Neuendorf #147980 v. St. Joseph's Hospital et al

Filing 25

ORDER granting 10 Plaintiff's Motion for Reconsideration, the Clerk must reopen this case. 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 For ma Pauperis. Clerk must enter dismissal without prejudice if plaintiff fails to comply. IT IS FURTHER ORDERED denying 7 , 8 , 12 and 20 Plaintiff's Motion for Conditions of Relief and denying 9 , 13 , and 22 Plaintiff's Motion for Extension of Time. The Clerk must send a copy of this Order to the Ninth Circuit Court of Appeals, re Ninth Circuit Case 13-16030. Signed by Senior Judge Robert C Broomfield on 7/16/13.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

John Calvin Neuendorf, II,

10

Plaintiff,

11
12

No. CV 12-2724-PHX-RCB (DKD)

vs.

ORDER

St. Joseph’s Hospital, et al.,

13

Defendants.

14
15
16

Plaintiff John Calvin Neuendorf, II, who is confined in the Arizona State Prison

17

Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and a

18

deficient Application to Proceed In Forma Pauperis. On March 26, 2013, the Court

19

denied the Application to Proceed and dismissed the action under the “three strikes”

20

provision of 28 U.S.C. § 1915(g).

21

Reconsideration (Doc. 10) in which he argues that the dismissal under § 1915(g) was in

22

error. On May 21, 2013, Plaintiff filed a Notice of Appeal.

On April 5, 2013, Plaintiff filed a Motion for

23

The Court will grant Plaintiff’s Motion for Reconsideration, direct the Clerk of

24

Court to re-open this case, and give Plaintiff 30 days within which to file a complete

25

Application to Proceed In Forma Pauperis. The Court will also deny the remainder of

26

Plaintiff’s pending motions.

27

I.

28

JDDL

Motion for Reconsideration
Plaintiff argues that dismissal of this action under § 1915(g) was inappropriate

1

because one of the cases counted as a strike, CV 10-2238, was a petition for writ of

2

mandamus, not a civil rights action.

3

The Ninth Circuit Court of Appeals has determined that the language of § 1915(g)

4

does not encompass habeas petitions and that Congress intended § 1915(g) to address

5

only civil rights and prison condition cases, not habeas petitions. Andrews v. King, 398

6

F.3d 1113, 1122 (9th Cir. 2005); In re Nagy, 89 F.3d 115, 117 (2d Cir. 1996) (holding

7

that the application of the PLRA to mandamus petitions depends on the nature of the

8

relief sought–only if the prisoner’s mandamus claim is analogous to the typical suits

9

brought under 42 U.S.C. § 1983 complaining about prison conditions does the PLRA

10

apply).

11

In CV 10-2238, Plaintiff attempted to challenge his ongoing criminal proceedings

12

and sought dismissal of the criminal charges against him and release from jail. The relief

13

Plaintiff sought in CV 10-2238 was not a challenge to prison conditions and therefore

14

dismissal of CV 10-2238 should not count as a strike for purposes of § 1915(g). The

15

Court will therefore grant Plaintiff’s Motion for Reconsideration and re-open this case.

16

II.

Payment of Filing Fee

17

When bringing an action, a prisoner must either pay the $350.00 filing fee in a

18

lump sum or, if granted the privilege of proceeding in forma pauperis, pay the fee

19

incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma

20

pauperis requires an affidavit of indigence and a certified copy of the inmate’s trust

21

account statement for the six months preceding the filing of the Complaint. 28 U.S.C.

22

§ 1915(a)(2). An inmate must submit statements from each institution where the inmate

23

was confined during the six-month period. Id. To assist prisoners in meeting these

24

requirements, the Court requires use of a form application. LRCiv 3.4.

25

If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an

26

initial partial filing fee of 20% of either the average monthly deposits or the average

27

monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An

28

initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4).
-2-

JDDL

1

The balance of the fee will be collected in monthly payments of 20% of the preceding

2

month’s income credited to an inmate’s account, each time the amount in the account

3

exceeds $10.00. 28 U.S.C. § 1915(b)(2).

4

III.

