Opinion
Civil Action No. 12-cv-00532-BNB
05-01-2012
GERALD C. CHAVEZ, Plaintiff, v. STATE OF COLORADO, CITY AND COUNTY OF DENVER, BRUCE LEVIN, Prosecutor, and MAGGIE CONBOY, Prosecutor, Defendants.
ORDER OF DISMISSAL
Plaintiff, Gerald C. Chavez, is in the custody of the Colorado Department of Corrections (DOC) and currently is incarcerated at the Davis Correctional Facility. Mr. Chavez initiated this action by submitting to the Court a pro se Prisoner Complaint pursuant to 42 U.S.C. § 1983 and a Motion and Affidavit for Leave to Proceed Under 28 U.S.C. § 1915 on February 29, 2012.
On March 1, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Chavez to cure a deficiency in this action by filing a certified copy of his prisoner's trust fund statement for the 6-month period immediately preceding the filing. Mr. Chavez submitted a certified trust fund account statement on March 19, 2012. Magistrate Judge Boland granted him leave to proceed in forma pauperis by order dated March 21, 2012.
The March 21 Order requires Mr. Chavez to pay the full amount of the $350.00 filing fee in installments and directs him to pay an initial partial filing fee of $2.00 within thirty days or to show cause why he has no assets and no means to pay the initial fee by filing a current certified copy of his trust fund account statement. The Order warns Mr. Chavez that if he fails to have the initial partial filing fee sent to the Clerk of the Court by the designated deadline or to show cause why he has no assets and no means by which to pay the initial fee the Complaint would be dismissed without further notice.
Mr. Chavez filed affidavits with the Court on March 21 and 28, 2012. On April 5, 2012, Mr. Chavez filed a letter to the Court in addition to a copy of his inmate account statement. However, the inmate account statement was not certified. Therefore, Mr. Chavez has now failed either to pay the initial partial filing fee within the time allowed, as designated in the March 21 Order, or in the alternative to show cause why he has no assets and no means by which to pay the designated fee. Accordingly, the action will be dismissed for failure to comply with Magistrate Judge Boland's March 21 Order.
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 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 Prisoner Complaint and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for Mr. Chavez's failure either to pay an initial partial filing fee of $2.00 or to show cause why he has no assets and no means by which to pay the designated fee. 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 1st day of May, 2012.
BY THE COURT:
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LEWIS T. BABCOCK
Senior Judge, United States District Court