Barbee v. Falk et al

Filing 8

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/25/14. 3 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and 4 Motion to Certify the Class Pursuant to Fed. R. Civ. P. 23 are denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01661-BNB
RICHARD BARBEE,
Plaintiff,
v.
FRANCES FALK,
MATT HANSON,
CAPTAIN PLIEDMAN,
CAPTAIN GABRIEL, and
JOHN KIRKLAND,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Richard Barbee, is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Barbee initiated this action by filing pro se a Prisoner Complaint
(ECF No. 1), a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 (ECF No. 3), and “Petitioner’s Motion to Certify the Class Pursuant to
Fed. R. Civ. P. 23” (ECF No. 4). On June 13, 2014, Magistrate Judge Boyd N. Boland
entered an order directing Mr. Barbee to cure certain deficiencies if he wished to pursue
his claims. Specifically, Magistrate Judge Boland directed Mr. Barbee to submit a
certified copy of his inmate trust fund account statement and an authorization to
calculate and disburse filing fee payments. Mr. Barbee was warned that the action
would be dismissed without further notice if he failed to cure the deficiencies within thirty
days.

On July 16, 2014, Mr. Barbee filed a “Motion to Authorize and Calculate and
Disburse Filing Fee Payments” (ECF No. 6) along with a certified copy of his inmate
trust fund account statement. On July 17, 2014, Magistrate Judge Boland entered a
minute order denying the “Motion to Authorize and Calculate and Disburse Filing Fee
Payments” because Mr. Barbee did not submit an authorization to calculate and
disburse filing fee payments on the proper form as required by the Court’s local rules.
Magistrate Judge Boland advised Mr. Barbee how to obtain the proper form to cure the
remaining deficiency, directed Mr. Barbee to cure the remaining deficiency within thirty
days, and warned Mr. Barbee that the action would be dismissed without prejudice and
without further notice if he failed to cure the remaining deficiency within the time
allowed.
Mr. Barbee has failed to cure the remaining deficiency within the time allowed
and has submitted no other filings in this action. Therefore, the complaint and the
action will be dismissed without prejudice for failure to cure all of the deficiencies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 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 Plaintiff files a notice of appeal he also 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 the Prisoner Complaint and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr.
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Barbee failed to cure all of the deficiencies as directed. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) and “Petitioner’s Motion to Certify
the Class Pursuant to Fed. R. Civ. P. 23” (ECF No. 4) are DENIED as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

25th

day of

August

, 2014.

BY THE COURT:

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

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