Opinion
Civil Action No. 11-cv-01489-BNB
08-29-2011
JAMES ARTHUR FAIRCLOTH, Plaintiff, v. TOM CLEMENTS, KEITH NORDELL, PAUL HOLLENBECK, CASE MANAGER "JURADO," CASE MANAGER "J. HOLCOMB," KELLIE WASKO, Warden at SCCF, and CORRECTIONAL OFFICER "MARQUEZ, Defendants.
ORDER OF DISMISSAL
Plaintiff, James Arthur Faircloth, is a prisoner in the custody of the Colorado Department of Corrections at the Colorado Territorial Correctional Facility in Carton City, Colorado. On July 13, 2011, Magistrate Judge Boyd N. Boland entered an order granting Mr. Faircloth leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in this action. Pursuant to § 1915(b)(1), Magistrate Judge Boland ordered Mr. Faircloth either to pay an initial partial filing fee of $3.00 or to show cause why he has no assets and no means by which to pay the initial partial filing fee. In order to show cause, Mr. Faircloth was directed to file a current certified copy of his inmate trust fund account statement. Mr. Faircloth was warned that the complaint and the action would be dismissed without further notice if he failed either to pay the initial partial filing fee or to show cause as directed within thirty days. On July 22, 2011, in response to Mr. Faircloth's notice of change of address, Magistrate Judge Boland entered a minute order directing the clerk of the Court to mail a copy of the July 13 order to Mr. Faircloth at his new address and directing Mr. Faircloth either to pay the initial partial filing fee or to show cause why he is unable to pay the initial partial filing fee within thirty days from the date of the minute order.
On August 19, 2011, Mr. Faircloth filed a "Request for Stay of Proceeding(s), and Return of Document(s) for Amendment of Filing(s)" (Doc. #18) along with a supporting letter (Doc. #19). Mr. Faircloth alleges that his transfer to the Colorado Territorial Correctional Facility, which is part of the relief he seeks in this action, will allow him to exhaust administrative remedies and "attempt to come to a resolve, or, if need be, include/amend his claim(s) before proceeding toward a judicial review." (Doc. #18 at 2.) He specifically requests a stay "of at least 90 to 180 days" in order "to exhaust, adjust, amend his complaint accordingly per the outcome of the procedures during exhaustion process." (Id.)Mr. Faircloth states that "[t]his case should not be dismissed, as the potential for ongoing abuse(s) by Respondent(s)/defendant(s) still exists at this point and time." (Id.)Mr. Faircloth also asks the Court to return certain documents filed in this action so that he can make copies. Mr. Faircloth does not address the issue of the initial partial filing fee in the papers filed on August 19, 2011, or in any other filing in this action.
Mr. Faircloth's request to stay the proceedings will be denied. The Court will not hold this case in abeyance while Mr. Faircloth exhausts administrative remedies and determines whether he wishes to pursue or amend his claims depending on the outcome of the administrative proceedings. Furthermore, because Mr. Faircloth has failed within the time allowed either to pay the initial partial filing fee or to show cause why he is unable to pay the initial partial filing fee, the complaint and the action will be dismissed. Accordingly, it is
ORDERED that Plaintiff's "Request for Stay of Proceeding(s), and Return of Document(s) for Amendment of Filing(s)" (Doc. #18) filed on August 19, 2011, is denied. It is
FURTHER ORDERED that the Prisoner Complaint and the action are dismissed without prejudice pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure because Plaintiff failed within the time allowed either to pay the initial partial filing fee or to show cause as directed why he is unable to pay the initial partial filing fee.
DATED at Denver, Colorado, this 29th day of August , 2011.
BY THE COURT:
LEWIS T. BABCOCK, Senior Judge
United States District Court
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01489-BNB
James Arthur Faircloth
Prisoner No. 62088
Colorado Territorial Correctional Facility
PO Box 1010
Canon City, CO 81215
I hereby certify that I have mailed a copy of the ORDER and JUDGMENT to the above-named individuals on August 29, 2011.
GREGORY C. LANGHAM, CLERK
By: _________________
Deputy Clerk