Opinion
Civil Action No. 12-cv-02763-BNB
01-22-2013
DANIEL PINO, Plaintiff, v. CDOC ADMINISTRATIVE REGULATIONS 300-26; 850-06, AMENDMENTS (Sexually Explicit Materials), and TOM CLEMENTS, Exec. Director (Corporate), Defendants.
ORDER OF DISMISSAL
Plaintiff, Daniel Pino, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Arkansas Valley Correctional Facility in Crowley, Colorado. Mr. Pino initiated this intended class action by filing pro se on October 17, 2012, a Prisoner Complaint (ECF No. 1) on behalf of himself and "CDOC Inmates, Et. [sic] Al. (A diversity of Citizenship class)," id. at 1. Mr. Pino asked for money damages, declaratory relief, and a "judicial interpretation as to the Constitutional safeguards and liberty interest 'individually' concerning the respects to private property, creativity and the rights to personal publication of Works, Expressive Art etc. etc." Id. at 15. Mr. Pino was granted leave to proceed pursuant to 28 U.S.C. § 1915.
On December 13, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Pino to file within thirty days an amended complaint that did not assert claims on behalf of other individuals, alleged a redressable injury, complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and asserted the personal participation of each named Defendant. The December 13 order warned Mr. Pino that the Prisoner Complaint and the action would be dismissed without further notice if he failed to file an amended Prisoner Complaint as directed within the time allowed.
Mr. Pino has failed within the time allowed to file an amended complaint as directed in the December 13 order, or otherwise to communicate with the Court in any way. Therefore, the complaint and the action will be dismissed without prejudice for failure to file an amended complaint that complies with the directives of the December 13 order within the time allowed, and for his failure to prosecute.
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. Pino 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 complaint 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, Daniel Pino, within the time allowed, to file an amended Prisoner Complaint as directed in the order of December 13, 2012, 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.
DATED at Denver, Colorado, this 22nd day of January, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court