King v. Miller

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 11/7/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02662-BNB
CLARENCE KING,
Applicant, named as Plaintiff,
v.
MICHAEL MILLER, Warden[,] Crowley County Correctional Facility,
Respondent, named as Defendant.

ORDER OF DISMISSAL

Applicant, Clarence King, named as Plaintiff, is a prisoner in the custody of the
Colorado Department of Corrections who currently is incarcerated at the Crowley
County Correctional Facility in Olney Springs, Colorado. He submitted pro se a
document titled “Petition for Relief From a Conviction of Sentence by a Person in State
Custody (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)” (ECF No. 1).
The Court reviewed the document and determined it was deficient. Therefore, on
September 26, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3)
directing Mr. King to cure certain enumerated deficiencies within thirty days if he wished
to pursue his claims. The September 26 order pointed out that Mr. King 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 on the proper, Court-approved
form, together with a certificate of the warden showing the current balance in his inmate
trust fund account. The September 26 order directed Mr. King 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. § 2254, and to use those forms in curing the designated
deficiencies. The September 26 order warned Mr. King that if he failed to cure the
designated deficiencies within thirty days as directed, the action would be dismissed
without further notice.
On October 3, 2014, Mr. King paid the $5.00 filing fee. He has failed to file an
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on the Courtapproved form within the time allowed. For the reasons stated below, the “Petition for
Relief From a Conviction of Sentence by a Person in State Custody (Petition Under 28
U.S.C. § 2254 for a Writ of Habeas Corpus)” will be denied, and this action will be
dismissed.
The “Petition for Relief From a Conviction of Sentence by a Person in State
Custody (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)” is not on the
Court-approved form for filing an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 that Mr. King was directed to use in the September 26 order.
Local Rules 1.2 and 5.1(c) of the Local Rules of Practice - Civil for this Court
require litigants to use the Court-approved forms found on the Court’s website. Rule
83(a)(2) of the Federal Rules of Civil Procedure allows a district court to enforce a local
rule imposing a form requirement unless it “causes a party to lose any right because of
a nonwillful failure to comply.” Fed. R. Civ. P. 83(a)(2). Mr. King makes no mention of
being denied access to the Court-approved form for filing an Application for Writ of
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Habeas Corpus Pursuant to 28 U.S.C. § 2254, nor did he ask the Court to mail him the
form because he was unable to obtain it. Generally, “dismissal is an appropriate
disposition against a part who disregards court orders and fails to proceed as required
by court rules.” United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855
(10th Cir. 2005).
In addition, the United States Court of Appeals for the Tenth Circuit repeatedly
has upheld the requirement that pro se litigants comply with local court rules requiring
use of proper Court-approved forms, and rejected constitutional challenges to such
rules. See Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district
court did not abuse its discretion in dismissing civil rights action without prejudice for
federal prisoner's noncompliance with local rules requiring use of proper court-approved
form to file complaint and district court's order to comply), Durham v. Lappin, 346 F.
App'x 330, 332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss
prisoner's complaint for failure to comply with local rules requiring pro se litigants to use
court-approved forms, and local rule did not violate prisoner's equal protection rights);
Kosterow v. United States Marshal's Serv., 345 F. App'x 321, 322-33 (10th Cir. 2009) (it
was within district court's discretion to dismiss complaint for failure to use proper court
form); Young v. United States, 316 F. App'x 764, 769-71 (10th Cir. 2009) (district court
order dismissing federal prisoner's pro se civil rights complaint without prejudice to his
ability to refile, based on his repeated refusal to comply with district court order directing
him to file amended complaint on court-approved prisoner complaint form as required
by local district court rule, was not abuse of discretion or constitutional violation); Maunz
v. Denver Dist. Court, 160 F. App'x 719, 720-21 (10th Cir. 2005) (district court did not
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abuse its discretion in dismissing inmate's federal action where inmate failed to file
habeas corpus application on proper form designated by district court); Daily v.
Municipality of Adams County, 117 F. App'x 669, 671-72 (10th Cir. 2004) (inmate's
failure to comply with local rule requiring pro se prisoners to use court's forms to file
action was not nonwillful, and inmate's failure to use required form supported dismissal
of action). Therefore, the “Petition for Relief From a Conviction of Sentence by a
Person in State Custody (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus)” will be denied.
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 Mr. King 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 “Petition for Relief From a Conviction of Sentence by a
Person in State Custody (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus)” (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, Clarence
King, to file within the time allowed an Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 on the Court-approved form as directed in the order of September
26, 2014. It is

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FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. 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 any pending motions are denied as moot.
DATED November 7, 2014, at Denver, Colorado.
BY THE COURT:

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

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