Opinion
Civil Action No. 11-cv-03031-BNB
01-10-2012
RICHARD R. ASHLEY, Plaintiff, v. UNITED STATES DEPT. OF JUSTICE, FEDERAL BUREAU OF PRISONS, MICHAEL K. NALLEY, Regional Director, AMBER L. NELSON, Acting Regional Director, JULIE W. WANDS, Warden, FCI Florence, PETE BLUDWORTH, Associate Warden, FCI Florence, BLAKE R. DAVIS, Complex Warden, M. TUCKER, Unit Manager, FCI Florence, and R. WORSHAM, Correctional Counselor, FCI Florence, Defendants.
ORDER OF DISMISSAL
Plaintiff, Richard R. Ashley, is a prisoner in the custody of the United States Bureau of Prisons who currently is incarcerated at the Federal Correctional Institution in Florence, Colorado. He initiated the instant action by submitting to and filing with the Court pro se a complaint and a letter. The Court reviewed the documents and determined they were deficient. Therefore, on December 2, 2011, Magistrate Judge Boyd N. Boland directed Mr. Ashley to cure certain deficiencies in the case within thirty days if he wished to pursue his claims.
The December 2 order pointed out that Mr. Ashley failed to submit either the $350 filing fee or a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 together with a certified copy of his trust fund account statement for the six-month period immediately preceding this filing. The order also pointed out that Mr. Ashley failed to submit his complaint on the proper Prisoner Complaint form. The order directed Mr. Ashley to obtain the Court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner Complaint (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov, and warned him that, if he failed to cure the designated deficiencies within the time allowed, the complaint and the action would be dismissed without prejudice and without further notice.
Mr. Ashley has failed, within the time allowed, to cure the deficiencies listed in the December 2 order or otherwise to communicate with the Court in any way. Therefore, the action will be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with a Court order and cure the designated deficiencies as directed within the time allowed, and for failure to prosecute.
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 Mr. Ashley 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 is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Richard R. Ashley, within the time allowed, to cure the deficiencies designated in the order to cure of December 2, 2011, and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 10th day of January, 2012.
BY THE COURT:
Lewis T. Babcock
Senior Judge, United States District Court