Freeman v. Walgreens et al

Filing 13

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 3/17/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03316-GPG
JACQUES FREEMAN,
Plaintiff,
v.
WALGREENS,
MARIEL RODRIQUEZ, Walgreens Employee,
TY CHURCH, Walgreens Employee, and
DEE GILLET, District 5 Police Department,
Defendants.

ORDER OF DISMISSAL

Plaintiff Jacques Freeman currently resides in Denver, Colorado. Plaintiff, acting
pro se, initiated this action by filing a Complaint pursuant to 42 U.S.C. § 1983 and an
Application to Proceed in District Court Without Prepaying Fees or Costs. The filings
were deficient. Magistrate Judge Gordon P. Gallagher directed Plaintiff to cure the
deficiencies, which he did and was granted leave to proceed pursuant to 28 U.S.C.
§ 1915.

Magistrate Judge Gallagher then, on February 4, 2015, reviewed the merits of
the Complaint and found that the Complaint failed to comply with Fed. R. Civ. P. 8.
Plaintiff was directed to amend the complaint and assert personal participation by each
named defendant. Plaintiff also was told that Defendants Walgreens, Mariel Rodriguez,
and Ty Church are not proper parties in a § 1983 action if they fail to act under color of
state law in depriving his federal rights. Plaintiff further was directed to state what each
defendant did to him, when the action was done, how the action harmed him, and what

specific legal right each defendant violated. Magistrate Judge Gallagher warned
Plaintiff that if he failed to comply with the Order to Amend within the time allowed the
Court would dismiss the action without further notice.
On February 10, 2015, counsel for Defendant Detective Michael Gillit filed a
Notice of Settlement between Defendant Gillit and Plaintiff. Subsequently, on February
23, 2015, counsel filed a Stipulated Motion to Dismiss Defendant Defective Gillit With
Prejudice, ECF No. 12, that is signed by both parties. The Motion will be granted.
Plaintiff, however, now has failed to comply with the Order to Amend, regarding
the remaining Defendants, within the time allowed.
The Court finds Magistrate Judge Gallagher correctly determined that Plaintiff
failed to comply with Rule 8 and required him to amend the Complaint. Since Plaintiff
has failed to amend and address whether Defendants Walgreens, Rodriguez, and
Church acted under color of state law, the Court finds these Defendants are improper
parties in a 42 U.S.C. § 1983 action, and will dismiss the claims against these
Defendants as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma paupers status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Plaintiff files a notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pampers in the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Stipulated Motion to Dismiss Defendant Detective Gillit with
Prejudice, ECF No. 12, is granted. The claims asserted against Defendant Gillit are
dismissed with prejudice. It is
2

FURTHER ORDERED that the remaining claims against Defendants Walgreens,
Mariel Rodriguez, and Ty Church are dismissed with prejudice as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pampers on appeal is
denied.
DATED at Denver, Colorado, this

17th

day of

March

, 2015.

BY THE COURT:

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

3