Ramos v. Milyard et al

Filing 52

ORDER: denying as moot 48 Plaintiffs Motion to Defer Payment of Fees for the Month of February, 2011. On or before July 1, 2011, the plaintiff shall show cause in writing why this case should not be dismissed for failure to comply with the orders o f this court to either make his monthly filing fee payments or show cause each month why he cannot [Doc. 2, 5, 17, and 21]. D.C.COLO.LCivR 41.1. Failure to show cause on or before July 1, 2011, will result in my recommendation that this case be dismissed, by Magistrate Judge Boyd N. Boland on 6/7/11.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-01970-CMA-BNB
CHARLES RAMOS, JUNIOR,
Plaintiff,
v.
WARDEN KEVIN MILYARD, CDOC;
CO NAIL, CDOC;
CO HARDY, CDOC;
CO HIGGINS, CDOC;
LIEUTENANT ZWORN, CDOC; and
DENNY OWENS, Hearings Officer, CDOC,
Defendants.
______________________________________________________________________________
ORDER DENYING MOTION AND ORDER TO SHOW CAUSE
______________________________________________________________________________
This matter arises on the plaintiff’s Motion to Defer Payment of Fees for the Month of
February, 2011 [Doc. #48, filed 04/15/2011] (the “Motion”). The Motion is DENIED AS
MOOT.
In the order granting the plaintiff leave to proceed in forma pauperis pursuant to 28
U.S.C.§ 1915 [Doc. #2], the plaintiff was directed to “make monthly payments of twenty percent
(20%) of the preceding month’s income credited to his trust fund account or show cause each
month . . . why he has no assets and no means by which to make the monthly payment.” The
plaintiff was instructed that “[i]n order to show cause, the plaintiff must file a current certified
copy of his trust fund account statement.”
The plaintiff seeks a “deferral of payment of filing fees for the month of February, 2011
due to his inability to pay as is shown in th[e] certified copy of his account balance for that

month.” The plaintiff attaches to the Motion a copy of his trust fund account statement for the
months of September, October, November, and December 2010, and January, February, and
March 2011. His trust fund account statement shows that he did not have the means to make a
payment for the month of February. Therefore, the Motion is DENIED AS MOOT.
In reviewing the record, I note that the plaintiff has repeatedly been ordered to either
submit his filing fee payments or show cause each month why he cannot [Doc. 2, 5, 17, and 21].
The plaintiff has also been cautioned repeatedly that failure to make a monthly payment or show
cause each month why he cannot could result in the dismissal of the action [Docs. #2, #5, and
#21].
On November 19, 2010, the plaintiff was unequivocally ordered that on or before
December 10, 2010, he must either pay the appropriate fee or show cause why could not. He
was further cautioned that failure to do so would result in dismissal of the case:
On September 16, 2010, Plaintiff was granted leave to proceed
pursuant to 28 U.S.C. § 1915, and was directed to pay the
appropriate monthly payments or to show cause why he had no
assets and no means by which to pay the designated monthly
payments. In order to show cause, Plaintiff must file, for each
month he is unable to pay a monthly payment, a current certified
copy of his trust fund account statement. Plaintiff continues to file
letters and account statements that are not certified.
Plaintiff fails to understand that he either must pay the appropriate
monthly payment or show cause as directed in the September 16
order. Simply because Plaintiff does not have enough funds in his
trust fund account does not mean he does not need to show cause
as directed on a monthly basis. Plaintiff’s request that the Court
waive the requirement that he either make monthly payments or
show cause why he is unable to do so is DENIED.
Plaintiff shall have twenty-one (21) days from the date of this
minute order either to make a monthly filing fee payment or to
file a copy of his trust fund account statement that is certified by
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an appropriate official of Plaintiff’s penal institution. Failure to do
so within the time allowed will result in the dismissal of the instant
action.
Minute Order dated November 19, 2010 [Doc. #21] (emphasis in original).
The plaintiff did not make a payment, nor did he show cause on or before December 10,
2010. To the contrary, with the exception of one $10.00 payment on April 7, 2011 [Doc. #47],
the plaintiff has not made a monthly filing fee payment or shown cause each month why he
cannot not pay. Rather, he waited until April 15, 2011, to file the instant Motion. In addition, he
has not made a payment or shown cause for the month of May 2011.
It is not acceptable for plaintiff to meet his monthly obligations only at his convenience
or only when specifically called upon by the court. Such a procedure unreasonably burdens the
court. Accordingly,
IT IS ORDERED that on or before July 1, 2011, the plaintiff shall show cause in writing
why this case should not be dismissed for failure to comply with the orders of this court to either
make his monthly filing fee payments or show cause each month why he cannot [Doc. 2, 5, 17,
and 21]. D.C.COLO.LCivR 41.1. Failure to show cause on or before July 1, 2011, will result in
my recommendation that this case be dismissed.
IT IS FURTHER ORDERED that the plaintiff’s Motion to Defer Payment of Fees for the
Month of February, 2011 [Doc. #48] is DENIED AS MOOT.

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Dated June 7, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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