Martinez v. Martinez

Full title: ANTHONY RAY MARTINEZ, Plaintiff, v. DENVER DEPUTY SHERIFF DAVID O…

Court: United States District Court, D. Colorado

Date published: Jan 24, 2007

Civil Action No. 05-cv-00171-BNB (D. Colo. Jan. 24, 2007)

Opinion

Civil Action No. 05-cv-00171-BNB.

January 24, 2007

ORDER DIRECTING PLAINTIFF TO SUBMIT AMENDED MOTION FOR LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915

BOYD BOLAND, Magistrate Judge

On January 31, 2005, the Court entered an order granting Plaintiff Anthony Ray Martinez leave to proceed pursuant to 28 U.S.C. § 1915 without payment of an initial partial filing fee. At the time Mr. Martinez initiated the instant action, he was in the custody of Colorado Department of Corrections and was incarcerated at the San Carlos Correctional Facility in Pueblo, Colorado. Although Mr. Martinez was a prisoner when he initiated this action, on January 12, 2007, he filed a Notice of Change of address informing the Court that he has been released from custody and is residing in Denver, Colorado.

Mr. Martinez's continuing obligation to pay the filing fee is to be determined, like any nonprisoner, solely on the basis of whether he qualifies for in forma pauperis status. See Whitney v. New Mexico , 113 F.3d 1170, 1171 n. 1 (10^th Cir. 1997); see also McGore v. Wrigglesworth , 114 F.3d 601, 612-13 (6^th Cir. 1997); In re Prison Litigation Reform Act , 105 F.3d 1131, 1138-39 (6^th Cir. 1997); McGann v. Commissioner, Soc. Sec. Admin. , 96 F.3d 28, 29-30 (2^d Cir. 1996). Therefore, Mr. Martinez will be ordered to submit an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Alternatively, Mr. Martinez may elect to pay the $350.00 filing fee in order to pursue his claims in this action. The January 31, 2005, Order granting Plaintiff leave to proceed pursuant to § 1915 without payment of an initial partial filing fee, therefore, will be vacated. Accordingly, it is

ORDERED that the January 31, 2005, Order granting Plaintiff leave to proceed pursuant to 28 U.S.C. § 1915 without payment of an initial partial filing fee is vacated because Mr. Martinez no longer is incarcerated. It is

FURTHER ORDERED that Mr. Martinez, submit within thirty days from the date of this Order, an original and a copy of an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Alternatively, Mr. Martinez may elect to pay the $350.00 filing fee in order to pursue his claims in this action. It is

FURTHER ORDERED that the Amended Motion shall be titled, "Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915," and shall be filed with the Clerk of the Court for the United States District Court for the District of Colorado at the Alfred A. Arraj U.S. Courthouse, 901 Nineteenth Street, Room A-105, Denver, Colorado 80294-3589. It is

FURTHER ORDERED that the Clerk of the Court mail to Mr. Martinez, at his new address, together with a copy of this Order, two copies of a Court-approved Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 form, for use by nonprisoners in submitting 28 U.S.C. § 1915 motions. It is

FURTHER ORDERED that if Mr. Martinez fails within thirty days from the date of this Order to submit an original and a copy of an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, or to pay the $350.00 filing fee, the action will be dismissed without further notice.