Opinion
No. CV 06-0766-PHX-DGC (MEA).
April 13, 2006
ORDER
Plaintiff, currently confined in the Fourth Avenue Jail in Phoenix, Arizona, has filed a pro se Complaint pursuant to § 1983. Plaintiff has not paid the $250.00 filing fee, nor has he properly applied to proceed in forma pauperis. A. Payment of Filing Fee
Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff must pay the $250.00 filing fee when he files a civil action. If granted the privilege of proceeding in forma pauperis, he will be permitted to pay the fee incrementally instead of in a lump sum. To apply to proceed in forma pauperis, a prisoner must submit an affidavit of indigence, a consent to collection of fees from the prisoner's trust account, and a certified copy of his trust account statement for the six months preceding the filing of the Complaint. If Plaintiff was held at more than one institution for the six months preceding the filing of the Complaint, he must include a certified account statement from an appropriate official at each of the institutions where he was confined.
The Court then shall assess and, when funds exist, collect an initial partial filing fee of 20% of the greater amount of either the average monthly deposits or the average monthly balance in Plaintiff's account for the six months immediately preceding the filing. 28 U.S.C. § 1915(b)(1). After payment of the initial partial filing fee, Plaintiff shall be required to make monthly payments equaling 20% of the preceding month's income credited to his account. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff will forward payments from his account to the Clerk of Court each time the amount in the account exceeds $10.00 until the filing fee is paid. Id. B. Application Fails to Comply With Statute
Plaintiff has submitted an affidavit of indigence and a consent to collection of fees from his trust account. He has not, however, submitted a certified copy of his trust account statement. He must have the appropriate official fill out the Certificate of Correctional Official as to Status of Applicant's Trust Account and attach an Inmate Account Statement. In light of this deficiency, Plaintiff will be permitted 30 days to file a properly certified six-month trust account statement.
C. Warning of Possible Dismissal Pursuant to Rule 41
Plaintiff should take notice that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.) (district court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992).
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff shall have 30 days from the date this Order is filed in which to either pay the $250.00 filing fee or properly apply to proceed in forma pauperis as described in this Order.
(2) The Clerk of Court is directed to enter dismissal of this action without prejudice and without further notice if Plaintiff fails to comply within 30 days.
(3) The Clerk of Court shall send Plaintiff an Application to Proceed In Forma Pauperis by a Prisoner Civil (Non-Habeas).
FORM