Morris v. Falk et al

Filing 6

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/13/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02116-LTB
JOHN OTIS MORRIS,
Applicant,
v.
FALK, Warden, Limon Correctional Facility; and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, John O. Morris, is a prisoner in the custody of the Colorado Department
of Corrections at the Limon Correctional Facility in Limon City, Colorado. The Court must
construe the application and other papers filed by Mr. Morris liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below,
the action will be dismissed for lack of jurisdiction.
On September 23, 2015, Applicant submitted to the court a Letter regarding filing
a habeas corpus action under 28 U.S.C. § 2254 (ECF No. 1). As part of the court’s review
pursuant to D.C.COLO.LCivR 8.1(b), the court determined that Mr. Morris’ pleadings were
deficient. In an order entered on October 7, 2015, Magistrate Judge Gordon P. Gallagher
directed Applicant to cure certain deficiencies if he wished to pursue his claims.
Specifically, Magistrate Judge Gallagher informed Applicant that he was required to file an

application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 if he wished to pursue
his action (ECF No. 4). That Order specifically informed Applicant that this action would
be dismissed without further notice if he failed to file an application for writ of habeas
corpus within thirty days.
In response, Applicant has informed the Court that he has filed an application to file
a second or successive application for writ of habeas corpus with the Court of Appeals for
the Tenth Circuit in accordance with the directives of 28 U.S.C. § 2244 (ECF No. 5).
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Morris must apply to the United States Court
of Appeals for the Tenth Circuit for an order authorizing this Court to consider his second
or successive habeas corpus application. See In re Cline, 531 F.3d 1249, 1252 (10th Cir.
2008) (per curiam). In the absence of such authorization, the Court lacks jurisdiction to
consider the merits of the claims asserted in a second or successive § 2254 application.
See id. at 1251. Therefore, this action will be dismissed without prejudice to refiling if
Applicant receives the required authorization for the Court of Appeals.
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 Applicant files
a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to
proceed in forma pauperis in the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24. Accordingly, it is
ORDERED that this action is dismissed without prejudice. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this

13th

day of November, 2015.

BY THE COURT:

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

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