Opinion
Civil Action No. 05-cv-02286-BNB.
January 23, 2006
ORDER DIRECTING PLAINTIFF TO SUBMIT AMENDED MOTION FOR LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915
On December 6, 2005, this Court entered an order granting Plaintiff Daniel N. Robles leave to proceed pursuant to 28 U.S.C. § 1915 (Supp. 2005). On December 14, 2005, the Court received Mr. Robles's $7.00 initial partial filing fee payment. At the time Mr. Robles initiated the instant action he was incarcerated at the Denver County Jail. Although Mr. Robles was a prisoner when he initiated this action, he since has been released from custody. On January 18, 2006, the January 10, 2006, order to file an amended complaint and to show cause was returned to the Court in an envelope marked "RTS," "Returned to Sender," "Attempted Unknown" and "Released."
Also on January 18, 2006, Heather Maldonado, who alleges she is Plaintiff's daughter, submitted a change of address. In the letter, Ms. Maldonado informs the Court of Mr. Robles's new address at 305 Xavier St., Denver, CO 80219. She also asks to make partial filing fee payments in the instant action.
The clerk of the Court will be directed to mail to Mr. Robles at his new address a copy of the January 10, 2006, Order to File Amended Complaint and to Show Cause. Mr. Robles will be allowed thirty days from the date of this order in which to submit an amended complaint and to show cause as directed in the January 10 order. For the reasons stated below, Ms. Maldonado's request to make partial filing fee payments in the instant action will be denied.
Mr. Robles'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 (10th Cir. 1997); see also McGore v. Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997); In re Prison Litigation Reform Act, 105 F.3d 1131, 1138-39 (6th Cir. 1997); McGann v. Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996). Therefore, Mr. Robles will be ordered either to pay the $243.00 balance due on the $250.00 filing fee or to submit an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Accordingly, it is
ORDERED that the clerk of the Court mail to Mr. Robles at his new address a copy of the January 10, 2006, Order to File Amended Complaint and to Show Cause. It is
FURTHER ORDERED that within thirty (30) days from the date of this order Mr. Robles submit an amended complaint and show cause as directed in the January 10, 2006, order. It is
FURTHER ORDERED that the amended complaint shall be titled "Amended Prison Complaint," and shall be filed with the Clerk of the Court, United States District Court for the District of Colorado, 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. Robles two copies of the following form to be used in submitting the amended complaint: Prisoner Complaint. It is
FURTHER ORDERED that Ms. Maldonado's request to make partial filing fee payments in the instant action is denied. It is
FURTHER ORDERED that within thirty (30) days from the date of this order Mr. Robles submit either the $243.00 balance due on the $250.00 filing fee or an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. 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, United States District Court for the District of Colorado, at the above-referenced address. It is
FURTHER ORDERED that the clerk of the Court mail to Mr. Robles, together with a copy of this order, two copies of the following form for use in submitting the amended motion: Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. It is
FURTHER ORDERED that if Mr. Robles fails to submit within thirty (30) days from the date of this order an Amended Prisoner Complaint and an Amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 or the $243.00 balance due on the $250.00 filing fee, the action will be dismissed without prejudice and without further notice, It is.