Kurz v. Colorado Department of Corrections

Filing 8

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/18/16. 2 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02673-GPG
MICHELLE M. KURZ,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
H.S.A. ZADE, R.N.,
CHRISTINE WALKER, R.N., N.P.,
JANE DOE, Medical Staff @ LCVF, and
JOHN DOE, Medical Staff @ LCVF,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Michelle M. Kurz, initiated this action by filing pro se a Prisoner Complaint
(ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2). Ms. Kurz was a prisoner in the
custody of the Colorado Department of Corrections when she initiated the action. On
December 11, 2015, Magistrate Judge Gordon P. Gallagher ordered Ms. Kurz to cure
certain deficiencies if she wishes to pursue her claims. Ms. Kurz specifically was
directed to file an amended motion seeking leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915 on the proper form and to submit a signed authorization to calculate
and disburse filing fee payments. Ms. Kurz was warned that the action would be
dismissed without further notice if she failed to cure the deficiencies within thirty days.
On December 21, 2015, the copy of Magistrate Judge Gallagher’s December 11

order that was mailed to Ms. Kurz at the prison address she provided was returned to the
Court undelivered and the returned envelope indicates she had been released from
custody. (See ECF No. 5.) On January 14, 2016, Magistrate Judge Gallagher entered
a minute order directing the clerk of the Court to mail a copy of the December 11 order to
Ms. Kurz at an alternative address that she also had listed in the Prisoner Complaint.
On February 2, 2016, the copy of Magistrate Judge Gallagher’s January 14 minute
order that was mailed to Ms. Kurz at the alternative address she provided was returned to
the Court undelivered. The returned envelope bears a stamp or sticker that reads
“RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, UNABLE TO
FORWARD.” (See ECF No. 7.)
Ms. Kurz has not cured the deficiencies in this action as directed and she has failed
to respond in any way to Magistrate Judge Gallagher’s December 11 order. She also
has failed to file a notice of change of address within five days of any change of address
as required by the Court’s local rules. See D.C.COLO.LCivR 5.1(c). Therefore, the
action will be dismissed without prejudice for failure to prosecute and comply with the
Court’s local rules. 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 she 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

2

ORDERED that the Prisoner Complaint and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Plaintiff
failed to prosecute and comply with the Court’s local rules. It is
FURTHER ORDERDED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2) is denied
as moot. 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.
DATED at Denver, Colorado, this

18th

day of

February

, 2016.

BY THE COURT:

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

3