Schuett v. Governor, State of Colorado

Filing 5

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/9/14. 2 Prisoners Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02409-BNB
CLIFFORD E. SCHUETT,
Plaintiff,
v.
GOVERNOR, STATE OF COLORADO,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Clifford E. Schuett, is incarcerated at the Nevada Southern Detention
Center in Pahrump, Nevada. Mr. Schuett initiated this action by filing pro se a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 2) and a Prisoner Complaint (ECF No. 1) pursuant to 28 U.S.C. § 1331 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). This civil action was commenced and, on September 2, 2014, Magistrate Judge
Boyd N. Boland entered an order directing Mr. Schuett to cure certain deficiencies if he
wished to pursue any claims. Magistrate Judge Boland specifically advised Mr. Schuett
that he failed to submit a certified copy of his inmate trust fund account statement and
that the Complaint was not legible. Mr. Schuett was warned that the action would be
dismissed without further notice if he failed to cure the deficiencies within thirty days.
Mr. Schuett has failed to cure the deficiencies within the time alleged and has not
responded in any way to Magistrate Judge Boland’s September 2 order. Therefore, the

action will be dismissed without prejudice for failure to cure deficiencies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 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 Plaintiff files a notice of appeal he also must pay the full $505
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
ORDERED that the Prisoner Complaint and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr.
Schuett has failed to cure the deficiencies as directed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) is denied as moot.
DATED at Denver, Colorado, this

9th

day of

October

, 2014.

BY THE COURT:

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

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