Compton v. Clements et al

Filing 7

ORDER OF DISMISSAL. The action is dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. No certificate of appealability will issue. All pending motions are denied as moot, by Judge Lewis T. Babcock on 1/25/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03079-BNB
RICHARD D. COMPTON,
Applicant,
v.
TOM CLEMENTS, Executive Director of the Colo Dept of Corrections, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO, JOHN SUTHERS,
Respondents.

ORDER OF DISMISSAL

Applicant, Richard D. Compton, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Colorado
Correctional Center in Golden, Colorado. Mr. Compton initiated this action by filing a
pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and a
motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 together
with a certified copy of his trust fund account statement. On December 9, 2011, the
Court entered an order denying Mr. Compton leave to proceed in forma pauperis and
directing him to pay the $5.00 filing fee. Mr. Compton paid the $5.00 filing fee on
December 15, 2011.
On December 19, 2011, Magistrate Judge Boyd N. Boland determined that Mr.
Compton’s Application was deficient because Mr. Compton failed to include a statement
of the claims that he intended to raise in this Court. Therefore, Magistrate Judge
Boland directed him to file a Amended Application for Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2254. Mr. Compton was warned that the action would be dismissed
without further notice if he failed to file an amended pleading within thirty days.
On December 23, 2011, Mr. Compton filed a letter with the Court in which he
stated that Magistrate Judge Boland’s “frivolous request” for an Amended Application
had “depleted [him] financially.” However, Mr. Compton did not request any relief from
the Court, nor did he indicate that he needed additional time to file an amended
pleading.
Mr. Compton has failed to file an Amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254, as directed by Magistrate Judge Boland. Further, he has
not communicated with the Court since December 23, 2011. As a result, he has failed
to file an amended pleading within the time allowed. Therefore, the Application and the
action will be dismissed without prejudice.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be 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 Applicant 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for the failure of Applicant, Richard D. Compton,
to file an amended pleading. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 25th

day of

January

, 2012.

BY THE COURT:

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

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