Opinion
Civil Action No. 13-cv-01582-BNB
2013-10-21
DAVID J. HOVER, Plaintiff, v. JOHN HICKENLOOPER, ROGER WERHOLTZ, C. C.A. dba BENT COUNTY CORRECTIONAL FACILITY (Unknown Warden), AMICK AND JENKS, INC. (Jeffrey Jenks, Corporate Partner), WESTERN CLINICAL SERVICES (Unknown C.E.O.), D. O.C. C/O TUPPER (in his personal and professional capacities), D.O.C. C/O ALCORN (in his personal and professional capacities), D.O.C. C/O BRUBAKER (in his personal and professional capacities), D.O.C. UNKNOWN JOHN DOE, C.C.A. C/O CHAVEZ (in his personal and professional capacities), COMPASS GROUP (Unknown C.E.O.), COMPASS ONE L.L.C. (Unknown C.E.O.), CANTEEN SERVICES (Unknown C.E.O.), and UNKNOWN COMPANYS [sic] AND OR CORPORATIONS contracting and/or subcontracting for/to D.O.C. and/or C.C.A. as medical providers from 2007 through 2013 at the Fremont Facility, Fort Lyons Facility, Bent County Facility (B.C.C.F.) and Sterling Facility, Defendants.
ORDER OF DISMISSAL
Plaintiff, David Hover, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. Mr. Hover filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983, and 18 U.S.C. §§ 4 and 1514(a) for money damages and injunctive and declaratory relief. Mr. Hover has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On June 26, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No. 6) directing Mr. Hover to file within thirty days an amended Prisoner Complaint that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The June 26 order warned Mr. Hover that if he failed to file an amended Prisoner Complaint as directed within the time allowed, the Prisoner Complaint and the action would be dismissed without further notice.
On July 3, 2013, the copy of the June 26 order mailed to Mr. Hover was returned to the Court as undeliverable. See ECF No. 7. On July 12, 2013, Mr. Hover filed a letter (ECF No. 8) asking the Court to re-mail a copy of the June 26 order to him. Therefore, on July 30, 2013, Magistrate Judge Boland entered a minute order (ECF No. 9) directing the clerk of the Court to re-mail a copy of the June 26 order to Mr. Hover and allowing Plaintiff thirty days in which to comply with the June 26 order. The July 30 minute order warned Mr. Hover that failure to comply with the June 26 order as directed within the time allowed would result in the dismissal of the instant action.
On August 6, 2013, Mr. Hover filed another letter (ECF No. 11) asking the Court to re-mail a copy of the June 26 order to him. On September 5, 2013, Magistrate Judge Boland entered another minute order (ECF No. 12) noting that the July 30 minute order had not been returned to the Court as undeliverable. However, in an abundance of caution, Magistrate Judge Boland in the September 5 minute order directed the clerk of the Court to re-mail to Mr. Hover a copy of the June 26 order and allowed Plaintiff thirty days in which to comply with the June 26 order. The September 5 minute order again warned Mr. Hover that failure to comply with the June 26 order as directed within the time allowed would result in the dismissal of the instant action.
Mr. Hover has failed within the time allowed to file an amended Prisoner Complaint as directed in the orders of June 26, July 30, and September 5. Therefore, the Prisoner Complaint and the action will be dismissed for Mr. Hover's failure to file an amended Prisoner Complaint as directed within the time allowed and 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. Hover files a notice of appeal he also must pay the full $455.00 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 Prisoner 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 J. Hover, within the time allowed, to file an amended Prisoner Complaint as directed in the orders of June 26 (ECF No. 6), July 30 (ECF No. 9), and September 5, 2013 (ECF No. 12), 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. DATED at Denver, Colorado, this 21st day of October, 2013.
BY THE COURT:
________
CHRISTINE M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK
Senior Judge, United States District Court