Opinion
Civil Action No. 12-cv-00762-BNB
05-11-2012
STEVEN DOUGLAS McCARY, Applicant, v. TRAVIS TRANI, and JOHN SUTHERS, Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
On March 30, 2012, Magistrate Judge Boyd N. Boland entered an order directing Applicant, Steven Douglas McCary, to file an amended application that clarifies the specific federal constitutional claims he is asserting and that includes specific factual allegations in support of each asserted claim. Mr. McCary was warned that the action would be dismissed without further notice if he failed to file an amended application within thirty days.
On April 26, 2012, Mr. McCary submitted to the United States Court of Appeals for the Tenth Circuit a letter stating that he was directed by Magistrate Judge Boland to request permission to file a habeas corpus action. (See ECF No. 6.) That same day, the Office of the Clerk for the Tenth Circuit sent a letter to Mr. McCary stating that, based on a review of this Court's docket in this action, Mr. McCary was ordered by Magistrate Judge Boland to file an amended application but "[t]here was no instruction in that particular order to seek permission from [the Tenth Circuit] to proceed." (ECF No. 6-1.) Copies of these letters were forwarded to this Court and have been entered on the docket in this action. Mr. McCary has not filed any documents in this Court in response to Magistrate Judge Boland's March 30 order.
Mr. McCary has failed to file an amended application within the time allowed. Therefore, the action will be dismissed without prejudice for failure to comply with Magistrate Judge Boland's March 30 order.
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 Applicant 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 habeas corpus application is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. McCary failed to comply with a court order. 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 11th day of May , 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court