Grisby v. Werholtz

Filing 6

ORDER denying 3 Motion for Leave to Proceed in Forma Pauperis and 5 Motion for Order of Payment Plan Regarding the Filing Fee by Judge Lewis T. Babcock on 2/20/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00292-BNB
CLEOTIS GRISBY,
Applicant,
v.
ROGER WERHOLTZ, Executive Director of Colorado Department of Corrections,
Respondent.

ORDER DENYING LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915

Applicant, Cleotis Grisby, is a prisoner in the custody of the Colorado Department
of Corrections incarcerated at the Crowley County Correctional Facility in Olney
Springs, Colorado. Applicant filed pro se a Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 and an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241. As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b),
the Court has determined that the submitted documents are in proper form. The Court,
however, will deny the § 1915 Motion because Applicant does not qualify for in forma
pauperis status.
Subsection (a)(1) of 28 U.S.C. § 1915 allows a litigant to commence a lawsuit
without prepayment of fees or security therefor. However, “[t]here is no absolute right
to proceed in court without paying a filing fee in civil matters.” Holmes v. Hardy, 852
F.2d 151, 153 (5th Cir. 1988); see also 28 U.S.C. § 1914(a). Proceeding in forma
pauperis pursuant to § 1915, i.e. without paying a filing fee under § 1914, is a privilege
extended to individuals unable to pay such a fee. See Holmes, 852 F.2d at 153.

Applicant’s account statement shows that he has an available balance of
$674.07 in his inmate account as of February 5, 2014. Therefore, the Court finds that
Applicant has sufficient funds to pay the $5.00 filing fee. The § 1915 Motion will be
denied. Applicant will be directed to pay the $5.00 filing fee required pursuant to
28 U.S.C. § 1914 if he wishes to pursue his claims in this action. Accordingly, it is
ORDERED that the Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915, ECF No. 3, is denied. It is
FURTHER ORDERED that Applicant shall pay the full $5.00 filing fee within
thirty days from the date of this Order if he wishes to pursue his claims in this
action. It is
FURTHER ORDERED that if Applicant fails to pay the $5.00 filing fee within the
time allowed the action will be dismissed without further notice. It is
FURTHER ORDERED that the Motion for Order of Payment Plan Regarding the
Filing Fee, ECF No. 5, is denied as inappropriate.
DATED at Denver, Colorado, this 20th day of

February , 2014.

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

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