Fontana v. No Named Respondent

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 4/11/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00684-BNB
MARCUS ABRAMO FONTANA,
Applicant,
v.
[NO RESPONDENT NAMED],
Respondent.

ORDER OF DISMISSAL

Applicant, Marcus Abramo Fontana, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Fontana initiated this action by filing pro se a document
(ECF No. 1) in which he demands to be released from custody because he allegedly
was convicted in violation of his constitutional rights. The instant action was
commenced and, on March 5, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Mr. Fontana to cure certain deficiencies if he wished to pursue any claims in
this action. Specifically, Magistrate Judge Boland ordered Mr. Fontana to file an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and either to pay
the $5.00 filing fee for a habeas corpus action or to file a properly supported Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas
Corpus Action. Mr. Fontana was warned that the action would be dismissed without
further notice if he failed to cure the deficiencies within thirty days.
Mr. Fontana has failed to cure the deficiencies within the time allowed and he
has failed to respond in any way to Magistrate Judge Boland’s March 5 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 Applicant 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. Fontana failed to cure the
deficiencies as directed. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. 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 11th day of

April , 2014.

BY THE COURT:

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

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