Opinion
Civil Action No. 12-cv-01690-BNB
11-29-2012
ADAM DMYTRYSZYN, Plaintiff, v. JOHN HICKENLOOPER, Governor, TOM CLEMENTS, Executive Director, SUPERINTENDENT FAULK, CAPTAIN JOHN DOE, CORRECTIONAL OFFICER BRADYHOFF, ARISTEDES ZAVARES, Former Exec. Dir., and FORMER SUPERINTENDENT MILLIARD, Defendants.
ORDER OF DISMISSAL
Plaintiff, Adam Dmytryszyn, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. Mr. Dmytryszyn initiated this action by filing pro se a civil rights complaint (ECF No. 1) asserting claims pursuant to 42 U.S.C. § 1983 that his rights under the United States Constitution have been violated. He asked for declaratory and injunctive relief and money damages.
On July 20, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Dmytryszyn to file within thirty days an amended complaint that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and asserted the personal participation of each named Defendant. See ECF No. 8. On August 22, 2012, instead of filing an amended complaint Mr. Dmytryszyn filed an objection (ECF No. 10) to the July 20 order. On August 27, 2012, the Court filed an order (ECF No. 11) overruling the objection. Mr. Dmytryszyn then filed on September 12, 2012, a motion for stay (ECF No. 12) to file the amended complaint, which Magistrate Judge Boland denied by minute order on September 13, 2012. See ECF No. 13. On September 19, 2012, Mr. Dmytryszyn filed a motion to reconsider (ECF No. 14) the order (ECF No. 13) denying the motion for stay. On September 25, 2012, the Court, treating the motion to reconsider as an objection, overruled (ECF No. 15) the objection.
On September 26 and October 9, 2012, Mr. Dmytryszyn filed motions (ECF Nos. 16 and 17) for extension of time to file the amended complaint. On October 19, 2012, he filed a notice of appeal (ECF No. 20) to the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) appealing from the September 25 order overruling the objection. On October 22, 2012, Magistrate Judge Boland granted Mr. Dmytryszyn a thirty-day extension of time to file the amended complaint. See ECF No. 25. On November 13, 2012, the Tenth Circuit entered an order (ECF No. 30) disposing of the appeal. On November 14, 2012, Mr. Dmytryszyn filed a document (ECF No. 31) demonstrating his inability to make a monthly filing fee payment.
What Mr. Dmytryszyn has not filed is the amended complaint he was ordered to file within thirty days from the October 22 minute order granting his request for an extension of time. Therefore, the complaint and the action will be dismissed without prejudice for Plaintiff's failure to file an amended complaint as directed within the time allowed.
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. Dmytryszyn files a notice of appeal he also must pay the full $455.00 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 complaint and the action are dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Adam Dmytryszyn, to comply with the pleading requirements of Rule 8 and the directives of the order of July 20, 2012, for an amended complaint. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 29th day of November, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court