Opinion
Civil Action No. 11-cv-02925-BNB
04-02-2012
RASHAIM DAVIS, Plaintiff, v. BENT COUNTY CORRECTIONAL FACILITY, HSA - MS. TURNER, BCCF Medical Personnel, NP-C MS. SCOBEE, BCCF, Medical Personnel, DR. OBA, BCCF Medical Personnel, and DR. J. PATTERSON, Arkansas Valley Surgery Center, Defendants.
ORDER OF DISMISSAL
Plaintiff, Rashaim Davis, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Bent County Correctional Facility in Olney Springs, Colorado. Mr. Davis initiated this action by filing a pro se Prisoner Complaint and a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 together with a certified copy of his trust fund account statement. He has been granted leave to proceed pursuant to § 1915 with payment of an initial partial filing fee.
On October 3, 2011, Magistrate Judge Boland determined that the Complaint was deficient because Mr. Davis failed to allege the personal participation of each named Defendant and because he was suing improper parties. Therefore, Mr. Davis was directed to file an amended complaint. Mr. Davis was warned that the action would be dismissed without further notice if he failed to file an amended pleading within thirty days.
Mr. Davis filed an Amended Complaint on February 15, 2012. On February 21, 2012, Magistrate Judge Boland determined that the amended pleading was deficient because Mr. Davis again failed to allege the personal participation of each named Defendant. Therefore, Mr. Davis was directed to file a Second Amended Complaint within thirty days. He was warned that the action would be dismissed without further notice if he failed to file a second amended pleading.
Mr. Davis has now failed to file a Second Amended Complaint, as directed, and he has not communicated with the Court since February 15, 2012. As a result, he has failed to file a second amended pleading within the time allowed and the Amended Complaint and action will be dismissed without prejudice.
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 Amended Complaint and this action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to file an amended pleading within the time allowed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 2nd day of April, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court