Espinoza v. Conejos County et al

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/16/15. 2 Application to Proceed in District Court Without Prepaying Fees or Costs is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01982-GPG
DOMINIC D. ESPINOZA,
Plaintiff,
v.
CONEJOS COUNTY,
JOHN SANDOVAL, County Commissioner,
SUSAN BROYLES, County Judge, and
THOMAS BRINKLEY, County Assessor’s Employee,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Dominic D. Espinoza, initiated this action by filing pro se a Complaint
(ECF No. 1) and an Application to Proceed in District Court Without Prepaying Fees or
Costs (Long Form) (ECF No. 2). The Court reviewed the documents and determined
they were deficient. Therefore, on September 11, 2015, the Court entered an order
directing Mr. Espinoza to cure certain enumerated deficiencies in the case within thirty
days if he wished to pursue his claims. Specifically, the Court explained that Mr.
Espinoza failed to complete all sections of the in forma pauperis application and the
Complaint. In the September 11 Order to Cure, the Court directed Mr. Espinoza to
obtain the Court-approved forms for filing a Complaint and an Application to Proceed in
District Court Without Prepaying Fees or Costs and use the forms in curing the
deficiencies. The Court also warned Mr. Espinoza that if he failed to cure the

designated deficiencies within thirty days, the action would be dismissed without further
notice.
On September 22, 2015, the copy of the September 11 Order to Cure that was
mailed to Mr. Espinoza at the address he provided was returned to the Court as
undeliverable. The returned envelope (ECF No. 5) bears a stamp or sticker that reads
“RETURN TO SENDER, INSUFFICIENT ADDRESS, UNABLE TO FORWARD.”
Pursuant to D.C.COLO.LAttyR 5 of the Local Rules of Practice of the United
States District Court for the District of Colorado-Attorney, an unrepresented party must
file a notice of new address within five days of any change of address. Mr. Espinoza
has failed to comply with the Court’s local rules and, as a result, he has failed within the
time allowed to cure the deficiencies as directed. Therefore, the complaint and the
action will be dismissed without prejudice for failure to prosecute and failure to cure
deficiencies.
Furthermore, the Court certifies pursuant to § 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 $505.00 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 (ECF No. 1) and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because

Plaintiff, Dominic D. Espinoza, failed to prosecute and cure deficiencies within the time
allowed. 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 Application to Proceed in District Court Without
Prepaying Fees or Costs (ECF NO. 2) is denied as moot.
DATED at Denver, Colorado, this 16th

day of

October

, 2015.

BY THE COURT:

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