Opinion
Civil Action No. 12-cv-01728-BNB
08-15-2012
CARY GAGAN, Plaintiff, v. GREGORY C. LANGHAM, Clerk, United States District Court for the District of Colorado, Defendant.
ORDER OF DISMISSAL
Plaintiff, Cary Gagan, initiated this civil action by filing pro se a motion (ECF No. 1) seeking an order directing the clerk of the court to unseal any sealed documents in Plaintiff's criminal case in the District of Colorado. On July 10, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr. Gagan to cure certain deficiencies if he wished to pursue his claims in this civil action. Specifically, Magistrate Judge Boland ordered Mr. Gagan to file a pleading on the proper form and either to pay the $350.00 filing fee or to file a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 along with a certified copy of his inmate trust fund account statement in support of the 28 U.S.C. § 1915 motion. Magistrate Judge Boland warned Mr. Gagan that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On July 20, 2012, Mr. Gagan submitted a letter to the Court (ECF No. 5) in which he advised the Court of his new address. Attached to the letter filed on July 20, 2012, is a copy of Magistrate Judge Boland's Order Directing Plaintiff to Cure Deficiencies (ECF No. 4) that was entered in this action on July 10, 2012. A handwritten note on that copy of Magistrate Judge Boland's Order Directing Plaintiff to Cure Deficiencies indicates that Mr. Gagan may have opted not to pursue his claims in this action. (See ECF No. 5 at 2.) In any event, Mr. Gagan has not cured the deficiencies as directed. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies within the time allowed.
Furthermore, 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 also must 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 motion (ECF No. 1) is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Gagan failed to cure the deficiencies as directed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 15th day of August, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court