Opinion
Civil Action No. 15-cv-01556-GPG
08-04-2015
AUSTIN RAY, Plaintiff, v. ARLETA MOON, Special Agent I.R.S., EIGHT UNKNOWN FEDERAL I.R.S. AGENTS, COLORADO DEPT. OF CORRECTIONS, UNKNOWN STATE EMPLOYEES, ANNA EDGAR, A.U.S.A, GARY PACHECO, Parole Officer, State of Colorado, ERICKA MARTIN, Program Director, CMI, DOES I THRU 100, Federal and State Actors, Defendants.
ORDER OF DISMISSAL
Plaintiff Austin Ray is detained at the Federal Correctional Institution in Littleton, Colorado. He has submitted, pro se, a Prisoner Complaint asserting claims pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). ECF No. 1 at 4. Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe Plaintiff's Complaint liberally because he is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se litigant's advocate. Hall, 935 F.2d at 1110. For the reasons stated below, the Complaint and action will be dismissed.
Plaintiff is challenging his removal by federal agents from the State of Colorado Community Corrections Facility without a writ of habeas corpus ad prosequendum and his subsequent placement at a federal facility pending a federal criminal prosecution. Previously, Plaintiff filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 asserting the same claims. See Ray v. Denham, No. 15-cv-01012-LTB (D. Colo. July 7, 2015). An appeal to the Tenth Circuit is pending in Case No. 15-cv-01012-LTB. Id. at ECF No. 17.
The Court will dismiss this action for the same reasons stated in Case No. 15-cv-01012-LTB. Because the claims presented in this case are at issue in Plaintiff's pending criminal case, see United States v. Ray, No. 14-cr-00147-MSK-2, ECF No. 170 (D. Colo. Filed April 10, 2014), this Court will refrain from addressing these claims in this action pending resolution of the pending motion to dismiss that addresses these claims in Case No. 14-cr-00147-MSK-2.
The Court also 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 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 for the reasons stated above the Complaint and action are dismissed without prejudice. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED August 4, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court