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Brown v. Bach

United States District Court, D. Colorado

September 5, 2014

SHAUN ERIC BROWN, also known as SHAUN BROWN, Plaintiff,
v.
MAYOR STEVE BACH, CHIEF PETER CAREY, SGT. MARY G. WALSH 169, PEACE OFFICER A. CAREY 4156, PEACE OFFICER S. WREN 4179, and UNKNOWN AGENTS, et al., Defendants.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, Shaun Eric Brown, was incarcerated at the El Paso County Criminal Justice Center in Colorado Springs, Colorado, when he initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) for money damages pursuant to 42 U.S.C. § 1983; 28 U.S.C. § 1331; and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He also filed an amended Prisoner Complaint (ECF No. 21). He later informed the Court that he was transferred to the Colorado Department of Corrections (DOC) and incarcerated at the Crowley County Correctional Facility in Olney Springs, Colorado. See ECF No. 15. Mr. Brown has been granted leave to proceed pursuant to 28 U.S.C. § 1915.

On July 23, 2014, Mr. Brown filed a notice of change of address (ECF No. 28) informing the Court that he currently resided at 709 South Sierra Madre, Colorado Springs, CO 80903. He apparently no longer was incarcerated. According to the "Finding an Inmate" tab on the DOC website, www.doc.state.co.us, Mr. Brown was paroled to the "Southeast Region." Id.

Therefore, on July 24, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 29) informing Mr. Brown that his continuing obligation to pay the filing fee was to be determined, like any nonprisoner, solely on the basis of whether he qualified for in forma pauperis status. See Whitney v. New Mexico, 113 F.3d 1170, 1171 n.1 (10th Cir. 1997); see also McGore v. Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997); In re Prison Litigation Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 1997); McGann v. Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996). Magistrate Judge Boland ordered Mr. Brown to submit within thirty days on the Court-approved form an Application to Proceed in District Court Without Prepaying Fees or Costs, the in forma pauperis form to be used by nonprisoners. The magistrate judge informed Mr. Brown that, alternatively, he may elect to pay the $400.00 filing fee to pursue his claims in this action.

On July 29, 2014, Mr. Brown filed a document titled "Financial Affidavit in Support of Request for Attorney, Expert, or Other Services Without Payment of Fee" (ECF No. 31). He failed within the time allowed to file on the Court-approved form an Application to Proceed in District Court Without Prepaying Fees or Costs, as directed in the July 24 order. The amended Prisoner Complaint and the action will be dismissed without prejudice for failure to comply with the July 24 order as directed within the time allowed.

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. Brown 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.

ORDERED that the amended Prisoner Complaint (ECF No. 21) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Shaun Eric Brown, to submit within the time allowed on the Court-approved form an Application to Proceed in District Court Without Prepaying Fees or Costs, the in forma pauperis form to be used by nonprisoners. 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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