Application Fails to Comply With Statute

5

Plaintiff’s Application to Proceed was filed on the court-approved form, but he did

6

not submit a certified six-month trust account statement. In light of this deficiency, the

7

Court will give Plaintiff 30 days to either pay the $350.00 filing fee or file a complete

8

Application to Proceed In Forma Pauperis.

9

The Arizona Department of Corrections (“ADOC”) has notified the Court that a

10

certified trust fund account statement showing deposits and average monthly balances is

11

available from the ADOC’s Central Office.

12

certified copy of his ADOC trust fund account statement for the six months immediately

13

preceding the filing of the Complaint from the ADOC’s Central Office.

14

IV.

Accordingly, Plaintiff must obtain the

Motions

15

On March 27, 2013, April 19, 2013, and June 5, 2013, Plaintiff filed identical

16

“Motions for Conditions of Relief” (Docs. 7, 8, 12 and 20). The relief Plaintiff seeks in

17

these Motions is unclear and the Court will deny the Motions. If Plaintiff seeks to add

18

new claims for relief, he may file and amended complaint.

19

On April 2, 2013, April 19, 2013, and June 27, 2013, Plaintiff filed Motions for

20

Extension of Time (Docs. 9, 13, and 22). In light of this Order, Plaintiff’s Motions for

21

Extension of time are moot and will be denied.

22

V.

Warnings

23

A.

24

Plaintiff must file and serve a notice of a change of address in accordance with

25

Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion

26

for other relief with a notice of change of address. Failure to comply may result in

27

dismissal of this action.

28

...

Address Changes

-3JDDL

1

B.

2

Because Plaintiff is currently confined in ASPC-Eyman and this case is subject to

3

General Order 12-25, Plaintiff is not required to submit an additional copy of every filing

4

for use by the Court, as would ordinarily be required by Local Rule of Civil Procedure

5

5.4. If Plaintiff is transferred to a prison other than ASPC-Eyman, he will be notified of

6

the requirements regarding copies for the Court that are required for inmates whose cases

7

are not subject to General Order 12-25.

Copies

8

C.

9

If Plaintiff fails to timely comply with every provision of this Order, including

10

these warnings, the Court may dismiss this action without further notice. See Ferdik v.

11

Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

12

for failure to comply with any order of the Court).

13

IT IS ORDERED:

14
15

(1)

Possible Dismissal

Plaintiff’s April 5, 2013 Motion for Reconsideration (Doc. 10) is granted;

the Clerk of Court must reopen this case.

16

(2)

Within 30 days of the date this Order is filed, Plaintiff must either pay the

17

$350.00 filing fee or file a complete Application to Proceed In Forma Pauperis and a

18

certified six-month trust account statement.

19

(3)

If Plaintiff fails to either pay the $350.00 filing fee or file a complete

20

Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter

21

a judgment of dismissal of this action without prejudice and without further notice to

22

Plaintiff.

23
24

(4)

Plaintiff’s Motions for Conditions of Relief (Docs. 7, 8, 12, and 20) are

denied.

25

(5)

Plaintiff’s Motions for Extension of Time (Docs. 9, 13, and 22) are denied.

26

(6)

The Clerk of the Court must mail Plaintiff a court-approved form for filing

27

an Application to Proceed In Forma Pauperis (Non-Habeas).

28

...
-4-

JDDL

1

(7)

2

Court of Appeals.

3

The Clerk of Court must send a copy of this Order to the Ninth Circuit

DATED this 16th day of July, 2013.

