Opinion
Civil Action No. 14-cv-03263-GPG
01-12-2015
SHAWN R. CANFIELD, Plaintiff, v. ANNE E. KELLY, GRANT R. FEVURLY, ANGELA SUE COLAIUTA, and ELIZABETH VOLZ, Defendants.
ORDER OF DISMISSAL
Plaintiff, Shawn R. Canfield, is an inmate at the Arapahoe County Detention Facility in Centennial, Colorado. Mr. Canfield initiated this action by filing pro se a letter (ECF No. 1) he described as a notice of intent to sue and in which he requested a case number. On December 2, 2014, Magistrate Judge Gordon P. Gallagher entered an order directing Mr. Canfield to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Gallagher directed Mr. Canfield to file a Prisoner Complaint and either to pay filing and administrative fees totaling $400.00 or to file a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 along with a certified copy of his inmate trust fund account statement and an authorization to calculate and disburse filing fee payments. Mr. Canfield was warned that the action would be dismissed without further notice if he failed to cure these deficiencies within thirty days.
On December 8, 2014, Mr. Canfield filed a motion (ECF No. 4) requesting a ninety-day extension of time to cure the deficiencies because he was waiting for an investigation by the Federal Bureau of Investigation and for trial transcripts. Mr. Canfield also asked for blank copies of the forms necessary to cure the deficiencies and he submitted a copy of his inmate trust fund account statement. On December 9, 2014, Magistrate Judge Gallagher entered a minute order denying the motion for an extension of time because Mr. Canfield failed to allege facts that demonstrate he was unable to cure the deficiencies within the time allowed. Magistrate Judge Gallagher also directed the clerk of the Court to mail blank copies of the forms necessary to cure the deficiencies to Mr. Canfield and those forms were mailed to Mr. Canfield. On December 24, 2014, Mr. Canfield filed a letter to the Court (ECF No. 7) stating he has been unable to obtain legal counsel, he is scheduled to be released on March 8, 2015, and he will obtain legal counsel and continue this lawsuit when he is released.
Mr. Canfield has not filed a Prisoner Complaint and he has failed either to pay the required filing and administrative fees or to file a properly supported Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies within the time allowed.
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 $505 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 because Mr. Canfield failed to cure the deficiencies as directed. 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 12th day of January, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court