Cantu v. Executive Director of CDOC et al

Filing 20

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 7/25/13. No certificate of appealability will issue. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 13-cv-01500-BNB MONTE CANTU, Plaintiff, v. EXECUTIVE DIRECTOR OF CDOC, RAE TIMME, JUSTIN MCBRIDE, BENJAMIN THIEL, RODNEY ACHEN, BERNARD CANTIN, LEONARD VIGIL, TOM JORDAN, JERI ALTMAN, TERRI HARDING, AUDRA DE SANTOS, MARK BUTTONS, CARL WILLIAMS, SHANNA RICHARDSON, PAMELA BENTLEY, DAVID BERGMAN, CHRISTINA SMITH, LAURA BUFFMACK, SCOTT LANCASTER, and LANCE MIKLICH, Defendants. ORDER OF DISMISSAL Plaintiff, Monte Cantu, and thirteen other individuals, all of whom are in the custody of the Colorado Department of Corrections (DOC) at the Colorado Territorial Correctional Facility (CTCF) in Canón City, Colorado, initiated this action on June 6, 2012, by filing a Prisoner Complaint. In a June 14, 2013 Order, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that the joinder of numerous unrelated claims and defendants was not appropriate under Rule 20 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 20(a) (providing for joinder of claims that arise out of the same transaction or occurrence). The Court therefore dismissed all of the plaintiffs, except for Plaintiff Cantu, without prejudice. Each of the dismissed plaintiffs was advised that he could thereafter initiate a separate, individual civil rights action with the Court. In the June 14 Order, Magistrate Judge Boland directed Plaintiff to file his complaint on the court-approved Prisoner Complaint form within thirty (30) days. Mr. Cantu has failed to file a Prisoner Complaint on the court-approved form, nor has he requested an extension of time to comply with the June 14 Order. Therefore, this action will be dismissed. Finally, 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 Mr. Cantu 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 this action is DISMISSED without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for Mr. Cantu’s failure to comply with the June 14, 2013 Order Directing Plaintiff Cantu to Cure Deficiencies and for failure to prosecute. It is 2 FURTHER ORDERED that no certificate of appealability will issue because jurists of reason would not debate the correctness of this procedural ruling and Mr. Cantu has not made a substantial showing of the denial of a constitutional right. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. Mr. Cantu may file a motion in the Tenth Circuit. It is FURTHER ORDERED that all pending motions are DENIED as moot. DATED at Denver, Colorado, this 25th day of July , 2013. BY THE COURT: s/ Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 3

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