Opinion
Civil Action No. 11-cv-02627-BNB
11-28-2011
DAWANE A. MALLETT, Plaintiff, v. BLAKE RANDY DAVIS, Defendant.
ORDER OF DISMISSAL
Plaintiff, Dawane A. Mallett, is a prisoner in the custody of the Federal Bureau of Prisons (BOP) who currently is incarcerated at the United States Penitentiary Administrative Maximum in Florence, Colorado. He initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 with the Court on October 7, 2011.
In an order filed on October 14, 2011, Magistrate Judge Boyd N. Boland ordered Mr. Mallett to cure certain enumerated deficiencies in this case within thirty days. Specifically, Magistrate Judge Boland found that Mr. Mallett's claims must be asserted pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) instead of 28 U.S.C. § 2241 because Mr. Mallett appeared to be challenging the conditions of his confinement. Therefore, Mr. Mallett was directed to submit a Prisoner Complaint on the Court-approved form. Mr. Mallett was also directed to file a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the Court-approved form and a certified copy of his prisoner's trust fund statement for the 6-month period immediately preceding the filing. He was informed that the § 1915 motion and affidavit was only necessary if the $350.00 filing fee was not paid in advance. The October 14 order warned Mr. Mallett that if he failed to cure the designated deficiencies within the time allowed, the action would be dismissed without further notice.
Mr. Mallett has not communicated with the Court since October 7, 2011. Therefore, Mr. Mallett has now failed to file a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 as directed by the October 14 Order. Mr. Mallett has failed within the time allowed to cure the designated deficiencies. 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, Dawane A. Mallett, to comply with the order to cure dated October 14, 2011. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 28th day of November, 2011.
BY THE COURT:
LEWIS T. BABCOCK
Senior Judge, United States District Court