Bruce v. Osagie et al
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 11/14/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02068-BNB
JOHN T. RATHMAN,
LEE H. GREEN,
JOSE A. SANTANA,
DAVID A. BERKEBILE,
PAUL M. LAIRD,
L. ROBINSON, and
ORDER OF DISMISSAL
Plaintiff, Antoine Bruce, is in the custody of the Federal Bureau of Prisons at ADX
in Florence, Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915. Magistrate Judge Boyd N. Boland reviewed the Complaint and the §
1915 motion, determined the filings were deficient, and directed Plaintiff to cure the
deficiencies. Plaintiff cured the deficiencies in part on August 14, 2014. He also filed a
Motion to Compel, a Motion to File First Amended Complaint, and a Motion for a
Supplemental Complaint. Magistrate Judge Boland granted Plaintiff’s
§ 1915 Motion and denied the various motions either as moot or unnecessary.
Magistrate Judge Boland also found that the Complaint failed to comply with Rule
8 and the joinder requirements of the Federal Rules of Civil Procedure and directed
Plaintiff to file an Amended Complaint. On October 14, 2014, Plaintiff filed a Motion for
Extension of Time to file an amended complaint. Plaintiff stated in the Motion that he
needed the additional time because he was attempting to mail to the Court an “order for
(preliminary injunction) and a (temporary restraining order) against defendants.” Mot.
for Ext., ECF No. 19, at 1.
Previous to filing the Motion for Extension of Time, Plaintiff had filed several
lengthy pleadings that he titled as a “Motion to Amend” or as a “Motion of Compelment
[sic].” Magistrate Judge Boland denied these motions as moot, because Plaintiff had
been directed to amend, and told Plaintiff that the only proper filing at this time is an
amended complaint. Therefore, when Plaintiff filed the motion for extension of time and
stated he needed additional time to prepare a motion for preliminary injunction or a
temporary restraining order, Magistrate Judge Boland denied the request for an
extension and directed Plaintiff to comply by October 24, 2014, with the September 8,
2014 Order to Amend.
Magistrate Judge Boland also found Plaintiff’s claim that he is being denied ink,
paper, stamps, and the ability to send out his legal mail did not support a granting of an
extension of time to amend. Plaintiff did not need an ink pen or paper to submit his
claims on a Prisoner Complaint form; and Plaintiff’s alleged inability to send out his legal
mail, specifically to the Court for filing, is belied by his ability to submit the Motion for an
Extension of Time.
The Court finds Magistrate Judge Boland correctly determined that Plaintiff failed
to comply with Rule 8 and the rules of joinder and ordered him to amend. Furthermore,
Magistrate Judge Boland’s denial of an extension of time is appropriate when Plaintiff
seeks an extension for meritless reasons. Because Plaintiff now has failed to comply
with Magistrate Judge Boland’s September 8, 2014 Order within the time allowed, 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 paupers status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Plaintiff files a notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pampers in 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 file an Amended Complaint and
for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pampers on appeal is
DATED at Denver, Colorado, this 14th day of
November , 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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