Sweeney v. State of North Dakota

Filing 5

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/21/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00095-BNB
BRIAN L. SWEENEY,
Plaintiff,
v.
STATE OF NORTH DAKOTA,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Brian L. Sweeney, was incarcerated at the Ward County Jail in Minot,
North Dakota, when he initiated the instant action by a pro se letter (ECF No. 1) titled
“Plaintiff seeking immediate relief.” The Court reviewed the letter and determined it was
deficient. Therefore, on January 14, 2014, Magistrate Judge Boyd N. Boland entered
an order (ECF No. 3) directing Mr. Sweeney to cure certain enumerated deficiencies
within thirty days if he wished to pursue his claims.
The January 14 order pointed out that Mr. Sweeney failed to submit either the
$400.00 filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 on the proper, Court-approved form, together with a certified copy of
his trust fund account statement for the six-month period immediately preceding this
filing. The January 14 order also pointed out that Mr. Sweeney failed to submit a
Prisoner Complaint on the proper, Court-approved form. The January 14 order directed
Mr. Sweeney to obtain, with the assistance of his case manager or the facility’s legal

assistant, the Court-approved forms for filing a Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint. The January 14
order warned him that if he failed to cure the designated deficiencies within thirty days,
the action would be dismissed without prejudice and without further notice.
On February 6, 2014, the copy of the January 14 order mailed to Mr. Sweeney
was returned to the Court as undeliverable. See ECF No. 4. Mr. Sweeney has failed to
file a notice of change of address, cure the designated deficiencies within the time
allowed, or otherwise to communicate with the Court in any way. Therefore, the action
will be dismissed without prejudice for Mr. Sweeney’s failure to cure the designated
deficiencies as directed within the time allowed and for his failure to prosecute.
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. Sweeney 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 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 for the failure of Plaintiff, Brian L. Sweeney, to
cure the deficiencies designated in the order to cure of January 14, 2014, within the
time allowed and for his failure to prosecute. It is

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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 21st

day of

February

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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