Santiago v. Hoffman et al

Filing 18

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/26/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00051-GPG
JIMMY SANTIAGO,
Plaintiff,
v.
BRIAN HOFFMAN, HSA,
DR. WEINPAHL, M.D.
JODI SINKER, Nurse III, R.N., and
MEDICAL BOARD OF DIRECTORS, at Colorado Springs,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Jimmy Santiago, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Santiago initiated this action by filing pro se a Prisoner
Complaint (ECF No. 1). On January 12, 2015, Magistrate Judge Gordon P. Gallagher
ordered Mr. Santiago to file an amended complaint that provides an address for each
Defendant and that complies with the pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure.
On March 5, 2015, Mr. Santiago filed an amended Prisoner Complaint (ECF No.
9). On March 16, 2015, Magistrate Judge Gallagher ordered Mr. Santiago to file a
second amended complaint. Magistrate Judge Gallagher determined the amended
Prisoner Complaint still did not comply with the pleading requirements of Rule 8
because Mr. Santiago still failed to provide a short and plain statement of his claims
showing he is entitled to relief. Magistrate Judge Gallagher specifically noted that Mr.

Santiago failed to allege specific facts in support of his claims and that the combination
of legal argument with a few vague and conclusory factual allegations of personal
participation does not satisfy the pleading requirements of Rule 8. Although the
amended Prisoner Complaint did not comply with Rule 8, Magistrate Judge Gallagher
determined Mr. Santiago had made some effort to comply and should be given one
more opportunity to file a proper pleading. Magistrate Judge Gallagher provided
specific and detailed instructions to Mr. Santiago regarding the pleading requirements of
Rule 8 and the factual allegations necessary to support the claims he is asserting. Mr.
Santiago was warned that the action would be dismissed without further notice if he
failed to file a second amended complaint within thirty days.
On April 20, 2015, Magistrate Judge Gallagher entered a minute order granting
Mr. Santiago an extension of time until May 15, 2015, to file a second amended
complaint. Magistrate Judge Gallagher reminded Mr. Santiago that the action would be
dismissed without further notice if he failed to file a second amended complaint as
directed within the time allowed.
Mr. Santiago has failed to file a second amended complaint within the time
allowed. Furthermore, the Court agrees that the prior pleadings in this action do not
provide a short and plain statement of Mr. Santiago’s claims showing he is entitled to
relief as required under Rule 8. Therefore, the action will be dismissed without
prejudice for failure to prosecute and comply with the Federal Rules of Civil Procedure
and a court order. The Court also 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
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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 Prisoner Complaint (ECF No. 1), the amended Prisoner
Complaint (ECF No. 9), and the action are dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure because Mr. Santiago failed to prosecute
and comply with the Federal Rules of Civil Procedure and a court order. 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

26th

day of

May

, 2015.

BY THE COURT:

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

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