Mechikoff v. Allred et al

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/30/16. 2 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-170-GPG
MARK STEPHEN MECHIKOFF,
Plaintiff,
v.
DAVID ALLRED,
DOMINIC JOHN,
SATTINDER RATTAN,
DAVID OBA,
FEDERAL BUREAU OF PRISONS,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Mark Stephen Mechikoff, is in the custody of the Federal Bureau of
Prisons, currently incarcerated at the U.S. Penitentiary Florence High in Florence,
Colorado. On January 22, 2016, he filed 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
(ECF No. 2). Magistrate Judge Gordon P. Gallagher issued an Order Directing Plaintiff
to Cure Deficiencies in the documents on January 25, 2016 (ECF No. 4). Specifically,
Magistrate Judge Gallagher instructed Plaintiff to file a certified copy of his trust fund
statement for the 6-month period immediately preceding the filing or, in the alternative,
to pay the filing fee. Further, the Court noted that the Complaint may be incomplete
because Plaintiff referenced a “Page 10” in the text of the Complaint, but there was no
page 10 included. Plaintiff was directed to use the court-approved forms for filing a

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Prisoner Complaint and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 to cure the deficiencies within thirty days. In response, on February
9, 2016, Plaintiff filed a Letter with the Court (ECF No. 5) and attached his prisoner
account statement as well as pages 9 and 10 of the Complaint.
Magistrate Judge Gallagher reviewed the Letter and the submitted documents
and determined that they were deficient. The individual pages of the Complaint filed
with Plaintiff’s Letter were not a complete Complaint. Magistrate Judge Gallagher
informed Plaintiff that the Court and Defendants cannot be forced to search for -- and
then merge together -- separate filings in order to review a complete Complaint.
Therefore, on February 17, 2016, the Court ordered Plaintiff to cure the deficiency by
submitting a complete complaint that included all of the pages. (ECF No. 6). Plaintiff
was warned that the action would be dismissed without further notice if he failed to cure
the deficiency within thirty days.
Mr. Mechikoff has failed to cure the deficiency within the time allowed and he has
failed to respond in any way to Magistrate Judge Gallagher’s February 17, 2016 order.
Therefore, the action will be dismissed without prejudice for failure to cure the
deficiency.
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

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Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for failure to cure the deficiency as directed and
failure to prosecute. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (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 30th

day of

March

, 2016.

BY THE COURT:
s/Lewis T. Babcock______________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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