Pinson v. Berkebile et al
Filing
27
ORDER to Dismiss in Part and to Amend. ORDERED that the Motion to Reconsider 25 is construed as a Notice of Voluntary Dismissal in part and a request to file an Amended Complaint in part. Mr. Villatoro and Mr. Bacote are dismissed from this a ction pursuant to the Notice of Voluntary Dismissal. Mr. Pinson's request to amend is granted. He shall thirty days from the date of this Order to file one last Amended Complaint in keeping with this Order. If within thirty days of the date of this Order Mr. Pinson fails to comply with this Order the Court will dismiss the action without further notice, by Judge Lewis T. Babcock on 3/18/13.(sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02802-BNB
JEREMY PINSON,
Plaintiff,
v.
DAVID BERKEBILE,
PATRICIA RANGEL,
OFFICER ANDERSON,
OFFICER BOYER,
RUSS KRIST,
OFFICER KILMER,
OFFICER SUTTON,
OFFICER McAVOY,
LIEUTENANT SHORTIS, and
JOHN DOES 1-5,
Defendants.
ORDER TO DISMISS IN PART
AND TO AMEND
On December 27, 2012, Magistrate Judge Boyd N. Boland granted Mr. Pinson
leave to proceed pursuant to 28 U.S.C. § 1915 because he had shown that he was in
imminent danger of serious physical injury in the Amended Complaint he filed on
December 19, 2012. Subsequently, on January 11, 2013, Mr. Pinson and two other
inmates, Erwin Villatoro and Michael Bacote, filed a Supplement to Complaint and a
Motion for Order. Messrs. Villatoro and Bacote also signed and submitted a joint
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
Magistrate Judge Boland then entered an order on January 17, 2013, instructing
all parties to file a proper Court-approved prisoner complaint form that includes all
claims and named parties and to submit a 28 U.S.C. § 1915 motion for each named
plaintiff. On January 25, 2013, Mr. Pinson filed a Motion to Vacate Order. In the
Motion, Mr. Pinson indicated that Mr. Villatoro and Mr. Bacote no longer desired to
continue with this action and that he now desires to proceed only with the claims he
asserted in the December 19 Amended Complaint. The Court denied the January 25
Motion because all parties had not signed the Motion. On February 19, 2013, all
parties submitted a Motion to Reconsider, in which again Mr. Villatoro and Mr. Bacote
stated they no longer desired to proceed with the action and Mr. Pinson stated he
desired to dismiss Defendant Shortis and identify certain other defendants.
Mr. Pinson was granted leave to proceed pursuant to 28 U.S.C. § 1915 because
he was in imminent danger of serious physical injury. Over two months have passed
since Mr. Pinson filed the Amended Complaint that the Court believed justified
imminent danger. Because Mr. Pinson has caused the delay in this action, the
immediacy of his claims are now questionable. The Court, nonetheless, will allow Mr.
Pinson one last chance to amend and state “specific fact allegations of ongoing
serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent
serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)
(emphasis added). Mr. Pinson is instructed that in support of his allegations he is to
state the date that each specific act took place and the name of the specific individual
that was responsible for the alleged act. Accordingly, it is
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ORDERED that the Motion to Reconsider, ECF No. 25, is construed as a Notice
of Voluntary Dismissal in part and a request to file an Amended Complaint in part. It is
FURTHER ORDERED that Mr. Villatoro and Mr. Bacote are dismissed from this
action pursuant to the Notice of Voluntary Dismissal. It is
FURTHER ORDERED that Mr. Pinson’s request to amend is granted. He shall
thirty days from the date of this Order to file one last Amended Complaint in keeping
with this Order. Court-approved prisoner complaint forms are available (with the
assistance of a case manager or the facility’s legal assistant), along with the applicable
instructions, at www.cod.uscourts.gov for use in amending the Complaint. It is
FURTHER ORDERED that if within thirty days of the date of this Order Mr.
Pinson fails to comply with this Order the Court will dismiss the action without further
notice.
DATED March 18, 2013, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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