Chrisco v. Raemisch et al

Filing 9

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/7/15. 3 Declaration in Support of Request to Proceed In Forma Pauperis and 6 Application to Proceed in District Court Without Prepaying Fees or Costs are denied as moot, and no certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00475-GPG
LUKE IRVIN CHRISCO,
Plaintiff,
v.
RICK RAEMISCH, Exec. Dir. CDOC,
DAVID M. JOHNSON, Warden DRDC [struck] [no longer at DRDC], and
LAURIE TAFOYA, Warden, San Carlos Prison, Pueblo, Colorado Republic, [party
added due to custody transfer],
Defendants.

ORDER OF DISMISSAL

Plaintiff, Luke Irvin Chrisco, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Chrisco initiated this action by filing pro se a “Petition
for Writ of Habeas Corpus Under 28 USC 2241 and for Equitable Relief” (ECF No. 1)
and a “Declaration in Support of Request to Proceed In Forma Pauperis” (ECF No. 3).
On March 9, 2015, Magistrate Judge Gordon P. Gallagher entered an order directing
Mr. Chrisco to cure certain deficiencies if he wished to pursue his claims. Magistrate
Judge Gallagher specifically directed Mr. Chrisco to file on the court-approved forms an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas
Corpus Action. Because the nature of his claims was not clear, Magistrate Judge
Gallagher directed Mr. Chrisco to use the court-approved Prisoner Complaint form if he
is challenging the conditions of his confinement and not the execution of his sentence.

Mr. Chrisco was warned that the action would be dismissed without further notice if he
failed to cure the deficiencies within thirty days.
On March 31, 2015, Mr. Chrisco filed an amended pleading using a non-prisoner
complaint form that is captioned “Complaint, Petition for a Writ of Habeas Corpus Under
28 USC 2241 and for Equitable Relief” (ECF No. 5). The amended pleading does not
include any claims for relief and merely incorporates by reference the claims in the
original pleading. Mr. Chrisco also filed on a non-prisoner form an “Application to
Proceed in District Court Without Prepaying Fees or Costs (Long Form)” (ECF No. 6).
On April 1, 2015, Magistrate Judge Gallagher entered a minute order in this
action. The minute order advises Mr. Chrisco that the documents he filed on March 31
did not cure the deficiencies; reiterates the deficiencies that must be cured; allows an
extension of time to cure the deficiencies; directs the clerk of the Court to mail to Mr.
Chrisco blank copies of the proper forms needed to cure the deficiencies; and instructs
Mr. Chrisco that he must reassert his claims in an amended pleading on the proper,
court-approved form. Magistrate Judge Gallagher also reminded Mr. Chrisco that the
action would be dismissed without further notice if he failed to cure the deficiencies
within the time allowed. The court-approved forms needed to cure the deficiencies were
mailed to Mr. Chrisco. (See ECF No. 8.)
Mr. Chrisco has not cured the deficiencies within the time allowed and he has not
responded in any way to the minute order entered by Magistrate Judge Gallagher on
April 1. Therefore, the action will be dismissed without prejudice for failure to cure the
deficiencies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
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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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Mr. Chrisco failed to cure the
deficiencies 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. It is
FURTHER ORDERED that the “Declaration in Support of Request to Proceed In
Forma Pauperis” (ECF No. 3) and the “Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form)” (ECF No. 6) are denied as moot.
DATED at Denver, Colorado, this

7th

day of

May

, 2015.

BY THE COURT:

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

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