Opinion
No. CIV 05-3369-PHX-DGC (VAM).
November 16, 2005
ORDER
On October 24, 2005, Plaintiff David Sorey, presently confined in the Maricopa County Durango Jail, filed a Civil Rights Complaint by a Prisoner ("Complaint") pursuant to 42 U.S.C. § 1983 and an uncertified Application to Proceed In Forma Pauperis ("Application to Proceed"). Plaintiff's Application to Proceed is insufficient to support the request to proceed in forma pauperis because the Application is not signed by an authorized officer of the institution in which Plaintiff is confined and because Plaintiff did not file a certified trust fund account statement with his Application to Proceed.
This is one of more than one thousand (1,000) civil rights actions filed since September 2004 by Maricopa County Jail inmates. Payment of Filing Fee
Many inmates apparently believe that they will receive an immediate payout from a fund established in Hart v. Hill, No. CV 77-0479-PHX-EHC (MS) (D. Ariz.). No such fund exists. The inmates in Hart asked for injunctive relief and not monetary damages. The Court at this time expresses no opinion on whether Plaintiff's lawsuit may result in an award of damages.
Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff must pay the two hundred fifty dollar ($250.00) filing fee when he files a civil act ion. Nevertheless, Plaintiff may file a civil action even if he has no assets to immediately pay the filing fee. 28 U.S.C. § 1915(b)(4). If Plaintiff currently has no assets, the filing fee will be collected from him when funds exist. 28 U.S.C. § 1915(b).
Accordingly, Plaintiff must now pay the two hundred fifty dollar ($250.00) filing fee or, if unable to pay the fee immediately, must submit to the Court a new, certified Application to Proceed, using the form included with this Order. Plaintiff's Application to Proceed must have an original signature by Plaintiff, and must include a certified copy of his trust fund account statement (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint, and if he was held at more than one institution during the six (6) months immediately preceding the filing of the Complaint, he must file a certified trust fund account statement(s) (or institutional equivalent) for each institution where he was confined. Both Plaintiff's Application to Proceed and trust fund account statement must have an original signature of an authorized officer of the institution.
Application Fails to Comply With Statute
Although Plaintiff filed an Application to Proceed with his Complaint, Plaintiff's Application to Proceed is deficient because: 1) the Application is not signed by an authorized officer of the institution in which Plaintiff is confined and 2) Plaintiff did not include a copy of his trust fund account statement (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint which is certified by an authorized officer of the institution as required.
Accordingly, Plaintiff's Application to Proceed will be denied without prejudice and Plaintiff will be given thirty (30) days to submit a new Application to Proceed, using the form included with this Order, and a certified copy of his trust fund account statement(s) for the six (6) months immediately preceding the filing of the Complaint.
If Plaintiff submits a new, certified Application to Proceed and a certified copy of his trust fund account statement(s) for the six (6) months immediately preceding the filing of the Complaint, instead of immediately paying the two hundred fifty dollar ($250.00) filing fee, the Court will assess and, when funds exist, collect an initial partial filing fee of twenty percent (20%) of the greater amount of either the average monthly deposits or the average monthly balance in Plaintiff's account for the six (6) months immediately preceding the filing of the Complaint. 28 U.S.C. § 1915(b)(1). After payment of the initial partial filing fee, Plaintiff will be required to make monthly payments equaling twenty percent (20%) of the preceding month's income credited to his account. 28 U.S.C. § 1915(b)(2).
The agency having custody of Plaintiff will be required to forward payments from his account to the Clerk of the Court each time the amount in the account exceeds ten dollars ($10.00) until the filing fee is paid. Id. Statutory Limitations on Prisoner Complaints
Plaintiff should note that even after he pays the filing fee, the Court will dismiss the case at any time if the Court determines the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim upon which relief may be granted, or monetary relief is sought against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The Court also will dismiss the complaint if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. 1997e(a).
Plaintiff also should note that a prisoner may not bring a civil action without complete prepayment of the appropriate filing fee if the prisoner has brought on three or more occasions an action or appeal in a federal court that was dismissed as frivolous, as malicious, or for failure to state a claim upon which relief may be granted, unless the prisoner is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
Notice of Possible Dismissal Pursuant to Rule 41
Plaintiff is cautioned that if he 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. 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).
IT IS THEREFORE ORDERED as follows:
(1) Plaintiff's "Application to Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" ("Application to Proceed") filed with the Complaint is DENIED WITHOUT PREJUDICE;
(2) Plaintiff SHALL HAVE thirty (30) days from the filing date of this Order to pay the two hundred fifty dollar ($250.00) filing fee, or in the alternative, to file with the Court a new, certified Application to Proceed, using the form included with this Order. Plaintiff's Application to Proceed shall have an original signature by Plaintiff, and shall include a copy of his trust fund account statement (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint which is certified by an authorized officer of the Maricopa County Sheriff's Office. Both Plaintiff's Application to Proceed and trust fund account statement shall have an original signature of an authorized officer of the Maricopa County Sheriff's Office. If Plaintiff was held at more than one institution during the six (6) months immediately preceding the filing of the Complaint, he shall file a certified trust fund account statement(s) (or institutional equivalent) for each institution where he was confined. The trust fund account statement(s) must show deposits and average balances for each month;
(3) The Clerk of Court is DIRECTED to enter a judgment of dismissal without prejudice of this action, without further notice to Plaintiff, if Plaintiff fails to pay the two hundred fifty dollar ($250.00) filing fee, or in the alternative, if he fails to file a certified Application to Proceed and a copy of his trust fund account statement(s) (or institutional equivalent) for the six (6) months immediately preceding the filing of the Complaint, which is certified by an authorized officer of the Maricopa County Sheriff's Office, within thirty (30) days of the filing date of this Order;
(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 Rule 5.4, Local Rules of Civil Procedure ("LRCiv"). Failure to comply with this requirement 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);
(6) The Clerk of the Court is DIRECTED to provide Plaintiff with a current Court-approved form for filing an Application to Proceed In Forma Pauperis.