Lundy v. Colvin

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/9/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02155-BNB
CHRISTOPHER WORTH LUNDY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Christopher Worth Lundy, filed pro se a Complaint (ECF No. 1) and a
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3).
He was granted leave to proceed in forma pauperis pursuant to § 1915.
On August 14, 2013, the Court entered an order (ECF No. 4) directing Plaintiff to
file within thirty days an amended Complaint that complied with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and provided additional
information, including but not limited to a copy of the Commissioner of Social Security’s
final administrative decision, if available. Magistrate Judge Boland warned Mr. Lundy
that if he failed within the time allowed to file an amended Complaint as directed, the
Complaint and the action would be dismissed without further notice.
On October 29, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Lundy to
show cause (ECF No. 6) within thirty days why the instant action should not be
dismissed because he failed within the time allowed to file an amended Complaint as
directed in the August 14 order.

In the October 29 order to show cause, Magistrate Judge Boland warned Mr.
Lundy of the potential consequence of failing to file an amended Complaint and gave
him a final opportunity to comply with the directives of the August 14 order. Specifically,
Mr. Lundy was warned that, even if the Court dismisses the instant action without
prejudice for failure to comply with the August 14 order, the dismissal may act as a
dismissal with prejudice if Mr. Lundy seeks to refile in this Court because the period for
filing a Social Security action may have expired. Pursuant to Section 205(g) of the
Social Security Act, a civil action must be commenced “within sixty days after the
mailing to him of notice of [any final decision of the Commission of Social Security] or
within such further time as the Commissioner may allow.” 42 U.S.C. § 405(g).
Magistrate Judge Boland also warned Mr. Lundy that if he failed to file an
amended Complaint that complied with the October 29 and the August 14 orders within
the time allowed, the Complaint and the action would be dismissed without further
notice.
Mr. Lundy has failed within the time allowed to file an amended Complaint that
complies with the August 14 order, or otherwise communicate with the Court in any
way. Therefore, the Complaint and the action will be dismissed for failure to file an
amended Complaint as directed within the time allowed, and for Mr. Lundy’s 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. Lundy 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
2

Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint (ECF No. 1) and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of
Plaintiff, Christopher Worth Lundy, within the time allowed to file an amended Complaint
as directed in the orders of August 14 and October 29, 2013 (ECF Nos. 4 and 6), 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 9th day of

December

, 2013.

BY THE COURT:

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

3