Opinion
No. CV-05-3003-PHX-MHM (MEA).
April 28, 2006
ORDER
On September 29, 2005, Corday Frierson (Plaintiff), currently confined in the Catalina Unit of the Arizona State Prison Complex in Tucson, Arizona (ASPC-Tucson), filed with the Clerk of the Court a pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) pursuant to 42 U.S.C. § 1983. This action is one of more than one thousand (1,000) lawsuits filed in this district since September 2004 alleging that the overcrowded conditions in the Maricopa County jail system have resulted in a variety of constitutional violations.
When Plaintiff filed the Complaint, he was confined in the Maricopa County Lower Buckeye Jail in Phoenix, Arizona (Lower Buckeye Jail).
Many inmates apparently believe that they will receive an immediate payout from a fund established in Hart v. Hill, No. CV 77-0479-PHX-EHC (MS) (D. Ariz.). No such fund exists. The inmates in Hart asked for injunctive relief and not monetary damages. The Court at this time expresses no opinion on whether Plaintiff's lawsuit may result in an award of damages.
Plaintiff did not pay the two hundred and fifty dollar ($250.00) filing fee, but filed a certified "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Application To Proceed) with the Complaint, which did not include a certified copy of his trust fund account statement (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint.
By Order filed October 21, 2005 (Document #4), Plaintiff's deficient Application To Proceed was denied without prejudice and Plaintiff was given thirty (30) days to pay the two hundred and fifty dollar ($250.00) filing fee, or in the alternative, to file with the Court a new, certified Application to Proceed, using the form included with the Order, and a certified copy of his inmate trust fund account statement (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint.
NEW APPLICATION FAILS TO COMPLY WITH STATUTE
On November 22, 2005, Plaintiff filed a new Application To Proceed (Document #7) which is also deficient in several respects. First, the print-out of Plaintiff's "Inmate Bank Account" included with the new Application To Proceed appears to have been generated by the Graham Unit of ASPC-Safford, rather than by the Arizona Department of Corrections (ADOC) Central Office. Second, the print-out provides only one (1) beginning balance for an unspecified date and a current balance for November 14, 2005 and does not provide average monthly deposits or average monthly balances. Third, the print-out has not been signed by an authorized officer of the ADOC as required.
Accordingly, Plaintiff's Application To Proceed will be denied without prejudice and Plaintiff will be given thirty (30) days to submit a new Application To Proceed, using the form included with this Order, and a certified copy of his trust fund account statement(s) from ADOC's Central Office for the six (6) months immediately preceding the filing of the Complaint.
If Plaintiff submits a new certified Application To Proceed and a certified copy of his trust fund account statement(s) for the six (6) months immediately preceding the filing of the Complaint, instead of immediately paying the two hundred and fifty dollar ($250.00) filing fee, the Court will assess and, when funds exist, collect an initial partial filing fee of twenty percent (20%) of the greater amount of either the average monthly deposits or the average monthly balance in Plaintiff's account for the six (6) months immediately preceding the filing of the Complaint. 28 U.S.C. § 1915(b)(1). After payment of the initial partial filing fee, Plaintiff will be required to make monthly payments equaling twenty percent (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 be required to forward payments from his account to the Clerk of the Court each time the amount in the account exceeds ten dollars ($10.00) until the filing fee is paid. Id.
STATUTORY LIMITATIONS ON PRISONER COMPLAINTS
Plaintiff should note that even after he pays the filing fee, the Court will dismiss the case at any time if the Court determines the allegation of poverty is untrue, the action is frivolous or malicious, the Complaint fails to state a claim upon which relief may be granted, or monetary relief is sought against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The Court also will dismiss the Complaint if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. 1997e(a).Plaintiff also should note that a prisoner may not bring a civil action without complete prepayment of the appropriate filing fee if the prisoner has brought on three (3) or more occasions an action or appeal in a federal court that was dismissed as frivolous, as malicious, or for failure to state a claim upon which relief may be granted, unless the prisoner is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
RULE 41(b) WARNING
Plaintiff is warned 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 (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:
(1) That Plaintiff's "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Document #7) (Application To Proceed) is DENIED WITHOUT PREJUDICE;
(2) That Plaintiff SHALL HAVE thirty (30) days from the filing date of this Order to pay the two hundred and fifty dollar ($250.00) filing fee, or in the alternative, to file with the Court a new, certified Application To Proceed, using the form included with this Order. Plaintiff's Application To Proceed shall have an original signature by Plaintiff, and shall include a copy of his trust fund account statement (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint which is certified by an authorized officer of the Arizona Department of Corrections (ADOC). Both Plaintiff's Application To Proceed and trust fund account statement shall have an original signature of an authorized officer of the ADOC. If Plaintiff was held at more than one institution during the six (6) months immediately preceding the filing of the Complaint, he shall file a certified trust fund account statement(s) (or institutional equivalent) for each institution where he was confined. The trust fund account statement(s) must show deposits and average balances for each month. Plaintiff shall obtain the certified copy of his trust fund account statement for his account at the ADOC from the ADOC's Central Office;
(3) That the Clerk of Court is DIRECTED to enter a judgment of dismissal without prejudice of this action, without further notice to Plaintiff, if Plaintiff fails to pay the two hundred and fifty dollar ($250.00) filing fee, or in the alternative, if he fails to file a certified Application To Proceed and a copy of his trust fund account statement(s) (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint, which is certified by an authorized officer of the ADOC, within thirty (30) days of the filing date of this Order;
(4) That 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 Rule 5.4, Local Rules of Civil Procedure (LRCiv). Failure to comply with this requirement will result in the pleading or document being stricken without further notice to Plaintiff;
(5) That at all times during the pendency of this action, Plaintiff SHALL IMMEDIATELY ADVISE the Court and the United States Marshal 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, except that if Plaintiff has been released from custody, the notice should so indicate. 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 Federal Rule of Civil Procedure 41(b);
(6) That the Clerk of the Court is DIRECTED to provide Plaintiff with a current Court-approved form for filing an "Application To Proceed In Forma Pauperis By A Prisoner Civil (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 $250.00 for a civil action. If you later file an appeal, you will be obligated to pay the $255.00 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.
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