Ganner v. Azarvand

Full title: LARRY GANNER, Plaintiff, v. ERIC AZARVAND, Defendant

Court: United States District Court, E.D. California

Date published: Feb 14, 2008

No. CIV S-07-2597-LKK-CMK-P (E.D. Cal. Feb. 14, 2008)

Opinion

No. CIV S-07-2597-LKK-CMK-P.

February 14, 2008

ORDER

CRAIG KELLISON, Magistrate Judge

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On December 14, 2007, the court directed plaintiff to either submit a completed application for leave to proceed in forma pauperis or the full filing fee for this action within 30 days.¹ Plaintiff was warned that failure to comply may result in dismissal of this action for lack of prosecution and failure to comply with court rules and orders. As of January 31, 2008, plaintiff had not resolved the fee status for this case and the court issued findings and recommendations that the action be dismissed for lack of prosecution and failure to comply with court orders. On February 8, 2008, plaintiff filed objections indicating that he never received the court's December 14, 2007, order and that the filing of an operative pleading was "entirely coincidental." Good cause appearing therefor, the court will vacate the January 31, 2008, findings and recommendations and provide plaintiff another opportunity to resolve the fee status for this case. Plaintiff is again warned that failure to comply may result in dismissal of this action.

1 Plaintiff was also directed to file an operative pleading, which he did by filing a complaint on January 15, 2008.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations issued on January 31, 2008, are vacated;

2. Within 30 days of the date of this order, plaintiff shall resolve the fee status for this case pursuant to the requirements outlined in the December 14, 2007, order;

3. The Clerk of the Court is directed to forward to plaintiff the court's form application to proceed in forma pauperis by a state prisoner; and

4. The Clerk of the Court is also directed to forward to plaintiff a copy of the court' December 14, 2007, order. APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER CASE NUMBER:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Plaintiff vs. Defendant(s) I, _________________________, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. § 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.

In support of this application, I answer the following questions under penalty of perjury: Have the institution fill out the Certificate portion of this application and attach a certified copy of your prison trust account statement showing transactions for the past six months. and

1. Are you currently incarcerated: Yes No (If "No" DO NOT USE THIS FORM) If "Yes" state the place of your incarceration. ___________________________________________ 2. Are you currently employed? Yes No a. If the answer is "Yes" state the amount of your pay. b. If the answer is "No" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. 3. In the past twelve months have you received any money from any of the following sources? a. Business, profession or other self-employment Yes No b. Rent payments, interest or dividends Yes No c. Pensions, annuities or life insurance payments Yes No d. Disability or workers compensation payments Yes No e. Gifts or inheritances Yes No f. Any other sources Yes No If the answer to any of the above is "Yes" describe by that item each source of money and state the amount received what you expect you will continue to receive. Please attach an additional sheet if necessary. 4. Do you have cash or checking or savings accounts? Yes No If "Yes" state the total amount: _____________________________ 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? Yes No If "Yes" describe the property and state its value. ________________________ 6. Do you have any other assets? Yes No If "Yes" list the asset(s) and state the value of each asset listed. 7. List the persons who are dependent on you for support, state your relationship to each person and indicate how much you contribute to their support. I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with 28 U.S.C. § 1915(b)(2).

I declare under penalty of perjury that the above information is true and correct.

____________________ _____________________________________ DATE SIGNATURE OF APPLICANT

CERTIFICATE (To be completed by the institution of incarceration)

I certify that the applicant named herein has the sum of $_________ on account to his/her credit at _____________________________________ (name of institution). I further certify that during the past six months the applicant's average monthly balance was $_____________. I further certify that during the past six months the average of monthly deposits to the applicant's account was $__________.

(Please attach a certified copy of the applicant's trust account statement showing transactions for the past six months.)

____________________ _____________________________________ DATE SIGNATURE OF AUTHORIZED OFFICER

ORDER

Plaintiff, a state prisoner at San Joaquin County Jail, has filed a document styled "Statute of limitations for filing a complaint by a prisoner . . ." No other pleadings have been filed by the plaintiff. In order to commence an action, plaintiff must file a complaint as required by Rule 3 of the Federal Rules of Civil Procedure, and plaintiff must either pay the required filing fee or file an application requesting leave to proceed in forma pauperis.^1a See 28 U.S.C. §§ 1914(a), 1915(a). The court will not issue any orders granting or denying relief until an action has been properly commenced. Plaintiff will be provided the opportunity to file a complaint, and to submit an application requesting leave to proceed in forma pauperis or to submit the appropriate filing fee. Plaintiff's failure to comply with this order will result in a recommendation that this matter be dismissed. See Local Rule 11-110.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff is granted thirty days from the date of service of this order to file a complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the complaint must bear the docket number assigned this case; plaintiff must file an original and two copies of the complaint;

2. Plaintiff shall also submit, within thirty days from the date of this order, the application to proceed in forma pauperis on the form provided by the Clerk of Court, or the filing fee in the amount of $350.00; and

3. The Clerk of the Court is directed to send plaintiff the court's form for filing a civil rights action, and the application to proceed in forma pauperis by a prisoner.