Opinion
Civil Action No. 13-cv-00466-BNB
04-04-2013
DEMETRICK SMITH, Plaintiff, v. BERKEBILE, Trustee/Warden, and FEDERAL BUREAU OF PRISONS, Defendants.
ORDER OF DISMISSAL
Plaintiff, Demetrick Smith, is a prisoner in the custody of the United States Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Mr. Smith initiated this action by filing pro se a document titled "Jurisdiction of Court Pursuant to 28-USCS-1361" (ECF No. 1) in which he complained about the conditions of his confinement and sought judicial relief. On February 25, 2013, Magistrate Judge Boyd N. Boland entered an order directing Mr. Smith to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Boland directed Mr. Smith to file a Prisoner Complaint and either to pay the $350.00 filing fee or to file a properly supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Smith was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On March 11, 2013, Mr. Smith filed a letter to the Court (ECF No. 4), a document titled "28 U.S.C. § 1915 Motion and Affidavit" (ECF No. 5), and a motion to compel (ECF No. 6). On March 25, 2013, Mr. Smith filed a document titled "28 U.S.C. § 1915 Motion and Affidavit of Evidence Affidavit and Evidence" (ECF No. 7). However, Mr. Smith has failed to cure the deficiencies within the time allowed because he has failed to file a Prisoner Complaint and he has failed either to pay the $350.00 filing fee or to file a properly supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on the proper form. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies.
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 Plaintiff files a notice of appeal he also must pay the full $455 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 action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Smith failed to cure the deficiencies as directed. It is
FURTHER ORDERED that the "28 U.S.C. § 1915 Motion and Affidavit" (ECF No. 5), the motion to compel (ECF No. 6), and the "28 U.S.C. § 1915 Motion and Affidavit of Evidence Affidavit and Evidence" (ECF No. 7) are denied as moot. 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.
DATED at Denver, Colorado, this 4th day of April, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court