Escobar v. Trani et al

Filing 15

Second ORDER Directing Plaintiff to Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 1/14/2013. ORDER denying as moot 12 Motion to Cure Deficiencies Out of Time. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03052-BNB
JOSE MEDINA ESCOBAR,
Plaintiff,
v.
WARDEN TRANI,
MAJOR HOLDITCH,
CAPTAIN HUERTAS,
LIEUTENANT TRAVIS,
LIEUTENANT TIDEMANN,
LIEUTENANT VANGELDER,
LIEUTENANT RUNDLE,
LIEUTENANT WILL,
SERGEANT LANGDEN,
SERGEANT WAGNER,
SERGEANT COSSABONE,
SERGEANT CROSLEY,
SERGEANT WORTHEN,
SERGEANT REED,
SERGEANT BORDERS,
C/O GALLAHER,
C/O AURITI,
C/O McPHERSON,
C/O VIGIL,
C/O CASADY,
C/O WHITFIELD,
C/O GROOM,
C/O ESLINGER,
C/O CAMERON,
C/O CORTEZ,
C/O BODYCOMB,
C/O SPURLOCK,
C/O THORSTAD,
C/O SOLIZ,
C/O DICKENS, and
C/O FLICK,
Defendants.

SECOND ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES

Plaintiff, Jose Medina Escobar, is a prisoner in the custody of the Colorado
Department of Corrections at the Colorado State Penitentiary in Cañon City, Colorado.
Mr. Escobar initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 3). On November 20, 2012, the court entered an order directing Mr. Escobar
to cure certain deficiencies if he wishes to pursue his claims in this action. More
specifically, the court ordered Mr. Escobar to file a new Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 using the court’s recently-revised
form and to submit a signed authorization to calculate and disburse filing fee payments
from Mr. Escobar’s inmate trust fund account in accordance with the court’s new
procedures for collecting prisoner filing fee payments.
On November 26, 2012, Mr. Escobar filed a second Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 6) using a prior
version of the court’s form in forma pauperis motion. However, attached to the in forma
pauperis motion filed on November 26 is a certified copy of Mr. Escobar’s inmate trust
fund account statement for the six-month period immediately preceding the filing of the
complaint as required pursuant to 28 U.S.C. § 1915(a)(2). On December 14, 2012, Mr.
Escobar filed a document (ECF No. 7) in which he requested the necessary form for
curing the deficiencies in this action. On December 17, 2012, the court entered a
minute order directing the clerk of the court to mail to Mr. Escobar a blank copy of the

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necessary form and granting Mr. Escobar an extension of time until January 16, 2013,
to cure the deficiencies in this action.
On January 2, 2013, Mr. Escobar filed a document (ECF No. 11), which was
docketed as an amended Prisoner Complaint, that consists of a two-page caption listing
the parties to this action. The amended Prisoner Complaint is not signed and does not
include any claims or a request for relief. Mr. Escobar also filed on January 2, 2013, a
“Motion to Cure Deficiencie[s] Out of Time” (ECF No. 12), a letter to the court (ECF No.
13) in which he states he will be making a partial filing fee payment the following week,
and an incomplete Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 (ECF No. 14) using the court’s recently-revised form. Although Mr.
Escobar submitted with the 28 U.S.C. § 1915 motion filed on January 2, 2013, a signed
authorization to calculate and disburse filing fee payments from his inmate trust fund
account, the second page of the form motion is missing and the motion itself is not
signed.
The court still has not received from Mr. Escobar a complete Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the court’s current
form. Furthermore, pursuant to Rule 11(a) of the Federal Rules of Civil Procedure,
“[e]very pleading, written motion, and other paper must be signed” and “[t]he court must
strike an unsigned paper unless the omission is promptly corrected after being called to
the . . . party’s attention.” Mr. Escobar will be directed to cure this remaining deficiency
within thirty days if he wishes to pursue his claims in this action. Alternatively, Mr.
Escobar may pay the entire $350.00 filing fee in advance.
Finally, with respect to the incomplete amended Prisoner Complaint (ECF No.
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11) filed on January 2, 2013, it is not clear whether Mr. Escobar intends to file an
amended pleading in this action. If he does, he must complete and sign an amended
pleading using the entire court-approved Prisoner Complaint form. Accordingly, it is
ORDERED that, within thirty (30) days from the date of this order, Mr.
Escobar cure the remaining deficiency in this order either by paying the entire $350.00
filing fee or by filing a complete and signed Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 using the court’s current form. It is
FURTHER ORDERED that the clerk of the court mail to Mr. Escobar, together
with a copy of this order, a blank copy of the current, court-approved Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 form. It is
FURTHER ORDERED that, if Mr. Escobar fails to cure the remaining deficiency
within the time allowed, the action will be dismissed without further notice. The
dismissal shall be without prejudice. It is
FURTHER ORDERED that the “Motion to Cure Deficiencie[s] Out of Time” (ECF
No. 12) is DENIED as moot.
DATED January 14, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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