Dreismeier v. Clements et al
Filing
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ORDER of Dismissal. ORDERED that the amended Prisoner Complaint 6 and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot, 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-02998-BNB
JOSEPH JON DREISMEIER,
Plaintiff,
v.
TOM CLEMENTS (Executive Director CDOC),
JAMES FALK (Warden SCF),
RICHARD MISCHIARA (C/O IV at SCF),
C/O MCCORMICK (C/O III at SCF),
C/O CONEY (C/O II at SCF),
C/O BRUNKHARDT (C/O I at SCF), and
LARRY GRAHAM (Investigator for Inspector General’s Office),
Defendants.
ORDER OF DISMISSAL
Plaintiff, Joseph Jon Dreismeier, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the correctional
facility in Sterling, Colorado. Mr. Dreismeier initiated this action by filing pro se a civil
rights complaint (ECF No. 1) for injunctive relief and money damages asserting claims
pursuant to 42 U.S.C. § 1983 that his rights under the United States Constitution have
been violated.
On December 7, 2012, he cured a deficiency in the case by filing an amended
complaint (ECF No. 6) for money damages and injunctive relief in which the parties
named in the caption matched the parties listed in the text. On December 27, 2012,
Magistrate Judge Boyd N. Boland entered an order (ECF No. 12) directing Mr.
Dreismeier to file within thirty days a second amended complaint that complied with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and alleged the
personal participation of each named Defendant. Magistrate Judge Boland warned Mr.
Dreismeier that the action would be dismissed without further notice if he failed within
the time allowed to file a second amended complaint that complied with the December
27 order. On February 4, 2013, Magistrate Judge Boland granted by minute order (ECF
No. 14) Mr. Dreismeier’s request for an extension of time in which to file the second
amended complaint. The February 4 minute order reminded Mr. Dreismeier that the
action would be dismissed if he failed within the time allowed to file a second amended
complaint in compliance with the December 27 order.
Mr. Dreismeier has failed to file a second amended complaint as directed in the
December 27 order or otherwise communicate with the Court in any way within the time
allowed. Therefore, the amended complaint and the action will be dismissed for Mr.
Dreismeier’s failure to file a second amended complaint 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. Dreismeier files a notice of appeal he also must 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
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ORDERED that the amended Prisoner Complaint (ECF No. 6) and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Joseph Jon Dreismeier, within the time allowed, to
file a second amended complaint as directed in the order of December 27, 2012 (ECF
No. 11), 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 18th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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