Opinion
Civil Action No. 13-cv-00600-BNB
04-15-2013
DAWANE ARTHUR MALLETT, and LAMARCUS LEE HILLARD, Plaintiffs, v. ERIC HOLDER, JR., United States Attorney General, and DAVID. B. BERKEBILE, Warden, Defendants.
ORDER OF DISMISSAL
Plaintiffs, Dawane Arthur Mallett and Lamarcus Lee Hillard, are prisoners in the custody of the United States Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Plaintiffs initiated this action by filing pro se a Complaint (ECF No. 1) in which they appeared to be asserting constitutional claims regarding the conditions of their confinement. On March 8, 2013, Magistrate Judge Boyd N. Boland entered an order directing Plaintiffs to cure certain deficiencies if they wished to pursue any claims in this Court. Specifically, Magistrate Judge Boland ordered Plaintiff's to file an amended pleading using the Court's Prisoner Complaint form and either to pay the $350.00 filing fee or to file properly supported motions to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on the proper form. Plaintiffs were warned that any Plaintiff who failed to cure the designated deficiencies within thirty days would be dismissed as a party to this action without further notice.
Neither Plaintiff has cured the deficiencies within the time allowed and neither Plaintiff has responded in any way to Magistrate Judge Boland's March 8 order. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 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 either Plaintiff files a notice of appeal he also must pay the full $455 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 Complaint and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Plaintiffs failed to cure the deficiencies as directed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 15th day of April, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court