Eller v. Hartley et al

Filing 20

ORDER by Magistrate Judge Boyd N. Boland on 09/13/13 Directing Plaintiff to Submit Amended Motion for Leave to Proceed Pursuant to 28 U.S.C. 1915, and denying as moot 3 Motion for Leave to Proceed in Forma Pauperis; denying as premature 4 Mot ion for Leave to Proceed; denying as premature 10 Motion for Leave to Proceed with Subpoena Services; denying as moot 12 Motion for Leave to Proceed in Forma Pauperis; denying as moot 13 Motion for Leave to Proceed in Forma Pauperis. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02029-BNB
WILLIAM ELLER,
Plaintiff,
v.
STEVE HARTLEY,
DARYL VIGIL,
RENEE APODACA,
MR. RICHA, [First] Name Unknown,
MR. POUNDS, [First] Name Unknown,
PENNY SPEARING, and
GLENNA CLAUNCH,
Defendants.

ORDER DIRECTING PLAINTIFF TO SUBMIT AMENDED MOTION
FOR LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915

When Plaintiff, William Eller, initiated the instant action, he was a prisoner in the
custody of the Colorado Department of Corrections incarcerated at the correctional
facility in Sterling, Colorado. In a notice filed with the Court on September 5, 2013 (ECF
No. 18), Plaintiff indicates that he has been released from the Sterling Correctional
Facility and resides in Fruita, Colorado. He has failed to clarify as directed in the minute
of August 23, 2013 (ECF No. 15), whether he currently is on parole.
In any event, Plaintiff’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, Plaintiff
will be ordered to submit an amended Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915. Alternatively, Plaintiff may elect to pay the $400.00 filing
fee to pursue his claims in this action. Accordingly, it is
ORDERED that within thirty (30) days from the date of this order Plaintiff
submit to the Court an amended Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 used by nonprisoners. Alternatively, Plaintiff may elect to pay the
$400.00 filing fee to pursue his claims in this action. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved form used in
filing a nonprisoner Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that if Plaintiff fails to comply with the instant order, within
thirty days of the date of this order, the Complaint and action will be dismissed without
further notice. It is
FURTHER ORDERED that the following documents are denied as moot because
Plaintiff no longer is incarcerated: “Affidavit and Declarations of Indigency” (ECF No. 3)
filed on July 31, 2013; “Motion: To Proceed In Forma Pauperis” (ECF No. 12) filed on
August 21, 2013; and “Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915” (ECF No. 13) filed on August 21, 2013. It is
FURTHER ORDERED that the motion for leave to proceed without appointment
of magistrate judge (ECF No. 4) filed on July 31, 2013; and the combination “Motion
[for] Leave to Proceed With Subpoena Services” and motion titled “Order and Order

Directing Service by the United States Marshal Without Prepayment of Costs” (ECF No.
10) filed on August 21, 2013, are denied as premature.
DATED September 13, 2013, at Denver, Colorado.
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge