Hysell v. Archuleta et al

Filing 13

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/28/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03074-BNB
WESLEY-THOMAS HYSELL,
Plaintiff,
v.
LOU ARCHULETA, Warden,
RON WAGER, Associate Warden,
LIEUTENANT RICK LAWSON,
LIEUTENANT JANNA BLUNDELL,
YVETTE BROWN, Law Librarian,
“SERGEANT PATRICK,”
“SERGEANT SIMONEAUX,”
“OFFICER TAFOYA,”
WHITMAN WEST, Case Manager, and
“OFFICER HUGHES,”
Defendants.

ORDER OF DISMISSAL

Plaintiff, Wesley-Thomas Hysell, was a prisoner in the custody of the Colorado
Department of Corrections (CDOC) at the Fremont Correctional Facility when he
submitted pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983
asking for money damages. After filing his Complaint, Mr. Hysell notified the Court that
he had been released from custody and now resides at the Advantage Treatment
Center in Sterling, Colorado, as a condition of parole. (See ECF Nos. 7 and 10). He
has been granted leave to proceed pursuant to 28 U.S.C. § 1915. (See ECF No. 11).
On January 23, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Mr. Hysell to file an amended Prisoner Complaint within thirty days. (See ECF

No. 12). Magistrate Judge Boland warned Mr. Hysell that if he failed to file an amended
Prisoner Complaint that complied with the January 23 Order within the time allowed,
some claims asserted against some Defendants, or the entire action, may be dismissed
without further notice. Mr. Hysell has failed within the time allowed to file an amended
Prisoner Complaint as directed or otherwise communicate with the Court in any way.
In the January 23 Order, Magistrate Judge Boland pointed out a number of
deficiencies in Mr. Hysell’s original Prisoner Complaint. The Prisoner Complaint does
not comply with the pleading requirements of Rule 8 of the Federal Rules ov Civil
Procedure. Specifically, the Prisoner Complaint is prolix and vague, and Mr. Hysell fails
to provide a short and plain statement of each of his claims showing that he is entitled to
relief. First, the claims Mr. Hysell intends to assert are unclear because, although he
nominally alleges three claims, those claims appear to include numerous independent
causes of action. Second, Plaintiff does not identify which Defendant or Defendants are
being sued with respect to each asserted claim. Third, Mr. Hysell fails to allege facts
showing that he is entitled to relief. The Court further explained that specific facts as to
the personal participation of each named Defendant must be alleged and that
Defendants may not be sued merely because of their roles as supervisors. The
January 23 Order discusses these deficiencies in greater detail.
Mr. Hysell has failed within the time allowed to file an amended prisoner
complaint that cures the deficiencies and provides specific factual assertions of
Defendants’ personal participation in the asserted constitutional violations. The
Prisoner Complaint will be dismissed without prejudice for Mr. Hysell’s failure to comply
with the order to submit an amended Prisoner Complaint and for his failure to
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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. Hysell 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 Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Wesley-Thomas Hysell, within the time allowed, to
file an amended Prisoner Complaint as directed in the order of January 23, 2014 (ECF
No. 12), 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 28th

day of

February

, 2014.

BY THE COURT:

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

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