Opinion
Civil Action No. 11-cv-02811-BNB
03-06-2012
RANDAL PERRIN, Plaintiff, v. RON WAGER, Associate Warden, Fremont Correctional Facility, RAE TIMME, Warden, Fremont Correctional Facility, and JAY KIRBY, I.D.P.R. Administrator, Officer of Inspector General, Defendants.
ORDER OF DISMISSAL
Plaintiff, Randal Perrin, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Fremont Correctional Facility in Canon City, Colorado. Mr. Perrin initiated this action by filing a pro se Prisoner Complaint and a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 together with a certified copy of his trust fund account statement. By order dated November 17, 2011, Magistrate Judge Boyd N. Boland granted Mr. Perrin leave to proceed pursuant to § 1915 without payment of an initial partial filing fee.
On November 30, 2011, Magistrate Judge Boland determined that the Complaint was deficient because Mr. Perrin's claims were not properly asserted pursuant to 42 U.S.C. § 1983, which is reserved for challenges to the conditions of a prisoner's confinement. Instead, Magistrate Judge Boland found that Mr. Perrin's claims appeared to call into question the execution of his sentence, and therefore, must be asserted pursuant to 28 U.S.C. § 2241. Mr. Perrin was directed to file an amended pleading on the proper form. He was warned that the action would be dismissed without further notice if he failed to file an amended pleading within thirty days.
On December 19, 2011, Mr. Perrin filed a motion requesting additional time to submit the amended pleading. On December 20, 2011, Magistrate Judge Boland granted the motion and directed Mr. Perrin to file an amended pleading on or before January 30, 2012. On December 30, 2011, the December 20 Minute Order was returned to the Court as undeliverable. The envelope was marked "Refused" and "Postage Due 24 ¢". Therefore, on January 31, 2012, Magistrate Judge Boland directed the Clerk of the Court to re-mail the January 20 Minute Order to Mr. Perrin. Magistrate Judge Boland directed Mr. Perrin to file an amended pleading on or before February 29, 2012. He was again warned that his failure to file an amended pleading within the time provided would result in the dismissal of his action without further notice. Mr. Perrin has now failed to file an amended complaint, as directed by Magistrate Judge Boland, and he has not communicated with the Court since December 19, 2011. As a result, he has failed to file an amended pleading within the time allowed. Therefore, the Complaint and action will be dismissed without prejudice.
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 Plaintiff 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 this action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to file an amended pleading within the time allowed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 6th day of March, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court