Opinion
No. CV-05-2577-PHX-MHM (BPV).
November 8, 2005
ORDER
On July 22, 2005, Miguel Villalobos-Bermudez (Petitioner), presently confined in the Eloy Detention Center in Eloy, Arizona, filed with the Clerk of the Court in the Tucson Division of this Court a "Petition For Writ Of Habeas Corpus By A Person In Federal Custody ( 28 U.S.C. § 2241)" (Document #1) (Petition). The Petition was assigned the Tucson case number of CV 05-461-TUC-FRZ. By Order filed August 26, 2005, this action was transferred to the Phoenix Division of this Court because the allegations in the Petition relate to Petitioner's confinement in the Eloy Detention Center, which is located in Pinal County, Arizona. The Clerk of the Court in the Phoenix Division assigned the case number of CV 05-2577-PHX-MHM (BPV) to this action.
FILING FEE OR APPLICATION TO PROCEED
Petitioner has neither paid the five dollar ($5.00) filing fee, nor filed an "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" with the Petition. Rule 3.5(b) of the Local Rules of Civil Procedure (LRCiv) requires that "[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed [in forma pauperis] on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit." If a petitioner has in excess of twenty-five dollars ($25.00) in his inmate account, LRCiv 3.5(b) also requires payment of the five dollar ($5.00) filing fee.
Because Petitioner has not paid the five dollar ($5.00) filing fee, or filed an "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)," Petitioner will be given thirty (30) days from the filing date of this Order to file a properly executed and certified "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)," using the form included with this Order, or to pay the five dollar ($5.00) filing fee.
The Court has prepared and approved the "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" form to meet the requirements of LRCiv 3.5(b).
RULE 41 (b) WARNING
Petitioner is warned that if he fails to timely comply with every provision of this order, 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:
(1) That Petitioner SHALL HAVE thirty (30) days from the filing date of this Order to submit a properly executed and certified "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)," using the form included with this Order, or to pay the five dollar ($5.00) filing fee;
(2) That the Clerk of the Court is DIRECTED to enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner, if Petitioner fails to submit a properly executed and certified "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)," or pay the five dollar ($5.00) filing fee, within thirty (30) days from the filing date of this Order;
(3) That 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 LRCiv 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Petitioner;
(4) That at all times during the pendency of this action, Petitioner SHALL IMMEDIATELY ADVISE the Court 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 Petitioner 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);
(5) That the Clerk of the Court is DIRECTED to provide Petitioner with a current Court-approved form for filing an "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)."
FORM