Maxton v. Rhodes et al
ORDER of Dismissal. ORDERED that the habeas corpus petition is denied and the action is dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 3/8/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00244-BNB
THERON JOHNNY MAXTON,
T. H. TOZZA RHODES, Warden, FCI-Florence, and
CHARLES SAMUELS, BOP Director, Washington D.C.,
ORDER OF DISMISSAL
Petitioner, Theron Johnny Maxton, is an inmate at the Federal Correctional
Institution in Florence, Colorado. Mr. Maxton initiated this action by filing pro se in the
United States District Court for the District of South Carolina a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 and a motion seeking leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Maxton was granted leave to
proceed in forma pauperis. In an order entered on January 30, 2013, the District of
South Carolina transferred the action to this court.
On January 31, 2013, Magistrate Judge Boyd N. Boland entered an order
directing Mr. Maxton to cure a deficiency if he wishes to pursue his claims in this court.
More specifically, Magistrate Judge Boland ordered Mr. Maxton to file an amended
pleading using the proper form approved for use by prisoners in the District of Colorado.
Mr. Maxton was warned that the action would be dismissed without further notice if he
failed to cure the deficiency within thirty days.
Mr. Maxton has failed to cure the deficiency within the time allowed and he has
failed to respond in any way to Magistrate Judge Boland’s January 31 order. Therefore,
the action will be dismissed without prejudice for failure to cure the deficiency.
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 Petitioner 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 habeas corpus petition is denied and the action is dismissed
without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure
because Mr. Maxton failed to cure the deficiency 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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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