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Rush v. United States

United States District Court, D. Colorado

March 26, 2014

STEPHEN L. RUSH, and HANS WEISENREDER, Plaintiffs,
v.
UNITED STATES, et al., Defendants.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiffs initiated this action by filing pro se a Complaint to Obtain Indictment and Administration (ECF No. 1) and a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). On January 14, 2014, Magistrate Judge Boyd N. Boland entered an order directing Plaintiffs to cure certain deficiencies if they wished to pursue any claims in this action. Specifically, Magistrate Judge Boland ordered each Plaintiff to complete and submit a separate, signed and notarized § 1915 motion and affidavit on the court-approved form. On January 24, 2014, Plaintiff Weisenreder submitted a signed and notarized § 1915 motion and affidavit (ECF No. 5), but it contained the financial information for Plaintiff Rush. On February 12, 2014, the Court entered a minute order explaining that Plaintiff Weisenreder's § 1915 motion and affidavit were improper and that Plaintiff Rush had failed to submit a notarized § 1915 motion and affidavit that provided complete financial information. The Court gave Plaintiffs an additional opportunity to submit the required § 1915 documentation within thirty days from the date of the Minute Order. In the Minute Order, the Court also reiterated that each Plaintiff must fully complete and submit his own signed and notarized § 1915 motion and affidavit, providing individual information as to each Plaintiff's financial status. Plaintiffs were warned that the action would be dismissed without further notice if they failed to cure the designated deficiencies within thirty days.

Plaintiffs have failed to cure the deficiencies within the time allowed and have failed to respond in any way to Magistrate Judge Boland's February 12 Minute Order. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies.

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 Plaintiffs file a notice of appeal they 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 because Plaintiffs have failed to cure the deficiencies as directed. 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.


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