Moore v. Unknown Parties, No. 2:2009cv02595 - Document 8 (D. Ariz. 2010)
Court Description: ORDER denying without prejudice the 5 Motion for Leave to Proceed in forma pauperis. Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee or file a new, completed Application to Proceed In Forma Paup eris and a certified six-month trust account statement from the ADOCs Central Office. If Plaintiff fails to either pay the $350.00 filing fee or file a completed Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff. Signed by Judge G Murray Snow on 4/1/10.(LAD) CHANGED TO WO on 4/2/2010 (MHU).
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Moore v. Unknown Parties 1 Doc. 8 WO RP NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Larry L. Moore, Plaintiff, 10 11 vs. 12 Unknown Parties, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-2595-PHX-GMS (JRI) ORDER 15 Pending before the Court is Plaintiff’s new Application to Proceed In Forma Pauperis 16 17 (Doc. #5) and “Inmate Statement Account” (Doc. #6). 18 I. Procedural Background 19 On December 11, 2009, Plaintiff Larry L. Moore, who is confined in the Arizona State 20 Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 21 (Doc. #1). Plaintiff did not pay the $350.00 civil action filing fee but filed a deficient 22 Application to Proceed In Forma Pauperis (Doc. #3). By Order filed December 22, 2009 23 (Doc. #4), the Court denied the Application to Proceed In Forma Pauperis without prejudice 24 and gave Plaintiff 30 days to pay the fee or file a new, completed Application to Proceed In 25 Forma Pauperis and a certified six-month trust account statement from the Central Office 26 of the Arizona Department of Corrections (ADOC). 27 28 JDDL Dockets.Justia.com 1 II. New Application to Proceed Fails to Comply With Statute 2 On December 31, 2009, Plaintiff filed a new Application to Proceed In Forma 3 Pauperis (Doc. #5) and an “Inmate Statement Account” (Doc. #6). Although Plaintiff has 4 filed the Application to Proceed In Forma Pauperis on the court-approved form, Plaintiff’s 5 Application to Proceed is deficient because the “Inmate Account Statement” filed with the 6 Application to Proceed does not appear to have been generated by the ADOC’s Central 7 Office, as required. Indeed, it is evident that the “Inmate Account Statement” was generated 8 by the Maricopa County Sheriff’s Office. Also, the “Inmate Account Statement” does not 9 cover the six months preceding the filing of the Complaint and has not been signed by an 10 authorized officer of the ADOC, as required.1 11 Accordingly, Plaintiff’s new Application to Proceed In Forma Pauperis (Doc. #5) will 12 be denied without prejudice and Plaintiff will be granted one last chance to correct the 13 deficiency. Within 30 days of the filing date of this Order, Plaintiff must either pay the 14 $350.00 filing fee or file a completed, certified Application to Proceed In Forma Pauperis 15 and a certified six-month trust account statement from the ADOC’s Central Office that 16 covers the six-month period immediately preceding the filing of the Complaint. 17 III. Warnings 18 A. Address Changes 19 Plaintiff must file and serve a notice of a change of address in accordance with Rule 20 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 21 relief with a notice of change of address. Failure to comply may result in dismissal of this 22 action. 23 B. Copies 24 Plaintiff must submit an additional copy of every filing for use by the Court. See 25 26 27 28 JDDL 1 The “Inmate Account Statement” covers the period of time from January 24, 2009, until August 11, 2009. However, Plaintiff’s Complaint (Doc. #1) was not filed until December 11, 2009, almost five months after the date of the “Inmate Account Statement.” -2- 1 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 2 to Plaintiff. 3 C. Possible Dismissal 4 If Plaintiff fails to timely comply with every provision of this Order, including these 5 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 6 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 7 comply with any order of the Court). 8 IT IS ORDERED: 9 (1) 10 11 Plaintiff’s new Application to Proceed In Forma Pauperis (Doc. #5) is denied without prejudice. (2) Within 30 days of the date this Order is filed, Plaintiff must either pay the 12 $350.00 filing fee or file a new, completed Application to Proceed In Forma Pauperis and 13 a certified six-month trust account statement from the ADOC’s Central Office. 14 (3) If Plaintiff fails to either pay the $350.00 filing fee or file a completed 15 Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a 16 judgment of dismissal of this action without prejudice and without further notice to Plaintiff. 17 18 19 (4) The Clerk of the Court must mail to Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas). DATED this 1st day of April, 2010. 20 21 22 23 24 25 26 27 28 JDDL -3- 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 $350.00 for a civil action. If you later file an appeal, you will be obligated to pay the $455.00 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. Revised 4/9/06 Name and Prisoner/Booking Number Place of Confinement Mailing Address City, State, Zip Code IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Plaintiff, vs. Defendant(s). ) , ) CASE NO. ) ) ) APPLICATION TO PROCEED ) IN FORMA PAUPERIS , ) BY A PRISONER ) CIVIL (NON-HABEAS) ) I, , declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these proceedings or to give security therefor and that I believe I am entitled to relief. In support of this application, I answer the following questions under penalty of perjury: 1. Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained? GYes GNo If "Yes," how many have you filed? . Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a If "Yes," how many of them? . claim upon which relief may be granted? GYes GNo 2. Are you currently employed at the institution where you are confined? If "Yes," state the amount of your pay and where you work. GYes GNo 3. Do you receive any other payments from the institution where you are confined? If "Yes," state the source and amount of the payments. GYes GNo Revised 4/9/06 1 4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where you are confined? GYes GNo If "Yes," state the sources and amounts of the income, savings, or assets. I declare under penalty of perjury that the above information is true and correct. DATE SIGNATURE OF APPLICANT CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT I, , hereby consent to having the designated correctional officials at this institution release to the Court my trust account information. I further consent to having the designated correctional officials at this institution withdraw from my trust account the funds required to comply with the order of this Court for the payment of filing fees in accordance with 28 U.S.C. § 1915(b). My consent includes withdrawal from my account by correctional officials of partial initial payments to this Court equal to 20% of the greater of: (A) the average monthly deposits to my account for the six-month period preceding my filing of this action, or (B) the average monthly balance in my account for the six-month period preceding my filing of this action. My consent also includes monthly withdrawals from my account by correctional officials of an amount equal to 20% of each month’s income. Whenever the amount in my account reaches $10.00, correctional officials will withdraw that amount and forward it to the Court until the required filing fee is paid in full. I understand that I am liable for paying the entire fee, even if my case is dismissed by the Court before the fee is fully paid. DATE SIGNATURE OF APPLICANT CERTIFICATE OF CORRECTIONAL OFFICIAL AS TO STATUS OF APPLICANT’S TRUST ACCOUNT I, , certify that as of the date applicant signed this application: (Printed name of official) The applicant’s trust account balance at this institution is: $ The applicant’s average monthly deposits during the prior six months is: $ The applicant’s average monthly balance during the prior six months is: $ The attached certified account statement accurately reflects the status of the applicant’s account. DATE Revised 4/9/06 AUTHORIZED SIGNATURE TITLE/ID NUMBER 2 INSTITUTION
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