Herrarra Jr. v. University of Colorado et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/20/14. 3 Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03476-BNB
ARTURO CUTBURTO HERRARA, JR.,
UNIVERSITY OF COLORADO, A.R.T.S Program,
KEN GAIPA, Program Director of Peer I,
PAUL THOMPSON, Assistant Director of Peer I, and
ALONA SMITH House Manager of Peer I,
ORDER OF DISMISSAL
Plaintiff, Arturo Cutburto Herrara, Jr., initiated this action while incarcerated at the
Denver County Jail in Denver, Colorado, by filing pro se a Prisoner Complaint (ECF No.
1) and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 (ECF No. 3). On January 6, 2014, Magistrate Judge Boyd N. Boland ordered Mr.
Herrara to cure certain deficiencies if he wished to pursue his claims in this action.
More specifically, Magistrate Judge Boland ordered Mr. Herrara to submit both a signed
authorization to calculate and disburse filing fee payments and a certified copy of his
inmate trust fund account statement from each institution in which he has been
incarcerated in the last six months. Mr. Herrara was warned that the action would be
dismissed without further notice if he failed to cure the deficiencies within thirty days.
On January 13, 2014, the copy of Magistrate Judge Boland’s January 6 order
that was mailed to Mr. Herrara at the Denver County Jail was returned to the Court
undelivered, apparently because the envelope did not list Mr. Herrara’s correct inmate
number. (See ECF No. 5.) On January 14, 2014, Magistrate Judge Boland entered a
minute order directing the clerk of the Court to remail to Mr. Herrara a copy of the
January 6 order to cure deficiencies.
On January 22, 2014, the copy of Magistrate Judge Boland’s January 6 order
that was remailed to Mr. Herrara at the Denver County Jail with the correct inmate
number also was returned to the Court undelivered. That returned envelope (ECF No.
8) is stamped “RTS” and “RELEASED” and bears a stamp or sticker that reads
“RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, UNABLE TO
Pursuant to Rule 11.1(d) of the Local Rules of Practice of the United States
District Court for the District of Colorado-Civil, a party must file a notice of new address
within five days of any change of address. Mr. Herrara has failed to comply with the
Court’s local rules and, as a result, he has failed within the time allowed to cure the
deficiencies as directed. Therefore, the complaint and the action will be dismissed.
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 Plaintiff files a notice of appeal he also 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 Prisoner Complaint and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr.
Herrara failed to cure the deficiencies as directed. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) is denied as moot. It is
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 20th day of
February , 2014.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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