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SALE v. ANDERS, 14-cv-02728-GPG. (2016)

Court: District Court, D. Colorado Number: infdco20160127d82 Visitors: 11
Filed: Jan. 25, 2016
Latest Update: Jan. 25, 2016
Summary: ORDER OF DISMISSAL LEWIS T. BABCOCK , Senior District Judge . Plaintiff is in the custody of the Arizona Department of Corrections and currently is incarcerated at the Arizona prison facility in Florence, Arizona. Plaintiff, acting pro se, initiated this action by filing a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. 1915. Magistrate Judge Gordon P. Gallagher entered an order on December 17, 2015, that found deficiencies with the C
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ORDER OF DISMISSAL

Plaintiff is in the custody of the Arizona Department of Corrections and currently is incarcerated at the Arizona prison facility in Florence, Arizona. Plaintiff, acting pro se, initiated this action by filing a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.

Magistrate Judge Gordon P. Gallagher entered an order on December 17, 2015, that found deficiencies with the Complaint and § 1915 Motion. Plaintiff was directed to submit a certified prisoner's trust fund account statement for the six-month period immediately preceding the filing of this action and to use a Court-approved form that is used in this Court when filing prisoner complaints and to provide all true and accurate information.

Magistrate Judge Gallagher also noted in the December 17 Order that Plaintiff had identified his ADOC Inmate No. as 063416, and that in Salerno v. Patton, et al., No. 13-01560-PHX-ROS (LOA), (D. Ariz. Jan. 3, 2014), a Mr. Fox Joseph Salerno indicated his inmate number also is 063416. Mr. Salerno was sanctioned with 28 U.S.C. § 1915(g) filing restrictions in Case No. 13-01560-PHX-ROS(LOA) at ECF No. 42. Magistrate Judge Gallagher further noted that in this case Plaintiff either is using another prisoner's inmate number or he has fraudulently stated his name as Joseph Fox Sale.

Moreover, Magistrate Judge Gallagher found in the December 17 Order that on Page 26 of the Complaint, where Plaintiff provides information about previous lawsuits in the E. Previous Lawsuits section, he carefully refrains from stating whether he has filed any cases in the State of Arizona. Plaintiff was instructed that the Court-approved form used in this Court for prisoner complaints requires a prisoner to state if he has ever filed any lawsuits in any federal district or state court while he has been incarcerated, and that he had failed to provide this information in the Complaint.

Finally, Plaintiff was told that providing fraudulent information to a Court is an abuse of the judicial system. Plaintiff was further warned that this Court will not tolerate abusive filings or the abuse of the federal court system. Plaintiff, therefore, was directed to submit an affidavit in which he attests to what his name is and associated ADOC inmate number. Plaintiff also was directed to complete the Court-approved Prisoner Complaint form and provide true and accurate information regarding any and all cases he has filed in both federal and state courts.

Plaintiff now has failed to communicate with the Court and to comply with the December 17, 2015 Order within the time allowed. The action, therefore, will be dismissed without prejudice for failure to cure the deficiencies.

The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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 Plaintiff files a notice of appeal he must pay the full $505 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 Fed. R. Civ. P. 41(b) for failure to cure the deficiencies and for failure to prosecute. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is

FURTHER ORDERED that all pending motions are denied as moot.

FootNotes


1. Plaintiff states and has provided an inmate trust account statement that indicates his inmate number is 063416. The Court has reviewed both the Public Access to Court Electronic Records (PACER) and the Arizona Department of Corrections (ADOC) Website. The Court found on the ADOC Website that the name of the prisoner who is assigned Inmate No. 063416 is Fox J. Salerno. Also, PACER indicates on the Docket in many prisoner cases filed in the United States District Court for the District of Arizona that a Mr. Fox Joseph Salerno, who is an ADOC inmate also has Inmate No. 063416. Based on these records, Mr. Joseph Fox Sale appears to be the same person as Mr. Fox Joseph Salerno.
Source:  Leagle

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