Davis v. No Named Defendants

Filing 6

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/29/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02518-BNB
ANDRE THOMAS DAVIS,
Plaintiff,
v.
[NO NAMED DEFENDANT],
Defendant.

ORDER OF DISMISSAL

Plaintiff, Andre Thomas Davis, currently is confined at the Colorado Mental
Health Institute (CMHI) at Pueblo, Colorado. He attempted to initiate the instant action
by submitting pro se a letter (ECF No. 1) to the Court complaining about the conditions
of his confinement. The Court reviewed the letter and determined it was deficient.
On September 10, 2014, the Court entered a minute order (ECF No. 3) directing
Mr. Thomas to inform the Court within fifteen days whether he was a prisoner or
nonprisoner. This information was necessary so that the Court would know what forms
Plaintiff needed to complete in order to cure deficiencies in this case. On September
17, 2014, Mr. Davis filed a response (ECF No. 4) to the September 10 minute order
informing the Court that he is a prisoner at the CMHI in Pueblo.
On September 18, 2014, Magistrate Judge Boyd N. Boland entered an order
(ECF No. 5) directing Mr. Davis to cure certain enumerated deficiencies in the case
within thirty days if he wished to pursue his claims.

The September 18 order pointed out that Mr. Davis failed to submit either the
$400.00 filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 on the proper, Court-approved form, i.e., the current form revised
October 1, 2012, with an authorization and certificate of prison official, together with a
certified copy of his trust fund account statement for the six-month period immediately
preceding this filing obtained from the appropriate prison official. The September 18
order also pointed out that Mr. Davis failed to submit a Prisoner Complaint on the
proper, Court-approved form that complied with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure. The September 18 order directed Mr. Davis 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 and a Prisoner Complaint. The September 18 order
warned him that if he failed within thirty days to cure the designated deficiencies,
including to file a Prisoner Complaint that complies with Fed. R. Civ. P. 8, the action
would be dismissed without prejudice and without further notice.
Mr. Davis has failed to cure the designated deficiencies, file a Prisoner Complaint
that complies with Fed. R. Civ. P. 8, or otherwise communicate with the Court in any
way within the time allowed. Therefore, the action will be dismissed without prejudice
for Mr. Davis’s failure to cure the designated deficiencies and file a Prisoner Complaint
that complies with Fed. R. Civ. P. 8 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
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denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Davis 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
ORDERED that the action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for the failure of Plaintiff, Andre Thomas Davis,
to cure the deficiencies designated in the order to cure of September 18, 2014, within
the time allowed, including to file a Prisoner Complaint that complies with Rule 8 of the
Federal Rules of Civil Procedure, 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.
DATED at Denver, Colorado, this

29th

day of

October

, 2014.

BY THE COURT:

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

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