Opinion
Civil Action No. 11-cv-03137-BNB
01-18-2012
LEO ALVAREZ, and NORMAN MATTHEWS, Plaintiffs, v. BLAKE R. DAVIS, Warden, RUSS KRIST, Captain, and PATRICIA RANGEL, Unit Manager, Defendants.
ORDER OF DISMISSAL
Plaintiffs, Leo Alvarez and Norman Matthews, are in the custody of the federal Bureau of Prisons and are incarcerated at the ADMAX in Florence, Colorado. Plaintiffs initiated this action on December 2, 2011 by filing pro se a "Notice to Clerk for Mandamus" pursuant to 28 U.S.C. § 2401, complaining about their conditions of confinement.
In a December 9, 2011 Order, Magistrate Judge Boyd N. Boland directed the Plaintiffs to cure certain enumerated deficiencies in this case within thirty days. Specifically, the Plaintiffs were ordered to submit a Complaint on the court-approved Prisoner Complaint form. In addition, each Plaintiff was directed to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the court-approved form, along with a certified copy of his prisoner's trust fund statement for the six-month period preceding his filing. Alternatively, the Plaintiffs were advised that each of them could pay the $350.00 filing fee. The Plaintiffs were further instructed that they could obtain copies of the designated court-approved forms, along with the applicable instructions, at www.cod.uscourts.gov. The December 9 Order warned the Plaintiffs that if they failed to cure the designated deficiencies within the time allowed, the action would be dismissed without further notice.
Neither Mr. Alvarez nor Mr. Matthews has complied with the Court's December 9 Order. Indeed, the Plaintiffs have not filed anything with the Court since December 9, 2011. Therefore, Mr. Alvarez and Mr. Matthews have failed to cure the designated deficiencies within the time allowed.
Finally, the Court 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 either Plaintiff files a notice of appeal he must also 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 action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiffs, Leo Alvarez and Norman Matthews, to comply with the December 9, 2011 Order Directing Plaintiffs to Cure Deficiencies. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 18th day of January, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court