Jimenez Sr. v. Fourth Judicial District Attorneys Office et al

Filing 6

ORDER granting 3 Motion for Leave to Proceed in Forma Pauperis, and denying 5 Motion for Supplemental Jurisdiction, by Magistrate Judge Gordon P. Gallagher on 4/5/16.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00780-GPG
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
ANTHONY LOLIN JIMENEZ, SR. (Sui Juris),
Plaintiff,
v.
FOURTH JUDICIAL DISTRICT ATTORNEY’S OFFICE,
DAN MAY (Administrative/Individual), d/b/a Dan May (District Attorney, Official Capacity),
JEANNIE SMITH (Administrative/Individual), d/b/a Jeannie Smith (Former District
Attorney), and
EDWARD SAMUEL COLT (Administrative/Individual), d/b/a Edward Samuel Colt (16304)
(District Court Judge, Official)
Defendants.

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

Plaintiff, a Colorado state prisoner, has submitted to the court pro se a Complaint
(ECF No. 1), a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 (ECF No. 3), a document titled “Combined Affidavit Petition for Show Cause for
Acts Performed Under 7 U.S.C.A. § 9(3); 28 U.S.C.A. § 1343(a)(3)” (ECF No. 4), and a
Motion for Supplemental Jurisdiction (ECF No. 5). The Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 will be granted. The account
statement attached to the motion indicates that Plaintiff has had a negative balance in his
inmate account throughout the six-month period immediately preceding the filing of this
action and it is apparent that Plaintiff is unable to pay an initial partial filing fee pursuant to

§ 1915(b)(1).
Title 28 U.S.C. § 1915 requires a prisoner bringing a civil action “to pay the full
amount of a filing fee.” 28 U.S.C. § 1915(b)(1). If a prisoner is unable to afford the full
amount of the filing fee when the case is filed, the statute provides for payment of the filing
fee through an initial partial filing fee and monthly installments of the balance until the full
filing fee is paid. However, “[i]n no event shall a prisoner be prohibited from bringing a
civil action or appealing a civil or criminal judgment for the reason that the prisoner has no
assets and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4).
Plaintiff may proceed in this action without payment of an initial partial filing fee.
However, although he need not pay an initial partial filing fee, Plaintiff remains obligated
to pay the required $350.00 filing fee through monthly installments regardless of the
outcome of this action. Plaintiff has consented to disbursement of partial payments of
the filing fee from his inmate account. (See ECF No. 3 at 3.) Accordingly, it is
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 (ECF No. 3) is granted. It is
FURTHER ORDERED that Plaintiff may proceed in this action without payment of
an initial partial filing fee. It is
FURTHER ORDERED that Plaintiff’s custodian shall disburse from Plaintiff’s
inmate account monthly payments of 20 percent of the preceding month’s income
credited to this inmate account until Plaintiff has paid the total filing fee of $350. 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 inmate account 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 send a copy of this Order to
[e-mail]. It is
FURTHER ORDERED that the Motion for Supplemental Jurisdiction (ECF No. 5)
is denied as unnecessary.
DATED April 5, 2016, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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