Opinion
Civil Action No. 12-cv-03051-BNB
01-22-2013
JM (MARIA J) FAY, Plaintiff, v. STATE OF CO, CO PUBLIC UTILITIES, and AT&T, Defendants.
ORDER OF DISMISSAL
Plaintiff, JM (Maria J) Fay, initiated this action by filing pro se a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2), a Complaint (ECF No. 1), and a Motion for a Preliminary Injunction (ECF No. 3).
On November 20, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF No. 5) directing Ms. Fay to cure certain designated deficiencies. Specifically, she was informed that the Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 was missing an original signature, the affidavit was not notarized, and the names in the caption to the § 1915 motion did not match the names in the caption to the complaint. The November 20 order also informed Ms. Fay that the complaint was not on the proper, Court-approved form.
The November 20 order warned Ms. Fay that the complaint and the action would be dismissed without prejudice and without further notice if she failed to cure the designated deficiencies as directed within the time allowed.
On December 21, 2012, Ms. Fay submitted an amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. ECF No. 6. On December 27, 2012, Magistrate Judge Boland entered a minute order (ECF No. 9) informing Ms. Fay that the Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 6) that she submitted to the Court on December 21 was deficient. Specifically, Magistrate Judge Boland informed Ms. Fay that she failed to indicate in the first paragraph on page one of the § 1915 motion and affidavit whether she wanted service by the United States Marshal's Service and that she failed to sign the motion and have it notarized. See ECF No. 6 at 1, 4. The December 27 minute order also informed Ms. Fay that the § 1915 motion and affidavit submitted on December 21 failed to comply with Local Rule 10.1G. of this Court because they generally were illegible. Ms. Fay was directed to comply with the December 27 minute order and the directives of the November 20 cure order (ECF No. 5) within fifteen days. Ms. Fay was warned that failure to do so may result in the dismissal of the instant action. Lastly, Ms. Fay was directed to obtain the Court-approved form for filing a second amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, along with the applicable instructions, at www.cod.uscourts.gov .
Ms. Fay has failed within the time allowed to comply with the directives of the December 27 minute order and the November 20 cure order as directed, or otherwise to communicate with the Court in any way. Therefore, the complaint and the action will be dismissed without prejudice for failure to comply with the directives of the December 27 minute order and the November 20 cure order as directed within the time allowed, and for her failure to prosecute.
Finally, the Court certifies pursuant to § 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 Ms. Fay files a notice of appeal she 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 Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, JM (Maria J) Fay, within the time allowed, to cure the deficiencies designated in the minute order of December 27, 2012, and the cure order of November 20, 2012, and for her failure to prosecute. 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 22nd day of January, 2013.
BY THE COURT:
_________________
LEWIS T. BABCOCK, Senior Judge
United States District Judge