Valencia v. Cibola County Police Department et al

Filing 7

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson Dismissing without prejudice 1 Complaint. (cmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL A. VALENCIA,
Plaintiff,
vs.

No. CV 21-00393 WJ/GJF

CIBOLA COUNTY POLICE DEPARTMENT,
GRANTS POLICE DEPARTMENT,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court sua sponte under Fed. R. Civ. P. 41(b) on the Prisoner
Civil Rights Complaint filed by Plaintiff Michael A. Valencia, on April 28, 2021. (Doc. 1). The
Court dismisses this case without prejudice for failure to comply with statutes and Court Orders
and failure to prosecute.
Plaintiff Michael A. Valencia filed this civil rights proceeding under 42 U.S.C. § 1983 on
April 28, 2021. (Doc. 1). Plaintiff did not pay the $400.00 filing fee or submit an application to
proceed without prepayment of fees or costs pursuant to 28 U.S.C. § 1915. On April 30, 2021, the
Court ordered Plaintiff to cure this deficiency within 30 days by either paying the $400.00 filing
fee or submitting an application to proceed in forma pauperis. (Doc. 2). The Order advised
Plaintiff that, if he failed to cure the deficiency within the 30-day time period, the Court could
dismiss this proceeding without further notice. (Doc. 2 at 1). The Court also sent Plaintiff the forms
for submitting an application under § 1915. (Doc. 2 at 2).
On May 24, 2021, Plaintiff Valencia submitted the form Application to Proceed in District
Court Without Prepayment of Fees or Costs. (Doc. 3). However, Valencia did not submit the 61

month inmate account statement required by 28 U.S.C. § 1915(b) and the form Application to
Proceed. Therefore, on May 25, 2021, the Court entered its Second Order to Cure Deficiency.
(Doc. 4). The Second Order to Cure Deficiency required Plaintiff Valencia to submit the § 1915(b)
inmate account statement within 30 days after entry of the order. (Doc. 4 at 1). The Second Order
also advised Plaintiff that, if he did not timely submit the account statement, the case could be
dismissed without further notice. (Doc. 4 at 1). Valencia submitted the 6-month inmate account
statement on June 16, 2021. (Doc. 5).
On July 22, 2021, the Court granted Plaintiff Valencia leave to proceed in forma pauperis
under § 1915. (Doc. 6). Based on the information in his Application to Proceed (Doc. 3) and the
account statement (Doc. 5), the Court directed Plaintiff Valencia to pay an initial partial payment
of $23.57, or show cause why he should be relieved of the obligation to make the payment, within
30 days of entry of the Order. (Doc. 6 at 2). The Court also notified Valencia that, if he did not
make the initial partial payment or show cause within 30 days, the case could be dismissed without
further notice. (Doc. 6 at 1).
More than 30 days elapsed after entry of the July 22, 2021 Order, and Plaintiff Valencia
did not pay the initial partial payment, show cause why he should be relieved of the obligation to
make the payment, or otherwise respond to the Order.
When a prisoner is granted leave to proceed in forma pauperis, § 1915 provides:
“The court shall assess and, when funds exist, collect, as a partial payment
of any court fees required by law, an initial partial filing fee of 20 percent
of the greater of (A) the average monthly deposits to the prisoner’s account;
or (B) the average monthly balance in the prisoner’s account for the 6-month
period immediately preceding the filing of the complaint or notice of appeal.”
28 U.S.C. § 1915(b)(1) (emphasis added). Plaintiff’s 6-month inmate account statement shows
that Plaintiff had an account balance sufficient to pay the initial partial payment but spends his

2

money on commissary purchases. (Doc. 5). See Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th
Cir. 1997). “[W]hen a prisoner has the means to pay an initial partial filing fee and instead spends
his money on amenities at the prison canteen or commissary, he should not be excused for failing
to pay the initial partial filing fee.” Baker v. Suthers, 9 F. App’x 947. 949 (10th Cir. 2001). Plaintiff
Valencia has not paid the $23.57 initial partial payment or shown cause why he should be relieved
of the obligation to pay.
The Court’s July 22, 2021 Order directed Plaintiff Valencia to make the required partial
payment under § 1915(b)(1) or show cause why the payment should be excused. (Doc. 6). Plaintiff
Valencia has failed to make the initial partial payment and to comply with the Court’s Order. The
Court may dismiss an action under Fed. R. Civ. P. 41(b) for failure to prosecute or to comply with
statutes, the rules of civil procedure, or court orders. See Olsen v. Mapes, 333 F.3d 1199, 1204,
n.3 (10th Cir. 2003). The Court will dismiss this case for Plaintiff’s failure to comply with 28
U.S.C. § 1915(b), failure to comply with the Court’s July 22, 2021 Order, and failure to prosecute
this proceeding.
IT IS ORDERED that the Prisoner Civil Rights Complaint filed by Plaintiff Michael A.
Valencia on April 28, 2021 (Doc. 1) is DISMISSED without prejudice under Fed. R. Civ. P. 41(b)
for failure to comply with 28 U.S.C. §§ 1914 and 1915, failure to comply with the Court’s July
22, 2021 Order, and failure to prosecute this case.

______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

3