Kirven et al v. Garcia et al

Filing 5

MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge Robert C. Brack dismissing without prejudice for failure to comply with a Court Orders for failure to prosecute to state a claim for relief 1 Complaint. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LOYDALE KIRVEN, and
IGNACIA KIRVEN,
Plaintiffs,
vs.

No. CV 16-01333 RB/GJF

SGT. GARCIA, and
CURRY COUNTY DETENTION,
Defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court sua sponte under 28 U.S.C. § 1915, Fed. R. Civ. P.
12(b)(6), and Fed.R.Civ.P. 41(b) on the Complaint for Violation of Civil Rights (Prisoner
Complaint) filed by Loydale Kirven and Ignacia Kirven on December 5, 2016. (Doc. 1)
(“Complaint”). The Court will dismiss the Complaint without prejudice for failure to comply
with the Court’s December 22, 2016 Order, for failure to prosecute, and for failure to state a
claim on which relief can be granted.
Plaintiffs, Loydale Kirven and Ignacia Kirven, filed their Complaint for Violation of
Civil Rights on December 5, 2016. (Doc. 1). The allegations of the Complaint indicate that
Loydale Kirven is a prisoner incarcerated at the Curry County Detention Center. (Doc. 1 at 2).
Loydale Kirven alleges that his civil rights were violated when Curry County Detention officials
read and/or took certain family pictures and mail. (Doc. 1 at 3-6). The Complaint contains no
allegations relating to Plaintiff Ignacia Kirven.
Plaintiffs did not pay the $400 filing fee for this civil proceeding. Instead, Plaintiff
Loydale Kirven filed an application to proceed without prepayment of fees and costs under 28
U.S.C. § 1915 on December 5, 2016 (Doc. 2). Plaintiff Loydale Kirven previously has filed three
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or more civil actions while incarcerated, which have been dismissed as frivolous, malicious, or
for failure to state a claim upon which relief may be granted. See Kirven v. Curry County
Detention Center, No. 06-CV-1212-JB-WDS, Docs. 55, 56 (D.N.M. December 31, 2008);
Kirven v. McIlwain, No. 07-CV-00958-JB-CEG, Docs. 18, 19 (D.N.M. February 19, 2008);
Kirven v. Romero, et al., No. 08-CV-00187-WJ-RLP, Doc. 47 (D.N.M. September 16, 2009).
Under the terms of 28 U.S.C. § 1915(g), his prior dismissals prevent him from proceeding in
forma pauperis unless he is under imminent danger of serious physical injury. Kirven v. State of
New Mexico, 14-CV-0209-LH-RHS, Doc. 3 (D.N.M. March 7, 2014) (denying Plaintiff’s motion
for leave to proceed in forma pauperis and ordering Plaintiff to pay the full amount of the filing
fee).
LOYDALE KIRVEN HAS FAILED TO COMPLY WITH THE COURT’S ORDER
AND TO PROSECUTE THIS CASE
Loydale Kirven’s application to proceed (Doc. 2) did not show that he is under imminent
danger of serious physical injury. Therefore, on December 22, 2016, the Court entered an Order
directing Loydale Kirven to, within thirty days of entry of the Order, either pay the $400 filing
fee for this proceeding or show cause why his claims should not be dismissed. (Doc. 4). Plaintiff
Loydale Kirven did not pay the filing fee, did not file a response to the Court’s Order, and did
not otherwise show cause why his claims should not be dismissed.
The Court may dismiss an action under Fed. R. Civ. P. 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 has elapsed since the Court
entered the December 22, 2016 Order and the Order was mailed to Loydale Kirven at his address
of record. Loydale Kirven has failed to comply with the Court’s Order and, by not paying the
$400 filing fee, has failed to prosecute this action. Pursuant to Fed. R. Civ. P. 41(b) the Court
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will dismiss Loydale Kirven’s Complaint based on his failure to comply with the Court’s
December 22, 2016 Order and to prosecute this case.
THE COURT WILL DISMISS IGNACIA KIRVEN’S COMPLAINT FOR
FAILURE TO STATE A CLAIM FOR RELIEF
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte for
failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). A claim
should be dismissed where it is legally or factually insufficient to state a plausible claim for
relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Fed. R. Civ. P. 12(b)(6) the
Court must accept all well-pled factual allegations, but not conclusory, unsupported allegations,
and may not consider matters outside the pleading. Twombly, 550 U.S. at 555; Dunn v. White,
880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under Rule 12(b)(6) for
failure to state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail on the facts
alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v.
Oklahoma Dep’t of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must
allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570.
In reviewing a pro se complaint, the Court liberally construes the factual allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff’s
pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th
Cir. 1994). The court is not obligated to craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiff’s claims. Nor may the court assume the role of advocate for
the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.
In deciding whether to dismiss the complaint, in whole or in part, the court is to consider
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whether to allow plaintiff an opportunity to amend the complaint. Pro se plaintiffs should be
given a reasonable opportunity to remedy defects in their pleadings. Reynoldson v. Shillinger,
907 F.2d 124, 126 (10th Cir. 1990). The opportunity to amend should be granted unless
amendment would be futile. Hall v. Bellmon, 935 F.2d at 1109. An amendment is futile if the
amended claims would also be subject to immediate dismissal under the rule 12(b)(6) or §
1915(e)(2)(B) standards. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).
The Complaint identifies Ignacia Kirven as a Plaintiff in the caption of the case and in the
signature block. (Doc. 1 at 1, 11). The body of the Complaint, however, is devoid of any
allegations relating to Ignacia Kirven. Absent even a single factual allegation that Ignacia
Kirven is incarcerated or that any official acted in violation of Ignacia Kirven’s constitutional
rights, the Complaint fails to state a claim on which relief can be granted on behalf of Ignacia
Kirven. Twombly, 550 U.S. at 570. Therefore, the Court will dismiss Ignacia Kirven’s
Complaint for failure to state claim for relief under Fed. R. Civ. P. 12(b)(6). The Court will also
dismiss without leave to amend on the grounds that, in light of the absence of any factual
allegations on her behalf, allowing an opportunity for Ignacia Kirven to amend would be futile.
Hall v. Bellmon, 935 F.2d at 1109.
IT IS ORDERED that the Complaint for Violation of Civil Rights filed by Plaintiffs
Loydale Kirven and Ignacia Kirven on December 5, 2016 (Doc. 1) is DISMISSED without
prejudice for failure to comply with a Court Order, for failure to prosecute, and for failure to
state a claim for relief.

___________________________________
UNITED STATES DISTRICT JUDGE

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