Sharon v. No Defendants Named
ORDER of Dismissal. ORDERED that the action is dismissed without prejudice. FURTHER ORDERED that the Prisoner's Motion and Affidavit for Leave toProceed Pursuant to 28 U.S.C. § 1915 5 is DENIED as moot and the Motion and Request to Stay Proceedings 6 is DENIED. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 10/31/12.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02559-BNB
TODD B. SHARON,
[NO DEFENDANTS NAMED],
ORDER OF DISMISSAL
Plaintiff, Todd B. Sharon, is a prisoner in the custody of the Colorado Department
of Corrections at the Fremont Correctional Facility in Cañon City, Colorado. Mr. Sharon
initiated this action by filing pro se a notice of intent to sue (ECF No. 1) and a letter to
the Court (ECF No. 3) complaining about the conditions of his confinement. On
September 27, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr.
Sharon to cure certain deficiencies if he wished to pursue his claims. Specifically,
Magistrate Judge Boland ordered Mr. Sharon to file a Prisoner Complaint on the proper
form and either to pay the $350.00 filing fee or to file a Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 along with a certified copy of his
inmate trust fund account statement in support of the 28 U.S.C. § 1915 motion. Mr.
Sharon was warned that the action would be dismissed without further notice if he failed
to cure the deficiencies within thirty days.
On October 9, 2012, Mr. Sharon filed a Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 5). On October 26, 2012, Mr.
Sharon filed a Motion and Request to Stay Proceedings (ECF No. 6) asking the Court to
stay the proceedings for ninety days while he exhausts administrative remedies. Mr.
Sharon alleges “that a stay is necessary so that the Defendants will not move for a
dismissal of this action based on administrative remedies not being fully exhausted.”
(ECF No. 6 at 2-3.)
Mr. Sharon has failed to cure all of the deficiencies within the time allowed
because he has failed to file a Prisoner Complaint. Therefore, the action will be
dismissed without prejudice for failure to cure the deficiencies. The Court also notes
that the action is subject to dismissal for failure to exhaust administrative remedies
because Mr. Sharon concedes that he has failed to exhaust administrative remedies.
Even if Mr. Sharon had cured all of the deficiencies, the Court would not hold the action
in abeyance while he exhausts administrative remedies because a prisoner must
exhaust administrative remedies prior to filing an action. See 42 U.S.C. § 1997e(a).
Therefore, the Motion and Request to Stay Proceedings (ECF No. 6) will be denied.
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. Sharon failed to cure all of the
deficiencies as directed. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 5) is DENIED as moot and the Motion
and Request to Stay Proceedings (ECF No. 6) is DENIED. 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
31st day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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