Jones v. No Named Respondent

Filing 10

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/22/14. No certificate of appealability shall issue. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-02155-BNB TED R. JONES, Applicant, v. [NO NAMED RESPONDENT] Respondent. ORDER OF DISMISSAL Applicant, Ted R. Jones, currently is detained at the Delta County Jail in Delta, Colorado. Applicant originally submitted three hand-written kites to the Delta District Court to be delivered to Magistrate Judge Boyd N. Boland. On August 1, 2014, the Delta Court forwarded the three kites to this Court. Magistrate Judge Boland reviewed the kites, determined Applicant is attempting to challenge his pretrial detention, and construed the action as filed pursuant to 28 U.S.C. § 2241. On August 7, 2014, Magistrate Judge Boland directed Applicant to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Boland told Applicant either to submit a proper Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 used in filing habeas actions and a certificate showing the current balance in his prison account, or in the alternative to pay the $5.00 filing fee. Magistrate Judge Boland also directed Applicant to file his claims on a Courtapproved from used in filing § 2241 actions. Magistrate Judge Boland warned Applicant that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days. On August 13 and 15, 2014, Applicant filed pleadings that generally are incomprehensible and nonresponsive to the August 7 Order. Magistrate Judge Boland entered a Minute Order on September 12, 2014, that again directed Petitioner to obtain the correct forms from a case manager or facility legal assistant to file a request to proceed pursuant to 28 U.S.C. § 1915, if he desires to proceed in forma pauperis, and to file a § 2241 action. The September 12 Minute Order also allowed Applicant an additional thirty days to comply. Applicant has failed to communicate with the Court since September 12 and has failed to cure the deficiencies within the time allowed. Therefore, the action will be dismissed without prejudice for failure to cure all noted deficiencies. 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 is 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 also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is ORDERED that the action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to cure the deficiencies and for failure to prosecute. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is 2 FURTHER ORDERED that no certificate of appealability shall issue because Applicant has failed to show that jurists of reason would find it debatable that the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). It is FURTHER ORDERED that all pending motions are denied as moot. DATED at Denver, Colorado, this 22nd day of October , 2014. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 3

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