Holmes v. No Named Defendant
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, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00010-BNB
J. LEE HOLMES,
[NO DEFENDANTS NAMED],
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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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