Bailey v. Ebbert
ORDER Of Dismissal. This action is DISMISSED without prejudice. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal isdenied for the purpose of appeal. All pending motions are DENIED as moot. By Judge Lewis T. Babcock on 6/13/2014. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00868-BNB
DAVID J. EBBERT, Warden,
ORDER OF DISMISSAL
Petitioner, Ari Bailey, is in the custody of the federal Bureau of Prisons at USPFlorence, Colorado. He initiated this action by filing pro se in the United States District
Court for the Middle District of Pennsylvania a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2241 (ECF No. 1-1) and an Application to Proceed in District Court
without Prepaying Fees or Costs (ECF No. 1-2). On November 22, 2013, the Middle
District of Pennsylvania entered an order transferring the action to the District of
Colorado. (ECF No. 1). The action was docketed in this Court on March 25, 2014.
On March 31, 2014, Magistrate Judge Boyd N. Boland reviewed Petitioner’s
filings and determined that they were deficient. Magistrate Judge Boland directed
Petitioner to submit 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 a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 on the court-approved forms. Magistrate Judge
Boland warned Petitioner in the March 31 Order that failure to cure the deficiencies
noted would result in dismissal of this action without further notice.
On April 9, 2014, Magistrate Judge Boland granted Petitioner an extension of
time until May 8, 2014 to comply with the March 31 Order and further directed the Clerk
of the Court to mail copies of the necessary forms to Petitioner. (ECF No. 8). On May
6, 2014, Magistrate Judge Boland granted Petitioner an extension of time to June 6,
2014 to comply with the March 31 Order. (ECF No. 12). Magistrate Judge Boland
noted in the May 6 Minute Order that the clerk’s office had previously mailed copies of
the necessary forms to Mr. Bailey. (Id.). Magistrate Judge Boland also warned Plaintiff
that no further extensions of time would be granted absent a showing of just cause and
that failure to comply with the court-ordered deadline may result in dismissal of this
action without further notice.
Petitioner has now failed to comply with the March 31 Order. Further, he has not
communicated with the Court since April 30. Accordingly, it is
ORDERED that this action is DISMISSED without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure for the failure of Petitioner, Ari Bailey, to
comply with the March 31, 2014 Order Directing Petitioner to Cure Deficiencies. It is
FURTHER ORDERED that no certificate of appealability will issue because
jurists of reason would not debate the correctness of this procedural ruling and Mr.
Bailey 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 for the purpose of appeal. 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. See
Coppedge v. United States, 369 U.S. 438 (1962). If Petitioner files a notice of appeal
he must also 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. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
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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