Balladares v. Jaramillo et al
Filing
13
MEMORANDUM OPINION AND ORDER dismissing 1 Complaint by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
OSCAR BALLADARES,
Petitioner,
vs.
No. CIV 17-1152 JB/CG
RAYMOND SMITH,
Respondent.
MEMORANDUM OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE
THIS MATTER comes before the Court on the Petitioner’s Prisoner’s Civil Rights
Complaint, filed November 20, 2017 (Doc. 1)(“Petition”), which the Court has construed as a
petition for a writ of habeas corpus under 28 U.S.C. § 2241. See Memorandum Opinion and
Order at 1, filed December 18, 2017 (Doc. 4)(“MOO”). The Court referred this case to the
Honorable Carmen E. Garza, Chief United States Magistrate Judge for the United States District
Court for the District of New Mexico, to perform legal analysis and recommend an ultimate
disposition. See Order of Reference Relating to Prisoner Cases at 1, filed November 21, 2017
(Doc. 3). On May 15, 2018, Chief Magistrate Judge Garza issued a Proposed Findings and
Recommended Disposition, filed May 15, 2018 (Doc. 10)(“PFRD”), which recommended
dismissing the Petition without prejudice due to Plaintiff’s Oscar Balladares’ failure to exhaust
available state remedies, see PFRD at 5.
The United States Postal Service returned the PFRD as undeliverable with the indication
that Plaintiff Oscar Balladares is no longer at his address of record. See Letter, filed May 25,
2018 (Doc. 11)(“Return to Sender, Not Deliverable as Addressed”). Under the District of New
Mexico’s local rules, it is Balladares’ responsibility to advise the Court of any address change,
and Balladares must follow rules of procedure even though he is proceeding pro se. See
Brandenburg v. Beaman, 632 F.2d 120, 122 (10th Cir. 1980)(“It is incumbent on litigants, even
those proceeding pro se, to follow the federal rules of civil procedure. . . . The same is true of
simple, nonburdensome local rules . . .”). Chief Magistrate Judge Garza ordered Ballades to
show cause why the Court should not dismiss his Petition for his failure to comply with rules of
procedure. See Order to Show Cause at 1, filed June 6, 2018 (Doc. 12).
Balladares has not notified the Clerk of the Court in writing of his current address, shown
cause why the Court should not dismiss his Petition, or otherwise responded to the Order to
Show Cause. If a plaintiff fails to pursue his case or comply with the Court’s orders, the Court
may dismiss the case. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or any claim
against it.”); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)(“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 the Court’s orders.”). Accordingly, because
Balladares has not complied with the local rules or the Court’s orders, the Court dismisses his
Petition without prejudice.
IT IS ORDERED that the Petitioner’s Prisoner’s Civil Rights Complaint, filed
November 20, 2017 (Doc. 1), is dismissed without prejudice.
________________________________
UNITED STATES DISTRICT JUDGE
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Parties and counsel:
Oscar Balladares
Lea County Correctional Facility
Hobbs, New Mexico
Petitioner pro se
Jane Bernstein
New Mexico Attorney General
Albuquerque, New Mexico
Attorneys for the Respondent
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