Opinion
No. C03-5015RJB
January 27, 2003
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DIRECTING INSTITUTION TO CALCULATE, COLLECT, AND FORWARD PAYMENTS
The Court, having reviewed plaintiff's application to proceed in forma pauperis, does hereby find and ORDER.
(1) Plaintiff's declaration indicates he is unable to afford the court's filing fee or give security therefor. Accordingly, plaintiff's application to proceed as a pauper is GRANTED. As set forth below, an initial partial filing fee will be collected, and plaintiff is required to make monthly payments of 20 percent of the preceding months income credited to his/her account until the full amount of the filing fee is satisfied.
(2) Pursuant to 28 U.S.C. § 1915 and plaintiff's approved application to proceed informa pauperis, the agency having custody of the above named plaintiff is directed to calculate an initial partial filing fee equal to 20 percent of greater of — the average monthly deposits to the prisoner's account or the average monthly balance in the prisoner's account for the 6-month period immediately preceding the date of this Order. The initial partial filing fee should be forwarded to the court clerk as soon as practicable.
Subsequently, if the prisoner's account exceeds $10.00, each month the Department of Corrections is directed to collect and forward payments equal to 20 percent of the prisoner's preceding month's income credited to the prisoner's account. In the event that the monthly payment would reduce the prisoner's account below $10.00, the Department of Corrections should collect and forward only that amount which would reduce the prisoner's account to the $10.00 level. Please note that this $10.00 limit does not apply to the initial partial filing fee described above. Finally, the monthly payments should be collected and forwarded to the court until the entire filing fee ($150.00) for this matter has been paid.
(3) The Clerk is directed to send plaintiff a copy of this Order and the General Order, and a copy of this Order along with a copy of plaintiff's Acknowledgement and Authorization portion of the IFP application to the Prison Litigation Reform Act ("PLRA") contact person, the inmate account manager at Forks City Jail.
IN RE:
SUMMARY OF PROCEDURAL RULES (for distribution in cases where plaintiff/petitioner is proceeding pro se)
GENERAL ORDER
The following paragraphs summarize certain local rules of the Court and other procedural matters. It is intended for the benefit of plaintiff (petitioners proceeding pro se.It is hereby ORDERED that:
(1) The summons and complaint must be served on each defendant/respondent within four months after the filing of the complaint. If service has not been made in that time, and good cause is not shown for that failure, the action can be dismissed without prejudice.
(2) All pleadings submitted for consideration by the Court must be filed on short paper (8 ½ by 11 inches). Pleadings submitted on longer paper will be returned, and will not be filed.
(3) All original documents and papers submitted for consideration by the Court in this case, and a duplicate of all such papers, are to be filed with the Clerk of this Court. The originals and copies of all such papers shall indicate in the upper right-hand corner the name of the District Judge or Magistrate Judge to whom the copies are to be delivered. The papers shall be accompanied by proof that such documents have been served upon counsel for the opposing party (or upon any party acting pro se). Service is accomplished by mailing a true and correct copy of the document to each defendant/respondent's counsel. The proof of service shall show the day and manner of service and may be written acknowledgment of service, by certificate of a member of the bar of this Court, or by affidavit of the person who served the papers. It a party fails to comply with this Order, the Court will disregard the submitted document.
(4) Any request for court action shall be set forth in a motion, not in a letter or other document. A party must file and serve with the motion a supporting memorandum. The motion shall include in its caption (immediately below the title of the motion) a designation of the Friday upon which the motion is to be noted upon the court's calendar. That date shall be the third Friday following tiling of the motion (fourth Friday for motions for preliminary injunctions to dismiss, for summary judgment, and other dispositive motions). All briefs and affidavits in opposition to any motion shall be filed and served not later than 4:30 p.m. on the Monday immediately preceding the Friday appointed for consideration of the motion. If service is by mail, the brief and any supporting materials shall be mailed not later than the Friday preceding the Friday on which the motion is noted. If a party fails to file and serve timely opposition to a motion, the Court may deem any opposition to be without merit. The party making the motion may file, not later than 4:30 p.m. on the Thursday immediately preceding the Friday designated for consideration of the motion, a response to the opposing party's briefs and affidavits. The motion and supporting memorandum, as well as any opposition or response, must be served and filed according to paragraph (3) above.
(5) If defendant/respondent files a motion for summary judgment, plaintiff/petitioner is advised, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), cert. denied, 119 S.Ct. 2392 (1999), and Federal Rule of Civil Procedure 56, that he or she has a right to file counter affidavits or other responsive evidentiary materials in opposition to defendant/respondent's motion for summary judgment and that his or her failure to file such materials may result in the entry of summary judgment against him or her. If the motion for summary judgment is granted, the plaintiff/petitioner is advised that his/her case will be over. Thus, if plaintiff/petitioner fails to file opposing counter-affidavits or other evidence, defendant/respondent's evidence might be taken as truth, and final judgment may be entered against plaintiff/petitioner without a trial. See Local Rule CR 7(b)(4).
(6) You are not to communicate directly with the District Judge or the Magistrate Judge with regard to this case. All relevant information and papers are to be directed to the Clerk, with copies sent to opposing counsel.
(7) If you are proceeding pro se (without an attorney), you must notify the Clerk and opposing parties promptly if you change your address. If you fail to do so your case may be dismissed.
(8) All cases that have been pending in this Court for more than one year without any proceeding of record having been taken may be dismissed by the Court on its own motion for lack of prosecution.