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Griffiths v. No Named Defendant

United States District Court, Tenth Circuit

December 3, 2013

BEN GRIFFITHS, Plaintiff,
v.
[NO NAMED DEFENDANT], Defendant.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, Ben Griffiths, is in the custody of the Colorado Department of Corrections at the Colorado Territorial Correctional Facility in Canón City, Colorado. He initiated this action by filing a Notice of Intent on September 30, 2013.

On October 1, 2013, Magistrate Judge Boyd N. Boland directed Mr. Griffiths to cure certain enumerated deficiencies in this action within thirty days. Specifically, Plaintiff was ordered to submit a Prisoner's Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the court-approved form or, in the alternative, to pay the $350.00 filing fee and $50.00 administrative fee (for a total filing fee of $400.00). Mr. Griffiths was also instructed to submit a Prisoner Complaint on the court approved form. Magistrate Judge Boland directed Mr. Griffiths to obtain the court-approved forms (with the assistance of his case manager or the facility's legal assistant) along with the applicable instructions on this Court's website at www.cod.uscourts.gov. Magistrate Judge Boland warned Mr. Griffiths in the October 1 Order that failure to cure the designated deficiencies by the court-ordered deadline would result in dismissal of the action without further notice.

On October 9, 2013, Mr. Griffiths filed a motion requesting an extension of time to comply with the October 1 Order and indicating that he may not have access to the court-approved forms and was ambivalent about initiating a civil action. Magistrate Judge Boland issued a Minute Order on October 15, 2013, directing the clerk of the court to mail to Plaintiff copies of the court-approved forms for filing a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. [ See Doc. # 5]. The Minute Order further granted Mr. Griffiths a thirty-day extension of time, to November 15, 2013, to cure the deficiencies as directed in the October 1 Order. [ Id. ]. Finally, the Minute Order advised Plaintiff that if he wished to dismiss this action, he must file a motion with the Court expressing clearly his desire to dismiss the action without prejudice and without any further proceedings. [ Id. ].

Mr. Griffiths has failed to submit any documents in compliance with the October 1 Order and the October 15 Minute Order and has not paid any portion of the $400.00 fee filing fee. Furthermore, Mr. Griffiths has not communicated with the Court since October 9, 2013. This action therefore will be dismissed without prejudice.

Accordingly, it is

ORDERED that this action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Ben Griffiths, to comply with the October 1, 2013 Order Directing Plaintiff to Cure Deficiencies and the October 15, 2013 Minute Order, and for failure to prosecute. It is

FURTHER ORDERED that no certificate of appealability will issue because jurists of reason would not debate the correctness of this procedural ruling and Mr. Griffiths has not made a substantial showing of the denial of a constitutional right. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. 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. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Griffiths 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 United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. It is

FURTHER ORDERED that the motion [Doc. # 4] filed on October 9, 2013 is DENIED as moot. The relief requested was granted in the October 15, 2013 Minute Order.


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