Opinion
Civil Action No. 12-cv-02121-BNB
09-17-2012
THOMAS K. TIENDA, Applicant, v. [NO RESPONDENTS NAMED], Respondents.
ORDER OF DISMISSAL
Applicant, Thomas K. Tienda, an inmate at the Pueblo County Detention Center in Pueblo, Colorado, initiated this action by filing pro se a letter to the Court (ECF No. 1) in which he appeared to be challenging the validity of a state court criminal conviction. On August 13, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr. Tienda to cure certain deficiencies if he wished to pursue his claims in this action. More specifically, Magistrate Judge Boland ordered Mr. Tienda to file an application for a writ of habeas corpus on the proper form and either to pay the $5.00 filing fee or to file a properly supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Tienda was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On August 20, 2012, the copy of Magistrate Judge Boland's August 13 order that was mailed to Mr. Tienda at the Pueblo County Detention Center address, which he supplied, was returned to the Court undelivered. The returned envelope (ECF No. 4) bears a sticker that reads "RETURN TO SENDER, ATTEMPTED - NOT KNOWN, UNABLE TO FORWARD."
Pursuant to Rule 10.1M. of the Local Rules of Practice of the United States District Court for the District of Colorado-Civil, a party must file a notice of new address and telephone number within five days of any change of address or telephone number. Mr. Tienda has failed to comply with the Court's local rules and, as a result, he has failed within the time allowed to cure the deficiencies as directed. Therefore, the action will be dismissed.
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 action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Tienda failed to comply with a court order. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. 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 17th day of September , 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court