Pflieger v. Miller

Filing 4

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/19/14. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-01873-BNB TY ANTHONY PFLIEGER, Applicant, v. MICHAEL E. MILLER, Crowley County Correctional Facility, Respondent. ORDER OF DISMISSAL Applicant, Ty Anthony Pflieger, is in the custody of the Colorado Department of Corrections at the Crowley Correctional Facility in Olney Springs, Colorado. On July 7, 2014, Applicant filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. After review of the Application, Magistrate Judge Boyd N. Boland entered an order, on July 8, 2014, directing Applicant to cure noted deficiencies. Specifically, Applicant was directed either to submit a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 or to pay the $5 filing fee. Applicant also was directed to provide a statement of his claims and the facts supporting each claim on Pages Two through Four of the Application form. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires he go beyond notice pleading, see Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977), and that naked allegations of constitutional violations devoid of factual support are not cognizable in a federal habeas action, see Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per curiam). Rule 1(b) of the Rules Governing Section 2254 Cases applies the rules to habeas corpus petitions other than § 2254 actions. Consistent with Rule 4, Applicant was directed to state his claims and supporting facts on a Court-approved form. The Court finds Magistrate Judge Boland correctly determined that the Application was deficient and that in order to cure the deficiency Applicant must submit a new Application that states his claims and supporting facts. Applicant has failed to respond to the July 8, 2014 Order. As a result, he has failed to comply with Magistrate Judge Boland’s directives within the time allowed. Therefore, the action will be dismissed. 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 Applicant 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 the Application is denied and the action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to cure deficiencies and for failure to prosecute. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. DATED at Denver, Colorado, this 19th day of August , 2014. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 2

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