Opinion
Civil Action No. 12-cv-00109-BNB
03-27-2012
ROY C. O'DONNELL, Plaintiff, v. LISA GLASKO, Director of Time to Change, Defendant.
ORDER OF DISMISSAL
Plaintiff, Roy C. O'Donnell, is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon City, Colorado. Mr. O'Donnell, acting pro se, initiated this action by filing a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. In an order entered on February 17, 2012, Magistrate Judge Boyd N. Boland granted Mr. O'Donnell leave to proceed pursuant to § 1915 and instructed him to pay a $28.00 initial partial filing fee. Magistrate Judge Boland also instructed Mr. O'Donnell that if he is unable to pay the initial partial filing fee he must file a current certified account statement that shows cause why he has no assets and no means by which to pay the fee.
Magistrate Judge Boland warned Mr. O'Donnell that the action would be dismissed without further notice if either he failed to pay the initial partial fee within thirty days or in the alternative he failed to show cause why he is unable to do so. On February 24, 2012, rather than submit a certified inmate account statement, Mr. O'Donnell filed a letter that was sent to him from the Social Security Administration (SSA). Mr. O'Donnell attached to the letter a portion of an account statement that notes two deposits made on February 7, 2012, and wrote on the letter that he is unable to pay the $28.00. He also states on the letter that the Court should waive the $350.00 filing fee because the SSA will not pay his disability benefits.
The February 24 filing does not comply with 28 U.S.C. § 1915 or the February 17 Order. The action will be dismissed without prejudice for failure to comply because Mr. O'Donnell has failed either to pay the $28.00 initial partial filing fee or to show cause as required under § 1915 why he is unable to do so.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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. O'Donnell files a notice of appeal he must also 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 action are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure either to pay the initial partial filing fee or in the alternative to show cause. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 27th day of March, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Judge
United States District Court