Kern v. Andrews et al

Filing 14

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/26/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00957-GPG
JAMES KERN,
Plaintiff,
v.
C.O. (F.N.U.) ANDREWS,
LT. (F.N.U.) ALLEN,
Defendants.

ORDER OF DISMISSAL

Plaintiff, James Kern, is in the custody of the Federal Bureau of Prisons in
Forrest City, Arkansas. On May 5, 2015, Plaintiff, acting pro se, initiated this action by
filing a “Complaint for Damages for Conversion of Property,” (ECF No. 1) based on
events that occurred while he was incarcerated at the F.C.I. Englewood in Colorado.
The Court opened a civil action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

On May 7, 2015, as part of the Court’s review pursuant to D.C.COLO.LCivR
8.1(b), the Court determined that the submitted documents were deficient and ordered
Plaintiff to cure the designated deficiencies within thirty days of the order. (ECF No. 5).
Specifically, the court ordered Plaintiff to submit the Complaint and § 1915 Motion and
Affidavit on the current court-approved prisoner forms. (Id.). Plaintiff was warned that if
he failed to cure the designated deficiencies, the complaint and action could be
dismissed without further notice.
In response to the Order to Cure, on June 8, 2015, Plaintiff filed an Amended

Complaint (ECF No. 6) and a Motion and Affidavit for Leave to Proceed Under 28
U.S.C. § 1915 (ECF No. 7). However, the submitted § 1915 Motion and Affidavit was
still deficient because it was missing the signed affidavit and the entire second page of
the court-approved form. The Court granted Plaintiff one additional opportunity to cure
the designated deficiencies if he wished to pursue his claims. (ECF No. 8).
In response, on June 29, 2015, Plaintiff filed a complete Motion and Affidavit to
Proceed Under 28 U.S.C. § 1915 on the court-approved form. (ECF No. 9). The Court
granted the motion on July 15, 2015. (ECF No. 11).
On July 23, 2015, the Court ordered Plaintiff to amend the Complaint. (ECF No.
12). Specifically, the Court ordered Plaintiff to submit a Complaint that sued the proper
parties, alleged specific facts in support of his claims, demonstrated how each named
Defendant personally participated in the asserted constitutional violation, and otherwise
complied with Rule 8 of the Federal Rules of Civil Procedure. The Court warned the
Plaintiff that if he failed to file an amended complaint as directed within thirty days, the
complaint and action could be dismissed without further notice.
On August 14, 2015, Plaintiff filed a “First Amended Complaint.” (ECF No. 13).
However, the First Amended Complaint was not on the current court-approved
complaint form. The Court previously informed Plaintiff that his complaint must be on
the current court-approved Prisoner Complaint form. (ECF No. 5). Plaintiff has received
numerous opportunities to submit a proper complaint and IFP motion. (ECF No. 5, 8,
12). Although the Court construes pro se filings liberally and provides pro se plaintiffs
with an opportunity to cure deficiencies, the Court cannot provide an unlimited amount
of opportunities for a party to submit a proper complaint and especially cannot provide
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such opportunities to correct the same deficiency.
"[D]ismissal is an appropriate disposition against a party who disregards court
orders and fails to proceed as required by court rules." United States ex rel. Jimenez v.
Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005). Local Civil Rules 1.2 and 5.1(c) for
this Court require pro se litigants to use the Court-approved forms found on the Court’s
website. The United States Court of Appeals for the Tenth Circuit repeatedly has
upheld the requirement that pro se litigants comply with local court rules requiring use of
proper Court-approved forms, and rejected constitutional challenges to such rules. See
Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district court did
not abuse its discretion in dismissing civil rights action without prejudice for
noncompliance with local rules requiring use of proper court-approved form to file
complaint and district court's order to comply), Durham v. Lappin, 346 F. App'x 330,
332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss prisoner's
complaint for failure to comply with local rules requiring pro se litigants to use
court-approved forms, and local rule did not violate prisoner's equal protection rights).
Therefore, Plaintiff’s First Amended Complaint and this action will be dismissed without
prejudice for disregarding a court order and failing to proceed as required by court rules.

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 is 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 also pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis in the Tenth Circuit within thirty days in accordance
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with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the First Amended Complaint and this action are dismissed
without prejudice for disregarding a court order and failing to proceed as required by
court rules. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 26th day of

August , 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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