Opinion
2:21-cv-7893-PA (MAR)
10-19-2021
Rafael Martirosyan v. L.A.S.D., et al.
Present: Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE.
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) ORDER RE: REQUEST TO PROCEED IFP, Dkt. 2
I. PLAINTIFF'S FIRST COMPLAINT
On July 22, 2021, Plaintiff Rafael Martirosyan (“Plaintiff”), proceeding pro se, constructively filed a Civil Rights Complaint (“First Complaint”) pursuant to 42 U.S.C. § 1983 (“section 1983”). Rafael Martirosyan v. Baries, et al., Case No. 2:21-cv-6433-PA (MAR), ECF Docket No. (“Dkt.”) 1. Plaintiff also filed a Request to Proceed In Forma Pauperis (“IFP”). Id., Dkt. 2. On September 22, 2021, after reviewing Plaintiff's Request to Proceed IFP, the Court issued a Minute Order directing Plaintiff to resubmit his IFP with a trust account statement, certified and completed by the institution of incarceration. Id., Dkt. 6. To date, Plaintiff has failed to comply with the Court's September 22, 2021 Minute Order.
Under the “mailbox rule, ” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
II. PLAINTIFF'S SECOND COMPLAINT
On September 22, 2021, however, Plaintiff, again proceeding pro se, constructively filed what the Court docketed as the instant Civil Rights Complaint (“Second Complaint”) pursuant to section 1983. Dkt. 1. Plaintiff also filed a Request to Proceed IFP that appears similarly deficient to the Request to Proceed IFP in Plaintiff's First Complaint. Dkt. 2.
Upon further review of the Second Complaint, however, it is unclear whether Plaintiff intended to file a new, separate Complaint from Plaintiff's First Complaint, or a letter and Request to Proceed IFP in compliance with the Court's September 22, 2021 Minute Order in the First Complaint. For instance, Plaintiff's Second Complaint states, “I also have to ask if the court could & would send me forms so that I could start [sic] anew. Do it right. And besides I don't have copies so I don't recall what & how exactly I articulated myself in [sic] application.” Dkt. 1 at 9. Plaintiff continues that “[a]gain please allow to start over. However I do need a proper status I understand that I'm probably need a case # assigned . . .? And that I ought to complete ‘Request To Proceed Without prepayment off Filing Fees With Declaration in Support.” Id. Regarding Plaintiff's Request to Proceed IFP, Plaintiff explains that he has not received any response regarding his request to get his trust account and have the trust account certified. See id. (“[Plaintiff] turned in a request form on Sep 18th: ‘I respectfully ask the appropriate personnel to accommodate me on U.S.D.C. request that is: request to proceed without payment of filing fees with declaration in support. I need on the Page 3 ‘certificate of authorized officer' ‘ a certified copy of the plaintiff's trust account statement for last (6) months . . . along with Auhotirzed Officer of Institution (signature) . . . And I haven't heard back since.”).
In light of Plaintiff's requests in the Second Complaint, the Court is inclined to treat the Second Complaint as a Motion for Leave to Amend Plaintiff's First Complaint, as opposed to a Second Complaint. However, before doing so, the Court will give Plaintiff an opportunity to respond and clarify his intentions. Accordingly, the Court will give Plaintiff fourteen (14) days from the date of this Order, by October 29, 2021, to clarify whether Plaintiff intended to file the instant, Second Complaint as a separate complaint, or if the Court should instead docket the Second Complaint as a Motion for Leave to Amend Plaintiff's First Complaint.
III. PLAINTIFF'S REQUESTS TO PROCEED IN FORMA PAUPERIS
If Plaintiff does intend for the Second Complaint to initiate a separate civil action, Plaintiff's second Request to Proceed IFP, like his first, lacks his certified trust account statement. See Dkt. 2 at 3; Rafael Martirosyan v. Baries, et al., Case No. 2:21-cv-6433-PA (MAR), Dkt. 2 at 3. Accordingly, along with his response to this Order, Plaintiff must choose one (1) of the following (2) options with regard to Plaintiff's IFP status:
(1) If Plaintiff chooses to proceed with two (2) separate complaints, Plaintiff must file two (2) new Requests to Proceed IFP for each of Plaintiff's two (2) cases.
(2) If, instead, Plaintiff chooses to proceed with only Plaintiff's First Complaint, Plaintiff must file a single Request to Proceed IFP.
Each Request to Proceed IFP must include the trust account statement, certified by the institution of incarceration.
The Clerk of Court is instructed to mail Plaintiff two (2) Form CV-60P, Request to Proceed Without Prepayment of Filing Fees with Declaration in Support . Pursuant to the Courts instructions above, Plaintiff must file either one (1) or both of these Form CV-60P depending on if he chooses to proceed with only his First Complaint, or both his First and Second Complaints. The Court notes that Plaintiff may need to provide the completed CV-60P form(s) to jail staff to obtain his trust account statement and a certificate of authorized officer. If Plaintiff is unable to have the jail send a copy of his trust account statement to the Court, Plaintiff shall file a grievance with the jail and submit a copy of the grievance to the Court.
Failure to file a timely response to this Order as directed above may result in dismissal without prejudice for failure to prosecute and obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
REQUEST TO PROCEED WITHOUT PREPAYMENT OF FILING FEES WITH DECLARATION IN SUPPORT
I, ___, declare under penalty of perjury, that the following is true and correct; that I am the prisoner-plaintiff in the above entitled case; that in support of my request to proceed without prepayment of fees under 28 U.S.C. Section 1915, I declare that because of my poverty I am unable to pay the full costs of said proceedings or to give security therefore and that I am entitled to redress.
