Opinion
Civil Action No. 12-cv-01139-BNB
06-12-2012
DAVID SPICER, Applicant, v. WARDEN BLAKE DAVIS, Respondent.
ORDER OF DISMISSAL
Applicant, David Spicer, is a prisoner in the custody of the United States Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Mr. Spicer 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) challenging the conditions of his confinement and seeking a transfer either to a state prison or a lower security federal prison. Mr. Spicer also paid the $5.00 filing fee for a habeas corpus action.
On May 4, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr. Spicer to file an amended pleading using the Court's Prisoner Complaint form because he may not challenge the conditions of his confinement in a habeas corpus action. Magistrate Judge Boland also ordered Mr. Spicer either to pay the balance of the $350.00 filing fee for a regular civil action or to file a properly supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Spicer was warned that the action would be dismissed without further notice if he failed within thirty days to file an amended pleading using the Court's Prisoner Complaint form and either to pay the balance of the filing fee or to file a properly supported motion seeking leave to proceed in forma pauperis.
Mr. Spicer has failed within the time allowed to file an amended pleading and he has failed either to pay the balance of the filing fee or to file a motion seeking leave to proceed in forma pauperis. Therefore, the action will be dismissed without prejudice for failure to comply with a court order.
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 $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 application is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Spicer failed to comply with a court order. 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 12th day of June, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court