Davis v. USA

Filing 14

ORDER of Dismissal. The amended complaint and the action are dismissed without prejudice. Any pending motions are denied as moot ( 6 Motion to Amend/Correct/Modify; 12 Motion for Order to Show Cause; 2 Motion for Leave to Proceed in Forma Pauperis), by Judge Lewis T. Babcock on 11/16/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02249-BNB
RAHEEM DAVIS,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Raheem Davis, is a prisoner in the custody of the United States Bureau
of Prisons who currently is incarcerated at the United States Penitentiary, Administrative
Maximum, in Florence, Colorado. He submitted to the Court pro se a Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner
Complaint. The Court reviewed the documents and determined they were deficient.
Therefore, on September 6, 2011, Magistrate Judge Boyd N. Boland directed Mr. Davis
to cure certain enumerated deficiencies in the case within thirty days if he wished to
pursue his claims.
The September 6 order pointed out that Mr. Davis either must submit the
$350.00 filing fee for a civil rights action or a certified copy of his trust fund account
statement for the six-month period immediately preceding this filing obtained from the
appropriate prison official. Subsection (a)(2) of 28 U.S.C. § 1915 requires submission
of "a certified copy of the trust fund account statement (or institutional equivalent) for the

prisoner for the 6-month period immediately preceding the filing of the complaint . . .
obtained from the appropriate official of each prison at which the prisoner is or was
confined." The September 6 order and the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 note this requirement. The order also informed
Mr. Davis that he used “et al.” instead of listing all parties in the caption to the complaint
and the names in the caption to the complaint did not match the names in the text.
The September 6 order directed Plaintiff to cure the deficiencies in the § 1915
motion and affidavit and the complaint, and to obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant,
along with the applicable instructions, at www.cod.uscourts.gov. The September 6
order warned Mr. Davis that, if he failed to cure the designated deficiencies within thirty
days, the complaint and the action would be dismissed without prejudice and without
further notice.
On September 21, 2011, Mr. Davis submitted a letter to the Court alleging that he
has “asked for a 6 month business receipt of any transactions in my Prisoner Account
which I was denied.” See ECF No. 4 at 2. Therefore, on October 21, 2011, Magistrate
Judge Boland entered a minute order allowing Mr. Davis an additional fifteen days in
which to cure all the deficiencies designated in the September 6 order, including either
to file an account statement certified by an appropriate official of Plaintiff’s penal
institutional or written documentation demonstrating the prison officials have refused to
allow him to comply with the September 6 order. The October 21 minute order warned
him that failure to do so within the time allowed would result in the dismissal of the
instant action.
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On October 21, Mr. Davis filed an amended complaint. On October 28, 2011, he
filed a letter (ECF No. 10) stating that prison officials refused to provide him with a
certified copy of his trust fund account statement. However, he failed to provide any
documentation from officials at his penal institutional to support his claim. On October
31, 2011, Magistrate Judge Boland entered another minute order again allowing Mr.
Davis to have fifteen days in which to cure all the deficiencies designated in the
September 6 order. The October 31 minute order pointed out that Mr. Davis either must
file a certified copy of his trust fund account statement for the six-month period
immediately preceding this filing obtained from the appropriate prison official or written
documentation from an appropriate official of his penal institution demonstrating that
prison officials have refused to allow him to comply with the September 6 order. Mr.
Davis again was warned that failure to do so within the time allowed would result in the
dismissal of the instant action.
On November 9, 2011, Mr. Davis submitted documents titled “Order to Show
Cause” and “Declaration,” neither of which complied with the October 31 minute order
by providing either a certified copy of his trust fund account statement for the six-month
period immediately preceding this filing obtained from the appropriate prison official or
written documentation from an appropriate official of Plaintiff’s penal institution
demonstrating that prison officials have refused to allow him to comply with the
September 6 order.
Mr. Davis has failed within the time allowed to cure all the deficiencies
designated in the September 6 order to cure, or to comply with the October 31 minute
order. Therefore, the complaint and the action will be dismissed without prejudice for
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failure to cure the designated deficiencies as directed within the time allowed, or to
demonstrate why he was unable to do so.
Accordingly, it is
ORDERED that the amended complaint and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of
Plaintiff, Raheem Davis, within the time allowed, to cure the deficiencies designated in
the order to cure of September 6, 2011. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 16th

day of

November

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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