Mascarenas v. People of the State of Colorado, The
Filing
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ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/18/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02240-BNB
TONY MASCARENAS,
Applicant,
v.
[NO NAMED RESPONDENT],
Respondent.
ORDER OF DISMISSAL
Applicant, Tony Mascarenas, was incarcerated at the Weld County Jail in
Greeley, Colorado, when he submitted pro se a document titled “Writ of Habeas
Corpus” (ECF No.1). The Court reviewed the document and determined it was
deficient. Therefore, on August 13, 2014, Magistrate Judge Boyd N. Boland entered an
order (ECF No. 3) directing Mr. Mascarenas to cure certain enumerated deficiencies in
the case within thirty days if he wished to pursue his claims.
The August 13 order pointed out that Mr. Mascarenas failed to submit either the
$5.00 filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action, together with a certificate showing the
current balance in his inmate account. The August 13 order also pointed out that Mr.
Mascarenas failed to submit on the proper, Court-approved form an Application for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that named the proper party as
Respondent. The August 13 order directed Mr. Mascarenas 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 in a Habeas Corpus Action and an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, and to use those forms in curing the designated
deficiencies. The August 13 order warned Mr. Mascarenas that if he failed to cure the
designated deficiencies within thirty days, the application would be denied and the
action dismissed without prejudice and without further notice.
On August 21, 2014, the copy of the August 13 order mailed to Mr. Mascarenas
was returned to the Court as undeliverable, indicating that he no longer was in custody.
See ECF No. 4. Mr. Mascarenas has failed to cure the designated deficiencies within
the time allowed or otherwise to communicate with the Court in any way. Therefore, the
application will be denied and the action dismissed without prejudice for Mr.
Mascarenas’ failure to cure the designated deficiencies as directed within the time
allowed and for his failure to prosecute.
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. Mascarenas 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
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ORDERED that the Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 (ECF No. 1) is denied and the action dismissed without prejudice pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Applicant, Tony
Mascarenas, to cure the deficiencies designated in the order to cure of August 13,
2014, within the time allowed, and for his failure to prosecute. 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. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to Mr.
Mascarenas at his last known address.
DATED at Denver, Colorado, this 18th
day of
September
, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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