Bruce v. Cermak et al

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 6/24/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00540-GPG
ANTOINE BRUCE,
Plaintiff,
v.
A. CERMAK,
D. BERKEBILE,
S. JULIAN,
P. KLEIN,
B. LAMMER,
S. BEICKER-GALLEGOS,
R. GICONI, and
C. ALVAREZ,
Defendants.

ORDER OF DISMISSAL

Plaintiff Antoine Bruce is in the custody of the Federal Bureau of Prisons and
pursuant to information provided to the Court in Case No. 15-cv-00239-GPG, ECF No.
10 at 10, on June 19, 2015, currently is incarcerated at the Medical Center for Federal
Prisoners in Springfield, Missouri. Plaintiff initiated this action by filing pro se a Prisoner
Complaint and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915. On March 17, 2015, Magistrate Judge Gordon P. Gallagher entered an
order directing Plaintiff to show cause why he should not be denied leave to proceed
pursuant to § 1915 because he is subject to filing restrictions under 28 U.S.C.
§ 1915(g).
Plaintiff filed a forty-seven page pleading titled, “Emergency Omnibus Motion . .
. ,” ECF No. 5, on April 16, 2015, that Magistrate Gordon P. Gallagher construed as a

Response to the March 17 Order to Show Cause. In the Response, Plaintiff asserts, as
he has in other actions, that he is mentally ill. In particular, in the Response, Plaintiff
raises the same mental illness issues that he has raised in Case No. 14-cv-03232-RMNYW, which currently is stayed pending Plaintiff’s mental evaluation. See Bruce v.
Alvarez, et al., No. 14-cv-03232-RM-NYW, ECF No. 47 (D. Colo Filed Nov. 26, 2014).
Plaintiff also seeks in the Response an appointment of counsel, a mental evaluation,
and a stay of the case until the evaluation is complete.
On May 18, 2015, the Court entered an order and found that (1) a mental
evaluation has been ordered, for which Plaintiff currently is housed at the Springfield
Medical Center in Springfield, Missouri; (2) appointment of counsel would not overcome
the fact that the claims asserted by Plaintiff in this action do not state named
Defendants have placed him in imminent danger of serious physical injury; and (3)
staying the case is in direct opposition to any claim that Plaintiff is in imminent danger of
serious physical injury. The Court also denied Plaintiff leave to proceed without the
payment of the filing fee in full because Plaintiff failed to assert a specific, factual
description of his excessive force and sexual harassment claims that would support a
finding that he is in imminent danger of serious physical injury.
The Court directed Plaintiff to pay the $400 filing fee in full within thirty days.
Plaintiff now has failed to comply with the May 18, 2015 Order within the time allowed.
The Court, therefore, will dismiss this action.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not 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 must pay the full $505 appellate filing fee
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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 Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) because Plaintiff failed to pay the filing fee in full within
the time allowed. It is
FURTHER ORDERED that leave to proceed in forma paupers on appeal is
denied. It is
FURTHER ORDERED that the Clerk of the Court is directed to use Plaintiff’s
current address as noted in Case No. 15-cv-00239-GPG, ECF No. 10 at 10, for the
purpose of mailing this Order to Plaintiff.
DATED at Denver, Colorado, this 24th day of

June , 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
UNITED STATES DISTRICT COURT

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