Castro v. Vinyard et al

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/25/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01918-BNB
ERNESTO CASTRO,
Plaintiff,
v.
MRS. VINYARD (Mid-Level Practioner [sic]), and
DR. SANTINI, Clinical Director,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Ernesto Castro, is a prisoner in the custody of the Federal Bureau of
Prisons at the Federal Correctional Institution in Florence, Colorado. Mr. Castro
submitted pro se a Prisoner Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. §
1331, and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 (ECF No. 2).
The Court reviewed the documents and determined they were deficient.
Therefore, on July 10, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 4) directing Mr. Castro to cure certain enumerated deficiencies in the case within
thirty days if he wished to pursue his claims. The July 10 order pointed out that Mr.
Castro failed to submit either the $400.00 filing fee or all pages of a Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the proper, Courtapproved form. The July 10 order also pointed out that Mr. Castro failed to submit a

Prisoner Complaint that complied with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure.
The July 10 order directed Mr. Castro 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, and to use all pages of those forms in curing the designated deficiencies and
filing an amended Prisoner Complaint within thirty days. Magistrate Judge Boland
warned Mr. Castro that if he failed to cure the designated deficiencies or file an
amended Prisoner Complaint within the time allowed that complied with the July 10
order, the Prisoner Complaint and the action would be dismissed without prejudice and
without further notice.
On August 14, 2014, Mr. Castro submitted an amended Prisoner Complaint (ECF
No. 6) and an amended Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 (ECF No. 5) that is missing key pages of the Court’s current form,
including the authorization and certificate of prison official. In addition, the copy of the
trust fund account statement Mr. Castro submitted for the six-month period immediately
preceding this filing as an attachment to the amended § 1915 motion and affidavit is
uncertified.
Mr. Castro has failed to cure the designated deficiencies within the time allowed.
Therefore, the amended Prisoner Complaint and the action will be dismissed without
prejudice for Mr. Castro’s failure to cure all the designated deficiencies as directed
within the time allowed.

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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. Castro 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
ORDERED that the amended Prisoner Complaint and the action are dismissed
without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the
failure of Plaintiff, Ernesto Castro, to cure the deficiencies designated in the order to
cure of July 10, 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

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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