Smith v. Lyden et al

Filing 13

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/30/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00964-BNB

TOMMY SMITH,
Plaintiff,
v.
TIMOTHY LYDEN,
TAMMY ANDING,
JOE DRIVER, and
G.E.O. CORR. OF AMERICA,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Tommy Smith, is a prisoner in the custody of the Alaska Department of
Corrections who currently is incarcerated at a private correctional facility in Hudson,
Colorado. Plaintiff, acting pro se, originally initiated this action in the United States
District Court for the District of Alaska. On April 9, 2013, the District of Alaska
transferred the case to this Court pursuant to 28 U.S.C. § 1631. Upon review of
Plaintiff’s Complaint, Magistrate Judge Boyd N. Boland directed Plaintiff to file an
Amended Complaint and assert how all named parties personally participated in
violation his constitutional rights. Plaintiff was given thirty days to file the Amended
Complaint.
Rather than comply with Magistrate Judge Boland’s Order, Plaintiff filed a Motion
to Change Venue to the Eastern District of California. Magistrate Judge Boland denied
the Motion. Plaintiff contends in the Motion that because the action more properly is

filed in the Eastern District of California any requirement to amend the Complaint in this
Court is moot.
After review of the Complaint, the Court finds that Magistrate Judge Boland
correctly instructed Plaintiff to amend and assert personal participation. The Court also
agrees that nothing in Plaintiff’s Motion to Change Venue justifies a transfer to the
Eastern District of California. Therefore, because Plaintiff has failed to file an Amended
Complaint within the time allowed the action will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not 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 Plaintiff files a notice of appeal he must also 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 Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) for failure to file an Amended Complaint and for failure
to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 30th

day of

May

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
2

, 2013.