Brown v. Bach et al

Filing 32

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/5/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00732-BNB
SHAUN ERIC BROWN, also known as
SHAUN BROWN,
Plaintiff,
v.
MAYOR STEVE BACH,
CHIEF PETER CAREY,
SGT. MARY G. WALSH 169,
PEACE OFFICER A. CAREY 4156,
PEACE OFFICER S. WREN 4179, and
UNKNOWN AGENTS, et al.,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Shaun Eric Brown, was incarcerated at the El Paso County Criminal
Justice Center in Colorado Springs, Colorado, when he initiated this action by filing pro
se a Prisoner Complaint (ECF No. 1) for money damages pursuant to 42 U.S.C. § 1983;
28 U.S.C. § 1331; and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). He also filed an amended Prisoner Complaint (ECF
No. 21). He later informed the Court that he was transferred to the Colorado
Department of Corrections (DOC) and incarcerated at the Crowley County Correctional
Facility in Olney Springs, Colorado. See ECF No. 15. Mr. Brown has been granted
leave to proceed pursuant to 28 U.S.C. § 1915.
On July 23, 2014, Mr. Brown filed a notice of change of address (ECF No. 28)
informing the Court that he currently resided at 709 South Sierra Madre, Colorado
Springs, CO 80903. He apparently no longer was incarcerated. According to the

“Finding an Inmate” tab on the DOC website, www.doc.state.co.us, Mr. Brown was
paroled to the “Southeast Region.” Id.
Therefore, on July 24, 2014, Magistrate Judge Boyd N. Boland entered an order
(ECF No. 29) informing Mr. Brown that his continuing obligation to pay the filing fee was
to be determined, like any nonprisoner, solely on the basis of whether he qualified for in
forma pauperis status. See Whitney v. New Mexico, 113 F.3d 1170, 1171 n.1 (10th Cir.
1997); see also McGore v. Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997); In re
Prison Litigation Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 1997); McGann v.
Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996). Magistrate Judge
Boland ordered Mr. Brown to submit within thirty days on the Court-approved form an
Application to Proceed in District Court Without Prepaying Fees or Costs, the in forma
pauperis form to be used by nonprisoners. The magistrate judge informed Mr. Brown
that, alternatively, he may elect to pay the $400.00 filing fee to pursue his claims in this
action.
On July 29, 2014, Mr. Brown filed a document titled “Financial Affidavit in Support
of Request for Attorney, Expert, or Other Services Without Payment of Fee” (ECF No.
31). He failed within the time allowed to file on the Court-approved form an Application
to Proceed in District Court Without Prepaying Fees or Costs, as directed in the July 24
order. The amended Prisoner Complaint and the action will be dismissed without
prejudice for failure to comply with the July 24 order as directed within the time allowed.
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. Brown files a notice of appeal he also must pay the full $505.00 appellate
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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.
ORDERED that the amended Prisoner Complaint (ECF No. 21) and the action
are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Shaun Eric Brown, to submit within the time allowed
on the Court-approved form an Application to Proceed in District Court Without
Prepaying Fees or Costs, the in forma pauperis form to be used by nonprisoners. It is
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.
DATED at Denver, Colorado, this

5th

day of

September

, 2014.

BY THE COURT:

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

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