McCary v. Johnson et al

Filing 12

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/12/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03326-GPG
STEVEN McCARY,
Applicant,
v.
WARDEN JOHNSON, D.R.D.C.,
WARDEN LYNN, Ordway, and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, Steven McCary, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. McCary initiated this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On
January 6, 2015, Mr. McCary filed an amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 7) that appears to be identical to the original
application. Mr. McCary’s claims relate to the conditions of his confinement. He does
not assert any claims that challenge either the validity or the execution of his conviction
or sentence.
On January 7, 2015, Magistrate Judge Gordon P. Gallagher ordered Mr. McCary
to file a second amended application. Magistrate Judge Gallagher noted that Mr.
McCary cannot raise conditions of confinement claims in a habeas corpus action and
that Mr. McCary has initiated a separate civil rights action raising similar claims

challenging the conditions of his confinement. See 14-cv-03039-GPG (D. Colo. filed
Nov. 10, 2014). Magistrate Judge Gallagher advised Mr. McCary to raise his conditions
of confinement claims in case number 14-cv-03039-GPG and to file a second amended
application in this action that clarifies the habeas corpus claims he is asserting if he
wishes to pursue any habeas corpus claims. Mr. McCary was warned that the instant
action would be dismissed without further notice if he failed to file a second amended
application that provides a clear statement of the habeas corpus claims he is asserting.
On February 6, 2015, Magistrate Judge Gallagher entered a minute order granting Mr.
McCary an extension of time until March 6, 2015, to file a second amended application.
Mr. McCary was reminded that the instant action would be dismissed if he failed to file a
second amended application within the time allowed.
Mr. McCary has not filed a second amended application within the time allowed
and he has not communicated with the Court in this action in any way since being
granted an extension of time on February 6. Therefore, the action will be dismissed
without prejudice for failure to prosecute and file a second amended application as
directed.
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 Applicant 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
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ORDERED that the habeas corpus application (ECF No. 1) and the amended
application (ECF No. 7) are denied and the action is dismissed without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. McCary
failed to prosecute and file a second amended application as directed. It is
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.
DATED at Denver, Colorado, this

12th

day of

March

, 2015.

BY THE COURT:

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

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