Sanders v. Bougler et al

Filing 9

ORDER that Pla's 8 Applications to Proceed In Forma Pauperis (Non-Habeas) is denied without prejudice. 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 Pro ceed In Forma Pauperis Civil (Non-Habeas) and a certified six-month trust account statement. If Plaintiff fails to 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 Mary H Murguia on 04/07/10. (Attachments: # 1 IFP Non-Habeas) (ESL) Modified on 4/9/2010 (JEMB TO INDICATE OPINION).

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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 Byron Sanders, Plaintiff, vs. Detention Officer Bougler, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-0327-PHX-MHM (MHB) ORDER Plaintiff Byron Sanders, who is confined in the Pinal County Jail in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 1983, but failed to pay the $350.00 civil action filing fee or file a proper Application to Proceed In Forma Pauperis Civil (Non-Habeas).1 The Court denied his in forma pauperis application with leave to either pay the $350.00 filing fee or to file a properly completed "Application to Proceed In Forma Pauperis Civil (Non-Habeas)." (Doc.# 7.) Plaintiff has filed an Application to Proceed In Forma Pauperis (Non-Habeas), which is incomplete. (Doc.# 8.) The Court will deny the new in forma pauperis application and grant Plaintiff an additional 30 days to either 28 On February 16, 2010, Plaintiff filed an "Application to Proceed In Forma Pauperis by a Prisoner (Habeas)" and he filed another "Application to Proceed In Forma Pauperis by a Prisoner (Habeas)" on February 22, 2010. (Doc.# 3, 4.) Because Plaintiff seeks relief under 42 U.S.C. 1983, he must file a properly-completed "Application to Proceed In Forma Pauperis by a Prisoner Civil (Non-Habeas)," as discussed below. 1 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 pay the $350.00 filing fee or to file a properly completed Application to Proceed In Forma Pauperis (Non-Habeas). 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. 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 appropriate court-approved form to proceed without prepayment in full for an action under 42 U.S.C. 1983 and has completed the "Consent to Collection of Fees from Trust Account" section. However, Plaintiff has failed to have the "Certificate of Correctional Official as to Status of Applicant's Trust Account" section completed. In light of that deficiency, Plaintiff will be permitted 30 days to either pay the $350.00 filing fee or file a complete Application to Proceed In Forma Pauperis (NonHabeas). /// -2- 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 JDDL 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 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 Applications to Proceed In Forma Pauperis (Non-Habeas) is denied without prejudice. (Doc.# 8.) (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 Civil (NonHabeas) 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. /// 28 -3- 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 (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 7th day of April, 2010. 28 -4-

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