Sutton v. Schlegel et al
Filing
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ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/11/15. 2 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and 4 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action are denied as moot. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03166-GPG
PAUL MICHAEL SUTTON,
Plaintiff,
v.
JIM SCHLEGEL (Doctor),
CORIZON (Health Service), and
ADAMS COUNTY DETENTION FACILITY (Jail),
Defendants.
ORDER OF DISMISSAL
Plaintiff, Paul Michael Sutton, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Sutton initiated this action by filing pro se a “Prisoner
Complaint” (ECF No. 1), a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 2), and a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No.
4). On December 2, 2014, Magistrate Judge Gordon P. Gallagher entered an order
(ECF No. 5) directing Mr. Sutton to cure certain deficiencies if he wishes to pursue his
claims in this action. Magistrate Judge Gallagher specifically directed Mr. Sutton to file
an amended Prisoner Complaint that is legible and to submit a current and certified
copy of his inmate trust fund account statement for the six-month period immediately
preceding the filing of this action. Mr. Sutton was warned that the action would be
dismissed without further notice if he failed to cure these deficiencies within thirty days.
On December 30, 2014, Mr. Sutton filed a Motion for Appointment of Counsel
(ECF No. 6) that is supported by a current and certified copy of his inmate trust fund
account statement. On January 5, 2015, Magistrate Judge Gallagher entered a Second
Order Directing Plaintiff to Cure Deficiency (ECF No. 7) denying the motion for
appointment of counsel as premature and reminding Mr. Sutton that he still must file an
amended Prisoner Complaint that is legible. Magistrate Judge Gallagher directed Mr.
Sutton to cure the remaining deficiency within thirty days and warned him that the action
would be dismissed without further notice if he failed to cure the remaining deficiency
within the time allowed.
Mr. Sutton has not filed an amended Prisoner Complaint that is legible within the
time allowed. 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. Sutton failed to cure all of the
deficiencies as directed. It is
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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 the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) and the Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action
(ECF No. 4) are denied as moot.
DATED at Denver, Colorado, this
11th day of
February
, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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