Mendez v. Arizona, State of et al

Filing 5

ORDER denying Plaintiff's 2 Motion for Leave to Proceed in forma pauperis; within 30 days, 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 accoun t statement; if Plaintiff fails to comply with this order, the Clerk must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff. Signed by Senior Judge Robert C Broomfield on 3/4/13. (Attachments: # 1 IFP Form) (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank M. Mendez,

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Plaintiff,

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No. CV 13-231-PHX-RCB (JFM)

vs.

ORDER

State of Arizona, et al.,

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Defendants.

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Plaintiff Frank M. Mendez, who is confined in the Arizona State Prison Complex-

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Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an

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Application to Proceed In Forma Pauperis (Doc. 2). The Court will deny the deficient

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Application to Proceed and will give Plaintiff 30 days to pay the fee or file a complete

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Application to Proceed In Forma Pauperis.

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I.

Payment of Filing Fee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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II.

Application Fails to Comply With Statute

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Plaintiff has used the court-approved form, but he has not submitted a certified

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six-month trust account statement. In light of this deficiency, the Court will deny the

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Application to Proceed and will give Plaintiff 30 days to either pay the $350.00 filing fee

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or file a complete Application to Proceed In Forma Pauperis.

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Although Plaintiff attached a printout of his Arizona Department of Corrections

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(“ADOC”) inmate bank account statement to his Application to Proceed, the printout is

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not certified by an authorized officer of the institution and does not show deposits and

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average monthly balances, as required. ADOC has notified the Court that a certified trust

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fund account statement showing deposits and average monthly balances is available from

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the ADOC’s Central Office. Accordingly, Plaintiff must obtain the certified copy of his

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ADOC trust fund account statement for the six months immediately preceding the filing of

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the Complaint from the ADOC’s Central Office.

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III.

Warnings

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A.

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

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

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

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dismissal of this action.

Address Changes

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B.

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Plaintiff must submit an additional copy of every filing for use by the Court. See

Copies

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further

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notice to Plaintiff.

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C.

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

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

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

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

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IT IS ORDERED:

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(1)

Possible Dismissal

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied

without prejudice.
(2)

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

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

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certified six-month trust account statement.

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(3)

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

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

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

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Plaintiff.

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(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 4th day of March, 2013.

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