McMurtry v. Beatty et al
Filing
9
ORDER of Dismissal. The Complaint and action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 12/13/11. (lsw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02459-BNB
GREGG PHILIP McMURTRY,
Plaintiff,
v.
AMANDA NICHOLE BEATTY,
MARK YURKY,
CELESTE M. QUINONES,
MICKEY HECKENBACH,
MICHAEL E. ANDERSON,
JOHN M. O’DELL,
DEBORAH C. ALLEN,
BECKY R. LUCERO, and
REBECCA L. OAKES,
Defendants.
ORDER OF DISMISSAL
At the time Plaintiff, Gregg Philip McMurtry, initiated the instant action, he was
incarcerated at the Buena Vista Correctional Facility. On October 3, 2011, Plaintiff
submitted a Notice of Change of Address to the Court indicating he no longer is
incarcerated and now is residing in Denver, Colorado.
In an order entered on November 2, 2011, Magistrate Judge Boyd N. Boland
instructed Plaintiff that because he no longer is incarcerated he is obligated to pay the
filing fee like any nonprisoner, solely on the basis of whether he qualifies for in forma
pauperis status. See Whitney v. New Mexico, 113 F.3d 1170, 1171 n.1 (10th Cir.
1997); see also McGore v. Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997); In re
Prison Litigation Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 1997); McGann v.
Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996). Magistrate Judge
Boland ordered Plaintiff either to submit an Amended Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915, or in the alternative to pay the $350.00 filing fee
in full if he desired to pursue his claims in this action. Plaintiff was warned that the
action would be dismissed without further notice if he failed to comply with the
November 2 Order within the time allowed.
Plaintiff has failed to communicate with the Court and has failed to comply with
Magistrate Judge Boland’s November 2 Order within the time allowed. The action,
therefore, will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint and action are dismissed pursuant to Fed. R. Civ.
P. 41(b) because Plaintiff failed to comply with the order entered on November 2, 2011,
within the time allowed. It is
FURTHER ORDERED that the Complaint and action are dismissed without
prejudice. It is
2
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 13th
day of
December
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
3
, 2011.
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