DePineda v. Shaffer

Filing 4

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/9/15. 3 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00468-GPG
MANUEL DePINEDA,
Plaintiff,
v.
BRANDON SHAFFER,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Manuel DePineda, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. DePineda has submitted to the Court pro se a Prisoner
Complaint (ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3). For the reasons stated below, the action will
be dismissed.
Mr. DePineda is subject to a sanction order that restricts his ability to file pro se
actions in this court. See DePineda v. State of Colorado, No. 98-cv-02067-ZLW (D.
Colo. Feb. 25, 1999). In 98-cv-02067-ZLW, Mr. DePineda was “prohibited from
initiating a lawsuit in this Court unless he is represented by a licensed attorney admitted
to practice in this Court or unless he obtains permission to proceed pro se by following
the procedures listed in Appendix A.” Id. at 1-2. The procedures listed in Appendix A to
the sanction order entered in 98-cv-02067-ZLW require Mr. DePineda to submit to the
Court a petition titled “Petition Pursuant to Court Order Seeking Leave to File a Pro Se

Action,” an affidavit, and a copy of the complaint or other papers sought to be filed pro
se. Mr. DePineda is not represented by an attorney in this action and he has not
obtained leave of court to proceed pro se. In fact, Mr. DePineda has not even filed a
proper petition seeking leave of court to proceed pro se as required by the procedures
set forth in Appendix A to the Court’s sanction order in 98-cv-02067-ZLW. Therefore,
the complaint will be dismissed for failure to comply with the sanction order.
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 Prisoner Complaint and the action are dismissed without
prejudice for failure to comply with the sanction order restricting Plaintiff’s ability to file
pro se actions in this Court. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) is DENIED as moot. It is

2

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

9th

day of

March

, 2015.

BY THE COURT:

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

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