Opinion
Civil Action No. 11-cv-03136-BNB3
02-08-2012
ROBERT EUGENE VALCIK, Plaintiff, v. RICHARD HODGE, Doctor at Four Mile Correctional Center, and CHERRIE WILCHER, Nurse Practitioner at Four Mile Correctional Center, Defendants.
ORDER OF DISMISSAL
Plaintiff, Robert Eugene Valcik, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Crowley County Correctional Facility in Olney Springs, Colorado. He submitted to the Court pro se a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. The Court reviewed the documents and determined they were deficient. Therefore, on December 9, 2011, Magistrate Judge Boyd N. Boland directed Mr. Valcik to cure certain enumerated deficiencies in the case within thirty days if he wished to pursue his claims.
The December 9 order pointed out that Mr. Valcik either must submit the $350.00 filing fee for a civil rights action or a certified copy of his trust fund account statement for the six-month period immediately preceding this filing obtained from the appropriate prison official. Subsection (a)(2) of 28 U.S.C. § 1915 requires submission of "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined." The December 9 order and the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 note this requirement. The December 9 order warned Mr. Valcik that if he failed to cure the designated deficiencies within thirty days the complaint and the action would be dismissed without prejudice and without further notice.
Mr. Valcik has failed within the time allowed to cure the deficiencies designated in the December 9 order to cure or otherwise to communicate with the Court in any way. Therefore, the complaint and the action will be dismissed without prejudice for failure to cure the designated deficiencies as directed within the time allowed.
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. Valcik 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 complaint and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Robert Eugene Valcik, within the time allowed, to cure the deficiencies designated in the order to cure of December 9, 2011, and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is denied. It is
FURTHER ORDERED that any other pending motions are denied as moot. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 8th day of February, 2012.
BY THE COURT:
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LEWIS T. BABCOCK
Senior Judge, United States District Court