Ammon v. Holder Jr. et al

Filing 12

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/30/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02841-GPG
LUKE AMMON, of Preacher Clan, Sui Generis
Applicant,
v.
ERIC J. HOLDER JR., and
D. BERKEBILE,
Respondents.

ORDER OF DISMISSAL

Applicant Luke Ammon Preacher, acting pro se, originally filed an Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 in the United States District
Court for the District of Idaho on July 17, 2014. The District of Idaho reviewed the
application, determined that the action more properly is filed in this Court, and entered
an order transferring the action to this Court on October 14, 2014. Magistrate Judge
Gordon P. Gallagher entered an order on October 17, 2014, that determined the filing is
deficient and directed Applicant to resubmit his Application on a proper Court-approved
form and to clearly write his claims and other requested information on the form.
Applicant also was directed to submit an Application to Proceed in District Court Without
Prepaying Fees or Costs, or in the alternative to pay the $5 filing fee.
The envelope containing the October 17 Order to Cure was returned to the Court
on November 3, 2014, and was marked that it was forwarded to a prison location in
Atlanta, Georgia, and then apparently marked by the Atlanta facility as “Return to

Sender Attempted-Not Known Unable to Forward.” Subsequently, Applicant submitted
a Notice of Change of Address on November 10, 2014, to this Court. The Court
ordered the October 17, 2014 Order resent to Applicant at the new address in Butler,
North Carolina. Applicant then paid the $5 filing fee but did not submit clearly written
claims on a Court-Approved form. On December 29, 2014, the Court entered a Minute
Order that provided Applicant with a second opportunity to submit clearly written claims
on a Court-approved form within twenty-one days. Applicant now has failed to comply
with the October 17 Order within the time allowed.
The Court also notes that on September 22, 2014, Applicant filed a Petition for
Writ of Mandamus pursuant to 28 U.S.C. § 1361 in the United States District Court for
the Eastern District of North Carolina-Western Division. See Preacher v. Holder, Jr.,
No. 14-hc-02202-FL (E.D. N.C. filed Sept. 22, 2014). The North Carolina case has
been construed as a habeas action, raises the same three claims that Applicant has
raised in the instant action, and is pending.
Nonetheless, because Applicant has failed to clearly write his claims on a Courtapproved form pursuant to the Court’s October 17, 2014 Order, within the time allowed,
the Court will dismiss the action without prejudice.
Finally, 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.
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Accordingly, it is
ORDERED that the Application is denied and the action is dismissed without
prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to cure the noted deficiency. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 30th

day of

January

2015.
BY THE COURT:

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

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