Bacote Jr v. Federal Bureau of Prisons et al

Filing 31

MNIUTE ORDER. ORDERED that the Clarification Motion [#25] is GRANTED to the extent is seeks clarification of the Court' s Minute Order [#23]. ORDERED that the Motion to Amend [#20] is GRANTED. ORDERED that Plaintiffs Amended Complaint [#20-1] is accepted for filing as of the date of this Minute Order. ORDERED that those Defendants who have already been served and entered their appearances in this case shall answer or otherwise respond to Plaintiffs' Amended Complaint [#20-1] on or before February 7, 2014 by Magistrate Judge Kristen L. Mix on 01/10/14.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02589-REB-KLM
MICHAEL BACOTE JR,
Plaintiff,
v.
WARDEN D. BERKEBILE,
SIA D. KRIST,
CAPTAIN R. KRIST,
CORRECTIONAL OFFICER A. BALSICK,
CORRECTIONAL OFFICER G. SANDUSKY,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Response to Motion [#21] [#25]1,
which seeks clarification of the Court’s January 2, 2014 Minute Order (the “Clarification
Motion”), and Plaintiff’s Motion for Leave to File an Amended Complaint [#20] (the
“Motion to Amend”).
A.

The Clarification Motion

On January 2, 2014, the Court entered its Minute Order (the “Minute Order”) denying
as moot Plaintiff’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
[#21]. See generally Minute Order [#23]. As the Court explained in the Minute Order, the
Court previously granted Plaintiff’s prior motion seeking the same relief. See Minute Order
[#23] at 1; see generally Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915
(the “1915 Order”) [#5]. In the Minute Order, the Court also ordered the Clerk of the Court
to mail a copy of the 1915 Order to Plaintiff. Minute Order [#23] at 1. As noted in the 1915
Order, the Court previously granted Plaintiff’s request that he proceed in this matter
pursuant to 28 U.S.C. § 1915. 1915 Order [#5] at 1-2. In the 1915 Order, the Court stated:

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“[#25]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Minute Order.

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Based on the information about Plaintiff’s financial status, the Court finds that
Plaintiff is able to pay an initial partial filing fee of $8.00 pursuant to 28 U.S.C.
§ 1915(b)(1). Plaintiff has consented to disbursement of partial payments of
the filing fee from his prison account. Plaintiff is required to pay the full
amount of the required $350.00 filing fee pursuant to § 1915(b)(1)
regardless of the outcome of this action.
1915 Order [#5] at 1 (emphasis added).
In his Clarification Motion, Plaintiff states that he “payed [his] partial filing fee of
$8.00 2 times.” Clarification Motion [#26] at 2. The Court received a payment of $8.00 on
October 17, 2013 [#15] and another payment of $8.00 on October 21, 2014 [#16]. The
Court has not received any other payments from Plaintiff. The fact that an $8.00 charge
was taken from Plaintiff’s prisoner account and another $8.00 payment was made by
money order a few days later is not something the Court has any ability to control. In
addition, Plaintiff may misunderstand the 1915 Order. The 1915 Order allows Plaintiff to
pay the $350.00 filing fee in monthly installments rather than in one lump sum when he filed
the lawsuit. Plaintiffs who are not granted the right to pay the filing fee in monthly
installments must pay the full filing fee when they first file their lawsuits. Many plaintiffs
proceeding pursuant to 28 U.S.C. § 1915 choose to make additional payments to satisfy
the filing fee more quickly. Therefore, the Court would not have any reason to question
Plaintiff’s additional $8.00 payment made on October 21, 2013. Furthermore, the second
payment was a payment of money owed to the Court.
In addition, Plaintiff is reminded that pursuant to 28 U.S.C. § 1915(b)(2) and the
1915 Order, if Plaintiff’s prisoner account exceeds $10.00, the prison will forward “20
percent of the preceding month’s income credited to the prisoner’s account” to the Court
to be paid toward the $350.00 filing fee until the filing fee is paid in full. 28 U.S.C. §
1915(b)(2).
B.

The Motion to Amend

In the Motion to Amend [#20], Plaintiff asks the Court to allow him to file his
Amended Complaint [#20-1]. Pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff may amend his
pleading “with the opposing party’s written consent . . .” On January 9, 2014, Defendants
filed a Response [#28] to the Motion to Amend [#20]. In the Response, Defendants state
that they do not oppose the Motion to Amend but, if the Motion to Amend is granted, they
anticipate filing a motion requesting an extension of time to respond the Amended
Complaint. Response [#28] at 1.

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C.

Conclusion

IT IS HEREBY ORDERED that the Clarification Motion [#25] is GRANTED to the
extent is seeks clarification of the Court’s Minute Order [#23].
IT IS FURTHER ORDERED that the Motion to Amend [#20] is GRANTED.
Accordingly,
IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint [#20-1] is accepted
for filing as of the date of this Minute Order.
IT IS FURTHER ORDERED that those Defendants who have already been served
and entered their appearances in this case shall answer or otherwise respond to Plaintiffs’
Amended Complaint [#20-1] on or before February 7, 2014.
Dated: January 10, 2014

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