Opinion
No. CV 06-796-PCT-SMM (MEA).
May 17, 2006
ORDER
Plaintiff, confined in the Coconino County Jail in Flagstaff, Arizona, has filed a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the $250.00 civil action filing fee, nor has he filed a proper Application to Proceed In Forma Pauperis. A. Payment of Filing Fee
A prisoner must pay the $250.00 civil action filing fee either in a lump sum or when granted the privilege of proceeding in forma pauperis, incrementally pursuant to 28 U.S.C. § 1915(b)(1). To apply to proceed in forma pauperis, the prisoner must submit an affidavit of indigence and a certified copy of his trust account statement for the six months preceding the filing of the Complaint. See 28 U.S.C. § 1915(a)(2). He must include statements from each institution where he was confined during the six months preceding the filing of the Complaint.Id. To assist prisoners in meeting these requirements, the Court requires use of a form application under Local Rule of Civil Procedure 3.4(a).
After proper in forma pauperis application has been made, the Court will assess an initial partial filing fee equal to 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). The initial partial filing fee will be collected when funds exists. 28 U.S.C. § 1915(b)(4). The remaining part of the filing fee is made in monthly payments equaling 20% of the preceding month's income credited to an inmate's account, until the entire filing fee is paid in full. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff will be ordered to forward payments to the Clerk of Court each time the amount in the account exceeds $10.00. Id.
B. Application Fails to Comply With Statute
Plaintiff has used the incorrect form for filing an Application To Proceed in Forma Pauperis. Additionally, Plaintiff has not submitted a certified six-month trust account statement. In light of these deficiencies, Plaintiff will be permitted 30 days to file a complete in forma pauperis application and inmate trust account statement.
C. Warnings 1. Address Changes
Plaintiff must file and serve a notice of a change of address 10 days before his move is effective. See LRCIV 83.3(d). Plaintiff shall not include a motion for other relief with his notice of change of address.
2. Copies
Plaintiff must submit an additional copy of every original motion or other document filed for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to comply with this requirement may result in the motion or document being stricken without further notice to Plaintiff.
3. Possible dismissal
Plaintiff is warned that if he fails to timely comply with every provision of this Order, including these warnings, this action will be dismissed without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court). Moreover, because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal of this action will count as a "strike" under the "three strikes" provision of the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff shall have 30 days from the date this Order is filed to either pay the $250.00 filing fee or to properly apply to proceed in forma pauperis.
(2) The Clerk of Court shall enter a judgment of dismissal of this action without prejudice and without further notice if Plaintiff fails to comply with this Order.
(3) The Clerk of the Court shall provide to Plaintiff a current court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).
Instructions for Prisoners Applying for Leave to Proceed in Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court
You must pay the full filing fee of $250.00 for a civil action. If you later file an appeal, you will be obligated to pay the $255.00 filing fee for the appeal.
If you have enough money to pay the full filing fee, you should send a cashier's check or money order payable to the Clerk of the Court with your complaint, petition, or notice of appeal.
If you do not have enough money to pay the full filing fee, you can file the action without prepaying the filing fee. However, the court will assess an initial partial filing fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the average monthly balance in your prison or jail account for the six months immediately preceding the filing of the lawsuit. The court will order the agency that has custody of you to withdraw the initial partial filing fee from your prison or jail account as soon as funds are available and to forward the money to the court.
After the initial partial filing fee has been paid, you will owe the balance of the filing fee. Until the filing fee is paid in full, each month you will owe 20% of your preceding month's income. The agency that holds you in custody will collect that money and forward it to the court any time the amount in your account exceeds $10.00. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial.
To file an action without prepaying the filing fee, and to proceed with an action in forma pauperis, you must complete the attached form and return it to the court with your complaint. You must have a prison or jail official complete the certificate on the bottom of the form and attach a certified copy of your prison or jail account statement for the last six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your account statement from each institution at which you were confined. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied. Even if some or all of the filing fee has been paid, the court is required to dismiss your action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a claim against a defendant for money damages and that defendant is immune from liability for money damages.
If you file more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from filing any other action in forma pauperis unless you are in imminent danger of serious physical injury.
FORM