Opinion
Civil Action No. 13-cv-00302-BNB
03-18-2013
VERNON R. KITTLES, Plaintiff, v. [NO NAMED DEFENDANTS], Defendants.
ORDER OF DISMISSAL
Plaintiff, Vernon R. Kittles, 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 attempted to initiate the instant action by submitting pro se a document titled "Stating The Claim of Facts" (ECF No. 1), which appears to be a Prisoner Complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and 28 U.S.C. § 1331.
The Court reviewed the document and determined it was deficient. Therefore, on February 6, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No. 2) directing Mr. Kittles to cure certain enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The February 6 order pointed out that Mr. Kittles failed to submit either the $350.00 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 together with 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 February 6 order also pointed out that Mr. Kittles failed to submit the document titled "Stating The Claim of Facts" on the proper, Court-approved form for filing a Prisoner Complaint. The order directed him to obtain, with the assistance of his case manager or the facility's legal assistant, the Court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint. The February 6 order warned Mr. Kittles that if he failed to cure the designated deficiencies within thirty days, the action would be dismissed without prejudice and without further notice.
Mr. Kittles failed to cure the designated deficiencies within the time allowed, or otherwise communicate with the Court in any way. Therefore, the action will be dismissed without prejudice for Mr. Kittles' failure to cure the designated deficiencies as directed within the time allowed, and for his 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 Mr. Kittles 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 action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Vernon R. Kittles, within the time allowed, to cure all the deficiencies designated in the order to cure of February 6, 2013, and for his 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 18th day of March, 2013.
BY THE COURT:
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LEWIS T. BABCOCK
Senior Judge, United States District Court