Ellis v. Police Department et al

Filing 9

ORDER of Dismissal. ORDERED that the Complaint and action are dismissed. FURTHER ORDERED that the Complaint and action are dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 9/5/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01853-BNB

TONY LEE ELLIS,
Plaintiff,
v.
POLICE DEPARTMENT,
SHERIFFS DEPARTMENT,
DISTRICT ATTORNEYS OFFICE,
PUBLIC DEFENDERS OFFICE,
COURT DIRECTORS OF FOREGOINGS,
DEPARTMENT OF CORRECTIONS,
PROBATIONS DEPARTMENT, and
SOCIAL SECURITY ADM.,
Defendants.

ORDER OF DISMISSAL

At the time the Plaintiff, Tony Lee Ellis, initiated the instant action he was
detained at the Denver County Jail in Denver, Colorado. On July 25, 2012, 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 July 30, 2012, 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 July 30 Order within the time allowed.
Plaintiff has failed to communicate with the Court and, as a result, he has failed
to comply with Magistrate Judge Boland’s July 30 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 July 30, 2012,
within the time allowed. It is

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FURTHER ORDERED that the Complaint and action are dismissed without
prejudice. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 5th day of

September

BY THE COURT:

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

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, 2012.