Opinion
Civil Action No. 13-cv-01682-BNB
08-23-2013
RONNIE LEE HOUSTON, Plaintiff, v. B.O.P., RICHARD SCHOTT, O.I.P., SEAN R. O'NEILL, E.O.U.S.A., ERIC HOLDER, U.S.D.O.J., et al., Defendants.
ORDER OF DISMISSAL
Plaintiff, Ronnie Lee Houston, is a prisoner in the custody of the Federal Bureau of Prisons who currently is incarcerated at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. He initiated the instant action by submitting pro se a Prisoner Complaint (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). The § 1915 motion and affidavit included a certified copy of his trust fund account statement for the six-month period immediately preceding this filing obtained from the appropriate prison official.
The Court reviewed the documents and determined they were deficient. Therefore, on June 26, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No. 4) directing Mr. Houston to cure certain enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The June 26 order pointed out that Mr. Houston failed to submit either the $400.00 filing fee or a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the proper, Court-approved form, i.e., the current form revised October 1, 2012, with an authorization allowing the prison facility to calculate and disburse funds from his inmate trust fund account and certificate of prison official. The June 26 order also directed him to file an amended Prisoner Complaint on the proper, Court approved form that clarified the named Defendants and the basis for this Court's jurisdiction. The order directed him to obtain, with the assistance of his case manager or the facility's legal assistant, the current Court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner Complaint. The June 26 order warned Mr. Houston that if he failed to cure the designated deficiencies within thirty days, the action would be dismissed without prejudice and without further notice.
On June 28, 2013, Mr. Houston submitted two amended Prisoner's Motions and Affidavits for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF Nos. 6 and 7), neither of which was on the current form revised October 1, 2012. On June 28 and July 5, Mr. Houston submitted two amended Prisoner Complaints (ECF Nos. 5 and 10) using all but the first page of the current, Court-approved form. On July 9, 2013, in response to Mr. Houston's July 5 request (ECF No. 8), Magistrate Judge Boland entered a minute order (ECF No. 11) directing the clerk of the Court to mail to Plaintiff copies of the Court-approved forms for filing a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. On July 17, 2013, Mr. Houston submitted a third amended Prisoner Complaint (ECF No. 15) using all but the first page of the current, Court-approved form and a third amended Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 14), which was not on the current form revised October 1, 2012.
Mr. Houston has failed to cure all the designated deficiencies within the time allowed because he has failed to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the proper, Court-approved form, i.e., the current form revised October 1, 2012, with an authorization allowing the prison facility to calculate and disburse funds from his inmate trust fund account. Therefore, the action will be dismissed without prejudice for Mr. Houston's failure to cure the designated deficiencies as directed within the time allowed.
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 Mr. Houston 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 amended Prisoner Complaints (ECF Nos. 5, 10, and 15) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Ronnie Lee Houston, to cure all the deficiencies designated in the order to cure of June 26, 2013, within the time allowed. 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 23rd day of August, 2013.
BY THE COURT:
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LEWIS T. BABCOCK
Senior Judge, United States District Court