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Collins v. No Named Defendant

United States District Court, D. Colorado

April 9, 2014

DAVID LEE COLLINS, Plaintiff,
v.
[NO NAMED DEFENDANT], Defendant.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, David Lee Collins, is a prisoner in the custody of the Colorado Department of Corrections at the Arkansas Valley Correctional Facility in Ordway, Colorado. He initiated the instant action by submitting pro se a document titled "Complaint" (ECF No. 1). The Court reviewed the Complaint and determined it was deficient. Therefore, on February 5, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing Mr. Collins to cure certain enumerated deficiencies in the case within thirty days if he wished to pursue his claims.

The February 5 order pointed out that Mr. Collins 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, i.e., the current form revised October 1, 2012, with an authorization and certificate of prison official, together with a certified copy of his trust fund account statement for the six-month period immediately preceding this filing. The February 5 order also pointed out that Mr. Collins failed to submit a Prisoner Complaint on the proper, Court-approved form. The February 5 order directed Mr. Collins 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 February 5 order warned him that if he failed to cure the designated deficiencies within thirty days, the Complaint and the action would be dismissed without prejudice and without further notice.

On February 18, 2014, the copy of the February 5 order mailed to Mr. Collins was returned to the Court as undeliverable. See ECF No. 4. On February 20, 2014, the Court entered a minute order directing the clerk of the Court to remail a copy of the February 5 order to Mr. Collins using his correct prisoner registration number and allowing Mr. Collins an additional thirty days in which to cure the deficiencies designated in the February 5 order.

Mr. Collins has failed to 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. Collins' 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. Collins 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 Complaint (ECF No. 1) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, David Lee Collins, to cure the deficiencies designated in the order to cure of February 5, 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.


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