Modecker v. People of the State of Colorado, The

Filing 4

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 4/22/14. 1 Motion to Vacate, Set Aside, or Modify Fines is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00698-BNB
ASPEN MODECKER,
Applicant,
v.
[NO NAMED RESPONDENT],
Respondent.

ORDER OF DISMISSAL

Applicant, Aspen Modecker, is incarcerated at the Jefferson County Detention
Facility in Golden, Colorado. Mr. Modecker submitted pro se on March 6, 2014, a
Motion to Vacate, Set Aside, or Modify Fines (ECF No. 1), apparently for not wearing a
seat belt.
Magistrate Judge Boyd N. Boland reviewed the motion to vacate and determined
it was deficient. On March 11, 2014, Magistrate Judge Boland entered an order
directing Mr. Modecker within thirty days to cure certain enumerated deficiencies in the
motion to vacate he filed. Magistrate Judge Boland directed Mr. Modecker 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 in a Habeas Corpus Action and an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254. The March 11 order directed Mr.
Modecker to complete and submit those forms. Specifically, Mr. Modecker was ordered

to submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 in a Habeas Corpus Action, together with a certificate showing the current
balance in his prison account. Alternatively, he was informed he could pay the $5.00
filing fee for a habeas corpus action. He also was directed to submit a § 2254
application that named as Respondent his current warden, superintendent, jailer, or
other custodian.
Mr. Modecker has failed within the time allowed to cure any of the deficiencies in
this case or otherwise communicate with the Court in any way. Therefore, the action
will be dismissed without prejudice for Mr. Modecker'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. Modecker 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 Motion to Vacate, Set Aside, or Modify Fines (ECF No. 1) is
denied and the action dismissed without prejudice pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure for the failure of Applicant, Aspen Modecker, to cure the
deficiencies designated in the order to cure of March 11, 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 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 any other pending motions are denied as moot.
DATED April 22, 2014, at Denver, Colorado.
BY THE COURT:

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

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