Opinion
CV-24-01121-PHX-JAT (DMF)
11-13-2024
Jacob J. Purdue, Plaintiff, v. Arizona Department of Corrections, et al., Defendants.
ORDER
James A. Teilborg Senior United States District Judge
On May 14, 2024, Plaintiff Jacob J. Purdue, who was then confined in the Arizona State Prison Complex (ASPC)-Lewis, filed a pro se Complaint and an Application to Proceed In Forma Pauperis. In a June 3, 2024 Order, the Court denied the Application to Proceed as deficient and gave Plaintiff 30 days to either pay the required fees or file a complete in forma pauperis application. On July 8, 2024, Plaintiff filed a Motion entitled “Response to States Motion Requesting Info & Requesting Time” (Doc. 6) and a second Application to Proceed In Forma Pauperis (Doc. 7). On September 9, 2024, Plaintiff filed a Motion for Investigation (Doc. 8).
On September 16, 2024, Plaintiff filed a Notice of Change of Address indicating that he has been transferred to ASPC-Eyman.
The Court will deny the Motions and Application to Proceed and will give Plaintiff 30 days to either pay the filing and administrative fees or file a new complete Application to Proceed In Forma Pauperis.
I. Payment of Filing Fee
When bringing an action, a prisoner must either pay the $350.00 filing fee and a $55.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of indigence and a certified copy of the inmate's trust account statement (or institutional equivalent) for the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each institution where he was confined during the six-month period. Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4.
If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an initial partial filing fee of 20% of either the average monthly deposits or the average monthly balance in Plaintiff's account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of the $350.00 filing fee will be collected in monthly payments of 20% of the preceding month's income credited to an inmate's account, each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).
II. Application Fails to Comply With Statute
Plaintiff has used the court-approved form, but he has failed to submit a certified six-month trust account statement, as required. And while Plaintiff's Motions indicate that he has had difficulty obtaining a certified six-month trust account statement, it is not clear whether he followed the procedures set forth in DO 905.10, which sets forth the process for obtaining a “certified statement of account.” The Court has rarely encountered problems with official certification when it has been requested in accordance with DO 905.10, and Plaintiff's Application to Proceed will therefore be denied without prejudice.
Specifically, DO 905.10 states: 10.1 To request a certified statement of account, inmates shall send an Inmate Letter, to their Business Office where they are housed. The Business Office designee shall scan and email the Inmate Letter to the Central Office ITA staff. 10.2 Within five workdays of receiving the Inmate Letter, Central Office ITA staff shall process the request and generate an email with the signed certified statement, and a memo of instructions to the corresponding Business Office. 10.3 The Business Office staff shall process and document the request in accordance with the Unit Certified Statement Procedure. The signed Inmate Letter is authorization to charge the inmate for the Certified Statement. 10.3.1 Inmates shall incur a charge $0.25 per page. A notice shall be sent to the Business Manager to collect the fee. If funds are not available, the inmate's Spendable Account shall be placed on hold for the amount. 10.4 The inmate shall present the completed form “Application to Proceed in Forma Pauperis” and the certified statements to their assigned Correctional Officer III for certification. The certified application shall be returned to the inmate who is responsible for filing a petition with the court. The application shall not be certified by the unit's Business Office.
If Plaintiff submits another request to ADC officials for a copy of his certified trust account statement, he should comply with the instructions in DO 905.10 and attach a copy of this Order to his request. If Plaintiff finds that he is still unable to complete the Application to Proceed In Forma Pauperis, he must file a declaration signed under penalty of perjury setting forth facts to support that he is unable to comply as the result of acts or omissions that are beyond his control. This declaration must identify when and from whom Plaintiff requested a certified copy of his inmate trust account statement and certification as to the status of his trust account, and the response(s) he received, if any, to his request(s).
III. Response to States Motion Requesting Info & Requesting Time
In his “Response to States Motion Requesting Info & Requesting Time,” Plaintiff appears to request an extension of time to file an Application to Proceed In Forma Pauperis application. The Court will grant the Motion insofar as Plaintiff will have 30 days from the filing date of this Order to either pay the filing and administrative fees or file a complete in forma pauperis application.
IV. Motion for Investigation
In his Motion for Investigation, Plaintiff states that the law-library access at ASPC- Eyman is insufficient and expresses concern that his July 8, 2024 filings did not reach the Court. He asks the Court to “look into” the lack of law library access at ASPC-Lewis. The Court construes Plaintiff's Motion as a Motion for a Temporary Restraining Order or Preliminary Injunction.
To obtain a temporary restraining order or preliminary injunction, the moving party must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The moving party has the burden of proof on each element of the test. Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Plaintiff has neither addressed the elements of the Winter test nor shown that he is likely to suffer irreparable harm in the absence of the requested relief. The Motion for Investigation will therefore be denied.
V. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's “Response to States Motion Requesting Info & Requesting Time” (Doc. 6) is denied.
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(2) Plaintiff's Motion for Investigation (Doc. 8), construed as a Motion for Temporary Restraining Order or Preliminary Injunction, is denied.
(3) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 7) is denied without prejudice.
(4) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee and $55.00 administrative fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement (or institutional equivalent).
(5) If Plaintiff fails to either pay the $350.00 filing fee and $55.00 administrative fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff and deny any pending unrelated motions as moot.
(6) The Clerk of Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).