DePhilippis v. No Named Defendant
ORDER Of Dismissal. The action is dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot. By Judge Lewis T. Babcock on 5/14/2014. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00949-BNB
[NO NAMED DEFENDANT],
ORDER OF DISMISSAL
Plaintiff, Roberto DePhilippis, is a prisoner in the custody of the Colorado
Department of Corrections at the Denver Reception and Diagnostic Center. He filed pro
se a letter (ECF No. 1) appearing to assert civil rights violations pursuant to 42 U.S.C. §
1983. The Court reviewed the letter and determined it was deficient. Therefore, on
April 2, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing
Mr. DePhilippis to cure certain enumerated deficiencies in the case within thirty days if
he wished to pursue his claims.
The April 2 order pointed out that Mr. DePhilippis 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. The April 2 order also pointed
out that Mr. DePhilippis failed to submit a Prisoner Complaint on the proper, Courtapproved form. The April 2 order directed Mr. DePhilippis 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 April 2 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.
Mr. DePhilippis has failed to 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. DePhilippis’ 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. DePhilippis 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.
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, Roberto DePhilippis, to
cure the deficiencies designated in the order to cure of April 2, 2014, within the time
allowed and for his failure to prosecute. 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
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?