Opinion
Civil Action No. 12-cv-02250-BNB
12-10-2012
FRANKIE L. MCCONNELL, Plaintiff, v. MICHELLE ABEYTA, JOHN SCOLERI, and LAURIE TOFOYA, Defendants.
ORDER OF DISMISSAL
Plaintiff, Frankie L. McConnell, was a prisoner in the custody of the Colorado Department of Corrections incarcerated at the Denver Women's Correctional Facility when she filed pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). She since has notified the Court that she has been released from imprisonment. Ms. McConnell has been granted leave to proceed pursuant to § 1915 without payment of an initial partial filing fee.
On September 4, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF No. 5) directing Ms. McConnell to file within thirty days an amended complaint on the Court-approved Prisoner Complaint form that asserted a basis for this Court's jurisdiction, was legible in compliance with Local Rule10.1E. and G. of the Local Rules of Practice for this Court, complied with Rule 8 of the Federal Rules of Civil Procedure, and asserted the personal participation of each named Defendant. The September 4 order warned Ms. McConnell that the complaint and the action would be dismissed without further notice if she failed to file an amended complaint as directed within the time allowed.
On October 3, 2012, Ms. McConnell filed an amended Prisoner Complaint (ECF No. 6) that failed to comply with the September 4 order, and requested an extension of time to file the amended complaint on the proper, Court-approved form. Id. at 1. On November 1, 2012, Magistrate Judge Boland entered a minute order (ECF No. 7) granting Ms. McConnell a thirty-day extension of time to file an amended complaint that complied with all the particulars of the September 4 order and directing the clerk of the Court to mail her, together with a copy of the November 1 minute order, the form she needed to submit the amended Prisoner Complaint. Magistrate Judge Boland's minute order warned Ms. McConnell that failure to submit within the time allowed an amended Prisoner Complaint that complied with the September 4 order would result in the dismissal of the instant action.
On December 3, 2012, Ms. McConnell submitted a notice of change of address (ECF No. 9) informing the Court that she now resided at the Arapahoe County Residential Center located at 2135 West Chenango Avenue, Littleton, CO 80120. However, Ms. McConnell failed, within the time allowed, to comply with the September 4 order and November 1 minute order. Therefore, the complaint and the action will be dismissed.
Finally, 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 Ms. McConnell files a notice of appeal she 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 amended Prisoner Complaint (ECF No. 6) and the action are dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Frankie L. McConnell, to comply with the pleading requirements of Rule 8 and the directives of the orders of September 4 and November 1, 2012. It is
FURTHER ORDERED that any pending motions are denied as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 10th day of December, 2012.
BY THE COURT:
_______________
LEWIS T. BABCOCK, Senior Judge
United States District Judge