Calbart v. Zimmer Inc et al
Filing
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ORDER granting 10 Letter, and 7 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, by Judge Lewis T. Babcock on 3/1/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00210-GPG
ERNIE LEE CALBART,
Plaintiff,
v.
ZIMMER, INC.,
ZIMMER HOLDING, INC., and
ZIMMER ORTHOPEDIC SURGICAL PRODUCTS, INC.
Defendants.
ORDER GRANTING MOTION FOR RECONSIDERATION
AND GRANTING LEAVE TO PROCEED PURSUANT TO 28 U.S.C. ' 1915
Plaintiff, Ernie Lee Calbart, is in the custody of the Colorado Department of
Corrections at the Correctional Facility in Sterling, Colorado. This action was originally
filed in the Northern District of Illinois and was transferred to this Court on January 27,
2016. Mr. Calbart filed a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 (ECF No. 7), which the Court denied on February 11, 2016 because
the account statement Mr. Calbart submitted in support of his request to proceed in forma
pauperis indicates that he had an available balance of $1,133.46 in his inmate account on
February 1, 2016. (See ECF No. 7 at 11.) Consequently, the Court ordered Mr. Calbart
to pay the $400.00 filing fee within 30 days of the February 11, 2016 Order.
On February 26, 2016, Mr. Calbart filed a Letter (ECF No. 10), in which he states
that the money order deposited to his inmate trust fund account on January 4, 2016, in the
amount of $8,069.00 “belongs to” his two daughters who are in college. Id. Mr. Calbart
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has submitted an updated inmate account statement, dated February 17, 2016, which
shows that he has an available balance of $ 220.11.
The Court construes Mr. Calbart’s February 26, 2016 pro se Letter liberally as a
motion to reconsider the order denying him leave to proceed in forma pauperis. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). A district court has discretion to revise
interlocutory orders prior to entry of final judgment. Price v. Philpot, 420 F.3d 1158, 1167
n. 9 (10th Cir. 2005) (“[E]very order short of a final decree is subject to reopening at the
discretion of the district judge.”); Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th
Cir.1991) (noting that a motion for reconsideration filed prior to final judgment “was
nothing more than an interlocutory motion invoking the district court's general
discretionary authority to review and revise interlocutory rulings prior to entry of final
judgment.”); Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir.1988) (citing
Fed.R.Civ.P. 54(b)). The district court's discretion to revise its interlocutory orders is not
limited by the standards for reviewing a post-judgment motion filed pursuant to Rule 59(e)
or 60(b) of the Federal Rules of Civil Procedure. See Raytheon Constructors Inc. v.
ASARCO, Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) (stating that “[t]he district court was
incorrect to treat the plaintiff’s motion for reconsideration [of an interlocutory order] under
Rule 60(b) which only applies to final orders or judgments.”).
The Court has reviewed Mr. Calbart’s most recent inmate account statement,
which reveals that following the January 4, 2016 deposit, most of the $8,069.00 were
removed from the account pursuant to money order debits issued in January and
February 2016. The Court has therefore recalculated Mr. Calbart’s ability to pay the
$400.00 filing fee, without regard to the amount of moneys deposited to his account on
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January 4, 2016, which were debited to the account over the next several weeks.
Under 28 U.S.C. ' 1915(b)(1), the Court shall assess an initial partial filing fee of
20 percent of the greater of: (A) the average monthly deposits to the prisoner’s account;
or (B) the average monthly balance in the prisoner’s account for the 6-month period
immediately preceding the filing of the Complaint. Based on the information provided
about Plaintiff’s financial status, the Court has determined that Plaintiff is able to pay an
initial partial filing fee of $27.00. Plaintiff has consented to disbursement of partial
payments of the filing fee from his prison account. (ECF No. 7 at 3). 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. Accordingly, it is
ORDERED that Mr. Calbart’s motion for reconsideration (ECF No. 10), filed on
February 26, 2016, is GRANTED. It is
FURTHER ORDERED that the February 11, 2016 Order (ECF No. 9) is
VACATED. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 7) is GRANTED. It is
FURTHER ORDERED that within thirty days of the date of this Order Plaintiff’s
custodian shall disburse from Plaintiff’s prison account an initial partial filing fee of $27.00
to the Clerk of the United States District Court for the District of Colorado, which
represents 20 percent of the greater of the (1) average monthly deposits, or (2) average
monthly balance in Plaintiff’s prison accounts for the six-month period immediately
preceding the filing of the complaint. See 28 U.S.C. §1915(b). It is
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FURTHER ORDERED that after payment of the initial partial filing fee Plaintiff’s
custodian shall disburse from Plaintiff’s prison account monthly payments of 20 percent of
the preceding month’s income credited to this prison account until Plaintiff has paid the
total filing fee of $350.00. See 28 U.S.C. §1915(b)(2). Interference by Plaintiff in the
submission of these funds will result in the dismissal of this action. It is
FURTHER ORDERED that Plaintiff is advised that notwithstanding any filing fee,
or any portion thereof, that may have been paid, the Court shall dismiss at any time all or
any part of such complaint which (1) is frivolous or malicious; (2) fails to state a claim on
which relief can be granted; or (3) seeks monetary relief from a defendant who is immune
from such relief. See 28 U.S.C. §1915(A)(b); 28 U.S.C. § 1915(e)(2). It is
FURTHER ORDERED that Plaintiff’s custodian shall continue to disburse monthly
payments from Plaintiff’s prison until full payment of the filing fee has been paid to the
Court, even after disposition of the case and regardless of whether relief is granted or
denied. It is
FURTHER ORDERED that the Clerk of the Court shall not issue process
until further order of the Court. It is
FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to
DOC_inmateaccounts@state.co.us.
DATED March 1, 20161, 2016 at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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