Collins v. No Named Defendant

Filing 6

ORDER overruling 4 Appeal of Order, Due to Fraud in the Incomprehensible Order Dated: 07/18/14 by Judge Lewis T. Babcock on 7/30/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01987-BNB
DAVID LEE COLLINS,
Plaintiff,
v.
[NO NAMED DEFENDANT].
Defendant.

ORDER OVERRULING OBJECTION

Plaintiff, David Lee Collins, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Arkansas Valley
Correctional Facility in Ordway, Colorado. He submitted pro se on July 25, 2014, an
objection titled “Appeal of Order, Due to Fraud in the Incomprehensible Order Dated:
07/18/14” (ECF No. 4). He objects to the order of July 18, 2014 (ECF No. 3), directing
him to cure certain designated deficiencies and file an amended Prisoner Complaint that
complies with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure within thirty days.
Specifically, Mr. Collins, who attempted to initiate the instant action by filing a
letter titled “Payment” that the Court found to be unintelligible, was directed within thirty
days either to pay the $400.00 filing fee or to file on the Court-approved form a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915,
together with a certified copy of his trust fund account statement for the six-month

period immediately preceding this filing. He also was directed to file a Prisoner
Complaint on the proper, Court-approved form that complied with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. Instead of curing the
designated deficiencies and filing a Prisoner Complaint that complied with Fed. R. Civ.
P. 8, Mr. Collins filed an objection to what he termed the “uninteligible [sic] action” of this
Court to direct him to cure deficiencies and file a Prisoner Complaint. See ECF No. 4 at
1.
The Court must construe the objection liberally because Mr. Collins is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the objection will be overruled.
Rule 3 of the Federal Rules of Civil Procedure notes that “[a] civil action is
commenced by filing a complaint with the court.” Pursuant to 28 U.S.C. §§ 1914 and
1915, Mr. Collins either must pay the $400.00 filing fee or seek leave to proceed in
forma pauperis. Mr. Collins may not proceed in this action with only a letter titled
“Payment” that fails to explain in a clear and coherent manner what, if any, debt Mr.
Collins seeks to pay. In order to initiate a lawsuit in this Court, he is required to file a
“complaint with the court,” Fed. R. Civ. P. 3, and either pay the full filing fee or seek for
permission to proceed in forma pauperis. Mr. Collins has failed to comply with these
requirements for initiating a lawsuit.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter
designated to a magistrate judge to hear and determine where it has been shown that
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the magistrate judge’s order is clearly erroneous or contrary to law. The Court has
reviewed the file and finds that the July 7 order entered by Magistrate Judge Craig B.
Shaffer is not clearly erroneous or contrary to law. Therefore, the objection will be
overruled.
Accordingly, it is
ORDERED that the objection titled “Appeal of Order, Due to Fraud in the
Incomprehensible Order Dated: 07/18/14” (ECF No. 4) that Plaintiff, David Lee Collins,
filed on July 25, 2014, and which the Court has construed liberally as an objection
pursuant to 28 U.S.C. § 636(b)(1)(A), is overruled. It is
FURTHER ORDERED that Mr. Collins continues to have thirty (30) days from
the date of the order of July 18, 2014, in which to cure the designated deficiencies
and file an amended Prisoner Complaint that complies with the pleading requirements
of Rule 8 of the Federal Rules of Civil Procedure. It is
FURTHER ORDERED that failure to comply with the directives in the July 18
order within the time allowed will result in the dismissal of the instant action.
DATED at Denver, Colorado, this

30th

day of

July

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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