Ruiz v. Kelly

Full title: BRANDON RUIZ, Plaintiff, v. KAREN KELLY, et al., Defendants

Court: United States District Court, E.D. California

Date published: Jan 24, 2008

No. CIV S 07-2236 LKK CMK P (E.D. Cal. Jan. 24, 2008)

Opinion

No. CIV S 07-2236 LKK CMK P.

January 24, 2008

ORDER

CRAIG KELLISON, Magistrate Judge

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. On January 4, 2008, the undersigned issued findings and recommendations recommending that this action be dismissed for lack of prosecution and failure to comply with court rules and orders for plaintiff's failure to either submit a completed application for leave to proceed in forma pauperis or the full filing fee for this action. (Doc. 6.) Plaintiff has filed objections to these findings and recommendations. (Doc. 7, 8.)

Plaintiff states in his objections that the application for leave to proceed in forma pauperis, and the required certified copy of his prison trust account were completed and sent to the court on or about November 27, 2007. Neither has been received by the court and docketed in this case.

However, as plaintiff has attempted to comply with this court's order, the findings and recommendations filed January 4, 2008, will be vacated and plaintiff will be provided additional time to comply. Plaintiff must file an application to proceed in forma pauperis or pay the appropriate filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). Plaintiff is warned that failure to comply with this order may result in the dismissal of this action. See Local Rule 11-110.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed January 4, 2008 (Doc. 6) are vacated;

2. Plaintiff shall submit on the form provided by the Clerk of the Court, within 30 days from the date of this order, a complete application for leave to proceed in forma pauperis, including the required affidavits and certifications, or the appropriate filing fee; and

3. The Clerk of the Court is directed to send plaintiff a new form Application to Proceed In Forma Pauperis By a Prisoner. APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER CASE NUMBER:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Plaintiff vs. Defendant(s) I, ________________________________________, declare that I am the plaintiff in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. § 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.

In support of this application, I answer the following questions under penalty of perjury: 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. and

1. Are you currently incarcerated: Yes No (If "No" DO NOT USE THIS FORM) If "Yes" state the place of your incarceration. _____________________________ 2. Are you currently employed? Yes No a. If the answer is "Yes" state the amount of your pay. b. If the answer is "No" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. 3. In the past twelve months have you received any money from any of the following sources? a. Business, profession or other self-employment Yes No b. Rent payments, interest or dividends Yes No c. Pensions, annuities or life insurance payments Yes No d. Disability or workers compensation payments Yes No e. Gifts or inheritances Yes No f. Any other sources Yes No If the answer to any of the above is "Yes" describe by that item each source of money and state the amount received what you expect you will continue to receive. Please attach an additional sheet if necessary. 4. Do you have cash or checking or savings accounts? Yes No If "Yes" state the total amount: ____________________ 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? Yes No If "Yes" describe the property and state its value. ______________________________ 6. Do you have any other assets? Yes No If "Yes" list the asset(s) and state the value of each asset listed. 7. List the persons who are dependent on you for support, state your relationship to each person and indicate how much you contribute to their support. I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with 28 U.S.C. § 1915(b)(2).

I declare under penalty of perjury that the above information is true and correct.

___________________ _____________________________________________ DATE SIGNATURE OF APPLICANT

CERTIFICATE (To be completed by the institution of incarceration)

I certify that the applicant named herein has the sum of $__________ on account to his/her credit at ______________________________ (name of institution). 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 $__________.

(Please attach a certified copy of the applicant's trust account statement showing transactions for the past six months.)

___________________ _____________________________________________ DATE SIGNATURE OF AUTHORIZED OFFICER