Pino v. Mescalero Apache Tribal Courts

Filing 15

MEMORANDUM OPINION AND ORDER and Order of Dismissal by District Judge Judith C. Herrera. (baw)

Case 2:19-cv-00043-JCH-KK Document 15 Filed 01/07/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

BENNIE T. PINO,
Petitioner,
vs.

No. CV 19-00043 JCH/KK

MESCALERO APACHE TRIBAL COURTS,
Respondent.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court sua sponte under Fed. R. Civ. P. 41(b) on the Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2241 filed by Petitioner Bennie T. Pino (Doc. 1).
The Court will dismiss the Petition without prejudice under Rule 41(b) for failure to prosecute this
proceeding.
This is one of a number of civil rights and habeas corpus cases filed by Petitioner Pino
challenging multiple prosecutions, convictions, and sentences in tribal and New Mexico state
courts. See Pino v. Mescalero Apache Tribal Court, CV 18-00565 KG/GJF; Pino v. Giesen, et al.,
CV 18-00292 WJ/GJF; Pino v. BIA Law Enforcement Mescalero Agency, CV 18-00759 JCH/GJF;
Pino v. Watchman, et al., CV 19-00666 MV/CG; Pino v. Solice, et al., CV 19-00835 MV/GBW;
Pino v. Mescalero Apache Tribal Courts, et al., CV 19-00041 RB/JHR. His prior cases have been
dismissed on a variety of grounds, including failure to prosecute under Fed. R. Civ. P. 41(b), or
have been transferred to Colorado based on improper venue. Several have been dismissed under
Rule 41(b) for Pino’s failure to keep the Court advised of his proper mailing address. See e.g.

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Pino v. Mescalero Apache Tribal Court, CV 18-00565 KG/GJF. The Court takes judicial notice
of its records in Pino’s cases. Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972).
In Pino v. BIA Law Enforcement Mescalero Agency, CV 18-00759 JCH/GJF, the case was
dismissed without prejudice under Fed. R. Civ. P. 41(b). At the time it was dismissed, the Court
sent Petitioner a form prisoner civil rights complaint under 42 U.S.C. § 1983 and a form petition
for writ of habeas corpus under 28 U.S.C. § 2241. Petitioner Pino filled out the § 1983 form and
filed it with the Court to open case no. CV 19-00041 RB/JHR. He filled out and returned the §
2241 form to open this case. (Doc. 1). Although on different forms, the claims asserted are
essentially the same and Petitioner sought both damages and habeas corpus relief in both cases.
Case CV 19-00041 RB/JHR was previously dismissed under Fed. R. Civ. P. 41(b) for Petitioner’s
failure to comply with rules, statutes, and Court orders, and failure to prosecute the case.
At the start of these proceedings, Petitioner Pino was incarcerated at the Lincoln County
Detention Center. (Doc. 1). During the course of proceedings in this case, mailings to Petitioner
Pino at his address of record were returned as undelivered. (Doc. 4, 6, 8). The Court issued an
Order to Show Cause on August 20, 2019 directing Pino to notify the Court of a new address, or
otherwise show cause why the case should not be dismissed, within 30 days of entry of the Order.
(Doc. 7). Petitioner Pino subsequently submitted two notices of changes of address. The first
notice indicated he was incarcerated at Central New Mexico Correctional Facility. (Doc. 10). The
second listed an address at the Northwestern New Mexico Correctional Facility. (Doc. 11).
Petitioner has not provided the Court with any notice of change of address since he was
incarcerated at the Northwestern New Mexico Correctional Facility in October 2019. (Doc. 11).
Nor has Petitioner Pino communicated with the Court regarding this case since filing his Motion
Granting to Proceed to a Discovery Hearing on February 27, 2020, almost two years ago. (Doc.

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13). Further, mail sent to him in his most recent case, Pino v. Solice, CV 19-00835 MV/GBW,
was returned as undeliverable on May 17, 2021. (CV 19-00835 MV/GBW Doc. 8). New Mexico
Department of Corrections records show that he had been released from custody at that time and
was on probation. (CV 19-00835 MV/GBW Docket Text Entry 5/17/2021). The Court has not
been provided with any current address and has not received any communication from him in this
or any other case since May 2021.
Pro se litigants are required to follow the federal rules of procedure and simple,
nonburdensome local rules. See Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir. 1980). The
local rules require litigants, including prisoners, to keep the Court apprised of their proper mailing
address and to maintain contact with the Court. D.N.M. LR-Civ. 83.6. Petitioner Pino has failed
to comply with D.N.M. LR-Civ. 83.6 and with the Court’s August 20, 2019 Order to Show Cause.
Petitioner Pino has failed to prosecute this action by not keeping the Court apprised of his
current address and not communicating with the Court. 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).
Therefore, the Court will dismiss this civil proceeding pursuant to Rule 41(b) for failure to
prosecute this proceeding.
IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241 filed by Petitioner Bennie T. Pino (Doc. 1) is DISMISSED without prejudice under
Fed. R. Civ. P. 41(b) for failure to prosecute.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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