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Sweeney v. State of North Dakota

United States District Court, D. Colorado

February 21, 2014

BRIAN L. SWEENEY, Plaintiff,
v.
STATE OF NORTH DAKOTA, Defendant.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, Brian L. Sweeney, was incarcerated at the Ward County Jail in Minot, North Dakota, when he initiated the instant action by a pro se letter (ECF No. 1) titled "Plaintiff seeking immediate relief." The Court reviewed the letter and determined it was deficient. Therefore, on January 14, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing Mr. Sweeney to cure certain enumerated deficiencies within thirty days if he wished to pursue his claims.

The January 14 order pointed out that Mr. Sweeney failed to submit either the $400.00 filing fee or a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the proper, Court-approved form, together with a certified copy of his trust fund account statement for the six-month period immediately preceding this filing. The January 14 order also pointed out that Mr. Sweeney failed to submit a Prisoner Complaint on the proper, Court-approved form. The January 14 order directed Mr. Sweeney to obtain, with the assistance of his case manager or the facility's legal assistant, the Court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint. The January 14 order warned him that if he failed to cure the designated deficiencies within thirty days, the action would be dismissed without prejudice and without further notice.

On February 6, 2014, the copy of the January 14 order mailed to Mr. Sweeney was returned to the Court as undeliverable. See ECF No. 4. Mr. Sweeney has failed to file a notice of change of address, cure the designated deficiencies within the time allowed, or otherwise to communicate with the Court in any way. Therefore, the action will be dismissed without prejudice for Mr. Sweeney's failure to cure the designated deficiencies as directed within the time allowed and for his failure to prosecute.

Finally, the Court certifies pursuant to § 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 Mr. Sweeney files a notice of appeal he also must pay the full $505.00 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

ORDERED that the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Brian L. Sweeney, to cure the deficiencies designated in the order to cure of January 14, 2014, within the time allowed and for his failure to prosecute. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is

FURTHER ORDERED that any pending motions are denied as moot. It is

FURTHER ORDERED that the clerk of the Court mail a copy of this order to Plaintiff at his last known address.


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