Toles v. Cole et al

Filing 5

ORDER denying without prejudice 3 Plaintiff's Motion/Application 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 complete Application to Proceed In Forma Pauperis. Clerk must enter dismissal without prejudice if Plaintiff fails to comply. Signed by Judge Robert C Broomfield on 10/16/10. (Attachments: #(1) IFP Non-Habeas Form). (LSP)

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--LOA Toles v. Cole et al Doc. 5 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jamond A. Toles, Plaintiff, vs. Vincent Cole, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-2186-PHX-RCB (LOA) ORDER Plaintiff Jamond A. Toles, who is confined in the Maricopa County Fourth Avenue Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 1983 and an Application to Proceed In Forma Pauperis (Doc. 3). Because the Application to Proceed is deficient, the Court will give Plaintiff 30 days to pay the fee or file a complete 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 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 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. In light of this 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. 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, -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 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 (Doc. 3) is denied without prejudice. (2) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee or file a complete 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 complete 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 16th day of October, 2010. -3-

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