Hayes v. Scherbarth et al
ORDER of Dismissal. ORDERED that the Prisoner Complaint 1 and the action are dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that any pending motions are denied as moot, by Judge Lewis T. Babcock on 1/17/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02657-BNB
WILLIE T. HAYES,
SCHERBARTH, Associate Warden,
JAMES FALK, Warden,
TOM CLEMMONS, Executive Director,
MAJOR MICHELLE NYCHALLIGON,
CASE MANAGER PETERSON,
BEV DOWIS, Medical Supervisor,
CASE MANAGER JOHN DOE, and
JENNIFER ANDERSON, Law Librarian, in their individual and official capacities,
ORDER OF DISMISSAL
Plaintiff, Willie T. Hayes, was a prisoner in the custody of the Colorado
Department of Corrections incarcerated at the Arkansas Valley Correctional Facility in
Crowley, Colorado, when he initiated this action by filing pro se a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint.
The Court since has learned that Mr. Hayes no longer is incarcerated and is residing at
the St. Francis Center, 2323 Curtis Street, Denver, CO 80205.
On December 7, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 9) directing Mr. Hayes, since he no longer was incarcerated, either to pay the full
$350.00 filing fee or, alternatively, file on the Court-approved nonprisoner form a Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 within thirty days. Mr.
Hayes has failed within the time allowed to comply with the December 7 order or
otherwise to communicate with the Court in any way. Therefore, the complaint and the
action will be dismissed.
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 Mr. Hayes files a notice of appeal he also must pay the full $455.00 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 Prisoner Complaint (ECF No. 1) and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Willie T. Hayes, to comply within thirty days with the
directives of the order of December 7, 2012, either by paying the full $350.00 filing fee
or, alternatively, filing on the Court-approved nonprisoner form a Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915, and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 17th day of January, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?