Graham v. Fisher et al
ORDER of Dismissal. The complaint, the amended complaint, and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 7/11/12. (lswsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00511-BNB
ALBERT M. GRAHAM,
THOMAS C. FISHER, M.D., (in his personal and professional capacity),
CARMEN MEYER, M.D., (in his/her personal and professional capacity),
ANDREA WHITE, P.A., (in his/her personal and professional capacity),
MARYBETH KALAMEYER, P.A., (in his/her personal and professional capacity),
PAULA FRANTZ, M.D., (in his/her personal and professional capacity), and
PHYSICIANS HEALTH PARTNERS,
ORDER OF DISMISSAL
Plaintiff, Albert M. Graham, was a prisoner in the custody of the Colorado
Department of Corrections when he initiated this action. On March 26, 2012, Mr.
Graham filed an amended pleading on the proper Prisoner Complaint form asserting
constitutional claims pursuant to 42 U.S.C. § 1983. On April 26, 2012, Magistrate
Judge Boyd N. Boland entered an order directing Mr. Graham to file a second amended
complaint that complies with the pleading requirements of Rule 8 of the Federal Rules
of Civil Procedure. Mr. Graham was warned that the action would be dismissed without
further notice if he failed to file an amended complaint within thirty days.
On May 7, 2012, the copy of the April 26 order that was mailed to Mr. Graham
was returned to the Court undelivered. On May 30, 2012, Mr. Graham filed a notice of
change of address indicating that he had been released on parole. Pursuant to a
minute order entered on June 1, 2012, a copy of the April 26 order was mailed to Mr.
Graham at his new address, and Mr. Graham was advised that he must file a second
amended complaint within thirty days from the date of the minute order.
Mr. Graham has failed to file a second amended complaint within the time
allowed. Therefore, the action will be dismissed without prejudice for failure to comply
with a court order.
Furthermore, 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 Plaintiff files a notice of appeal he also must 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, the amended complaint, and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure because Mr. Graham failed to comply with a court order. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this
11th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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