Harris v. Owens 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 3/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03477-GPG
MARQUISE HARRIS,
Plaintiff,
v.
REGGIE OWENS,
LUZ M. SANTIBANEZ, and
SARATOGA CASINO,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Marquise Harris, initiated this action by filing pro se a Complaint (ECF
No. 1) asserting one claim for “Alienation of Affection against Defendant Reggie Owens
who Knowingly and intentionally engage[d] in an immoral Relationship against the
dignity and peace of Colorado by Cheating and engaging in Adulterous relationship with
Plaintiff[’s] wife Luz Santibanez.” (ECF No. 1 at 2.) On January 7, 2015, Magistrate
Judge Gordon P. Gallagher ordered Mr. Harris to show cause why the action should not
be dismissed for lack of subject matter jurisdiction.
On January 12, 2015, the copy of an order granting Mr. Harris leave to proceed
in forma pauperis that was mailed to him was returned to the Court undelivered. The
returned envelope bears a stamp or sticker that reads “RETURN TO SENDER,
INSUFFICIENT ADDRESS, UNABLE TO FORWARD.” (See ECF No. 6.) On January
27, 2015, the copy of Magistrate Judge Gallagher’s January 5 show cause order that

was mailed to Mr. Harris was returned to the Court undelivered for the same reason.
(See ECF No. 7.)
After further examination of the address Mr. Harris provided for himself in the
Prisoner Complaint (see ECF No. 1 at 2), it appeared that he had specified a unit
number that was not included in the address listed on the mailings that were returned to
the Court undelivered. That unit number was added to Plaintiff’s address in the Court’s
docketing records and, on January 27, 2015, Magistrate Judge Gallagher entered a
minute order directing the clerk of the Court to remail copies of the undelivered court
orders to Mr. Harris at his current address.
On February 10, 2015, the copy of the January 27 minute order and enclosures
mailed to Mr. Harris at his current address also was returned to the Court undelivered.
The returned envelope includes a handwritten notation that reads “NOT HERE” and
bears a stamp or sticker that reads “RETURN TO SENDER, UNABLE TO FORWARD,
UNABLE TO FORWARD, RETURN TO SENDER.” (See ECF No. 11.)
Mr. Harris has not shown cause as directed and he has failed to respond in any
way to Magistrate Judge Gallagher’s January 7 order. He also has failed to file a notice
of change of address within five days of any change of address as required by the
Court’s local rules. See D.C.COLO.LAttyR 5(c). Therefore, the action will be dismissed
without prejudice for failure to prosecute and comply with the Court’s local rules.
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
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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 Prisoner Complaint (ECF No. 1) and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure because Mr. Harris failed to prosecute and comply with the Court’s local
rules. 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

2nd

day of

March

, 2015.

BY THE COURT:

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

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