Rushing v. Unknown Party

Filing 4

ORDER Pla's motion for a 90-day extension of time to file a complaint is denied and this action is dismissed without prejudice to commencing a new action by filing a complaint on the court-approved form and either paying the $350.00 filing fee or submitting an Application to Proceed In Forma Pauperis. (Doc. 1.) The Clerk of Court must enter judgment accordingly. Signed by Judge Robert C Broomfield on 11/15/10. (KMG)

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--DKD Rushing v. Unknown Party Doc. 4 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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jasper P. Rushing, Plaintiff, vs. Unknown Party, Defendant. ) ) ) ) ) ) ) ) ) ) No. CV 10-2126-PHX-RCB (DKD) ORDER Plaintiff Jasper P. Rushing, who is confined in Special Management Unit I of the Arizona State Prison Complex-Eyman, in Florence, Arizona, submitted a motion requesting a 90-day extension of time to file a complaint pursuant to 42 U.S.C. 1983. (Doc. 1.)1 Plaintiff states that his draft complaint and supporting documentation were taken from him by prison officials on September 10, 2010, and that he had a September 31, 2010 deadline to file the complaint. The Clerk of Court opened a civil case to facilitate consideration of this motion. The Clerk also issued a notice of assignment to Plaintiff on October 1, 2010. Plaintiff has not submitted a complaint on the court-approved form for use by a prisoner and he has not paid the $350.00 filing fee or filed an Application to Proceed In Forma Pauperis. On October 13, 2010, Plaintiff filed a letter in which he states that the Notice of Assignment was filed after the September 31, 2010 deadline, apparently referring to the two-year statute of limitation for commencing a 1983 action. (Doc. 3.) Plaintiff re-urges his request for a 1 "Doc." refers to the docket number of filings in this case. Dockets.Justia.com 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 90-day extension of time to file his complaint. Plaintiff's motion will be denied and this action will be dismissed without prejudice. As discussed below, to request relief from the Court, Plaintiff must first file a complaint, using the court-approved form, and he must either pay the $350.00 filing fee or submit an Application to Proceed In Forma Pauperis. Further, a court cannot extend the statute of limitation for filing an action. However, as explained below, the statute of limitation may be subject to tolling. 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. A Complaint Must Be Filed To invoke the jurisdiction of the federal courts, a litigant must satisfy the threshold requirement imposed by Article III of the Constitution by presenting a live case or controversy. See e.g., Jackson v. California Dep't of Mental Health, 399 F.3d 1069, 1071 -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 (9th Cir. 2005) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). To satisfy the case or controversy requirement for purposes of 42 U.S.C. 1983, a prisoner must file a civil rights complaint and allege facts to support that his civil rights have been violated by a defendant acting under color of state law. 42 U.S.C. 1983. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that an incarcerated person must file a complaint on the court-approved form. The form must be completely filled in to the extent applicable with all questions answered clearly and concisely in the appropriate space on the form. Further, the complaint, including additional attached pages, may not exceed 15 pages. In this case, Plaintiff has not filed a complaint. Rather, Plaintiff seeks an extension of the statute of limitation in which to file his 1983 complaint. A court cannot extend a statute of limitation. However, in some instances, the running of the statute of limitation may be subject to tolling. In 1983 actions, the Court applies the statute of limitations of the forum state for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266, 274-76 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991). The Arizona statute of limitations for personal injury actions is two years from the date a claim accrues. See A.R.S. 12-542(1); Madden-Tyler v. Maricopa County, 943 P.2d 822, 824 (Ariz. Ct. App. 1997); Vaughan, 927 F.2d at 478. "[A] claim generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action." Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). The Court must also apply any state rule for tolling to actions brought under 1983. Hardin v. Straub, 490 U.S. 536, 544 (1989); TwoRivers, 174 F.3d at 992. Arizona provides for tolling of the statute of limitation after a cause of action accrues for the period during which a plaintiff was less than 18 years old or of unsound mind. A.R.S. 12-502. Prior to the filing of a complaint, the Court is unable to assess when any claim that Plaintiff wishes to present accrued or whether any basis for tolling exists. Accordingly, the Court will deny Plaintiff's motion for extension of time and dismiss this case without prejudice to Plaintiff commencing a new case by filing a complaint on the court-approved -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 28 form and either payment of the $350.00 filing fee or the submission of an Application to Proceed In Forma Pauperis. IT IS ORDERED: (1) Plaintiff's motion for a 90-day extension of time to file a complaint is denied and this action is dismissed without prejudice to commencing a new action by filing a complaint on the court-approved form and either paying the $350.00 filing fee or submitting an Application to Proceed In Forma Pauperis. (Doc. 1.) (2) The Clerk of Court must enter judgment accordingly. DATED this 15th day of November, 2010. -4-

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