Riess v. Brisson et al

Filing 5

ORDER denying without prejudice 3 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 completed Application to Proceed In Forma Pauperis and a certified six-month trust account statement. If Plaintiff fails to timely comply, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff. Signed by Judge Robert C Broomfield on 12/9/09. (Attachments: # 1 non-habeas ifp form)(DMT, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 JDDL WO SC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Richard S. Riess, Plaintiff, vs. Kristine Brisson, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 09-2185-PHX-RCB (ECV) ORDER Plaintiff Richard S. Riess, who is confined in the Eloy Detention Center in Eloy, Arizona, has filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). (Doc.# 1, 3.) Plaintiff has not paid the $350.00 civil action filing fee or filed a proper Application to Proceed In Forma Pauperis. The Court will give Plaintiff 30 days to pay the fee or file a completed Application to Proceed In Forma Pauperis. I. Payment of Filing Fee When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally as set forth in 28 U.S.C. 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of indigence and a certified copy of the inmate's trust account statement for the six months preceding the filing of the Complaint. 28 U.S.C. 1915(a)(2). An inmate must submit statements from each institution where he was confined during the six-month period. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4(a). If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an initial partial filing fee of 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). An initial partial filing fee will only be collected when funds exist. 28 U.S.C. 1915(b)(4). The balance of the fee will be collected in monthly payments of 20% of the preceding month's income credited to an inmate's account, each time the amount in the account exceeds $10.00. 28 U.S.C. 1915(b)(2). II. Application Fails to Comply With Statute Plaintiff has used the court-approved form, but he has left blank the "Consent to Collection of Fees from Trust Account" section. This part of the in forma pauperis application must be filled out, signed, and dated. He also has failed to sign the declaration under penalty of perjury. In light of these deficiencies, Plaintiff will be permitted 30 days to either pay the $350.00 filing fee or file a complete Application to Proceed In Forma Pauperis. III. Warnings A. Address Changes Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. B. Copies Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff. C. Possible Dismissal If Plaintiff fails to timely comply with every provision of this Order, including these -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED: ( 1) Plaintiff's Application to Proceed In Forma Pauperis, filed with the Complaint, is denied without prejudice. (Doc.# 3.) (2) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee or file a completed Application to Proceed In Forma Pauperis and a certified six-month trust account statement. (3) 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. (4) The Clerk of the Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas). DATED this 9th day of December, 2009. -3-

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