Dittimus v. No Defendants Named
ORDER of Dismissal. ORDERED that the action is dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 10/24/12. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02360-BNB
CORRI DITTIMUS, a/k/a DERRICK ANDERSON,
[NO DEFENDANT NAMED],
ORDER OF DISMISSAL
Plaintiff, Corri Dittimus, also known as Derrick Anderson, initiated this action by
filing pro se a statutory notice of intent to sue (ECF No. 1) stating that he intended to file
an action seeking damages for allegedly unconstitutional conditions of confinement. On
September 5, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr.
Dittimus to cure certain deficiencies if he wished to pursue his claims. Specifically,
Magistrate Judge Boland ordered Mr. Dittimus to file a Prisoner Complaint and either to
pay the filing fee or to file a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 that is supported by a certified copy of his inmate trust
fund account statement. Mr. Dittimus was warned that the action would be dismissed
without further notice if he failed to cure the deficiencies within thirty days.
On September 14, 2012, the copy of Magistrate Judge Boland’s September 5
order that was mailed to Mr. Dittimus was returned to the Court undelivered because
the inmate name, Corri Dittimus, and prisoner number did not match. That same day,
Magistrate Judge Boland entered a minute order directing the clerk of the Court to
remail to Plaintiff, using both the name Corri Dittimus and the alias Derrick Anderson, a
copy of Magistrate Judge Boland’s September 5 order. Mr. Dittimus also was directed
to cure the deficiencies within thirty days from the date of the minute order.
Mr. Dittimus has failed to cure the deficiencies within the time allowed because
he has failed to file a Prisoner Complaint and he has failed either to pay the filing fee or
to file a properly supported Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915. Therefore, the action will be dismissed without prejudice
for failure to cure the deficiencies.
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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Mr. Dittimus failed to cure the
deficiencies as directed. 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
24th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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