Opinion
Civil Action No. 12-cv-01088-BNB
07-26-2012
TEDDY SPEARMAN, Plaintiff, v. S. COLLINS, Health Service Administrator, B. CINK, P[.]A. Medical Staff, and DR. ALLFRED, Clinical Director, Defendants.
ORDER OF DISMISSAL
Plaintiff, Teddy Spearman, is a prisoner in the custody of the Colorado Department of Corrections who was incarcerated at the United States Penitentiary in Florence, Colorado, when he initiated the instant action by filing pro se a prisoner complaint (ECF No. 1) pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Spearman seeks money damages and injunctive relief. He has since notified the Court that he is being transferred to an unspecified prison facility.
On May 18, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF No. 8) granting Mr. Spearman leave to proceed pursuant to 28 U.S.C. § 1915, and directing him to either pay a $4.00 initial partial filing fee within thirty days or show cause why he has no assets and no means by which to pay the designated initial partial filing fee. The May 18 order informed Mr. Spearman that, in order to show cause, he must file a certified copy of his trust fund account statement. On June 20, 2012, Magistrate Judge Boland entered a minute order (ECF No. 12) granting Mr. Spearman a thirty-day extension of time in which to comply with the directives of the May 18 order.
On July 23, 2012, after the deadline for paying the initial partial filing fee expired, Mr. Spearman filed a notice of change of address, informing the Court that he was being transferred to a new institution unknown to him at the time. He did not request an extension of time to comply with the May 18 order or mention his obligation to pay the $4.00 initial partial filing fee. Mr. Spearman has failed, within the time allowed, to pay the initial partial filing fee or show cause as directed why he is unable to do so. Therefore, the complaint and the action will be dismissed.
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. Spearman files a notice of appeal he also must 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, Teddy Spearman, to comply with the directives of the order of May 18, 2012 (ECF No. 8). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to Mr. Spearman at his last known address.
DATED at Denver, Colorado, this 26th day of July, 2012.
BY THE COURT:
____________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court