Opinion
No. CV 08-76-PHX-SMM (MEA).
February 4, 2008
ORDER
On January 14, 2008, Petitioner Van Bernard Branch, who is confined under Arizona Department of Corrections' authority in the Great Plains Correctional Facility in Hinton, Oklahoma, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1). Petitioner has not paid the $5.00 filing fee but has filed a deficient Application to Proceed In Forma Pauperis.
I. Failure to Pay Filing Fee
Rule 3.5(b) of the Local Rules of Civil Procedure requires that "[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed [in forma pauperis] on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit." Rule 3.5(b) also requires payment of the $5.00 filing fee if a petitioner has in excess of $25.00 in his inmate account.
II. Application Fails to Comply With Statute
Petitioner has used the court-approved form, but he has not signed the form and the "Certificate Of Correctional Official As To Status Of Applicant's Trust Account" section of the form has not been completed or signed by an authorized institutional officer. Accordingly, the Application to Proceed In Forma Pauperis will be denied without prejudice and Petitioner will be given 30 days from the date this Order is filed to either pay the $5.00 filing fee or file a completed Application to Proceed In Forma Pauperis using the form included with this Order.
III. Warnings
A. Address Changes
Petitioner 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. Petitioner 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
Petitioner 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 Petitioner.
C. Possible Dismissal
If Petitioner 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) Petitioner's Application to Proceed In Forma Pauperis, filed with the Petition, is denied without prejudice.
(2) Within 30 days of the date this Order is filed, Petitioner must either pay the $5.00 filing fee or file a completed Application to Proceed In Forma Pauperis.
(3) If Petitioner fails to either pay the $5.00 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 Petitioner.
(4) The Clerk of Court must mail Petitioner a court-approved form for filing an Application to Proceed In Forma Pauperis (Habeas). IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
____________________________________________________________________ Name and Prisoner/Booking Number ____________________________________________________________________ Place of Confinement ____________________________________________________________________ Mailing Address ____________________________________________________________________ City. State, Zip Code ) ____________________________________________, ) Petitioner, ) CASE NO. _______________________________________________________ ) vs. ) ) APPLICATION TO PROCEED ____________________________________________, ) IN FORMA PAUPERIS Respondent(s). ) BY A PRISONER ______________________________________________) (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. 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. ___________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 2. 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. _______________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 3. 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 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: $ ________________________________________. ________________________________________________________________________________________________________________ DATE AUTHORIZED SIGNATURE TITLE/ID NUMBER INSTITUTION