Hughley v. No Defendants Named
Filing
5
ORDER of Dismissal. ORDERED that the action is dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot, by Judge Lewis T. Babcock on 3/12/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00258-BNB
ELBERT HUGHLEY,
Plaintiff,
v.
[NO NAMED DEFENDANT],
Defendant.
ORDER OF DISMISSAL
Plaintiff, Elbert Hughley, currently is incarcerated at the Weld County Jail in
Greeley, Colorado. He attempted to initiate the instant action by submitting pro se a
letter with attachments (ECF No. 1). The Court reviewed the documents and
determined they were deficient. Therefore, on February 4, 2013, Magistrate Judge
Boyd N. Boland entered an order (ECF No. 3) directing Mr. Hughley to cure certain
enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The February 4 order pointed out that Mr. Hughley failed to submit either the
$350.00 filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 on the proper, Court-approved form together with a certified copy of
his trust fund account statement for the six-month period immediately preceding this
filing obtained from the appropriate prison official. The February 4 order also pointed
out that Mr. Hughley failed to submit a Prisoner Complaint. The order directed him to
obtain, with the assistance of his case manager or the facility’s legal assistant, the
Court-approved forms for filing a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint. The February 4 order warned
Mr. Hughley that, if he failed to cure the designated deficiencies within thirty days, the
action would be dismissed without prejudice and without further notice. On February
15, 2013, the copy of the February 4 order mailed to Mr. Hughley was returned to the
Court as undeliverable, and indicating that Plaintiff no longer was in custody. See ECF
No. 4.
Mr. Hughley has failed to cure the designated deficiencies within the time
allowed, or otherwise to communicate with the Court in any way. Therefore, the action
will be dismissed without prejudice for Mr. Hughley’s failure to cure the designated
deficiencies as directed within the time allowed, and for his failure to prosecute.
Finally, the Court certifies pursuant to § 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. Hughley 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for the failure of Plaintiff, Elbert Hughley, within
the time allowed, to cure all the deficiencies designated in the order to cure of February
4, 2013, and for his failure to prosecute. It is
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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
12th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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