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Pohlmann v. Fawcett

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
May 29, 2015
Civil Action No. 14-cv-03466-GPG (D. Colo. May. 29, 2015)

Opinion

Civil Action No. 14-cv-03466-GPG

05-29-2015

JUSTIN K. POHLMANN, Plaintiff, v. DEP. EARL FAWCETT, CPL. JACKI HURLEY, S.W.A.T. MEMBERS, ANY AND ALL INVESTIGATORS INVOLVED IN CASE No. 14CR114, LARIMER COUNTY SHERIFF'S OFFICE, DISTRICT ATTORNEY, Unknown Name, HONORABLE JUDGE O'DELL, CPL. BARRETT, DEP. A HAWKS, DEP. ROSENDALE, and UNKNOWN OFFICERS, Defendants.


ORDER OF DISMISSAL

Plaintiff Justin K. Pohlmann is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Skyline Correctional Center in Cañon City, Colorado. Plaintiff initiated this action by filing pro se a Notice of Intent to file a civil complaint. Magistrate Judge Gordon P. Gallagher entered an Order on December 26, 2014, directing Plaintiff to cure certain deficiencies if he desired to file an action. On January 15, 205, Plaintiff cured the deficiencies and was granted leave to proceed pursuant to 28 U.S.C. § 1915.

Magistrate Judge Gallagher then reviewed the merits of the Complaint, found that the Complaint failed to comply with Fed. R. Civ. P. 8, and directed Plaintiff to amend the Complaint and assert personal participation by each named defendant. Plaintiff further was directed to state what each defendant did to him, when the action was done, how the action harmed him, and what specific legal right the defendant violated. Magistrate Judge Gallagher warned Plaintiff that if he failed to comply with the Order to Amend within the time allowed the Court would dismiss the action without further notice.

On February 12, 2015, Plaintiff filed an Amended Complaint. The Amended Complaint, however, still failed to comply with Rule 8. Magistrate Judge Gallagher found Plaintiff's claims to be conclusory and vague and, again, as in the first Complaint, did not state how named Defendants participated in any alleged constitutional violations. Plaintiff also asserted claims against individuals in the body of the Amended Complaint who were not listed as named Defendants. The Amended Complaint further suffers from other deficiencies. Plaintiff failed to use all sections of the Court-approved Prisoner Complaint form or, in the alternative, provide the information requested on the form. Finally, Plaintiff named individuals as defendants who are immune from suit.

Magistrate Judge Gallagher provided Plaintiff a second opportunity to amend the Complaint and specifically told Plaintiff what deficiencies in the Amended Complaint required curing. Subsequent to the April 22, 2015 Order directing Plaintiff to file a Second Amended Complaint, Plaintiff requested an extension of time, which was granted, and then he requested appointment of counsel, which was denied. Magistrate Judge Gallagher denied the motion for appointment as unnecessary at this time, because Plaintiff had failed to convince the Court that there is sufficient merit to warrant the appointment of counsel. Plaintiff, however, was given additional time to submit the Second Amended Complaint.

The time now has run for Plaintiff to file a Second Amended Complaint, and Plaintiff has failed to comply with the April 22, 2015 Order.

The Court finds Magistrate Judge Gallagher correctly determined that Plaintiff failed to comply with Rule 8 and properly allowing Plaintiff additional time to amend the Complaint. The Court, therefore, will dismiss the action for failure to comply with a Court order and to prosecute.

The Court also 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 paupers status is 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 $505 appellate filing fee or file a motion to proceed in forma pampers in 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 to file an Amended Complaint and for failure to prosecute. It is

FURTHER ORDERED that leave to proceed in forma pampers on appeal is denied.

DATED at Denver, Colorado, this 29th day of May, 2015.

BY THE COURT:

s/Lewis T. Babcock

LEWIS T. BABCOCK, Senior Judge

United States District Court


Summaries of

Pohlmann v. Fawcett

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
May 29, 2015
Civil Action No. 14-cv-03466-GPG (D. Colo. May. 29, 2015)
Case details for

Pohlmann v. Fawcett

Case Details

Full title:JUSTIN K. POHLMANN, Plaintiff, v. DEP. EARL FAWCETT, CPL. JACKI HURLEY…

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: May 29, 2015

Citations

Civil Action No. 14-cv-03466-GPG (D. Colo. May. 29, 2015)