Martinez v. Gilberto et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/10/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02985-GPG
GILBERTO E. ESPIONSA,
JOHN R. OLSON,
JUDGE JOHN BROOKS, JR.,
ROBERT P. FULLERTON,
JAMES C. FLANIGAN,
JUDGE SANDRA I. ROSNBURG, and
JUDGE LARRY J. NAVES,
ORDER OF DISMISSAL
Plaintiff, Anthony Martinez, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Martinez initiated this action by filing pro se a confusing
letter (ECF No. 1) alleging that his civil rights have been violated. On November 4,
2014, Magistrate Judge Boyd N. Boland entered an order directing Mr. Martinez to cure
certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge
Boland directed Mr. Martinez to file on the proper form a Prisoner Complaint and either
to pay filing and administrative fees totaling $400.00 or to file on the proper form a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
along with a certified copy of his inmate trust fund account statement and an
authorization to calculate and disburse filing fee payments. Mr. Martinez was warned
that the action would be dismissed without further notice if he failed to cure these
deficiencies within thirty days.
Mr. Martinez has failed to cure all of the deficiencies within the time allowed.
Instead, on November 28, 2014, Mr. Martinez submitted a response (ECF No. 5) to the
order to cure deficiencies that includes a confusing cover letter, a copy of the original
letter that initiated this action, copies of documents filed in other cases Mr. Martinez has
initiated in the past, and a copy of his inmate trust fund account statement. Mr.
Martinez has not filed a Prisoner Complaint or any other document that provides a clear
statement of whatever claims he may intend to assert and he has failed either to pay
filing and administrative fees totaling $400.00 or to file a Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 with all of the required supporting
documents. Therefore, the action will be dismissed without prejudice for failure to cure
all of the 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Mr. Martinez failed to cure all of 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.
DATED at Denver, Colorado, this 10th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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