Opinion
Civil Action No. 14-cv-02138-BNB
12-05-2014
RENÉ JACQUES LAPOINTE, Plaintiff, v. J. OLIVER, Warden, PLILIAR, Assistant Warden, and DR. ALLRED, Primary Care Provider, Defendants.
ORDER OF DISMISSAL
Plaintiff, René Jacques Lapointe, is a prisoner in the custody of the Federal Bureau of Prisons who currently is incarcerated at the United States Penitentiary, High Security, in Florence, Colorado. Mr. Lapointe initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) for injunctive relief pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) he failed to complete, and a motion titled "Motion for Preliminary Injunctive Relief" (ECF No. 3). Mr. Lapointe also paid the $400.00 filing fee. Therefore, the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) was denied as moot.
On August 1, 2014, the Court entered an order (ECF No. 5) directing Mr. Lapointe to file an amended Prisoner Complaint on the Court-approved Prisoner Complaint form that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. On August 12, 2014, Mr. Lapointe filed an amended Prisoner Complaint that was not on the Court-approved form. On August 26, 2014, the Court entered a minute order (ECF No. 8) noting that the August 12 amended Prisoner Complaint failed to comply with the August 1 order, directing that the clerk of the Court mail to Mr. Lapointe the Court-approved form for filing a Prisoner Complaint, and allowing Plaintiff thirty days in which to file an amended Prisoner Complaint as directed in the August 1 order. On September 25, 2014, Mr. Lapointe filed a second amended Prisoner Complaint (ECF No. 11).
On October 9, 2014, the Court entered an order (ECF No. 12) directing Mr. Lapointe to file within thirty days a third and final amended Prisoner Complaint that alleged specific facts demonstrating the personal participation of each named Defendant and complied with the pleading requirements of Rule 8. On November 10, 2014, Mr. Lapointe filed a motion asking the Court to refund the $400.00 filing fee he paid in this action and withdraw his second amended Prisoner Complaint. On November 12, 2014, the Court entered an order (ECF No. 14) denying Mr. Lapointe's request for the return of the $400.00 filing fee he paid and allowing him fifteen days in which to file a third and final amended Prisoner Complaint as directed, or notify the Court in writing that he wished to dismiss the instant action. The November 12 order warned Mr. Lapointe that if he failed within the time allowed to file a third and final amended Prisoner Complaint as directed or notify the Court in writing that he wished to dismiss this action voluntarily, the instant action would be dismissed.
Mr. Lapointe has failed within the time allowed to file a third and final amended Prisoner Complaint, notify the Court in writing that he wished to dismiss the instant action, or otherwise communicate with the Court in any way. Therefore, the second amended Prisoner Complaint will be dismissed.
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. Lapointe files a notice of appeal he also must pay the full $505.00 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 second amended Prisoner Complaint (ECF No. 11) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Rene Jacques Lapointe, to file a third and final amended Prisoner Complaint as directed or notify the Court in writing that he wished to dismiss this action voluntarily, 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 5th day of December, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court