Opinion
Civil Action No. 11-cv-02213-BNB
01-05-2012
JOSEPH LOUIS DURAN, Plaintiff, v. DIRECTOR COLORADO DEPARTMENT OF PAROLE, Unknown, TOM CLEMENTS, DR. ANTHONY P. YOUNG, JOHN SUTHERS, and DR. JIM MAUCHAD, Defendants.
ORDER OF DISMISSAL
At the time Plaintiff, Joseph Louis Duran, initiated the instant action, he was incarcerated at the San Carlos Correctional Facility in Pueblo, Colorado. On September 30, 2011, Plaintiff submitted a Notice of Change of Address to the Court indicating he no longer is incarcerated and now is residing in Denver, Colorado.
In an order entered on November 18, 2011, Magistrate Judge Boyd N. Boland instructed Plaintiff that because he no longer is incarcerated he is obligated to pay the filing fee like any nonprisoner, solely on the basis of whether he qualifies for in forma pauperis status. See Whitney v. New Mexico, 113 F.3d 1170, 1171 n.1 (10th Cir. 1997); see also McGore v. Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997); In re Prison Litigation Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 1997); McGann v. Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996).
Magistrate Judge Boland ordered Plaintiff either to submit an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, or in the alternative to pay the $350.00 filing fee in full if he desired to pursue his claims in this action. Plaintiff was warned that the action would be dismissed without further notice if he failed to comply with the November 18 Order within the time allowed.
Plaintiff has failed to communicate with the Court and failed to comply with Magistrate Judge Boland's November 18 Order within the time allowed. The action, therefore, will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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 Complaint and action are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) because Plaintiff failed to comply with the order entered on November 18, 2011, 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 5th day of January, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court