Opinion
No. CV 11-2261-PHX-RCB (MHB)
12-27-2011
Leonard D. O'Dell, Plaintiff, v. Detention Officer Abbott, et al., Defendants.
ORDER
Plaintiff Leonard O'Dell, who is confined in the Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. Because Plaintiff had not paid the $350.00 civil action filing fee or filed a proper Application to Proceed In Forma Pauperis, the Court denied Plaintiff's Application to Proceed In Forma Pauperis with leave to either pay the filing fee or file a properly completed in forma pauperis application. (Doc. 6.) Plaintiff has filed a motion to defer or waive filing fees, which will be denied because it is not on the court-approved form. (Doc. 5.) Plaintiff has also filed a new in forma pauperis application, which will be denied as incomplete. (Doc. 8.) In addition, Plaintiff has filed a motion to accelerate proceedings, which will be denied. (Doc. 12.) The Court will give Plaintiff another 30 days in which to either pay the fee or file a completed Application to Proceed In Forma Pauperis.
I. Payment of Filing Fee
When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of indigence and a certified copy of the inmate's trust account statement for the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each institution where he was confined during the six-month period. Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4(a).
If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an initial partial filing fee of 20% of either the average monthly deposits or the average monthly balance in Plaintiff's account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of the fee will be collected in monthly payments of 20% of the preceding month's income credited to an inmate's account, each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).
II. Application Fails to Comply With Statute
Plaintiff has used the court-approved form, but he has again left blank the "Consent to Collection of Fees from Trust Account" section. This part of the in forma pauperis application must be filled out, signed, and dated. In light of that deficiency, Plaintiff will be permitted 30 days to either pay the $350.00 filing fee or file a complete Application to Proceed In Forma Pauperis.
III. Motion to Accelerate Proceedings
As noted above, Plaintiff has filed a motion to accelerate proceedings. Specifically, Plaintiff appears to be seeking to accelerate discovery. Plaintiff's request will be denied. Plaintiff must first either pay the filing fee or file a properly-completed in forma pauperis application using the court-approved form. If the Court thereafter concludes that Plaintiff has stated a legally-cognizable claim in his First Amended Complaint, service will be ordered and the case referred to a magistrate judge to set deadlines for discovery and other pretrial matters.
IV. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Copies
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
C. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's motion to defer or waive fees and his Application to Proceed In Forma Pauperis are denied without prejudice. (Doc. 5, 8.)
(2) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee or file a completed Application to Proceed In Forma Pauperis and a certified six-month trust account statement.
(3) If Plaintiff fails to either pay the $350.00 filing fee or file a completed Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff.
(4) The Clerk of the Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).
(5) Plaintiff's motion to accelerate proceedings is denied. (Doc. 12.
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Robert C. Broomfield
Senior United States District Judge