I further declare under penalty of perjury that the responses which I have made to the questions and instructions below are true, correct and complete.
1. Are you presently employed in prison? [ ] Yes [ ] No
a. If the answer is yes, state the number of hours you work per week and the hourly rate of pay: ___
b. State the place of your incarceration ___.
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.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment? [ ] Yes [ ] No
b. Rent payments, interest or dividends? [ ] Yes [ ] No
c. Pensions, annuities or life insurance payments? [ ] Yes [ ] No
d. Gifts or inheritances? [ ] Yes [ ] No
e. Any other income (other than listed above)? [ ] Yes [ ] No
f. Loans? [ ] Yes [ ] No
If the answer to any of the above is yes, describe such source of money and state the amount received from each source during the past twelve (12) months: ___
3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts, if applicable.) [ ] Yes [ ] No
If the answer is yes, identify each account and separately state the amount of money held in each account for each of the six (6) months prior to the date of this declaration. ___
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? [ ] Yes [ ] No
If the answer is yes, describe the property and state it approximate value: ___
5. In what year did you last file an Income Tax Return? ___
Approximately how much income did your last tax return reflect? ___
6. List the persons who are dependent upon your for support, state your relationship to those persons, and indicate how much you contribute toward their support: ___
I understand that a false statement or answer to any question in this declaration will subject me to penalties for perjury. I further understand that perjury is punishable by a term of imprisonment of up to five (5) years and/or a fine of $250,000 (18 U.S.C. Sections 1621, 3571).
I, ___, declare under penalty of perjury that the foregoing is true and correct.
PRISONER AUTHORIZATION
If my request to proceed without prepayment of filing fees is granted, I understand that I am required by statute to pay the full amount of the filing fees for this case, regardless of my forma pauperis status and the disposition of this case. I further authorize the prison officials at this institution to assess, collect and forward to the Court the full amount of these fees, in monthly payments based on the average of deposits to or balance in my prison trust account in accordance with 28 U.S.C. Section 1915.
CERTIFICATE OF AUTHORIZED OFFICER
I hereby certify that the Prisoner-Plaintiff herein has credit in the sum of $ ___on account at the ___institution where Prisoner-Plaintiff is confined.
I further certify that during the past six months the applicant's average monthly balance was $___. I further certify that during the past six months the average of monthly deposits to the applicant's account was$___.
A certified copy of the prisoner-plaintiffs trust account statement for the last six (6) months is attached.
I, ___, declare under penalty of perjury, that the following is true and correct; that I am the prisoner-plaintiff in the above entitled case; that in support of my request to proceed without prepayment of fees under 28 U.S.C. Section 1915, I declare that because of my poverty I am unable to pay the full costs of said proceedings or to give security therefore and that I am entitled to redress.
I further declare under penalty of perjury that the responses which I have made to the questions and instructions below are true, correct and complete.
1. Are you presently employed in prison? [ ] Yes [ ] No
a. If the answer is yes, state the number of hours you work per week and the hourly rate of pay: ___
b. State the place of your incarceration___.
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.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment? [ ] Yes [ ] No
b. Rent payments, interest or dividends? [ ] Yes [ ] No
c. Pensions, annuities or life insurance payments? [ ] Yes [ ] No
d. Gifts or inheritances? [ ] Yes [ ] No
e. Any other income (other than listed above)? [ ] Yes [ ] No
f. Loans? [ ] Yes [ ] No
If the answer to any of the above is yes, describe such source of money and state the amount received from each source during the past twelve (12) months: ___
3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts, if applicable.) [ ] Yes [ ] No
If the answer is yes, identify each account and separately state the amount of money held in each account for each of the six (6) months prior to the date of this declaration. ___
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? [ ] Yes [ ] No
If the answer is yes, describe the property and state it approximate value: ___
5. In what year did you last file an Income Tax Return? ___
Approximately how much income did your last tax return reflect? ___
6. List the persons who are dependent upon your for support, state your relationship to those persons, and indicate how much you contribute toward their support: ___
I understand that a false statement or answer to any question in this declaration will subject me to penalties for perjury. I further understand that perjury is punishable by a term of imprisonment of up to five (5) years and/or a fine of $250,000 (18 U.S.C. Sections 1621, 3571).
I, ___, declare under penalty of perjury that the foregoing is true and correct.
PRISONER AUTHORIZATION
If my request to proceed without prepayment of filing fees is granted, I understand that I am required by statute to pay the full amount of the filing fees for this case, regardless of my forma pauperis status and the disposition of this case. I further authorize the prison officials at this institution to assess, collect and forward to the Court the full amount of these fees, in monthly payments based on the average of deposits to or balance in my prison trust account in accordance with 28 U.S.C. Section 1915.
CERTIFICATE OF AUTHORIZED OFFICER
I hereby certify that the Prisoner-Plaintiff herein has credit in the sum of $___on account at the___ institution where Prisoner-Plaintiff is confined.
I further certify that during the past six months the applicant's average monthly balance was $___. I further certify that during the past six months the average of monthly deposits to the applicant's account was$___.
A certified copy of the prisoner-plaintiffs trust account statement for the last six (6) months is attached.