Opinion
No. CV 06-0936-PHX-DGC (JRI).
April 13, 2006
ORDER
Plaintiff, currently confined in the Estrella Jail in Phoenix, Arizona, has filed a pro se Complaint pursuant to § 1983. Plaintiff has not paid the $250.00 filing fee, nor has she 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 she files a civil action. If granted the privilege of proceeding in forma pauperis, she 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 her 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, she must include a certified account statement from an appropriate official at each of the institutions where she 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 her account. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff will forward payments from her 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 her trust account. She has not, however, submitted a certified copy of her trust account statement. She submitted an Inmate Account Statement without having the proper official fill out the Certificate of Correctional Official as to Status of Applicant's Trust Account. 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 she 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 to Plaintiff 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).
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.
FORM