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
-5JDDL

Instructions for Prisoners Applying for Leave to Proceed in Forma Pauperis
Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court
You must pay the $350.00 filing fee plus the $50.00 administrative fees for a civil action.
If you later file an appeal, you will be obligated to pay the $455.00 filing fee for the appeal.
If you have enough money to pay the full $400.00 filing and administrative fees, you should
send a cashier’s check or money order payable to the Clerk of the Court with your complaint.
If you do not have enough money to pay the full $400.00 filing and administrative fees, you
can file the action without prepaying the fees. However, the court will assess an initial partial filing
fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20%
of the average monthly balance in your prison or jail account for the six months immediately
preceding the filing of the lawsuit. The court will order the agency that has custody of you to
withdraw the initial partial filing fee from your prison or jail account as soon as funds are available
and to forward the money to the court.
After the initial partial filing fee has been paid, you will owe the balance of the $350.00
filing fee (you will not be required to pay the $50.00 administrative fee). Until the filing fee is paid
in full, each month you will owe 20% of your preceding month's income. The agency that holds you
in custody will collect that money and forward it to the court any time the amount in your account
exceeds $10.00. The balance of the filing fee may be collected even if the action is later dismissed,
summary judgment is granted against you, or you fail to prevail at trial.
To file an action without prepaying the filing fee, and to proceed with an action in forma
pauperis, you must complete the attached form and return it to the court with your complaint. You
must have a prison or jail official complete the certificate on the bottom of the form and attach a
certified copy of your prison or jail account statement for the last six months. If you were
incarcerated in a different institution during any part of the past six months, you must attach a
certificate and a certified copy of your account statement from each institution at which you were
confined. If you submit an incomplete form or do not submit a prison or jail account statement with
the form, your request to proceed in forma pauperis will be denied.
Even if some or all of the filing fee has been paid, the court is required to dismiss your action
if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your
complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a
claim against a defendant for money damages and that defendant is immune from liability for money
damages.
If you file more than three actions or appeals which are dismissed as frivolous or malicious
or for failure to state a claim on which relief can be granted, you will be prohibited from filing any
other action in forma pauperis unless you are in imminent danger of serious physical injury.

Revised 5/1/2013

Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Plaintiff,
vs.

Defendant(s).

)
, ) CASE NO.
)
)
)
APPLICATION TO PROCEED
)
IN FORMA PAUPERIS
, )
BY A PRISONER
)
CIVIL (NON-HABEAS)
)

I,
, declare, in support of my request to proceed in the above
entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these
proceedings or to give security therefor and that I believe I am entitled to relief.
In support of this application, I answer the following questions under penalty of perjury:
1.

Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained?
GYes GNo
If "Yes," how many have you filed?
.
Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a claim
upon which relief may be granted? GYes
GNo
If "Yes," how many of them?
.

2.

Are you currently employed at the institution where you are confined?
If "Yes," state the amount of your pay and where you work.

GYes

GNo

3.

Do you receive any other payments from the institution where you are confined?
If "Yes," state the source and amount of the payments.

GYes

GNo

Revised 5/1/2013

1

4.

Do you have any other sources of income, savings, or assets either inside or outside of the institution where
you are confined?
GYes
GNo
If "Yes," state the sources and amounts of the income, savings, or assets.

I declare under penalty of perjury that the above information is true and correct.

DATE

SIGNATURE OF APPLICANT

CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT
I,
, hereby consent to having the designated correctional officials at this
institution release to the Court my trust account information. I further consent to having the designated correctional
officials at this institution withdraw from my trust account the funds required to comply with the order of this Court
for the payment of filing fees in accordance with 28 U.S.C. § 1915(b).
My consent includes withdrawal from my account by correctional officials of partial initial payments to this
Court equal to 20% of the greater of:
(A) the average monthly deposits to my account for the six-month period preceding my filing of this
action, or
(B) the average monthly balance in my account for the six-month period preceding my filing of this
action.
My consent also includes monthly withdrawals from my account by correctional officials of an amount equal
to 20% of each month’s income. Whenever the amount in my account reaches $10.00, correctional officials will
withdraw that amount and forward it to the Court until the required filing fee is paid in full. I understand that I am
liable for paying the entire fee, even if my case is dismissed by the Court before the fee is fully paid.

DATE

SIGNATURE OF APPLICANT

CERTIFICATE OF CORRECTIONAL OFFICIAL
AS TO STATUS OF APPLICANT’S TRUST ACCOUNT
I,

, certify that as of the date applicant signed this application:

(Printed name of official)
The applicant’s trust account balance at this institution is:
$
The applicant’s average monthly deposits during the prior six months is:
$
The applicant’s average monthly balance during the prior six months is:
$
The attached certified account statement accurately reflects the status of the applicant’s account.

DATE

Revised 5/1/2013

AUTHORIZED SIGNATURE

TITLE/ID NUMBER

2

INSTITUTION