Alley v. Falk et al

Filing 8

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/15/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01848-GPG

ROSS ALLEY,
Plaintiff,
v.
JAMES FALK, Warden,
RICK RAEMISCH, Executive Director, CDOC,
R. B. WALTER, Case Manager, Limon Correctional Facility,
UNKNOWN JANE DOE, Nurse, and
C/O S. HUGHES,
Defendants.

ORDER OF DISMISSAL

Plaintiff Ross Alley is in the custody of the Colorado Department of Corrections
and currently is incarcerated at the Limon Correctional Facility in Limon, Colorado. He
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 August 26, 2015,
Magistrate Judge Gordon P. Gallagher entered an order, ECF No. 5, directing Plaintiff to
cure certain enumerated deficiencies within thirty days if he wished to pursue any claims
in this Court in this action.
The August 26 Order pointed out that Plaintiff failed to submit a current ' 1915
Motion and Affidavit and a certified trust fund account statement for the six-month period
immediately preceding the initiation of this action.
1

Plaintiff was directed to obtain, with the assistance of his case manager or the
facility=s legal assistant, the Court-approved forms for filing a Prisoner=s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 and to use this form in curing
the designated deficiencies. Plaintiff also was instructed to provide a current certified
account statement. The August 26 Order warned Plaintiff that if he failed to cure the
designated deficiencies within thirty days the action would be dismissed without further
notice.
On September 8, 2015, Plaintiff submitted a proper certified account statement,
but he failed to properly complete the Prisoner=s Motion and Affidavit. In particular the
Motion and Affidavit does not include a signature page, and the Authorization page is not
properly completed or signed. Magistrate Judge Gallagher allowed Plaintiff an
additional twenty-one days to cure the remaining deficiencies and warned him that if he
did not comply within the time allowed the action would be dismissed without further
notice.
The time now has run and Plaintiff has failed to comply with the August 26 Order
within the time allowed. The Court, therefore, will dismiss the 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 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 pampers in the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24. Accordingly, it is

2

ORDERED that the Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) for failure to cure all noted deficiencies. It is
FURTHER ORDERED that leave to proceed in forma pampers on appeal is
denied.
DATED at Denver, Colorado, this

15th

day of

October

, 2015.

BY THE COURT:

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

3