Bar-ton v. Westminster Parole Board et al

Filing 16

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Christine M. Arguello on 10/26/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01630-GPG
ANDRE BARTON,
Plaintiff,
v.
WESTMINSTER PAROLE, et al.,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Andre Barton, is a prisoner in the custody of the Colorado Department of
Corrections. Mr. Barton initiated this action by filing pro se a motion (ECF No. 1). The
instant action was commenced and, on July 31, 2015, Magistrate Judge Gordon P.
Gallagher entered an order directing Mr. Barton to cure certain deficiencies if he wishes to
pursue his claims. Specifically, Magistrate Judge Gallagher directed Mr. Barton to file on
the proper forms a Prisoner Complaint and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 and to submit a certified copy of his inmate trust
fund account statement and an authorization to calculate and disburse filing fee
payments. Mr. Barton was warned that the action would be dismissed without further
notice if he failed to cure the deficiencies within thirty days.
In response to the order directing him to cure deficiencies Mr. Barton filed on
August 24, 2015, a motion for appointment of counsel (ECF No. 6), a motion for extension
of time (ECF No. 7), a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28

U.S.C. § 1915 (ECF No. 8), a motion for release from prison (ECF No. 9), and a letter
(ECF No. 10). On September 11, 2015, he filed a notice of settlement request (ECF No.
11), a notice to the clerk of the court (ECF No. 12), and a motion requesting a settlement
due to false imprisonment (ECF No. 13).
On September 17, 2015, Magistrate Judge Gallagher entered a minute order (ECF
No. 14) advising Mr. Barton that he had not cured all of the deficiencies because he had
not filed a pleading that provides a short and plain statement of the claims he seeks to
pursue in this action. Magistrate Judge Gallagher also granted the motion for extension
of time and directed Mr. Barton to cure this remaining deficiency within thirty days.
Finally, Magistrate Judge Gallagher advised Mr. Barton as follows regarding the type of
pleading he must file:
If Plaintiff is challenging the validity of a state court criminal
conviction or sentence, he must file an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254; if Plaintiff is
challenging the execution of a sentence, he must file an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241; if Plaintiff is not seeking habeas corpus relief, he must
file a Prisoner Complaint.
(ECF No. 14.) Mr. Barton again was warned that the action would be dismissed without
further notice if he failed to file a pleading on the proper form within the time allowed.
Mr. Barton has not cured all of the deficiencies because he has not filed a pleading
that provides a short and plain statement of the claims he seeks to pursue in this action.
Therefore, the action will be dismissed without prejudice for failure to cure all of the
deficiencies.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from

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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. Barton failed to cure all of the
deficiencies as directed. 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 pending motions are denied as moot.
DATED at Denver, Colorado, this 26th day of October, 2015.
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court

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