United States District Court, D. Colorado
ELMER L. CROSS, JR., Plaintiff,
ARAMARK CORPORATION, and DORIS, Aramark Commissary Employee, UNNAMED MALE, Aramark Commissary Employee, UNNAMED MALE, Aramark Commissary Employee, and UNNAMED FEMALE, Aramark Commissary Employee, Defendants.
ORDER DISMISSING CASE AND DIRECTING PLAINTIFF TO SHOW CAUSE
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Elmer L. Cross, was detained at the Denver County Jail, when he initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3).
Magistrate Judge Boyd N. Boland reviewed the documents and determined they were deficient. On October 28, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 4) directing Mr. Cross to cure certain deficiencies, including submitting on the proper forms a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
Of the numerous motions Mr. Cross filed in the action, only the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 45) and Prisoner Complaint (ECF No. 46) filed on January 27, 2015, cured the original deficiencies. However, on February 10, 2015, Mr. Cross notified the Court that he was released from custody on January 26, 2015, and currently resides in Denver, Colorado. Thus, the Court entered an order (ECF No. 47) on February 18, 2015 explaining that his continuing obligation to pay the filing fee is to be determined, like any nonprisoner, solely on the basis of whether he qualifies for in forma pauperis status. The Court, therefore, ordered Mr. Cross to submit 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 Court also reviewed the Prisoner Complaint (ECF No. 46) and found that it was deficient because Mr. Cross did not appear to have a remedy under 42 U.S.C. § 1983 against the named Defendants because Mr. Cross alleged that all named Defendants were private entities or civilians who were not acting under color of state law. The Court further found that the Complaint did not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Thus, the February 18 Order directed Mr. Cross to file an amended complaint that complies with the pleading requirements of Rule 8, names proper parties, and asserts each defendant's personal participation in the alleged violations. Mr. Cross was warned that the action would be dismissed without further notice if he failed to file an amended complaint within thirty days.
Mr. Cross has failed to submit an amended complaint within the time allowed. Therefore, the action will be dismissed without prejudice for failure to comply with the February 18 Order to file an amended complaint and an application to proceed in forma pauperis.
The Court also 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 Mr. Cross 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.
In addition, for the reasons stated below, Mr. Cross will be directed to show cause why he should not be prohibited from filing new actions without either the representation of a licensed attorney admitted to practice in the United States District Court for the District of Colorado or the permission of the Court to proceed pro se.
In a three-month span (October 10, 2014-January 27, 2015), Mr. Cross has initiated thirteen civil rights actions, including the instant action, in this Court. Mr. Cross has been unable to pursue his claims in any of these actions in a proper manner, and all have been dismissed as factually frivolous or for failure to comply with Court orders:
1. Cross v. City of Denver, et al., No. 14-cv-02793-LTB (D. Colo. Oct. 10, 2014), dismissed with prejudice as frivolous.
2. Cross v. Dr. Crum, et al., No. 14-cv-02805-LTB (D. Colo. Oct. 14, 2014), dismissed without prejudice for failure to file an amended complaint as directed within the time allowed.
3. Cross v. City of Denver, et al., No. 14-cv-02872-LTB (D. Colo. Oct. 21, 2014), dismissed without prejudice for failure to show cause why action should not be dismissed as repetitive of No. 14-cv-02793-LTB as directed within the time allowed.
4. Cross v. Sargent Koch, et al., No. 14-cv-02923-LTB (D. Colo. Oct. 28, 2014), dismissed with prejudice as frivolous. Plaintiff is warned the Court may impose appropriate sanctions if he persists in engaging in frivolous lawsuits.
5. Cross v. Sheriff's Deputy Leyba, et al., No. 14-cv-02948-LTB (D. Colo. Oct. 30, 2014), dismissed with prejudice as frivolous. Plaintiff is warned the Court may impose appropriate sanctions ...