Penrod v. Hickenlooper et al
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/2/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02329-BNB
DONALD ADAM PENROD,
JOHN ROBERT LOWENBACH,
DON SPENCE QUICK,
PAUL KOEHLER, and
COUNTY OF ADAMS,
ORDER OF DISMISSAL
Plaintiff, Donald Adam Penrod, is a prisoner in the custody of the Colorado
Department of Corrections at the Centennial Correctional Facility in Cañon City,
Colorado. He submitted pro se a Prisoner Complaint (ECF No. 1) and two pages from a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 2), together with a certified account statement for the six-month period
immediately preceding this filing. The Court reviewed the documents and determined
they were deficient. Therefore, on August 26, 2014, Magistrate Judge Boyd N. Boland
entered an order (ECF No. 4) directing Mr. Penrod to cure certain enumerated
deficiencies in the case within thirty days if he wished to pursue his claims.
The August 25 order pointed out that Mr. Penrod 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, Court-approved form. The August 25
order directed Mr. Penrod to obtain, with the assistance of his case manager or the
facility’s legal assistant, the Court-approved form for filing a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. The August 25 order
warned Mr. Penrod that if he failed to cure the designated deficiencies within thirty days,
the action would be dismissed without prejudice and without further notice.
On August 26 and September 2, 2014, Mr. Penrod submitted letters and
additional pages to the Prisoner Complaint he originally filed. ECF Nos. 5 and 6. On
September 30, 2014, he filed a letter (ECF No. 7), an amended Prisoner Complaint
(ECF No. 8), and an amended Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 9) that is missing page two, i.e., the signature
page. He has failed within the time allowed to cure all the designated deficiencies as
directed. Therefore, the amended Prisoner Complaint and the action will be dismissed
without prejudice for Mr. Penrod’s failure to cure the designated deficiencies as directed
within the time allowed.
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.
Penrod 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.
Finally, the Court notes that Mr. Penrod, on three or more prior occasions, has
brought an action that was dismissed on the grounds that it was frivolous, malicious, or
failed to state a claim. See Penrod v. Quick, Civil Action No. 11-cv-03273-LTB (D. Colo.
Mar. 22, 2012) (dismissed as barred by the rule in Heck v. Humphrey, 512 U.S. 477
(1994)), appeal dismissed as frivolous, No. 12-1163 (10th Cir. Jan. 11, 2013); see also
Penrod v. Suthers, Civil Action No. 12-cv-00592-LTB (D. Colo. Mar. 22, 2012)
(dismissed as barred by the rule in Heck). A Heck dismissal counts as a strike under §
1915(g). See Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177-78 (10th Cir.
2011). Therefore, each of the dismissals in the above-referenced cases qualifies as a
strike under 28 U.S.C. § 1915(g). Section 1915 provides:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g). Mr. Penrod does not allege that he is under imminent danger of
serious physical injury. Hafed, 635 F.3d at 1179.
Accordingly, it is
ORDERED that the amended Prisoner Complaint (ECF No. 8) and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Donald Adam Penrod, to cure all the deficiencies
designated in the order to cure of August 26, 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 2nd
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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