Opinion
No. CV-06-1083-PHX-MHM (JCG).
June 12, 2006
ORDER
James Thurman Montgomery (Petitioner), presently confined in the Cocopah Unit of the Arizona State Prison Complex in Yuma, Arizona (ASPC-Yuma), filed with the Clerk of the Court on April 18, 2006 a "Petition For Writ Of Habeas Corpus By A Person In State Custody Pursuant To 28 U.S.C. § 2254 (Non-Death Penalty)" (Document #1) (Petition). Petitioner has not paid the five dollar ($5.00) filing fee, or filed an "Application To ProceedIn Forma Pauperis By A Prisoner (Habeas)" (Application To Proceed) with the Petition.
The five dollar ($5.00) filing fee is set pursuant to 28 U.S.C. § 1914(a).
FILING FEE OR APPLICATION TO PROCEED
Rule 3.5(b) of the Local Rules of Civil Procedure (LRCiv) requires that "[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed [in forma pauperis] on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit." Payment of the five dollar ($5.00) filing fee is required by LRCiv 3.5(b) if a petitioner has in excess of twenty-five dollars ($25.00) in his inmate account.
Because Petitioner has not paid the five dollar ($5.00) filing fee, or filed an Application To Proceed, Petitioner will be given thirty (30) days from the filing date of this Order to file a properly executed and certified Application To Proceed, using the form included with this Order, or to pay the five dollar ($5.00) filing fee.
The Court has prepared and approved the Application To Proceed form to meet the requirements of LRCiv 3.5(b).
FAILURE TO SIGN PETITION
Pursuant to LRCiv 7.1(b)(1), all pleadings must be signed as provided in Rule 11 of the Federal Rules of Civil Procedure. Moreover, LRCiv 3.5(a) specifically requires that petitions by prisoners pursuant to 28 U.S.C. § 2254 must be signed by the petitioner. However, the Petition that Petitioner filed in this action is not signed by Petitioner as required by LRCiv 3.5(a) and 7.1(b)(1), and Rule 11 of the Federal Rules of Civil Procedure.
Accordingly, Petitioner will be given thirty (30) days to either: 1) file a completed and signed Certificate, on the form included with this Order, certifying that Petitioner's signature on the Certificate shall serve as an original signature on his Petition for the purposes of LRCiv 3.5(a) and 7.1(b)(1), and Rule 11 of the Federal Rules of Civil Procedure, or 2) file an amended petition that contains Petitioner's original signature.
WARNING
Petitioner is warned that if he fails to file the required Certificate, or an amended petition, with the Court within thirty (30) days from the filing date of this Order, the Petition will be stricken pursuant to Rule 11(a) of the Rules of Federal Procedure ("unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party"), and the action 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). Indeed, if Plaintiff 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.
Plaintiff is also warned that pursuant to LRCiv 15.1(a)(2), any amended petition he may file may not incorporate any part of the original Petition by reference. Any amended petition submitted by the Petitioner should also be clearly designated as an amended petition on the face of the document. Furthermore, all causes of action alleged in the original Petition which are not alleged in an amended petition will be waived, and an amended petition will supersede the original Petition. 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).
IT IS THEREFORE ORDERED:
(1) That Petitioner SHALL HAVE thirty (30) days from the filing date of this Order to file a properly executed and certified "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)," using the Court-approved form included with this Order, or pay the five dollar ($5.00) filing fee;
(2) That the Clerk of the Court is DIRECTED to enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner, if Petitioner fails to submit a properly executed and certified "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)," or pay the five dollar ($5.00) filing fee, within thirty (30) days from the filing date of this Order;
(3) That Petitioner SHALL HAVE thirty (30) days from the filing date of this Order to either: 1) file a completed and signed Certificate, on the form included with this Order, certifying that Petitioner's signature on the Certificate shall serve as an original signature on his Petition for the purposes of LRCiv 3.5(a) and 7.1(b)(1), and Rule 11 of the Federal Rules of Civil Procedure, or 2) file an amended petition on a Court-approved form that contains Petitioner's original signature with the Court;
(4) That the Clerk of the Court is DIRECTED to strike Petitioner's Petition and enter a dismissal of this action, without further notice to Petitioner, if within thirty (30) days from the filing date of this Order Petitioner has failed to either: 1) file a completed and signed Certificate on the form included with this Order, certifying that Petitioner's signature on the Certificate shall serve as an original signature on his Petition for the purposes of LRCiv 3.5(a) and 7.1(b)(1), and Rule 11 of the Federal Rules of Civil Procedure, or 2) file an amended petition that contains Petitioner's original signature with the Court;
(5) That aside from the two (2) copies of a petition or amended petition that must be submitted pursuant to LRCiv 3.5(a), 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 Petitioner;
(6) That at all times during the pendency of this action, Petitioner SHALL IMMEDIATELY ADVISE the Court 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 Petitioner 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);
(7) That the Clerk of the Court is DIRECTED to provide Petitioner with current Court-approved forms for filing an "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" and a "Petition For Writ Of Habeas Corpus By A Person In State Custody Pursuant To 28 U.S.C. § 2254 (Non-Death Penalty)," and also a "Certificate" form.