Opinion
No. CIV 05-763-TUC-CKJ.
May 25, 2006
ORDER
Plaintiff David Charles Henry, I, presently confined in the Arizona State Prison Complex-Lewis, has filed a Civil Rights Complaint by a Prisoner ("Complaint") pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis.
Plaintiff was confined in the Pima County Jail at the time he filed the Complaint.
On March 2, 2006, Plaintiff filed a Motion to Amend Complaint (Doc. #6).
Application to Proceed In Forma Pauperis
Plaintiff's request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a). Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is required to pay the statutory filing fee of two hundred fifty dollars ($250.00) for this action.
Plaintiff will not be assessed an initial filing fee. However, Plaintiff will be obligated for monthly payments of twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account. The Court will direct the appropriate agency to collect these monthly payments, which will be forwarded to the Clerk of Court each time the amount in Plaintiff's account exceeds ten dollars ($10.00), until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Plaintiff should take notice that if he is released before the filing fee is paid in full, he must pay the remaining unpaid amount of the filing fee within one hundred twenty (120) days of the date of his release. If Plaintiff fails to pay the remainder of the filing fee within one hundred twenty (120) days of the date of his release, the action will be dismissed, unless Plaintiff shows good cause, in writing, why he is unable to pay the remainder of the filing fee.
Motion to Amend Complaint
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a "party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." Because the Defendants have not yet been served in this action and have therefore not served any responsive pleadings, the Court will grant Plaintiff's Motion to Amend Complaint. Plaintiff shall have thirty (30) days from the filing date of this Order to file an amended complaint. If Plaintiff fails to file an amended complaint within thirty (30) days of the filing date of this Order, the Court will screen Plaintiff's original Complaint.
Plaintiff is cautioned that all causes of action alleged in an original complaint which are not alleged in an amended complaint are waived and defendants named in an original complaint who are not named in an amended complaint are dismissed. Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987).
Any amended complaint filed by Plaintiff must be retyped or rewritten in its entirety on the current, Court-approved form included with this Order and may not incorporate any part of the original Complaint by reference. See Local Rule of Civil Procedure ("LRCiv") 15.1(a)(2). If Plaintiff cannot fit all of his supporting facts in favor of a particular count on the Court-approved form, then he may continue on an attachment, but each matter on any attachment must be clearly referenced to a particular count on the Court-approved form, and be numbered appropriately.
Rule 41(b) Warning
If Plaintiff fails to timely comply with every provision of this Order, this action will be dismissed without further notice.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 as follows:
(1) Plaintiff's Application to Proceed In Forma Pauperis, filed with the Complaint, is GRANTED;
(2) Plaintiff is OBLIGATED to pay the statutory filing fee of two hundred fifty dollars ($250.00) for this action. Plaintiff will not be assessed an initial partial filing fee. However, Plaintiff will be OBLIGATED for monthly payments of twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in Plaintiff's account exceeds ten dollars ($10.00), until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). All fees shall be collected and paid in accordance with this Court's Order filed concurrently herewith;
(3) Plaintiff's March 2, 2006 Motion to Amend Complaint (Doc. #6) is GRANTED. Plaintiff SHALL HAVE thirty (30) days from the filing date of this Order to file an amended complaint in order to state specific allegations of deprivation of constitutional rights against proper defendant(s), to name as defendant(s) the individual(s) who participated in the activities alleged in his amended complaint, to state what injury he has suffered as a result of the activities of the defendant(s), and to show how, prior to filing this action, he exhausted his administrative remedies as to each of his claims for relief. The amended complaint must be retyped or rewritten in its entirety on the current, Court-approved form included with this Order, may not incorporate any part of the original Complaint by reference, and must contain Plaintiff's original signature. If Plaintiff fails to file the amended complaint on a current, Court-approved form, the amended complaint will be stricken, and the action dismissed without further notice to Plaintiff. Any amended complaint submitted by Plaintiff should be clearly designated as an amended complaint on the face of the document;
(4) 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 submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Plaintiff;
(5) 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); and
(6) The Clerk of the Court is DIRECTED to provide Plaintiff with a current, Court-approved form for filing a civil rights complaint pursuant to 42 U.S.C. § 1983.