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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH EDWARD BARBOUR

 Plaintiff,

v. Case No. 3:10cv550/MCR/MD

ACTING U.S. TREASURE, et al. 

 Defendants.

 /

O R D E R

This cause is before the court upon plaintiff filing a pleading entitled

“Amended NOA Complaint” (doc. 15), which purports to be a second amended

complaint. Plaintiff also filed a motion to proceed in forma pauperis. (Doc. 16).

Plaintiff, a prisoner proceeding pro se, commenced this action by filing a civil

rights complaint on December 20, 2010. (Doc. 1). He filed an amended complaint

on February 22, 2011. (Doc. 5). On February 24, 2011, the court dismissed this

action under 28 U.S.C. § 1915(g). (Doc. 7) Judgment was entered February 25, 2011. 

(Doc. 8). Plaintiff filed a notice of appeal on March 20, 2011. (Doc. 10). 

Plaintiff’s proposed second amended complaint shall not take effect and will 

not be considered. Plaintiff failed to obtain this court’s permission before filing his

proposed second amended complaint, see Fed. R. Civ. P. 15(a); N.D. Fla. Loc. R.

15.1. Indeed, a motion for leave to amend would be inappropriate at this juncture,

because this court’s February 24, 2011 order dismissed this action and ordered the

case closed. Judgment has been entered. Subsequent amendment of the complaint

is not possible. Czeremcha v. Int’l Ass’n of Machinists & Aerospace Workers,

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AFL–CIO, 724 F.2d 1552, 1554, 1556 n. 6 (11 Cir. 1984) (explaining that a motion for th

Although the order of dismissal indicated plaintiff could re-file his complaint if it was

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accompanied by the full $350.00 filing fee, (doc. 7) that did not authorize the filing of an amended

complaint in this case. Even if it could be so construed, plaintiff’s amended complaint was not

accompanied by the full filing fee.

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leave to amend is inappropriate where “the court has clearly indicated either that no

amendment is possible or that dismissal of the complaint also constitutes dismissal

of the action.”); see, e.g., Montford v. Moreno, No. 04-12919, 2005 WL 1369563 (11th

Cir. 2005) (affirming district court’s denial of motion to amend as moot, where

plaintiff filed motion to amend second amended complaint after the court entered an

order both dismissing the amended complaint and ordering the case closed).

Plaintiff’s motion for leave to proceed in forma pauperis (doc. 16) will be

denied. To the extent plaintiff seeks leave to so proceed in this case, his request is

moot. To the extent plaintiff seeks leave to proceed in forma pauperis on appeal,

pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24(a), this court hereby certifies that

plaintiff’s appeal is NOT taken in good faith and plaintiff is NOT entitled to proceed

on appeal in forma pauperis. The reasons for this court’s decision are outlined in

the order dated February 24, 2011. (Doc. 7). 

Accordingly, it is ORDERED:

1. The clerk shall change the docket to reflect that plaintiff’s “Amended

NOA Complaint” (doc. 15) is a “Proposed Second Amended Complaint.”

2. Plaintiff’s Proposed Second Amended Complaint (doc. 15) shall NOT

TAKE EFFECT AND WILL NOT BE CONSIDERED.

3. Plaintiff’s motion for leave to proceed in forma pauperis (doc. 16) is

DENIED AS MOOT to the extent plaintiff seeks leave to proceed in forma pauperis

in this case. To the extent plaintiff seeks leave to proceed in forma pauperis on

appeal, the motion is DENIED. Plaintiff is directed to pay the full appellate filing fee

of $455.00 within thirty (30) days from the date of this order. 

DONE AND ORDERED this 2nd day of May, 2011.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case No: 3:10cv550/MCR/MD

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