BARBOUR v. ACTING US TREASURE

Filing 18

ORDER. The clerk shall change the docket to reflect that pla's 15 "Amended NOA Complaint" is a "Proposed Second Amended Complaint." Pla's 15 Proposed Second Amended Complaint shall NOT TAKE EFFECT AND WILL NOT BE CONSIDERED. Pla's 16 motion for leave to proceed IFP is DENIED AS MOOT to the extent pla seeks leave to proceed IFP in this case. To the extent pla seeks leave to proceed IFP on appeal, the motion is DENIED. Pla is directed to pay the full appellate $455.00 filing fee within (30) days, (Fee due by 6/1/2011). Signed by District Judge M CASEY RODGERS on May 2, 2011. (docket updated) (pmc)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

KENNETH EDWARD BARBOUR
Plaintiff,
v.

Case No. 3:10cv550/MCR/MD

ACTING U.S. TREASURE, et al.
Defendants.
/
ORDER
This cause is before the court upon plaintiff filing a pleading entitled
“Amended NOA Complaint” (doc. 15), which purports to be a second amended
complaint. Plaintiff also filed a motion to proceed in forma pauperis. (Doc. 16).
Plaintiff, a prisoner proceeding pro se, commenced this action by filing a civil
rights complaint on December 20, 2010. (Doc. 1). He filed an amended complaint
on February 22, 2011. (Doc. 5). On February 24, 2011, the court dismissed this
action under 28 U.S.C. § 1915(g). (Doc. 7) Judgment was entered February 25, 2011.
(Doc. 8). Plaintiff filed a notice of appeal on March 20, 2011. (Doc. 10).
Plaintiff’s proposed second amended complaint shall not take effect and will
not be considered. Plaintiff failed to obtain this court’s permission before filing his
proposed second amended complaint, see Fed. R. Civ. P. 15(a); N.D. Fla. Loc. R.
15.1. Indeed, a motion for leave to amend would be inappropriate at this juncture,
because this court’s February 24, 2011 order dismissed this action and ordered the
case closed. Judgment has been entered. Subsequent amendment of the complaint
is not possible.1 Czeremcha v. Int’l Ass’n of Machinists & Aerospace Workers,
AFL–CIO, 724 F.2d 1552, 1554, 1556 n. 6 (11th Cir. 1984) (explaining that a motion for
1

Although the order of dismissal indicated plaintiff could re-file his complaint if it w as
accompanied by the full $350.00 filing fee, (doc. 7) that did not authorize the filing of an amended
complaint in this case. Even if it could be so construed, plaintiff’s amended complaint w as not
accompanied by the full filing fee.

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leave to amend is inappropriate where “the court has clearly indicated either that no
amendment is possible or that dismissal of the complaint also constitutes dismissal
of the action.”); see, e.g., Montford v. Moreno, No. 04-12919, 2005 WL 1369563 (11th
Cir. 2005) (affirming district court’s denial of motion to amend as moot, where
plaintiff filed motion to amend second amended complaint after the court entered an
order both dismissing the amended complaint and ordering the case closed).
Plaintiff’s motion for leave to proceed in forma pauperis (doc. 16) will be
denied. To the extent plaintiff seeks leave to so proceed in this case, his request is
moot. To the extent plaintiff seeks leave to proceed in forma pauperis on appeal,
pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24(a), this court hereby certifies that
plaintiff’s appeal is NOT taken in good faith and plaintiff is NOT entitled to proceed
on appeal in forma pauperis. The reasons for this court’s decision are outlined in
the order dated February 24, 2011. (Doc. 7).
Accordingly, it is ORDERED:
1.

The clerk shall change the docket to reflect that plaintiff’s “Amended

NOA Complaint” (doc. 15) is a “Proposed Second Amended Complaint.”
2.

Plaintiff’s Proposed Second Amended Complaint (doc. 15) shall NOT

TAKE EFFECT AND WILL NOT BE CONSIDERED.
3.

Plaintiff’s motion for leave to proceed in forma pauperis (doc. 16) is

DENIED AS MOOT to the extent plaintiff seeks leave to proceed in forma pauperis
in this case. To the extent plaintiff seeks leave to proceed in forma pauperis on
appeal, the motion is DENIED. Plaintiff is directed to pay the full appellate filing fee
of $455.00 within thirty (30) days from the date of this order.
DONE AND ORDERED this 2nd day of May, 2011.

s/

M. Casey Rodgers

M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

Case No: 3:10cv550/MCR/MD