Opinion
Civil Action No. 13-cv-01936-BNB
2013-10-10
ERNEST MEDINA, Plaintiff, v. JOHN DOE, Denver County Sheriff, and JOHN DOE, Messianic Spiritual Advisor, Defendants.
ORDER OF DISMISSAL
Plaintiff, Ernest Medina, was incarcerated at the Denver County Jail when he initiated the instant action by submitting pro se a Prisoner Complaint (ECF No. 1).
The Court reviewed the document and determined it was deficient. Therefore, on August 13, 2013, Magistrate Judge Boyd N. Boland entered an amended order (ECF No. 7) directing Mr. Medina to cure certain enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The August 13 order pointed out that Mr. Medina failed to submit either the $400.00 filing fee or a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the proper, Court-approved form, i.e., the current form revised October 1, 2012, with an authorization allowing the prison facility to calculate and disburse funds from his inmate trust fund account and certificate of prison official, together with a certified copy of his trust fund account statement for the six-month period immediately preceding this filing. The order directed him to obtain, with the assistance of his case manager or the facility's legal assistant, the current Court-approved form for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. The August 13 order warned Mr. Medina that if he failed to cure the designated deficiencies within thirty days, the action would be dismissed without prejudice and without further notice.
On September 9, 2013, Mr. Medina filed a motion for sanctions (ECF No. 10) against Defendants because they allegedly failed to provide him with a certified copy of his trust fund account statement as required by the August 13 order. On September 13, 2013, Magistrate Judge Boland entered a minute order (ECF No. 11) denying the motion for sanctions and allowing Plaintiff twenty days to comply with the August 13 order by submitting either a certified copy of his trust fund account statement or written documentation demonstrating prison officials' refusal to provide him with such a statement. On September 23, 2013, the copy of the September 13 minute order mailed to Mr. Medina was returned to the Court as undeliverable because he had been released from confinement. See ECF No. 12.
Mr. Medina has failed to cure the designated deficiencies within the time allowed or otherwise to communicate with the Court in any way. Therefore, the action will be dismissed without prejudice for Mr. Medina's failure to cure the designated deficiencies as directed within the time allowed.
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. Medina files a notice of appeal he 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 Prisoner Complaint (ECF No. 1) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Ernest Medina, to cure the deficiencies designated in the amended order to cure of August 13, 2013, within the time allowed, 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. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to Mr. Medina at his last known address.
DATED at Denver, Colorado, this 10th day of October, 2013.
BY THE COURT:
______________________
CHRISTINA M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court