Opinion
Civil Action No. 12-cv-01579-BNB
08-14-2012
NORBERTO PEREZ AROCHO, Plaintiff, v. UNITED STATES OF AMERICA, and HARLEY G. LAPPIN, Former Federal Bureau of Prison Director, Defendants.
ORDER OF DISMISSAL
Plaintiff, Norberto Perez Arocho, is a prisoner in the custody of the United States Bureau of Prisons at the United States Medical Center for Federal Prisoners in Springfield, Missouri. On July 9, 2012, Magistrate Judge Boyd N. Boland entered an order granting Mr. Arocho's motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in this action. Pursuant to § 1915(b)(1), Magistrate Judge Boland ordered Mr. Arocho either to pay an initial partial filing fee of $1.00 or to show cause why he has no assets and no means by which to pay the initial partial filing fee. In order to show cause, Mr. Arocho was directed to file a current certified copy of his inmate trust fund account statement. Mr. Arocho was warned that the complaint and the action would be dismissed without further notice if he failed either to pay the initial partial filing fee or to show cause as directed within thirty days.
On July 19, 2012, Mr. Arocho submitted for filing a document titled "Show Cause of No Assets for Partial Fillin [sic] Fee" (ECF No. 8) in which he states that he has no means to pay the designated initial partial filing fee. Mr. Arocho attached to the document filed on July 19 a certified copy of his inmate trust fund account statement dated June 13, 2012. On July 23, 2012, Mr. Arocho submitted for filing a certified copy of his inmate trust fund account statement dated June 29, 2012 (ECF No. 9). Both account statements indicate that the available balance in Mr. Arocho's account was $0.00 on the dates those account statements were printed.
Mr. Arocho has failed to show good cause why he is unable to pay the designated initial partial filing fee because the account statements he submitted in response to Magistrate Judge Boland's July 9 order granting leave to proceed in forma pauperis in this action predate that order. As a result, the account statements Mr. Arocho submitted on July 19 and 23 do not demonstrate that Mr. Arocho currently lacks sufficient funds to pay the designated initial partial filing fee. Therefore, the complaint and the action will be dismissed without prejudice because Mr. Arocho failed either to pay the initial partial filing fee or to show cause as directed why he is unable to pay the initial partial filing fee.
Furthermore, 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 Plaintiff files a notice of appeal he also 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 Prisoner Complaint (ECF No. 1) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Arocho failed to comply with a court order directing him either to pay an initial partial filing fee or to show cause why he is unable to pay the initial partial filing fee. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 14th day of August, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court