Opinion
Civil Action No. 13-cv-02001-BNB
11-04-2013
ERIC ADAMS, Applicant, v. D. BERKEBILE, Warden, Respondent.
ORDER OF DISMISSAL
Applicant, Eric Adams, is in the custody of the United States Bureau of Prisons and currently is incarcerated at ADX in Florence, Colorado. Mr. Adams, acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and paying a $5.00 filing fee . In an order entered on July 31, 2013, Magistrate Judge Boyd N. Boland construed the action more properly filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and directed Mr. Adams to file his claims on a Court-approved form used in filing prisoner complaints. Magistrate Judge Boland also instructed Mr. Adams either to pay the remaining balance of the $400.00 filing fee required when filing a complaint or to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 form.
Magistrate Judge Boland warned Mr. Adams that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days. On October 3, 2013, Mr. Adams filed a Motion for Judgment on the Pleadings or for Summary Judgment. In the Motion, Mr. Adams objects to Magistrate Judge Boland's order construing his claims as more properly filed pursuant to Bivens. District Judge Christine M. Arguello construed the Motion as an Objection filed pursuant to 28 U.S.C. § 636(b)(1)(A) and overruled it. Mr. Adams then filed a Notice of Appeal challenging Judge Arguello's denial of the Objection. ECF No. 8. The Tenth Circuit denied the appeal for lack of jurisdiction because this Court had not entered a final decision in the matter. Adams v. Berkebile, No. 13-1437 (10th Cir. Oct. 24, 2013).
Other than the Objection and Notice of Appeal, Mr. Adams has not filed any other pleadings subsequent to the July 31, 2013 Order to Cure Deficiencies. Mr. Adams, therefore, has failed to comply with the July 31 Order within the time allowed, and the action will be dismissed.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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. Adams files a notice of appeal he must pay the full $455 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 Application is denied and the action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to cure all deficiencies and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 4th day of November, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court