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, )

Download PDF
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 2 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 3

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?