Mallett et al, vs. Holder, et al

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/3/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02273-BNB
DAWANE ARTHUR MALLETT, and
LAMARCUS HILLARD,
Petitioners,
v.
ERIC HOLDER, JR., US Attorney General,
DAVID B. BERKEBILE, ADX Warden,
SHUN KUDA, Associate Warden,
PATRICIA RANGEL, SIA Acting, and
CHRISTOPHER SYNSVOLL, Supervisory Institutional Attorney,
Respondents.

ORDER OF DISMISSAL

Petitioner, Dawane Arthur Mallett, a prisoner in the custody of the Federal
Bureau of Prisons (BOP) at the United States Penitentiary, Administrative Maximum, at
Florence, Colorado, initiated this action by filing pro se a motion (ECF No. 1) seeking
mandamus relief pursuant to 28 U.S.C. § 1361. The instant action was commenced
and, on August 23, 2013, Magistrate Judge Boyd N. Boland entered an order directing
Mr. Mallett to cure certain deficiencies if he wished to pursue his claims in this action.
Specifically, Magistrate Judge Boland directed Mr. Mallett to file a Prisoner Complaint
and either to pay filing and administrative fees totaling $400.00 or to file a properly
supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. Mr. Mallett was warned that the action would be dismissed without further notice
if he failed to cure the deficiencies within thirty days.

On September 19, 2013, Mr. Mallett submitted to the Court for filing in this action
a document titled “Amended Complaint” (ECF No. 4) seeking mandamus relief pursuant
to 28 U.S.C. § 1361. The “Amended Complaint” lists both Mr. Mallett and another
federal prisoner, Lamarcus Hillard, as petitioners. Attached to the “Amended
Complaint” is a certified copy of Mr. Mallett’s inmate trust fund account statement. (See
ECF No. 4 at 11-12.) Mr. Mallett also submitted a “Notice to the Clerk of the Court”
(ECF No. 5) on September 19, 2013.
Petitioners have failed to cure the deficiencies in this action because the
“Amended Complaint” is not on the court-approved Prisoner Complaint form and neither
Petitioner has paid the required filing and administrative fees or filed a motion seeking
leave to proceed in forma pauperis. Therefore, the action will be dismissed without
prejudice for failure to cure the deficiencies. Furthermore, 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 either Petitioner files a notice
of appeal he also must 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Petitioners failed to cure the
deficiencies as directed. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

3rd day of

October

, 2013.

BY THE COURT:

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

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