Sater v. No Named Defendant

Filing 5

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/26/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01980-BNB
WAYNE ALLEN SATER,
Plaintiff,
v.
[NO NAMED DEFENDANT],
Defendant.

ORDER OF DISMISSAL

Plaintiff, Wayne Allen Sater, is a prisoner in the custody of the Colorado
Department of Corrections at the Crowley County Correctional Facility in Olney Springs,
Colorado. Mr. Sater, acting pro se, attempted to initiate this action on July 16, 2014, by
filing with the Court a document titled “Order for Negotiable Withdrawal Ticket” (ECF
No. 1) that is unintelligible. The Court opened this case under 42 U.S.C. § 1983
because Mr. Sater is a state prisoner and did not appear to be asserting a challenge to
the fact or duration of his conviction or sentence.
The Court reviewed the document and determined it was deficient. Therefore, on
July 18, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing
Mr. Sater to cure certain enumerated deficiencies in the case within thirty days if he
wished to pursue his claims.
The July 18 order pointed out that Mr. Sater 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. The July 18 order also pointed out
that he failed to submit a certified account statement for the six-month period
immediately preceding this filing and a Prisoner Complaint. The July 18 order directed
him to file on the proper, Court-approved form a Prisoner Complaint that complied with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.
The July 18 order further directed Mr. Sater to obtain, with the assistance of his
case manager or the facility’s legal assistant, the current, Court-approved forms for filing
a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
and Prisoner Complaint. The July 18 order warned Mr. Sater that if he failed to cure the
designated deficiencies and file a Prisoner Complaint that complied with Rule 8 within
thirty days, the action would be dismissed without prejudice and without further notice.
On August 19, 2014, Mr. Sater submitted a document titled “Notice of Default”
(ECF No. 4). Mr. Sater has failed within the time allowed to cure the designated
deficiencies and file a Prisoner Complaint as directed. Therefore, the action will be
dismissed without prejudice for Mr. Sater’s failure to cure the designated deficiencies
and file a Prisoner Complaint 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. Sater 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, William Allen Sater,
within the time allowed to cure the deficiencies designated in the order to cure of July
18, 2014, and file a Prisoner Complaint that complied with the pleading requirements of
Fed. R. Civ. P. 8 as directed. 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 26th

day of

August

, 2014.

BY THE COURT:

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

3