Opinion
Civil Action No. 12-cv-00674-BNB
05-01-2012
FRANK J. POWELL, Applicant, v. [NO NAMED RESPONDENT], Respondent.
AMENDED ORDER OF DISMISSAL
Applicant, Frank J. Powell, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Fremont Correctional Facility in Canon City. He initiated this action by filing pro se a document titled "Petition for Violation of Constitutional Rights Under the 14th, 6th and 5th Amendments" (ECF No. 1).
On March 20, 2012, as part of the Court's review pursuant to D.C.COLO.LCivR 8.2, Magistrate Judge Boyd N. Boland ordered Mr. Powell to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Boland ordered Mr. Powell to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action together with a certificate of the warden showing the current balance in his prison account. Magistrate Judge Boland also directed Mr. Powell to file a 28 U.S.C. § 2254 habeas corpus application on the proper, Court-approved form. The March 20 order directed Mr. Powell to obtain the Court- approved forms to file the § 1915 motion and affidavit and § 2254 application, along with the applicable instructions, at www.cod.uscourts.gov . Lastly, Magistrate Judge Boland warned Mr. Powell that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On April 27, 2012, the Court entered an order of dismissal, noting that Mr. Powell had failed to cure the designated deficiencies within the time allowed, or otherwise to communicate with the Court in any way. Therefore, the Court denied the application and dismissed the action without prejudice for failure to cure the deficiencies designated in the March 20 order to cure, and for Mr. Powell's failure to prosecute.
At the time the April 27 dismissal order was entered, the Court was unaware that Mr. Powell had submitted in the instant action a Prisoner Complaint pursuant to 28 U.S.C. § 1983 (ECF No. 5) and Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4), which the Court docketed on April 26, 2012. However, the submitted documents do not comply with the March 20 order to cure for the following reasons. Mr. Powell has failed to use the proper, Court-approved form in a habeas corpus action as directed in the March 20 order to cure. Instead, he has filed on the Prisoner Complaint form a habeas corpus action that appears to be challenging the validity of his conviction and sentence pursuant to 28 U.S.C. § 2254 and/or the execution of his sentence pursuant to 28 U.S.C. § 2241, not the conditions of his confinement pursuant § 1983. In addition, the § 1915 motion does not contain a certified copy of Mr. Powell's trust fund account statement for the six-month period immediately preceding this filing, as required in a § 1983 civil rights action, or a certificate showing the current balance in his prison account, as required in a habeas corpus action pursuant to §§ 2241 and 2254.
Therefore, the documents submitted on April 26 do not cure the designated deficiencies, and the Prisoner Complaint and the action will be dismissed for Mr. Powell's failure to cure the designated deficiencies as directed within the time allowed.
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 Mr. Powell files a notice of appeal he must also 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. 5) and action are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for the failure of Applicant, Frank J. Powell, to cure within the time allowed the deficiencies designated in the order to cure of March 20, 2012. It is
FURTHER ORDERED that the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4) and the document titled "Petition for Violation of Constitutional Rights Under the 14th, 6th and 5th Amendments" (ECF No. 1) are denied as moot. It is
FURTHER ORDERED that, to the extent it may apply, no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that any other pending motions are denied as moot. It is
FURTHER ORDERED that the clerk of the Court correct the caption to read as it is shown on the order to cure of March 20, 2012 (ECF No. 3).
DATED at Denver, Colorado, this 1st day of May, 2012.
BY THE COURT:
__________________
LEWIS T. BABCOCK, Senior Judge
United States District Court