Garcia v. Dist. 6 Police Dept. et al
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, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00038-BNB
GERALD GARCIA, named as
DIST. 6 POLICE DEPT., and
ORDER OF DISMISSAL
Plaintiff, Gerald Garcia, alleges he is homeless. He filed pro se a Complaint
(ECF No. 1) that only he signed and a Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3).
On January 7, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 4) directing Mr. Garcia and Goldie Garcia, if she intended to proceed as a Plaintiff in
this action, to cure within thirty days certain designated deficiencies and to file an
amended Complaint that was legible and complied with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure, sued the proper parties, and alleged the
personal participation of each named Defendant. Magistrate Judge Boland warned Mr.
Garcia that if he failed to comply with the January 7 order as directed within the time
allowed, some claims against some Defendants, or the entire action, may be dismissed
without further notice.
On February 12, 2014, the copy of the January 7 order mailed to Mr. Garcia was
returned to the Court as undeliverable. See ECF No. 5. Mr. Garcia has failed within the
time allowed to cure the designated deficiencies, file an amended Complaint as
directed, or otherwise communicate with the Court in any way.
In the January 7 order for an amended Complaint, Magistrate Judge Boland
discussed Mr. Garcia’s generally illegible Complaint, which apparently challenged his
arrest but failed to assert any claims or federal statutory authority as a basis for
jurisdiction or request any relief.
Magistrate Judge Boland explained that if Mr. Garcia intended to bring a civil
rights action, he may not sue the Denver Police Department, named as the “Dist. 6
Police Dept.” Magistrate Judge Boland also pointed out that Mr. Garcia failed to provide
specifics as to what each Defendant did or failed to do to violate his constitutional rights,
relying instead on vague, conclusory, and almost illegible allegations. Without specific
factual assertions of Defendants’ actions or inaction pertinent to his arrest, Mr. Garcia
fails to comply with Rule 8 and state Defendants’ personal participation in the asserted
constitutional violations. The Complaint will be dismissed without prejudice for Mr.
Garcia’s failure to cure the designated deficiencies, file an amended Complaint that
complies with Fed. R. Civ. P. 8 as directed within the time allowed, and failure to
Mr. Garcia may, if he chooses, reassert his claims in a new and separate action
that complies with the January 7 order. Mr. Garcia is warned that, even though the
Court is dismissing the instant action without prejudice for failure to comply with the
January 7 order, the dismissal may bar recovery if Mr. Garcia seeks to refile in this
Court because the two-year statute of limitations may have expired on any claims he
intended to assert pursuant to § 1983.
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. Garcia 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 Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint (ECF No. 1) and the action are dismissed without
prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil Procedure for the
failure of Plaintiff, Gerald Garcia, within the time allowed, to file an amended Complaint
as directed in the order of January 7, 2014 (ECF No. 4), and for his failure to prosecute.
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. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to
Plaintiff at his last known address.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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