Gianetta v. No Named Defendants

Filing 7

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 7/7/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01463-BNB
JASON C. GIANETTA,
Plaintiff,
v.
[NO NAMED DEFENDANT],
Defendant.

ORDER OF DISMISSAL

Plaintiff, Jason C. Gianetta, is a prisoner in the custody of the Federal Bureau of
Prisons who currently is incarcerated at the United States Penitentiary in Coleman,
Florida. He attempted to initiate the instant action by submitting pro se a letter (ECF
No. 1) complaining about the conditions of his confinement. The Court reviewed the
letter and determined it was deficient. Therefore, on May 23, 2014, Magistrate Judge
Boyd N. Boland entered an order (ECF No. 3) directing Mr. Gianetta to cure certain
enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The May 23 order pointed out that Mr. Gianetta 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, i.e., the current form revised
October 1, 2012, with an authorization and certificate of prison official, together with a
certified copy of his trust fund account statement for the six-month period immediately
preceding this filing obtained from the appropriate prison official. The May 23 order also

pointed out that Mr. Gianetta failed to submit a Prisoner Complaint on the proper, Courtapproved form. The May 23 order directed Mr. Gianetta 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 May 23 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.
On June 9, 2014, Mr. Gianetta submitted a letter (ECF No. 4) in response to the
May 23 order and a motion (ECF No. 5) for the appointment of counsel to represent
him. On June 10, 2014, the Court entered a minute order (ECF No. 6) denying the
motion for the appointment of counsel as premature.
Mr. Gianetta has failed to cure the designated deficiencies within the time
allowed. Therefore, the action will be dismissed without prejudice for Mr. Gianetta’s
failure to cure the designated deficiencies 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. Gianetta 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

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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, Jason C. Gianetta, to
cure the deficiencies designated in the order to cure of May 23, 2014, within the time
allowed. 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 7th

day of

July

, 2014.

BY THE COURT:

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

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