Stocks v. Fogg, et al

Filing 11

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/16/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02982-BNB
THOMAS STOCKS,
Plaintiff,
v.
LT. NATHAN FOGG,
SGT. MICHAEL MORRIS,
DEPUTY P. BOLTE,
MICHAEL BALDING,
DEPUTY LITWEITER,
JOHN WEILER,
DEPUTY ANTILLA, and
SGT. CHRISTOPHER GABRIEL,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Thomas Stocks, currently resides in Aurora, Colorado. Plaintiff, acting
pro se, initiated this action by filing a Complaint pursuant to 42 U.S.C. §§ 1983 and
1985 and 28 U.S.C. § 1367(a). Plaintiff was granted leave to proceed pursuant to 28
U.S.C. § 1915. On December 2, 2013, Magistrate Judge Boyd N. Boland entered an
order that directs Plaintiff to amend the Complaint and cure certain deficiencies.
Specifically, Magistrate Judge Boland ordered Plaintiff to explain what each defendant
did to him, when the defendant it, how the defendant’s action harmed him, and what
specific legal right he believes the defendant violated. Plaintiff also was directed to use
a Court-approved form when filing the Amended Complaint as he is required to do by

the Local Rules of Practice of the United States District Court for the District of
Colorado. (Effective December 1, 2013, the requirement to use a Court-approved form
is found under Rule 5.1(c), rather than under Rule 8.1, where the requirement was
found prior to December 1, 2013.) Plaintiff was warned that the action would be
dismissed without further notice if he failed to cure the deficiencies within thirty days.
On January 2, 2014, Plaintiff filed a Motion for Extension of Time and asked for a
three-week extension to address the deficiencies. Magistrate Judge Boland denied the
Motion because Plaintiff is a prolific litigant, has filed five cases in this Court since April
2013, and is capable of asserting personal participation by named defendants and
submitting his claims on a Court-approved form without requiring three weeks to do so.
Magistrate Judge Boland directed Plaintiff to comply by January 10, 2014 with the
December 2, 2013 Order to Amend, which Plaintiff has done.
The Court has reviewed the Amended Complaint. Plaintiff has failed to use a
Court-approved form as required. Furthermore, Plaintiff failed to state in each of the five
listed claims specifically what each named defendant did to violate his rights. In the
Court-approved form a plaintiff is to state briefly the background of the case. Plaintiff
did not provide a brief background statement. Under each listed claim, a plaintiff is
required to state all supporting factual allegations, which includes what a named
defendant specifically did to violate his rights. Plaintiff did not comply with this
requirement. Plaintiff provides a nine-page narrative of events separate from his claims
and directs the Court to refer to these nine pages to determine which events pertain to
each of the five listed claims.

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Pursuant to Rule 5.1(c) of the Local Rules of Practice of the United States District
Court for the District of Colorado-Civil, “an unrepresented prisoner or party shall use the
forms and procedures posted on the [C]ourt’s website.” Plaintiff did not use the form
posted on the Court’s website. The United States Court of Appeals for the Tenth Circuit
repeatedly has upheld the requirement that pro se litigants comply with local court rules
requiring use of proper Court-approved forms and rejected constitutional challenges to
such rules. See Georgacarakos v. Watts, 368 F. App’x 917, 918-19 (10th Cir. 2010) (no
abuse its discretion in dismissing civil rights action without prejudice for noncompliance
with local rules requiring prisoner to use court-approved form to file complaint); Durham
v. Lappin, 346 F. App’x 330, 332-33 (10th Cir. 2009) (within district court's discretion
and no violation of equal protection rights to dismiss prisoner's complaint for failure to
use court-approved forms pursuant to local rule); Kosterow v. United States Marshal's
Serv., 345 F. App’x 321, 322-33 (10th Cir. 2009) (within district court's discretion to
dismiss complaint for failure to use proper court form); Young v. United States, 316 F.
App’x 764, 769-71 (10th Cir. 2009) (not abuse of district court’s discretion or a
constitutional violation to dismiss prisoner complaint for repeated refusal to file
complaint on court-approved prisoner complaint pursuant to local court rule); Maunz v.
Denver Dist. Court, 160 F. App’x 719, 720-21 (10th Cir. 2005) (not abuse of discretion
to dismiss prisoner action where inmate failed to file habeas corpus application on
proper form); Daily v. Municipality of Adams County, 117 F. App’x 669, 671-72 (10th Cir.
2004) ( failure to comply with local rule requiring pro se prisoners to use court-approved
form to file action not nonwillful, and prisoner's failure to use required form supported
dismissal of action). Because Plaintiff has elected not to use the Court-approved form
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he has not complied with the December 2, 2013 Order. The Court, therefore, will
dismiss the action.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not 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 Plaintiff files a notice of appeal he must pay the full $505 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 Fed. R. Civ.
P. 41(b) for failure to comply with the December 2, 2013 Order and to prosecute within
the time allowed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

16th

day of

January

BY THE COURT:

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

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, 2014.