Bowers v. Belcher

Full title: Christopher Roy Bowers, Plaintiff, v. Duane Belcher, et al., Defendants

Court: United States District Court, D. Arizona

Date published: Dec 7, 2009

No. CV 09-1686-PHX-RCB (MHB) (D. Ariz. Dec. 7, 2009)

Opinion

No. CV 09-1686-PHX-RCB (MHB).

December 7, 2009

ORDER

ROBERT BROOMFIELD, Senior District Judge

Plaintiff Christopher Roy Bowers, who is confined in the Arizona State Prison in Picacho, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. On September 18, 2009, the Court denied the Application to Proceed with leave to re-file. On November 4, 2009, Plaintiff filed a "Motion for 30-day Continuance to Proceed and Submit Forma Pauperis Application" (Doc. #7) and lodged a new Application to Proceed. The Court will grant the Motion for Continuance, direct the Clerk of Court to file the new Application to Proceed, and deny the new Application to Proceed. Plaintiff will be granted a final 30 days to file a complete Application to Proceed and certified six-month trust account statement.

I. Motion for Continuance

In his Motion for Continuance, Plaintiff states that because he was transferred to a new facility, he did not receive the Court's September 18th Order until after the deadline for filing a new Application to Proceed had passed. The Court will grant Plaintiff's Motion for Continuance, will accept the lodged Application to Proceed as timely filed, and will direct the Clerk of Court to file the lodged Application to Proceed.

In his Motion for Continuance, Plaintiff also states that he wishes to amend his original Complaint. The Federal Rules of Civil Procedure provide that "[a] party may amend its pleading once as a matter of course . . . before being served with a responsive pleading." As Defendants have not yet been served, Plaintiff may file an amended complaint. Plaintiff should note that the Court will not screen an amended complaint until Plaintiff has complied with the requirements for proceeding in forma pauperis or has paid the filing fee.

II. 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).

III. Application Fails to Comply With Statute

Plaintiff has used the court-approved form to file his new Application, but he has not submitted a certified six-month trust account statement. In light of this 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 and certified six-month trust account statement.

Although Plaintiff attached a printout of his Arizona Department of Corrections ("ADOC") inmate bank account statement to his Application to Proceed, the printout is not certified by an authorized officer of the institution and does not show deposits and average monthly balances, as required. ADOC has notified the Court that a certified trust fund account statement showing deposits and average monthly balances is available from the ADOC's Central Office. Accordingly, Plaintiff must obtain the certified copy of his ADOC trust fund account statement for the six months immediately preceding the filing of the Complaint from the ADOC's Central Office.

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 November 4, 2009 Motion for Continuance (Doc. #7) is granted. The Court will accept Plaintiff's November 4, 2009 Application to Proceed In Forma Pauperis as timely filed.

(2) The Clerk of Court must file Plaintiff's November 4, 2009 Application to Proceed In Forma Pauperis (lodged as Doc. #8).

(3) Plaintiff's November 4, 2009 Application to Proceed In Forma Pauperis (lodged as Doc. #8) is denied without prejudice.

(4) 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 from the ADOC's Central Office.

(5) 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.

(6) The Clerk of the Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).

Instructions for Prisoners Applying for Leave to Proceed in Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court

You must pay the full filing fee of $350.00 for a civil action. If you later file an appeal, you will be obligated to pay the $455.00 filing fee for the appeal.

If you have enough money to pay the full filing fee, you should send a cashier's check or money order payable to the Clerk of the Court with your complaint, petition, or notice of appeal.

If you do not have enough money to pay the full filing fee, you can file the action without prepaying the filing fee. However, the court will assess an initial partial filing fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the average monthly balance in your prison or jail account for the six months immediately preceding the filing of the lawsuit. The court will order the agency that has custody of you to withdraw the initial partial filing fee from your prison or jail account as soon as funds are available and to forward the money to the court.

After the initial partial filing fee has been paid, you will owe the balance of the filing fee. Until the filing fee is paid in full, each month you will owe 20% of your preceding month's income. The agency that holds you in custody will collect that money and forward it to the court any time the amount in your account exceeds $10.00. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial.

To file an action without prepaying the filing fee, and to proceed with an action in forma pauperis, you must complete the attached form and return it to the court with your complaint. You must have a prison or jail official complete the certificate on the bottom of the form and attach a certified copy of your prison or jail account statement for the last six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your account statement from each institution at which you were confined. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied.

Even if some or all of the filing fee has been paid, the court is required to dismiss your action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a claim against a defendant for money damages and that defendant is immune from liability for money damages.

If you file more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from filing any other action in forma pauperis unless you are in imminent danger of serious physical injury. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IN FORMA PAUPERIS BY A PRISONER

_____________________________________________________ Name and Prisoner/Booking Number _____________________________________________________ Place of Confinement _____________________________________________________ Mailing Address _____________________________________________________ City, State, Zip Code ) ____________________________________________, ) CASE NO. ________________________ Plaintiff, ) ) vs. ) APPLICATION TO PROCEED ) ____________________________________________, ) Defendant(s). ) CIVIL (NON-HABEAS) I, ____________________________________________, declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these proceedings or to give security therefor and that I believe I am entitled to relief.

In support of this application, I answer the following questions under penalty of perjury:

1. Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained? []Yes []No If "Yes," how many have you filed? ________________. Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a claim upon which relief may be granted? []Yes []No If "Yes," how many of them? ___________________. 2. Are you currently employed at the institution where you are confined? []Yes []No If "Yes," state the amount of your pay and where you work. ___________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 3. Do you receive any other payments from the institution where you are confined? []Yes []No If "Yes," state the source and amount of the payments. _______________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where you are confined? []Yes []No If "Yes," state the sources and amounts of the income, savings, or assets. ___________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ I declare under penalty of perjury that the above information is true and correct. __________________________ ______________________________________________ DATE SIGNATURE OF APPLICANT

CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT

I, ________________________, hereby consent to having the designated correctional officials at this institution release to the Court my trust account information. I further consent to having the designated correctional officials at this institution withdraw from my trust account the funds required to comply with the order of this Court for the payment of filing fees in accordance with 28 U.S.C. § 1915(b).

My consent includes withdrawal from my account by correctional officials of partial initial payments to this Court equal to 20% of the greater of:

(A) the average monthly deposits to my account for the six-month period preceding my filing of this action, or

(B) the average monthly balance in my account for the six-month period preceding my filing of this action.

My consent also includes monthly withdrawals from my account by correctional officials of an amount equal to 20% of each month's income. Whenever the amount in my account reaches $10.00, correctional officials will withdraw that amount and forward it to the Court until the required filing fee is paid in full. I understand that I am liable for paying the entire fee, even if my case is dismissed by the Court before the fee is fully paid.

__________________________ ______________________________________________ DATE SIGNATURE OF APPLICANT

CERTIFICATE OF CORRECTIONAL OFFICIAL AS TO STATUS OF APPLICANT'S TRUST ACCOUNT

I, _____________________________________, certify that as of the date applicant signed this application: (Printed name of official) The applicant's trust account balance at this institution is: $__________________ The applicant's average monthly deposits during the prior six months is: $__________________ The applicant's average monthly balance during the prior six months is: $__________________ The attached certified account statement accurately reflects the status of the applicant's account. ________________________________________________________________________________________________________ DATE AUTHORIZED SIGNATURE TITLE/ID NUMBER INSTITUTION