Holmes v. No Named Defendant

Filing 4

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/13/14. The motion for a stay and injunction 1 is denied as moot. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-00010-BNB J. LEE HOLMES, Plaintiff, v. [NO DEFENDANTS NAMED], Defendants. ORDER OF DISMISSAL Plaintiff, J. Lee Holmes, is a prisoner in the custody of the Colorado Department of Corrections at the Colorado Territorial Correctional Facility in Cañon City, Colorado. Mr. Holmes initiated this action by filing pro se a motion (ECF No. 1) seeking a stay and injunction based on alleged violations of his constitutional rights. On January 6, 2014, Magistrate Judge Boyd N. Boland entered an order directing Mr. Holmes to cure certain deficiencies if he wished to pursue any claims in this action. Specifically, Magistrate Judge Boland directed Mr. Holmes to file a complaint on the proper form and either to pay filing and administrative fees totaling $400.00 or to file a properly supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Holmes was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days. Mr. Holmes has failed to cure the deficiencies within the time allowed and has failed to respond in any way to Magistrate Judge Boland’s January 6 order. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies. 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 action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Holmes failed to cure the deficiencies as directed. 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. It is FURTHER ORDERED that the motion (ECF No. 1) for a stay and injunction is denied as moot. DATED at Denver, Colorado, this 13th day of February , 2014. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 2

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