Eller v. Hartley et al
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/6/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02029-BNB
MR. RICHA, [First] Name Unknown,
MR. POUNDS, [First] Name Unknown,
PENNY SPEARING, and
ORDER OF DISMISSAL
Plaintiff, William Eller, was a prisoner in the custody of the Colorado Department
of Corrections incarcerated at the correctional facility in Sterling, Colorado, when he
initiated this action by filing pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983
(ECF No. 1). On August 21, 2013, he filed an identical Prisoner Complaint (ECF No. 9).
He asks for money damages and declaratory and injunctive relief. On September 5,
2013, Mr. Eller informed the Court that he no longer is incarcerated. See ECF No. 18.
He appears to be on mandatory parole. See ECF No. 7 at 2. Mr. Eller has been
granted leave to proceed pursuant to 28 U.S.C. § 1915.
On October 29, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 29) directing Mr. Eller to file within thirty days an amended Prisoner Complaint that
complied with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure and the formatting requirements of D.C.COLO.LCivR 10.1, and alleged the
personal participation of each named Defendant. The October 29 order informed Mr.
Eller that his claims for declaratory and injunctive relief were moot due to his release
from prison. Magistrate Judge Boland warned Mr. Eller that if he failed to file an
amended Prisoner Complaint that complied with October 29 order as directed within the
time allowed, some or all claims and Defendants, or the entire action, may be dismissed
without further notice. On November 29, 2013, Mr. Eller filed a notice of change of
address (ECF No. 24). However, he failed within the time allowed to file an amended
Prisoner Complaint as directed.
In the order for an amended Prisoner Complaint, Magistrate Judge Boland
pointed out that Mr. Eller’s Prisoner Complaint is vague, verbose, and rambling. The
complaint asserts seven claims, one against each named Defendant. The claims stem
from what Mr. Eller alleged was deliberate indifference under the Eighth Amendment to
his serious medical need for treatment for his mental illnesses and disorders (including
but not limited to bipolarism and depression) that have caused him to self-mutilate his
body and attempt suicide. However, Mr. Eller failed to provide specifics as to what each
Defendant did or failed to do to provide him with proper medical care, relying instead on
vague and conclusory allegations of supervisory liability. Mr. Eller has made serious
general allegations, but no specific factual assertions, of Defendants’ actions or
inactions that jeopardized his mental health, but he has failed to comply with Rule 8 and
state Defendants’ personal participation in the asserted constitutional violations. The
Prisoner Complaint will be dismissed without prejudice for Mr. Eller’s failure to file an
amended Prisoner Complaint that complies with Fed. R. Civ. P. 8 as directed within the
time allowed, and for his failure to prosecute. Although Mr. Eller no longer is
incarcerated, he may, if he chooses, reassert his claims for money damages in a new
and separate action that complies with the October 29 order.
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. Eller files a notice of appeal he also must pay the full $505.00 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 Prisoner Complaint (ECF No. 1) and the action are
dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, William Eller, within the time allowed, to file an
amended Prisoner Complaint as directed in the order of October 29, 2013 (ECF No.
23), and for his failure to prosecute. It is
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
6th day of
BY THE COURT:
s/Lewis T. Babcock
Lewis T. Babcock, Senior Judge
United States District Court
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