Opinion
Civil Action No. 16-cv-00064-GPG
04-11-2016
PAUL ROMERO, Plaintiff, v. JOSHUA SULLIVAN, FRED PAULSON, and JANE DOE, Defendants.
ORDER FOR AMENDED IN FORMA PAUPERIS MOTION AND TO AMEND COMPLAINT
Plaintiff Paul Romero is currently a resident of Westminster, Colorado. On January 11, 2016, he initiated this action by filing pro se a Prisoner Complaint for events that occurred while he was incarcerated at the Delta Correctional Center, the Colorado Territorial Correctional Facility, and the Buena Vista Correctional Complex. (ECF No. 1). He was granted leave to proceed in forma pauperis. (ECF No. 4). At the time he initiated this action, he was in the custody of the Colorado Department of Corrections.
On February 4, 2016, after review of the claims, Magistrate Judge Gallagher directed Plaintiff to file an Amended Complaint that (1) complies with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure; (2) asserts personal participation by each defendant in the constitutional violation; (3) identifies which Defendant or Defendants he is asserting each claim against; and (4) adequately asserts facts that demonstrate the objective and subjective component for a claim of deliberate indifference to a serious medical need. (ECF No. 5). Magistrate Judge Gallagher warned Plaintiff that if he failed to amend within the time allowed the action would be dismissed. On March 1, 2015, Magistrate Judge Gallagher granted Mr. Romero an extension of time to file an Amended Complaint (ECF No. 7).
On April 1, 2016, Plaintiff filed an Amended Complaint. (ECF No. 8). The Court construes the Amended Complaint filed by Mr. Romero liberally because he is not represented by an attorney. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See id. at 1110.
After reviewing the Amended Complaint pursuant to D.C.COLO.LCivR 8.1 (a) and (b), the Court finds that it is deficient. The Amended Complaint was not filed on the court-approved form. Plaintiff was specifically directed in the Court's February 4, 2016 Order to obtain the court-approved Prisoner Complaint form and use that form to file his amended complaint. (ECF No. 5 at 6). Local Civil Rules 1.2 and 5.1(c) for this Court require pro se litigants to use the Court-approved forms found on the Court's website. The United States Court of Appeals for the Tenth Circuit repeatedly has upheld the requirement that pro se litigants comply with local court rules requiring use of proper Court-approved forms, and rejected constitutional challenges to such rules. See Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district court did not abuse its discretion in dismissing civil rights action without prejudice for federal prisoner's noncompliance with local rules requiring use of proper court-approved form to file complaint and district court's order to comply), Durham v. Lappin, 346 F. App'x 330, 332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss prisoner's complaint for failure to comply with local rules requiring pro se litigants to use court-approved forms, and local rule did not violate prisoner's equal protection rights). As Plaintiff is no longer a prisoner, he may use the court-approved complaint form for nonprisoners.
Furthermore, now that Plaintiff is no longer incarcerated, his 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). Therefore, Plaintiff will be ordered to submit, on the court-approved form, an Application to Proceed in District Court Without Prepaying Fees or Costs, which is the in forma pauperis form used by nonprisoners. Alternatively, Plaintiff may elect to pay the $400.00 filing fee to pursue his claims in this action.
Accordingly, it is
ORDERED that Mr. Romero file, within thirty (30) days from the date of this order, an Amended Complaint as directed in this Order and the Court's February 4, 2016 Order. It is
FURTHER ORDERED that Mr. Romero shall obtain the court-approved Complaint form, along with the applicable instructions, at www.cod.uscourts.gov, and use that form to file his amended complaint. It is
FURTHER ORDERED that Mr. Romero shall obtain and submit within thirty (30) days from the date of this order the court-approved Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form), which can be found at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Romero fails to file on the Court-approved forms an Amended Complaint and an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) within the time allowed, the action will be dismissed without further notice.
DATED April 11, 2016, at Denver, Colorado.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge