejudice for
failure to comply with the Court’s Order to Cure Deficiency, filed September 27, 2016 (Doc.
4)(“Order to Cure Deficiency”).
Plaintiff Jesse L. Garcia is a state-custody prisoner proceeding pro se. Garcia filed his
Motion and Application on September 19, 2016. In his Motion, Garcia contended that he is
being held in a protective custody unit in violation of his rights under the Fourteenth Amendment
to the Constitution of the United States of America, because he is not being offered the same jobs
or wages as prisoners in the general prison population. See Motion at 2-3. Garcia did not pay
the filing fee, and his Application seeking to proceed in forma pauperis is deficient in that it did
not include a six-month inmate account statement as 28 U.S.C. § 1915 requires. On September
27, 2016, the Court entered an Order to Cure Deficiency, ordering Garcia to file a 42 U.S.C. §

1983 Complaint with the proper form, according to that form’s instructions, accompanied by the
filing fee -- or else submit a complete application to proceed in forma pauperis within thirty
days. See Order to Cure Deficiency at 1-2. The Order also advised Garcia that, if he failed to
cure the deficiencies within the thirty-day period, the Court could deny his Motion without
prejudice. See Order to Cure Deficiency at 1-2. The Court’s docket reflects that the Order was
mailed to Garcia at his address of record, together with the forms and instructions for a § 1983
prisoner civil rights action, and an application to proceed without prepayment of fees or costs, on
September 28, 2016.
The Court may dismiss an action pursuant to rule 41(b) for failure to prosecute, to
comply with the rules of civil procedure, or to comply with court orders. See Olsen v. Mapes,
333 F.3d 1199, 1204 n.3 (10th Cir. 2003). More than thirty days have elapsed since the Court
entered the Order to Cure Deficiency on September 27, 2016, and since the Order to Cure
Deficiency was mailed to Garcia. Garcia has not filed a § 1983 complaint using the proper form
in accordance with that form’s instructions, submitted a complete application to proceed without
prepayment of fees and costs under § 1915, or paid the filing fee. Pursuant to rule 41(b), the
Court will deny the Motion and Application based on Garcia’s failure to comply with the Court’s
September 27, 2016 Order.
IT IS ORDERED that: (i) the Plaintiff’s Motion for a Peremptory Writ of Mandamus,
filed September 19, 2016 (Doc. 1); and (ii) the Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs, filed September 19, 2016 (Doc. 2), are denied without
prejudice.
_______________________________
UNITED STATES DISTRICT JUDGE

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Counsel and Parties:
Jesse L. Garcia
Lea County Corrections Facility
Hobbs, New Mexico
Plaintiff, pro se
R.C. Smith
Lea County Corrections Facility
Hobbs, New Mexico
Defendant, pro se

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