Opinion
Civil Action No. 12-cv-03161-BNB
01-09-2013
DAVID TRUJILLO, Plaintiff, v. [NO NAMED DEFENDANT], Defendant.
ORDER OF DISMISSAL
Plaintiff, David Trujillo, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. He attempted to initiated the instant action by submitting pro se a letter (ECF No. 1). The Court reviewed the letter and determined it was deficient. Therefore, on December 4, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing Mr. Trujillo to cure certain enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The December 4 order pointed out that Mr. Trujillo failed to submit either the $350.00 filing fee or a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 together with a certified copy of his trust fund account statement for the six-month period immediately preceding this filing obtained from the appropriate prison official. The December 4 order also pointed out that Mr. Trujillo failed to submit a Prisoner Complaint. The order directed him to obtain, with the assistance of his case manager or the facility's legal assistant, the Court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint. The December 4 order warned Mr. Trujillo that, if he failed to cure the designated deficiencies within thirty days, the action would be dismissed without prejudice and without further notice.
Mr. Trujillo has failed to cure the designated deficiencies or otherwise communicate with the Court in any way within the time allowed. Therefore, the action will be dismissed without prejudice for Mr. Trujillo's failure to cure the designated deficiencies as directed within the time allowed, and for his failure to prosecute.
Finally, the Court certifies pursuant to § 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. Trujillo 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 action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, David Trujillo, within the time allowed, to cure all the deficiencies designated in the order to cure of December 4, 2012, and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 9th day of January, 2013.
BY THE COURT:
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LEWIS T. BABCOCK
Senior Judge, United States District Court