Vaden v. Seele et al

Filing 14

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/19/14. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 13-cv-03081-BNB CHARLES G. VADEN, Plaintiff, v. DIANA SEELE, PAULA LONGFORD, and HEIDI HURTADO, Defendants. ORDER OF DISMISSAL Plaintiff, Charles G. Vaden, resides in Johnstown, Colorado. Plaintiff, initiated this action by filing pro se a Civil Complaint. In an order entered on November 14, 2013, Magistrate Judge Boyd N. Boland directed Plaintiff to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Boland directed Plaintiff to complete all sections of the Complaint form and to submit a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Magistrate Judge Boland warned Plaintiff that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days. On December 9, 2013, Plaintiff filed a completed Complaint form and a § 1915 Motion and Affidavit. Magistrate Judge Boland found the information provided in the § 1915 Motion and Affidavit to be contradictory and confusing and directed Plaintiff to resubmit the form to the Court and to include proper and clarifying information regarding his income and expenses. In response to Magistrate Judge Boland’s directive to resubmit the § 1915 form, Plaintiff filed a Financial Affidavit that is used for CJA appointments of counsel. Magistrate Judge Boland then entered a minute order on January 13, 2014, that found the Affidavit unresponsive to the Second Order to Cure and directed the Clerk of the Court to send a § 1915 Motion form to Plaintiff to complete and return to the Court within thirty days. On January 30, 2014, Plaintiff submitted a second § 1915 Motion. The January 30 Motion, however, is not properly notarized or certified by Plaintiff because the signature page Plaintiff attached to the January 30 Motion is from the § 1915 Motion that he submitted to the Court on December 9, 2013. The information Plaintiff provides in the January 30 Motion regarding his expenses varies substantially from the information Plaintiff provided in the December 9 Motion and needs to be separately notarized. Furthermore, Plaintiff identifies expenses he asserts that he pays but does not identify any income. Plaintiff was given three opportunities to submit a properly completed § 1915 motion but has failed to do so. The action, therefore, will be dismissed. 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. 2 Accordingly, it is ORDERED that the Complaint and action are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to comply with the Court’s January 13,2014 Order, within the time allowed, and for failure to prosecute. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is FURTHER ORDERED that all pending motions are denied as moot. DATED at Denver, Colorado, this 19th day of February , 2014. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 3

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