Opinion
No. CV 05-3492-PHX-JAT (CRP).
November 9, 2005
ORDER
Plaintiff, confined in the Dakota Unit at the Arizona State Prison in Yuma, Arizona, has filed a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the $250.00 civil action filing fee, nor has he filed a proper Application to Proceed In Forma Pauperis. A. Payment of Filing Fee
A prisoner must pay the $250.00 civil action filing fee either in a lump sum or when granted the privilege of proceeding in forma pauperis, incrementally pursuant to 28 U.S.C. § 1915(b)(1). To apply to proceed in forma pauperis, the prisoner must submit an affidavit of indigence and a certified copy of his trust account statement for the six months preceding the filing of the Complaint. See 28 U.S.C. § 1915(a)(2). He must include statements from each institution where he was confined during the six months preceding the filing of the Complaint.Id. To assist prisoners in meeting these requirements, the Court requires use of a form application under Local Rule of Civil Procedure 3.4(a).
After proper in forma pauperis application has been made, the Court will assess an initial partial filing fee equal to 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). The initial partial filing fee will be collected when funds exists. 28 U.S.C. § 1915(b)(4). The remaining part of the filing fee is made in monthly payments equaling 20% of the preceding month's income credited to an inmate's account, until the entire filing fee is paid in full. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff will be ordered to forward payments to the Clerk of Court each time the amount in the account exceeds $10.00. Id. B. Application Fails to Comply With Statute
Plaintiff has not paid the statutory filing fee nor has he attached a proper Application to Proceed In Forma Pauperis. He must provide the proper form with a signed and dated Consent to Collection of Fees from Trust Account. Plaintiff must also fill out the Certificate of Correctional Official as to Status of Applicant's Trust Account, and submit a certified six-month trust account statement. In light of these deficiencies, Plaintiff will be permitted 30 days to file a complete in forma pauperis application.
C. Warning: Change of Address and Copies of Filings
At all times during the pendency of this action, Plaintiff shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
A clear, legible copy of every pleading or other document filed shall accompany each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to comply with this requirement may result in striking the pleading or document without further notice to Plaintiff. D. Rule 41 Warning of Possible Dismissal
Plaintiff is warned that failure to timely comply with every provision of this Order, or any order entered in this matter, will result in dismissal of this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the court).
IT IS THEREFORE ORDERED that:
(1) Plaintiff shall have 30 days from the date this Order is filed to either pay the $250.00 filing fee or to file with the Court (a) a signed and dated Consent to Collection of Fees from Trust Account, (b) a Certificate of Correctional Official as to Status of Applicant's Trust Account, certified by the proper individual at his institution, and (c) a trust account statement for the six-month period preceding the filing of the Complaint.
(2) The Clerk of Court shall enter dismissal of this action without prejudice and without further notice if Plaintiff fail to comply with this Order.
(3) The Clerk of the Court shall provide to Plaintiff a current court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).
FORM