Gingerich et al v. Yuma Police Department et al

Filing 3

ORDER within 30 days of the date this Order is filed, Plaintiff must either pay the $350 filing fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement. Plaintiff's Complaint (Doc. 1) is dismissed without prejudice. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal without prejudice. The Clerk of Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis and a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge Robert C Broomfield on 11/30/10. (TLJ)

--MEA Gingerich et al v. Yuma Police Department et al

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ricky Lee Gingerich, Plaintiff, vs. Yuma City Police Department, et al., Defendants.

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No. CV 10-2542-PHX-RCB (MEA) ORDER

On November 23, 2010, Plaintiff Ricky Lee Gingerich, who is confined in the Yuma County Detention Center in Yuma, Arizona, filed a pro se Complaint (Doc. 1). Plaintiff did not pay the $350.00 civil action filing fee or file an 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. Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4(a).

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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). Because Plaintiff has not paid the $350.00 civil action filing fee or filed an Application to Proceed In Forma Pauperis, Plaintiff will be permitted 30 days from the filing date of this Order to submit a properly executed and certified Application to Proceed In Forma Pauperis, using the form included with this Order, or pay the $350.00 filing fee. II. Complaint not on Court-Approved Form Local Rule of Civil Procedure 3.4(a) requires in part that "[a]ll complaints and applications to proceed in forma pauperis by incarcerated persons shall be signed and legibly written or typewritten on forms approved by the Court and in accordance with the instructions provided with the forms." Plaintiff's Complaint is not on a court-approved form as required by Local Rule of Civil Procedure 3.4(a). Plaintiff's Complaint will therefore be dismissed without prejudice, with leave to amend, in order for Plaintiff to file an amended complaint on a court-approved form. Within 30 days, Plaintiff may submit a first amended complaint on a court-approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff. Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint reference. Plaintiff may include only one claim per count.

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A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff should note that, although he names himself and "Does 1 though 50" as Plaintiffs, he has no authority to bring this action on behalf of others. "[C]onstitutional claims are personal and cannot be asserted vicariously." Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997). A party is permitted to plead and conduct his or her case "personally or by counsel." 28 U.S.C. § 1654. A non-lawyer may appear on his own behalf in his own case but "has no authority to appear as an attorney for others than himself." Johns, 114 F.3d at 876 (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). If Plaintiff files an amended complaint, he must list only himself as the Plaintiff. 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, 963 F.2d at
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1260-61 (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED: (1) 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. (2) 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. (3) Plaintiff's Complaint (Doc. 1) is dismissed without prejudice for failure to

file on a court-approved form. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

Court must, without further notice, enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff. (5) The Clerk of Court must mail Plaintiff a court-approved form for filing an

Application to Proceed In Forma Pauperis (Non-Habeas) and a court-approved form for filing a civil rights complaint by a prisoner. DATED this 30th day of November, 2010.

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