Hackborn v. Frantz et al

Filing 16

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/23/16. 15 Motion to Add Facts of False Arrest; Motion to Amend Defendants is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01710-GPG
DEAN D HACKBORN, Inmate No.130945,
Plaintiff,
v.
PAULA J. FRANZ, MD;
CATHIE HOLST;
BERNADETTE SCOTT, A.I.C. Coordinator;
JOHN HICKENLOOPER, Governor of Colorado;
RICK REAMISH, Executive Director of the Colorado Dept. of Corrections;
COLORADO DEPT. OF CORRECTIONS; and
COLORADO HEALTH PARTNERS,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Dean D. Hackborn, is in the custody of the Colorado Department of
Corrections, currently incarcerated at the Trinidad Correctional Facility in Model,
Colorado. On August 7, 2015, Plaintiff initiated this action by filing pro se a Prisoner
Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2). He has been
granted leave to proceed in forma pauperis. (ECF No. 4).
On October 21, 2015, Magistrate Judge Gordon P. Gallagher directed Plaintiff to
file an amended complaint. (ECF No. 10). Specifically, Magistrate Judge Gallagher
directed Plaintiff to file an amended complaint that complied with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and that asserted
personal participation by properly named defendants.
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In response, on December 16, 2015, Plaintiff filed an amended complaint. (ECF
No. 13). However, after reviewing the amended complaint, Magistrate Judge Gallagher
determined that it was still deficient. Therefore, on December 28, 2015, he directed
Plaintiff to file a second amended complaint. (ECF No. 14). Again, he directed Plaintiff
that his second amended complaint must comply with the pleading requirements of Fed.
R. Civ. P. 8 and must allege personal participation against properly named defendants.
Mr. Hackborn was warned that if he failed to file a second amended complaint as
directed within the time allowed, the action would be dismissed without further notice.
Plaintiff has failed to file a second amended complaint within the time allowed as
directed in the Court’s December 28, 2015 Order. Instead of filing a second amended
complaint, on February 1, 2016, Plaintiff filed a “Motion to Add Facts of False Arrest;
Motion to Amend Defendants.” (ECF No. 15). The motion appears to be an attempt by
Plaintiff to add another claim to his complaint, but it does not constitute a second
amended complaint and does not cure the deficiencies noted in the Court’s December
28, 2015 Order. Therefore, the action will be dismissed without prejudice for failure to
prosecute and comply with a court order.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
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

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ORDERED that the amended complaint (ECF No. 13) and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure because Mr. Hackborn failed to prosecute and comply with a court order. 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.
FURTHER ORDERED that Plaintiff’s “Motion to Add Facts of False Arrest;
Motion to Amend Defendants” (ECF No. 15) is DENIED as moot.
DATED at Denver, Colorado, this

23rd

day of

February

, 2016.

BY THE COURT:

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

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