Collins v. No Named Defendant

Filing 10

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/20/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02573-BNB
DAVID LEE COLLINS,
Plaintiff,
v.
[NO NAMED DEFENDANT],
Defendant.

ORDER OF DISMISSAL

Plaintiff, David Lee Collins, is a prisoner in the custody of the Colorado
Department of Corrections who is incarcerated at the Arkansas Valley Correctional
Facility in Ordway, Colorado. He submitted pro se two documents titled “Writ - Violation
of Federal Labor Law (Retirement Age) (ECF No. 1) and “Writ Violation of Federal
Labor Law and Fair Labor Standards Act” (ECF No. 3).
The Court reviewed the documents and determined they were deficient.
Therefore, on October 10, 2013, Magistrate Judge Boyd N. Boland entered an order
(ECF No. 4) directing Mr. Collins to cure certain enumerated deficiencies in the case
within thirty days if he wished to pursue his claims.
The October 10 order pointed out that Mr. Collins failed to submit either the
$400.00 filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 on the proper, Court-approved form. The October 10 order also
pointed out that Mr. Collins failed to submit a Prisoner Complaint on the proper, Court-

approved form. The order directed him to obtain, with the assistance of his case
manager or the facility’s legal assistant, the Court-approved forms for filing a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner
Complaint. The October 10 order warned Mr. Collins that if he failed to cure the
designated deficiencies within thirty days, the action would be dismissed without
prejudice and without further notice.
On November 5, 2013, Mr. Collins submitted a motion to strike (ECF No. 8) and
a motion to prosecute (ECF No. 9). Mr. Collins has failed to cure the designated
deficiencies within the time allowed. Therefore, the action will be dismissed without
prejudice for Mr. Collins’ failure to cure the designated deficiencies as directed within
the time allowed.
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. Collins files a notice of appeal he also must pay the full $455.00 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for the failure of Plaintiff, David Lee Collins, to
cure the deficiencies designated in the order to cure of October 10, 2013, within the
time allowed. It is

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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 20th day of

November

, 2013.

BY THE COURT:

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

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