Crosby v. Federal Bureau of Prison

Filing 46

ORDER adopting Report and Recommendations re 40 Report and Recommendations.; granting 28 Motion for Reconsideration ; Plaintiffs Objection to the Recommendation ECF No. 41 is OVERRULED; The Order granting Plaintiffs Motion and Affidavit fo r Leave to Proceed Pursuant to 28 U.S.C. § 1915 ECF No. 7 is VACATED to the extent that it permitted Plaintiff to proceed in forma pauperis, and Plaintiffs in forma pauperis status is REVOKED; Plaintiff is DIRECTED to pay the $399.00 ba lance of the $400.00 filing fee within 45 days of receipt of this Order in order to pursue his claims in this action; and Defendants request in the Motion for an extension of time to respond to the Amended Complaint is GRANTED, and Defendants response deadline is STAYED until further order of the Magistrate Judge, by Judge William J. Martinez on 8/28/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2046-WJM-KMT
GREGORY D. CROSBY, aka GREGORY D. COSBY, aka GREGORY D. COSMO
COSBY,
Plaintiff,
v.
R. TALLION, Senior Officer Sp. Lt.,
Defendant.

ORDER ADOPTING JULY 21, 2014 RECOMMENDATION OF MAGISTRATE JUDGE
AND REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS

This matter is before the Court on the July 21, 2014 Recommendation of U.S.
Magistrate Judge Kathleen M. Tafoya (“Recommendation”) that former Defendant
Federal Bureau of Prisons’ Motion to Reconsider Granting Plaintiff In Forma Pauperis
Status and Motion for Extension of Time (“Motion”) (ECF No. 28) be granted. (ECF No.
40.) The Recommendation is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b). Pro se Plaintiff Gregory D. Crosby (“Plaintiff”) filed
a timely objection to the Recommendation (“Objection”). (ECF No. 41.) For the
foregoing reasons, the Court overrules the Objection, adopts the Recommendation, the
order granting Plaintiff in forma pauperis status, and revokes Plaintiff’s in forma
pauperis status.
I. LEGAL STANDARD
The Tenth Circuit has held that orders denying in forma pauperis status are

dispositive orders, and that magistrate judges considering such matters must issue a
report and recommendation for a decision by the district court. Lister v. Dep’t of
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). W hen a magistrate judge issues a
recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3)
requires that the district judge “determine de novo any part of the magistrate judge’s
[recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
In the absence of a timely and specific objection, “the district court may review a
magistrate . . . [judge’s] report under any standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150
(1985)); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face
of the record.”). In conducting its review, “[t]he district court judge may accept, reject, or
modify the recommendation; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe
his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as
an advocate for Plaintiff, who must still comply with the fundamental requirements of
the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
II. DISCUSSION
Neither party objects to the recitation of facts set forth by the Magistrate Judge in

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the Recommendation. (ECF No. 40 at 1-3.) Accordingly, the Court adopts and
incorporates the factual background detailed in that Recommendation as if set forth
herein. Briefly, on July 31, 2013, Plaintiff filed his Prisoner Complaint (ECF No. 1) and
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3)
requesting leave to proceed in forma pauperis. Plaintiff subsequently amended both
filings. (ECF Nos. 6 & 10.) On August 16, 2013, Plaintiff’s request to proceed in forma
pauperis was granted (“Order”) and Plaintiff was directed to pay a $1.00 initial partial
filing fee. (ECF No. 7.)
On January 15, 2014, the instant Motion was filed, seeking reconsideration of
the Order. (ECF No. 28.) Plaintiff filed a Response (ECF No. 32) and the Federal
Bureau of Prisons filed a Reply (ECF No. 34).
The Magistrate Judge’s Recommendation was entered on July 21, 2014, and
contains the following findings and conclusions: (1) Plaintiff has brought three or more
prior actions while incarcerated that were dismissed on the grounds that they failed to
state a claim upon which relief can be granted; (2) Plaintiff admits that he is not in
imminent danger of serious physical injury; (3) filing restrictions were imposed against
Plaintiff preventing him from filing any further non-habeas civil actions in forma pauperis
unless he is under imminent danger of serious physical injury; and (4) therefore,
pursuant to 28 U.S.C. § 1915(g), Plaintiff may not be granted in forma pauperis status
for the instant action. (ECF No. 40.)
Plaintiff’s Objection states that he does not have the funds to pay the $399.00
balance of the filing fee, that he seeks to amend his complaint as to the threat of
imminent danger, and that he was discharged from the Bureau of Prisons on February
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26, 2009. (ECF No. 41.) Plaintiff does not explain how his assertion with respect to his
discharge in 2009 affects the analysis in the Recommendation, but the Court construes
it as an objection to the finding that Plaintiff brought three or more prior actions that
were dismissed for failure to state a claim. Nevertheless, Plaintiff’s alleged discharge in
2009—prior to his current incarceration—does not alter the analy sis under § 1915(g),
as Plaintiff had three actions dismissed well before any alleged discharge in 2009. See
Cosby v. Novetny, Civil Action No. 95-3150-RDR (D. Kan. Nov. 1, 1995); Cosby v. True,
Civil Action No. 96-3002-GTV (D. Kan. Jan 24, 1996); Cosby v. Dody, Civil Action No.
93-3408-SAC (D. Kan. Sept. 11, 1996). Nor does Plaintif f’s inability to pay the balance
in full affect the Court’s analysis of the application of § 1915(g). Accordingly, the only
part of the Recommendation to which Plaintiff specifically objects is the finding that he
is not in imminent danger.
To meet the “imminent danger of serious physical injury” requirement, a prisoner
must make “specific and credible allegations to that effect”. Childs v. Miller, 713 F.3d
1262, 1267 (10th Cir. 2013) (internal quotation marks and brackets omitted). On
Plaintiff’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, in
response to the question, “Are you in imminent danger of serious physical injury?”, he
checked the box reading “No” and wrote “N/A” on the lines below. (ECF No. 6 at 2.)
Plaintiff now makes a conclusory assertion that he faces imminent danger in order to
avoid the revocation of his in forma pauperis status. (ECF No. 41 at 2.) This fails to
meet the requirements of § 1915(g). Accordingly, Plaintiff’s Objection as to the finding
that he does not meet the “imminent danger” exception to § 1915(g) is overruled.

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As to the remaining, unobjected-to findings and conclusions in the
Recommendation, they are well-reasoned and thorough, and the Court finds no clear
error. See Summers, 927 F.2d at 1167. Accordingly, the Recommendation is therefore
adopted in its entirety.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Recommendation of the Magistrate Judge (ECF No. 40) is ADOPTED IN
FULL and the Federal Bureau of Prisons’ Motion to Reconsider Granting Plaintiff
In Forma Pauperis Status and Motion for Extension of Time (ECF No. 28) is
GRANTED;

2.

Plaintiff’s Objection to the Recommendation (ECF No. 41) is OVERRULED;

3.

The Order granting Plaintiff’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 (ECF No. 7) is VACATED to the extent that it permitted
Plaintiff to proceed in forma pauperis, and Plaintiff’s in forma pauperis status is
REVOKED;

4.

Plaintiff is DIRECTED to pay the $399.00 balance of the $400.00 filing fee within
45 days of receipt of this Order in order to pursue his claims in this action; and

5.

Defendant’s request in the Motion for an extension of time to respond to the
Amended Complaint is GRANTED, and Defendant’s response deadline is
STAYED until further order of the Magistrate Judge.

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Dated this 28th day of August, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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