Miller v. United States District Courts et al
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/23/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01031-BNB
TONY JAMES DEWAYNE MILLER, aka Tony J. Gallagher, aka Tony Gallagher, aka
UNITED STATES DISTRICT COURTS, and
UNITED STATES DISTRICT JUDGE,
ORDER OF DISMISSAL
Petitioner, Tony James DeWayne Miller, aka Tony J. Gallagher, aka Tony
Gallagher, aka Tony Miller, is a prisoner at the Arapahoe County Detention Facility. He
filed pro se a Petition for Writ of Habeas Corpus Ad Subjiciendum (ECF No. 1). The
Court reviewed the document and determined that it was deficient. Therefore, on April
10, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing
Petitioner to cure certain enumerated deficiencies in the case within thirty days if he
wished to pursue his claims.
The April 10 order pointed out that Petitioner failed to submit either the $5.00
filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action on the proper, Court-approved form with a
certified copy of his trust fund account statement from the appropriate prison official.
The April 10 order also pointed out that Petitioner failed to submit an Application for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the proper, Court-approved form.
The April 10 order directed Petitioner 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 § 2241 Application. The April 10 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.
Petitioner 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 Petitioner’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 Petitioner 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for the failure of Plaintiff to cure the deficiencies
designated in the order to cure dated April 10, 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 23rd day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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