Opinion
Civil Action No. 15-cv-02635-GPG
04-07-2016
ANDRE JONES, Plaintiff, v. JERRY SCHIFFELBEIN, Detective, Colorado Springs Police Department, Defendant.
ORDER OF DISMISSAL
Plaintiff, Andre Jones, is a Colorado state prisoner currently incarcerated at the Sterling Correctional Facility in Sterling, Colorado. Mr. Jones initiated this action on December 3, 2015, by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983. Mr. Jones has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On December 8, 2015, the Court reviewed the Complaint and determined that it was deficient because Mr. Jones failed to state an arguable § 1983 malicious prosecution or due process claim, and his claims appeared to be barred by Heck v. Humphrey, 512 U.S. 477 (1994). (See ECF No. 5). Consequently, the Court directed Mr. Jones to file an amended complaint, on the court-approved Prisoner Complaint form, within 30 days of the December 8 Order. (Id.).
On January 14, 2016, Mr. Jones filed an Amended Complaint (ECF No. 6) asserting violations of the Fourth and Fourteenth Amendments. The Court reviewed the Amended Complaint and entered an order (ECF No. 7) on March 2, 2016, directing Mr. Jones to file a second amended complaint because the Amended Complaint was not filed on the court-approved form, and the allegations still were deficient. Specifically, the Court found that Mr. Jones failed to allege facts sufficient to state an arguable § 1983 malicious prosecution or false arrest claim against Defendant; his claims appeared to be barred by Heck; the Amended Complaint did not comply with the pleading requirements of Fed. R. Civ. P. 8; and vague and conclusory allegations that his federal constitutional rights were violated were insufficient. (Id.). The Court warned Mr. Jones that failure to file a second amended complaint on the court-approved form and in compliance with the March 2 Order within the time allowed may result in dismissal of this action without further notice. (Id., at 7).
Mr. Jones has now failed to comply with the March 2, 2016 Order Directing Plaintiff to File Second Amended Complaint on Court-Approved Form. Consequently, the Amended Complaint and this action will be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and to comply with a Court order. Accordingly, it is
ORDERED that the Amended Complaint (ECF No. 6) and the action are DISMISSED WITHOUT PREJUDCE, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to file a second amended complaint on the court-approved form in compliance with the Court's order (ECF No. 7) entered on March 2, 2016. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied pursuant to 28 U.S.C. § 1915(a)(3) because any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $505 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.
DATED April 7, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court