Opinion
Civil Action No. 12-cv-00361-BNB
06-12-2012
BOB ALLEN CUSTARD, Plaintiff, v. BELTER, G. BREAM, BENJAMIN BRIESCHKE, CHILDS, MARK COLLINS, CLAY COOK, BLAKE DAVIS, T. EISCHEN, ANDREW FENLON, FOSTER, WILLIAM HAYGOOD, J. JOHNSON, D. KRIST, R. KRIST, LLOYD, RICHARD MADISON, TODD MANSPEAKER, ANTHONY OSAGIE, P. RANGEL, STEVEN ROGERS, ROSENBECK, TENA SUDLOW, and SZEMBORSKI, Defendants.
ORDER OF DISMISSAL
On April 23, 2012, Mr. Custard, a federal prisoner who currently is incarcerated at the United States Penitentiary Administrative Maximum in Florence, Colorado, was denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). The Court instructed Mr. Custard to pay the entire $350.00 filing fee within thirty days if he wished to pursue his claims in this action. The Court warned Mr. Custard that if he failed to pay the filing fee within thirty days the Amended Complaint and the action would be dismissed.
On April 30, 2012, Mr. Custard filed a motion requesting that the Court reconsider its order denying him leave to proceed in forma pauperis. The Court denied the motion to reconsider on May 7, 2012. The May 7 Order provided Mr. Custard additional time to pay the $350.00 filing fee and informed him that the only proper filing at that time was the payment of the filing fee. On May 14, 2012, Mr. Custard filed a document titled "Objections & Grounds". In the document, he argued that he was entitled to amend his Complaint as a matter of course, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. On May 31, 2012, Mr. Custard filed a "Motion for Extension of Time" in which he again argued that he was entitled to file an amended complaint and requested additional time to submit an amended pleading.
On June 6, 2012, Magistrate Judge Boland denied the motion for extension of time to submit an amended pleading. Magistrate Judge Boland explained that because Mr. Custard had already filed an amended complaint on March 9, 2012, he was not entitled to additional time to submit a second amended complaint. Magistrate Judge Boland again directed Mr. Custard to submit the $350.00 filing fee.
Mr. Custard now has failed to pay the filing fee within the time allowed. The Amended Complaint and the action, therefore, will be dismissed.
In addition, 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 Amended Complaint and the action are dismissed without prejudice because Mr. Custard failed to pay the $350.00 filing fee in full within the time allowed. 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 12th day of June, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court