Buhl v. U.S. Department of Justice et al

Filing 36

ORDER dismissing this action without prejudice, and denying leave to proceed in forma paupers on appeal, by Judge Lewis T. Babcock on 11/4/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01179-GPG
LEROY BUHL,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS,
JOHN DIGNAM,
C. ALVAREZ,
D. PAYNE,
M. THOMPSON,
D. RHODES,
C. COOK,
E. SVENSVOLD,
G. POLAND, and
JOHN OLIVER,
Defendants.

ORDER OF DISMISSAL

Plaintiff Leroy Buhl is in the custody of the Federal Bureau of Prisons at the United
States Penitentiary, Administrative Maximum, in Florence, Colorado. Mr. Buhl and two
other inmates originally initiated this action by filing a complaint in the United States
District Court for the District of Columbia claiming violations of the Privacy Act, the
Federal Tort Claims Act, the Tucker Act, and the Eighth Amendment. The District of
Columbia transferred the case to this Court on May 29, 2015, pursuant to 28 U.S.C. ''
1404 and 1406(a).
The Court dismissed Plaintiffs Mikeal Stine and Jeremy Pinson on June 10, 2015,
and ordered Mr. Buhl to file his claims on a Court-approved form and either to submit a
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Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
' 1915 or in the alternative to pay the $400 filing fee in full. Mr. Buhl filed a Prisoner
Complaint and a 28 U.S.C. ' 1915 Motion and Affidavit on July 31, 2015. Magistrate
Judge Gordon P. Gallagher then, after review of the documents, ordered Mr. Buhl to
respond and show cause why leave to proceed in forma pauperis pursuant to ' 1915
should not be denied because he is subject to the filing restriction stated in ' 1915(g).
On August 28, 2015, Mr. Buhl filed a Response to the Order to Show Cause.
On September 29, 2015, the Court entered an order and found that nothing Mr. Buhl
asserts against Defendants United States Department of Justice, Federal Bureau of
Prisons, C. Alvarez, M. Thompson, D. Rhodes, E. Svensvold, G. Poland, and John Oliver
states imminent danger of serious physical injury. Defendant John Dignam is not listed
in the September 29, 2015 Order along with other Defendants noted above; but like the
other Defendants nothing Mr. Buhl asserts against Defendant Dignam states a claim of
imminent danger of serious physical injury.
The Court also found that Mr. Stine=s Sworn Declaration may state a specific
incident where Mr. Buhl may have been threatened by other inmates based on
Defendants Clay and Payne=s actions, but the threat was only for when Mr. Buhl would be
placed in the step-down program, which such placement currently has been denied.
Finally, the Court found any other claims about threats by other inmates against Mr. Buhl
were conclusory and vague, and as a result the claims against Defendants Clay and
Payne were insufficient to demonstrate imminent danger of serious physical injury.
Based on the Court=s findings, Mr. Buhl was denied leave to proceed pursuant to
28 U.S.C. ' 1915. The Court directed Mr. Buhl to pay the $400 filing fee in full within

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thirty days. Mr. Buhl now has failed to comply with the September 29, 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 Mr.
Buhl files a notice of appeal he 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 Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) because Mr. Buhl 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.
DATED at Denver, Colorado, this

4th

day of

November

, 2015.

BY THE COURT:

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

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