Vianez v. Berkebile

Filing 9

ORDER Directing Plaintiff to Cure Deficiencies. ORDERED Plaintiff's request for production of documents 7 is denied as premature, by Magistrate Judge Boyd N. Boland on 1/10/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00028-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
JUAN VIANEZ,
Plaintiff,
v.
D. BARKEBILE, Warden,
Defendant.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES

On January 4, 2013, Plaintiff submitted a Prisoner Complaint, a separate filing
titled, “Complaint,” a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915, a Declaration in Support of Motion to Proceed In Forma Pauperis, a
filing titled, “Preliminary Injunction,” a Plaintiff’s Request for Production of Documents,
and a filing titled, “Evidence.” As part of the Court’s review pursuant to
D.C.COLO.LCivR 8.2, the Court has determined that the documents are deficient as
described in this Order. Plaintiff will be directed to cure the following if he wishes to
pursue any claims in this Court in this action. Any papers that Plaintiff files in response
to this Order must include the civil action number on this Order.
The Court also notes that since March 2012 Plaintiff has filed five separate
actions, four cases in the United States District Court for the District of Arizona and one
case in the United States District Court for the Western District of Washington. See

Vianez v. Pierce County Jail, et al., No. 12-cv-05272-RJB (W.D. Wash. July 17, 2012);
Vianez v. United States Penitentiary, Tucson, et al., No. 12-cv-00288-DCB-PSOT (D.
Ariz. July 2, 2012); Vianez v. United States Penitentiary, Tucson, et al., No. 12-cv00324-DCB-PSOT (D. Ariz. June 26, 2012); Vianez v. United States Penitentiary,
Tucson, et al., No. 12-cv-00325-DCB-PSOT (D. Ariz. June 19, 2012); Vianez v. Apker,
No. 12-cv-00366-DCB-PSOT (D. Ariz. May 25, 2012). Each of the these cases were
dismissed because Plaintiff failed to comply with the court’s orders. Plaintiff, however,
continued to file inappropriate motions and requests after the cases were dismissed in
at least four of the previous actions that he has filed. See Vianez, No. 12-cv-05272;
Vianez, No. 12-cv-00288; Vianez, No. 12-cv-00324; Vianez, No. 12-cv-00366. Plaintiff
is instructed that this Court will not tolerate the filing of inappropriate requests and
motions in a case. Plaintiff also is required to comply with this Order if he desires to
proceed with this action.
28 U.S.C. § 1915 Motion and Affidavit:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)

X

X
X

is not submitted
is missing affidavit
is missing certified copy of prisoner’s trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account
is missing required financial information
is missing authorization to calculate and disburse filing fee payments
is missing an original signature by the prisoner
is not on proper form (Must use Court-approved form revised October 1,
2012)
names in caption do not match names in caption of complaint, petition or
habeas application
other:

Complaint, Petition or Application:
(11)
(12)

is not submitted
is not on proper form
2

(13)
(14)
(15)
(16)
(17)

X

(18)

X

is missing an original signature by the prisoner
is missing page nos.
uses et al. instead of listing all parties in caption
names in caption do not match names in text
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
other: Plaintiff has submitted two Complaints. All Claims must be
submitted on one Court-approved form

Accordingly, it is
ORDERED that Plaintiff cure the deficiencies designated above within thirty
days from the date of this Order. Any papers that Plaintiff files in response to this
Order must include the civil action number on this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form and Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 form (revised 10/1/12) (with the assistance of his case manager or the
facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies
within thirty days from the date of this Order, the action will be dismissed without
further notice. It is
FURTHER ORDERED that Plaintiff’s request for production of documents, ECF
No. 7, is denied as premature.
DATED January 10, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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