Gianetta v. No Named Defendants

Filing 4

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-02536-BNB
JASON C. GIANETTA,
Plaintiff,
v.
[NO NAMED DEFENDANT],
Defendant.

ORDER OF DISMISSAL

Plaintiff, Jason C. Gianetta, is a prisoner in the custody of the Federal Bureau of
Prisons who currently is incarcerated at the United States Penitentiary in Coleman,
Florida. He attempted to initiate the instant action by submitting pro se a letter (ECF
No. 1) to the Honorable Richard P. Matsch, Senior District Judge, complaining about the
conditions of his confinement. The Court reviewed the letter and determined it was
deficient. Therefore, on September 17, 2014, Magistrate Judge Boyd N. Boland
entered an order (ECF No. 3) directing Mr. Gianetta to cure certain enumerated
deficiencies in the case within thirty days if he wished to pursue his claims.
The September 17 order pointed out that Mr. Gianetta 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 17
order also pointed out that Mr. Gianetta 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 17 order directed Mr. Gianetta 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 17 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. Gianetta 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. Gianetta’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
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Gianetta 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.
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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, Jason C. Gianetta, to
cure the deficiencies designated in the order to cure of September 17, 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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