Opinion
Civil Action No. 11-cv-02691-BNB
02-13-2012
JEFFREY DAVID SIZEMORE, Plaintiff, v. FEDERAL BUREAU OF PRISONS (The Entity), FPC AND FCI, FLORENCE, COLORADO (Contact Name Chris Synsboll), FPC ADMINISTRATOR GARCIA, FPC PA-1 CAMACHO, FPC CASE MANAGER PORCO, FCI CORRECTIONAL OFFICER J. WILCOX, FCI CORRECTIONAL OFFICER SANDOVAL, FCI CORRECTIONAL OFFICER WALK, FCI CORRECTIONAL OFFICER GROW, FCI CORRECTIONAL OFFICER SUDDOTH, FCI CORRECTIONAL OFFICER TROUTMAN, FCI CORRECTIONAL OFFICER PRICE, FCI CORRECTIONAL OFFICER, COULSON, FCI CORRECTIONAL OFFICER MARTINEZ (Female), FCI CAPTAIN BAUER, and S. NAFZIGER, M.D., Defendants.
ORDER OF DISMISSAL
Plaintiff, Jeffrey David Sizemore, was a prisoner in the custody of the United States Bureau of Prisons (BOP). He currently resides in Albuquerque, New Mexico. Mr. Sizemore filed pro se a Prisoner Complaint (ECF No. 1) asserting three claims for money damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He paid the $350.00 filing fee.
On November 25, 2011, the Court ordered Mr. Sizemore to show cause within thirty days why the misjoined parties in this action should not be dismissed or the claims against them severed. He also was directed to submit to the Court a separate document providing the complete address for each named Defendant.
Mr. Sizemore failed, within the time allowed, to respond to the November 25 order to show cause or otherwise to communicate with the Court in any way. Therefore, on January 4, 2012, the Court again ordered Mr. Sizemore to show cause, within fifteen days, why the instant action should not be dismissed for his failure to prosecute. On January 12, 2012, Mr. Sizemore submitted a response (ECF No. 4) to the January 4 order to show cause in which he asked to be allowed to combine his three asserted claims into one claim asserted against a Defendant he listed as:
Federal Bureau of Prisons (The Entity), FPC and FCI, Florence, Colorado (Contact Name Chris Synsboll).ECF No. 4 at 1. On January 13, 2012, he submitted two separate documents (ECF Nos. 5 and 6), providing an address for the United States Penitentiary, High Security (USP-High), in Florence, Colorado, which is not a named Defendant.
In an order entered on January 23, 2012, the Court liberally construed the January 12 response as a motion to amend, informed Mr. Sizemore he could not do what he asked because he cannot sue the BOP in a Bivens action, and denied the motion. The Court also informed Mr. Sizemore he could not circumvent the directives of the November 25 show-cause order concerning joinder by suing an improper Defendant for damages.
The January 23 order gave Mr. Sizemore one final opportunity to respond to the November 25 order to show cause within fifteen days, and directed him to specify to the Court which claims he intended to pursue against which Defendants in the instant action, and which claims against which Defendants he wanted to dismiss. The Court warned Mr. Sizemore that if, in response to the January 23 order, he again submitted a nonresponsive filing, the Court would sever the instant action into three lawsuits. Mr. Sizemore also was advised that he may petition the Court for leave to proceed in forma pauperis in the severed lawsuits; however, he still would owe $350.00 in each lawsuit, which he either could pay in installments or show cause on a monthly basis why he was unable to do so. Lastly, the January 23 order warned Mr. Sizemore that if he failed to respond within the time allowed, the complaint and the action would be dismissed without further notice.
Mr. Sizemore has failed, within the time allowed, to respond to the January 23 order, or otherwise to communicate with the Court in any way. Therefore, the complaint and the action will be dismissed without prejudice for Mr. Sizemore's failure, within the time allowed, to show cause as directed in the November 25, 2011, order.
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. Sizemore 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 complaint (ECF No. 1) and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Jeffrey David Sizemore, within the time allowed, to show cause as directed in the order of November 25, 2011, and for his failure to prosecute. It is
FURTHER ORDERED that any pending motions are denied as moot. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 13th day of February, 2012.
BY THE COURT:
_________________
LEWIS T. BABCOCK
Senior Judge, United States District Court