Crownhart v. People of Mesa County, The et al

Filing 17

ORDER Denying 2 Leave to Proceed in Forma Pauperis, by Judge Lewis T. Babcock on 8/7/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01524-BNB

EARL J. CROWNHART,
Plaintiff,
v.
THE PEOPLE OF MESA COUNTY,
THE PEOPLE OF COLORADO, and
SKIP CROWNHART,
Defendants.

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS

Plaintiff Earl J. Crownhart, is incarcerated at the Colorado Mental Health Institute
in Pueblo, Colorado. On June 12, 2012, Mr. Crownhart filed a Prisoner Complaint and
a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
Magistrate Judge Boyd N. Boland then entered an Order to Show Cause, on July 2,
2012, instructing Mr. Crownhart to show cause why the Court should not deny him leave
to proceed pursuant to 28 U.S.C. § 1915 because he is subject to the filing restrictions
in 28 U.S.C. § 1915(g). For the reasons stated below, Mr. Crownhart will be denied
leave to proceed pursuant to § 1915.
In relevant part, § 1915 provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on

the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Magistrate Judge Boland noted in the Order to Show Cause, Mr.
Crownhart has filed more than three actions in a court of the United States while he was
incarcerated or detained in any facility that were dismissed as frivolous or for failure to
state a claim. Crownhart v. Hernandez, et al., No. 09-cv-00357-MJW-KLM (D. Colo.
Oct. 9, 2009) (dismissed for failure to state a claim under Fed. R. Civ . P. 12(b)(6));
Crownhart v. Sullivan, et al., No. 08-cv-02009-ZLW (D. Colo. Nov. 26, 2008) (dismissed
as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i)), aff’d, No. 08-1483 (10th Cir. Oct.
5, 2009) (district court’s dismissal counts as a strike under 28 U.S.C.
§ 1915(g) as well as the appeal); Crownhart v. People of State of Colo., et al., No. 08cv-00063-ZLW (D. Colo. Feb. 21, 2008) (dismissed as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i)); Crownhart v. Abbott, et al., No. 07-cv-02241-ZLW (D. Colo. Jan. 28,
2008) (dismissed as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i)).
On July 11, 2012, Mr. Crownhart responded to Magistrate Judge Boland’s Order
to Show Cause. The Response fails to address his § 1915(g) restrictions and to state if
he is in imminent danger of serious physical injury. Therefore, the Court finds that
because Mr. Crownhart fails to assert that he is in imminent danger and because he has
filed at least three actions in a federal court that have been dismissed as either legally
frivolous or for failure to state a claim his Motion to proceed pursuant to § 1915 will be
denied.
If Mr. Crownhart wishes to pursue his claims in this action he must pay the
$350.00 filing fee in full pursuant to 28 U.S.C. § 1914(a). Mr. Crownhart is reminded
2

that, even if he pays the filing fee in full, a review of the merits of his claims is subject to
28 U.S.C. § 1915(e)(2), and the action may be dismissed notwithstanding any filing fee
if the claims are found to be frivolous or malicious, lacking in merit, or asserted against
a defendant who is immune from suit. Accordingly, it is
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 is denied. It is
FURTHER ORDERED that Mr. Crownhart shall have thirty days from the date
of this Order to pay $345.00, which is the balance of the $350.00 filing fee that he
owes, if he wishes to pursue his claims in this action. It is
FURTHER ORDERED that if Mr. Crownhart fails to pay the $345.00 balance
within the time allowed, the Complaint and the action will be dismissed without further
notice. It is
FURTHER ORDERED that the only proper filing at this time is the $345.00
payment.
DATED at Denver, Colorado, this

7th

day of

August

, 2012.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

3