Horton v. Fenlon et al

Filing 4

ORDER Directing Plaintiff To Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 04/25/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01089-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
WILLIE HORTON,
Plaintiff,
v.
BLAKE DAVIS, Warden,
MARK COLLINS, Admin. Remedy Coordinator,
P. RANGEL, Unit Manager,
D. FOSTER, Counselor, and
A. FENLON, Case Manager,
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES

On April 22, 2013, Plaintiff submitted a Prisoner Complaint

As part of the

Court’s review pursuant to D.C.COLO.LCivR 8.2, the Court has determined that the
documents are deficient as described in this Order. Plaintiff will be directed to cure the
following if he wishes to pursue any claims in this Court in this action. Any papers that
Plaintiff files in response to this Order must include the civil action number on this
Order.
In a separate statement to the Court, Plaintiff asserts that he should not be
required to pay a filing fee in this case because he paid the fee in Case No. 12-cv00349-REB-BNB. Plaintiff relies on the finding in Owens v. Keeling, 461 F.3d 763 (6th
Cir. 2006), that a prisoner is not required to pay an additional filing fee when he files a
second case raising the same claims that were dismissed previously for failure to

exhaust administrative remedies.
Title 28 U.S.C. § 1914(a) provides that “[t]he clerk of each district court shall
require the parties instituting any civil action, suit or proceeding in such court, whether
by original process, removal or otherwise , to pay a filing fee of $350 . . . .” “Filing fees
are part of the costs of litigation.” Lucien v. DeTella, 141 F.3d 773, 775 (7th Cir. 1998).
Plaintiff cites no controlling authority of the United States Court of Appeals for the Tenth
Circuit for waiving a filing fee when a prisoner refiles a complaint raising the same
claims that initially were dismissed without prejudice for failure to exhaust administrative
remedies.
Furthermore, this case is distinguished from Owens. The complaint in Owens
was dismissed sua sponte. In Case No. 12-cv-349-REB-BNB, the Court conducted an
initial review and dismissed the complaint in part as legally frivolous. See Case No. 12cv-00349-REB-BNB at ECF No. 7 at 3. The remaining defendants filed a motion to
dismiss, id. at ECF No. 16, which was denied. Defendants then filed an answer, ECF
No. 21. A preliminary scheduling conference was set and held on August 6, 2012, and
finally the court granted defendants’ motion for summary judgment in part and
dismissed the action for failure to exhaust administrative remedies, ECF No. 46.
The cost of conducting a scheduling conference and addressing responsive
pleadings justifies finding that the $350.00 filing fee paid in Case No. 12-cv-00349-REBBNB covers only the cost of conducting the litigation in that case. The filing fee will not
be waived in this case. Plaintiff is required either to pay the $350.00 filing fee in this
case or in the alternative to file a motion seeking leave to proceed pursuant to 28 U.S.C.
§ 1915.

28 U.S.C. § 1915 Motion and Affidavit:
(1)
X
is not submitted
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(2)
(3)

X

(4)
(5)
(6)
(7)
(8)
(9)

X

(10)

X

is missing affidavit
is missing certified copy of prisoner’s trust fund statement for the
6-month period immediately preceding this filing
is missing certificate showing current balance in prison account
is missing required financial information
is missing authorization to calculate and disburse filing fee payments
is missing an original signature by the prisoner
is not on proper form (must use Court-approved from revised on 10/1/12)
names in caption do not match names in caption of complaint, petition or
habeas application
other: Plaintiff may in the alternative pay the $350 filing fee
in full.

Complaint, Petition or Application:
(11)
is not submitted
(12)
X
is not on proper form
(13)
is missing an original signature by the prisoner
is missing page nos.
(14)
(15)
uses et al. instead of listing all parties in caption
(16)
names in caption do not match names in text
(17)
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
other:
(18)
Accordingly, it is
ORDERED that Plaintiff cure the deficiencies designated above within thirty
days from the date of this Order. Any papers that Plaintiff files in response to this
Order must include the civil action number on this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form and the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 form (revised 10/1/12) (with the assistance of his case manager or
the facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies
within thirty days from the date of this Order, the action will be dismissed without
further notice.
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DATED April 25, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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