Opinion
Civil Action No. 15-cv-01197-GPG
07-15-2015
JOHN J. POWERS, Applicant, v. T. COZZA-RHODES, Warden, Respondent.
ORDER OF DISMISSAL
Applicant, John J. Powers, is a prisoner in the custody of the Federal Bureau of Prisons at the United States Penitentiary at Florence, Colorado. Mr. Powers initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2). On June 9, 2015, Magistrate Judge Gordon P. Gallagher entered an order directing Mr. Powers to cure a deficiency if he wishes to pursue his claims. Specifically, Magistrate Judge Gallagher noted that the habeas corpus application Mr. Powers submitted was missing two pages. One of the missing pages is the signature page. Mr. Powers was warned that the action would be dismissed without further notice if he failed to cure the deficiency within thirty days.
Mr. Powers has failed to cure the deficiency within the time allowed and he has failed to respond to Magistrate Judge Gallagher's June 9 order. Therefore, the action will be dismissed without prejudice for failure to prosecute and cure the deficiency.
Furthermore, 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 Applicant files a notice of appeal he also must pay the full $505 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 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Powers failed to prosecute and cure the deficiency as directed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2) is denied as moot.
DATED at Denver, Colorado, this 15th day of July, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court