Martinez v. Kerns

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LEROY MARTINEZ, Plaintiff, v. No. 19-cv-746 JCH/JFR MARY LOU KERNS, et al, Defendants.

MEMORANDUM OPINION AND ORDER This matter comes before the Court on Plaintiff’s pro se motions to excuse monthly payments and reopen this case (Docs. 23, 24, 25). Plaintiff seeks to set aside the Memorandum Opinion and Judgment dismissing his 42 U.S.C. § 1983 civil rights action. See Docs. 19, 20 (together, the “Dismissal Ruling”). The Court entered the Dismissal Ruling after Plaintiff failed to make an initial partial payment of $20.78 by the March 26, 2020 deadline. See Docs. 19, 20.

Such payment is required by statute. See 28 U.S.C. § 1915(b). Section 1915(b) requires inmates to make an initial partial payment equal to 20% of their average monthly deposits or average monthly balance, whichever is greater. Plaintiff’s financial statements reflect he had sufficient income to pay the initial partial filing fee. See Doc. 14. However, in the months after filing this case, Plaintiff made at least $124.21 in commissary purchases, which – when combined with other fees for ice cream, popcorn, and postage – temporarily lowered the account balance to $2.82. See Doc. 18 at 1.

The Tenth Circuit holds that “where a prisoner has sufficient income to pay a monthly partial filing fee and instead spends his money on amenities at the prison canteen, he cannot be excused for failing to make the required partial payments.” Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003). Rule 41 “allow[s] a district court to dismiss the action for failure to comply with … a court order requires partial payments.” Id. Accordingly, the Court determined Plaintiff did not show cause for his failure to make an initial partial payment and dismissed this case without prejudice to refiling. See Docs. 19, 20.

Because Plaintiff is pro se, the Dismissal Order explained that the only practical consequence is that he would have to fill out a new complaint and in forma pauperis application to pursue his claims. The claims arose in August and November of 2018, and they will not be time-barred if filed before August of 2021. See Doc. 1 at 2. Section § 1983 violations occurring in New Mexico are governed by the three-year personal injury statute of limitations contained in N.M. Stat. Ann. § 37-1-8 (1978). See Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1212 (10th Cir. 2014); McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (The statute of limitations under § 1983 “is dictated by the personal injury statute of limitations in the state in which the claim arose.”). The Dismissal Order also clarified that it will not count as a “strike” under the three-strikes rule governing civil prisoner complaints. See 28 U.S.C. § 1915(g) (Prisoners generally cannot proceed in forma pauperis if three prior prison-complaints were dismissed as frivolous, malicious, or for failure to state a claim). The Clerk’s Office mailed Plaintiff a copy of the form § 1983 complaint and a blank in forma pauperis application, in the event he wished to refile his claims.

Rather than filing a new case, Plaintiff paid the $20.78 initial partial filing fee in this closed case and filed the instant motions to reconsider. Because the motions were filed within twenty- eight days after entry of the Dismissal Ruling, the Court will therefore analyze them under Fed. R. Civ. P. 59(e). See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008). Grounds for setting aside the Dismissal Ruling include: “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A district court has considerable discretion in deciding whether to disturb a judgment under Rule 59(e). See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).

Having considered the record and Plaintiff’s arguments, the Court finds no grounds to reopen this case. Plaintiff does not cite new evidence or a change in the law. He alleges the failure to timely pay the initial partial filing fee was due to prison delays outside of his control.

See Doc. 24 at 1-4. Accepting this allegation as true, it does not describe a manifest injustice.

Plaintiff did not seek an extension of the payment deadline while the case was still open. His only response to the IFP Order were two notices reflecting a change in financial status, which shows he made commissary purchases after the case was filed. See Docs. 17, 18. And, as described above, Plaintiff can still raise his claims in a new civil rights case. Plaintiff will not even have to make another initial partial payment if he qualifies for in forma pauperis status in the new case. He is no longer incarcerated, and the initial payment framework of § 1915(b) only applies to inmates.

For these reasons, the Court will deny Plaintiff’s motions to reconsider the Dismissal Order. See Docs. 23, 24, 25. The Clerk’s Office will send Plaintiff another form § 1983 complaint and application to proceed in forma pauperis, if he still wishes to pursue his claims in a new case.

IT IS ORDERED that Plaintiff’s Motions to Reconsider/Reopen This Case (Docs. 23, 24, and 25) are DENIED.

IT IS FURTHER ORDERED that the Clerk’s Office shall MAIL Plaintiff a form § 1983 complaint and a form in forma pauperis motion, should he wish to file a new case.

ee UNITED STATES DISTRICT JUDGE