Opinion
No. CIV S-07-2495 LKK EFB P.
February 8, 2008
ORDER
Plaintiff is a state prisoner without counsel prosecuting a civil rights action. See 42 U.S.C. § 1983. He has submitted an affidavit requesting leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1).
Plaintiff's application to proceed in forma pauperis is incomplete in that it lacks the certificate portion of the application indicating the average monthly balance and average monthly deposits in his trust account for the six-month period immediately preceding the filing of this complaint. Plaintiff has also failed to submit a certified copy of his trust-account statement for the six-month period immediately preceding the filing of this complaint. Section 1915(a)(2) requires "a prisoner seeking to bring a civil action without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . ., obtained from the appropriate official of each prison at which the prisoner is or was confined." Plaintiff has not submitted the required trust account statement. Plaintiff will be granted leave to file the appropriate certification.
The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim against any defendant. To proceed, plaintiff must file an amended complaint.
Any amended complaint must show that the federal court has jurisdiction and that plaintiff's action is brought in the right place, that plaintiff is entitled to relief if plaintiff's allegations are true, and must contain a request for particular relief. Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation).
Plaintiff's claims must be set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim."); Fed.R.Civ.P. 8.
A prisoner who claims his Eighth Amendment guarantee against cruel and unusual punishment has been violated by inadequate medical care must allege that on a specific day an identified state actor with individual responsibility for obtaining or providing medical care knew the prisoner faced substantial risk of serious harm but deliberately disregarded the risk by failing to take reasonable measures resulting in avoidable persistent severe pain or avoidable substantial personal injury. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer v. Brennan, 511 U.S. 825, 837 (1994).
An amended complaint must be complete in itself without reference to any prior pleading. Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading is superseded.
Plaintiff is admonished that by signing an amended complaint he certifies he has made reasonable inquiry and has evidentiary support for his allegations and that for violation of this rule the court may impose sanctions sufficient to deter repetition by plaintiff or others. Fed.R.Civ.P. 11. Prison rules require plaintiff to obey all laws, including this one, and plaintiff may be punished by prison authorities for violation of the court's rules and orders. See Cal. Code Regs. tit. 15, § 3005.
A prisoner may bring no § 1983 action until he has exhausted such administrative remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). Plaintiff is further admonished that by signing an amended complaint he certifies his claims are warranted by existing law, including the law that he exhaust administrative remedies, and that for violation of this rule plaintiff risks dismissal of his action.
Accordingly, the court hereby orders that:
1. Plaintiff has 30 days from the date this order is served to submit a completed application to proceed in forma pauperis together with a certified trust account statement for the six-month period immediately preceding the filing of his complaint. Failure to comply with this order will result in a recommendation that this action be dismissed;
2. The Clerk of the Court is directed to send to plaintiff a copy of the in forma pauperis application form used in this district; and
3. The complaint is dismissed with leave to amend within 30 days. Plaintiff shall file an original and one copy of the amended complaint, which must bear the docket number assigned to this case and be titled "First Amended Complaint." Failure to file an amended complaint will result in a recommendation this action be dismissed for failure to state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will proceed with service of process by the United States Marshal. UNITED STATES DISTRICT COURT APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER CASE NUMBER:
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 APPLICANTCERTIFICATE (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