Vianez v. Florence ADMAX et al

Filing 4

ORDER Of Dismissal. The Complaint and action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. By Judge Lewis T. Babcock on 7/2/2014. (klyon, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-01396-BNB JUAN VIANEZ, Plaintiff, v. UNIT TEAM FOR FLORENCE, COLORADO, and THE STATE OF DENVER, Defendants. ORDER OF DISMISSAL Plaintiff, Juan Vianez, is in the custody of the United States Bureau of Prisons at ADX in Florence, Colorado. Mr. Vianez initiated this action by filing pro se a pleading titled, “Complaint (on 4/23/14) Mandatory Injunction Proclamation of Rebellion Habeas Corpus Ad Subjictendum [sic] . . . .” On May 20, 2014, Magistrate Judge Boyd N. Boland entered an order and directed Plaintiff to cure certain deficiencies in the pleading. Specifically, Magistrate Judge Boland directed Plaintiff to submit his claims on a Court-approved form used in filing prisoner complaints. Magistrate Judge Boland also directed Plaintiff to submit a request to proceed pursuant to 28 U.S.C. § 1915 on a proper form along with a certified account statement showing the current balance in his trust fund account. Plaintiff has failed to comply with the May 20 Order within the time allowed. The action will be dismissed without prejudice for failure to cure the deficiencies. The Court acknowledges the pending order in Vianez v. United States, No. 14cv-001363-BNB (D. Colo. Filed May 14, 2014), directing Plaintiff to show cause why he should not be subject to filing restrictions and monetary sanctions in this Court. Because the order to show cause was entered after this case was filed, the Court will refrain from addressing filing restrictions and monetary sanctions in this case. The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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 Plaintiff files a notice of appeal he must 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. Accordingly, it is ORDERED that based on the above findings the Complaint and action are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to cure all deficiencies and for failure to prosecute. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. DATED July 2, 2014, at Denver, Colorado. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 2

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