Taylor v. Peoria Police Department et al

Filing 12

ORDER Plaintiff's Application to Proceed In Forma Pauperis (Doc. 9 ) is granted. As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filin g fee of $6.10. The Complaint (Doc. 1) is dismissed for failure to comply with Local Rule of Civil Procedure 3.4. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. If Plainti ff 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. The Motion for Hearing (Doc. 5 ) is denied as premature. The Clerk of Court must mail Plaintiff a court approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Robert C Broomfield on 2/25/2014. (Attachments: # 1 Prisoner Civil Rights Complaint)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Alan Taylor,

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Plaintiff,

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No. CV 13-2393-PHX-RCB (JFM)

vs.

ORDER

Peoria Police Department, et al.,

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Defendants.

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On November 20, 2013, Plaintiff Jeffrey Alan Taylor, who is confined in the

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Maricopa County Lower Buckeye Jail, filed a pro se civil rights Complaint (Doc. 1) and

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an “Application for Deferral or Waiver of Court Fees and/or Costs and Consent to Entry

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of Judgment.” Plaintiff also filed a state court form “Request and Order for Hearing,”

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which the Clerk of Court docketed as a Motion for Hearing (Doc. 5). In an Order dated

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December 12, 2013, the Court denied without prejudice Plaintiff’s Application and

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granted Plaintiff 30 days to either pay the $400.00 filing and administrative fees or to file

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a complete Application to Proceed In Forma Pauperis. On December 19, 2013, Plaintiff

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filed a new Application to Proceed In Forma Pauperis (Doc. 9). The Court will grant the

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Application to Proceed, will deny the Motion, and will dismiss the Complaint with leave

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to amend using the court-approved form.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.
§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will assess an initial partial filing fee of $6.10. Id. The remainder of the

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statutory filing fee will be collected monthly in payments of 20% of the previous month’s

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income credited to Plaintiff’s trust account each time the amount in the account exceeds

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$10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the

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appropriate government agency to collect and forward the fees according to the statutory

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formula.

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II.

Failure to File Complaint on Court-Approved Form

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Pursuant to Local Rule of Civil Procedure 3.4, “[a]ll complaints and applications

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to proceed in forma pauperis by incarcerated persons shall be signed and legibly written

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or typewritten on forms approved by the Court.” Plaintiff has not filed his Complaint on

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the court-approved form and the Court is unable to determine the precise number and

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nature of Plaintiff’s claims. Also, although Plaintiff discusses several individuals in his

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Complaint, he fails to specifically identify the Defendants he is suing, as required in

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Section B of the court-approved form. The Court will therefore dismiss the Complaint

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and grant Plaintiff 30 days to file a first amended complaint on the court-approved form.

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III.

Leave to Amend

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For the foregoing reasons, the Complaint will be dismissed for failure to comply

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with Local Rule of Civil Procedure 3.4. Within 30 days, Plaintiff may submit a first

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amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail

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Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff

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fails to use the court-approved form, the Court may strike the first amended complaint

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and dismiss this action without further notice to Plaintiff.

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Plaintiff must clearly designate on the face of the document that it is the “First

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Amended Complaint.” The first amended complaint must be retyped or rewritten in its

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entirety on the court-approved form and may not incorporate any part of the original

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Complaint by 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

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F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original

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complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised

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in the original complaint and that was voluntarily dismissed or was dismissed without

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prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa

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County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

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IV.

Warnings

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A.

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his

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release. Also, within 30 days of his release, he must either (1) notify the Court that he

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intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to

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comply may result in dismissal of this action.

Release

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B.

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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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C.

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

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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.

Copies

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D.

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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, 963

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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

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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. 9) is granted.

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(2)

As required by the accompanying Order to the appropriate government

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agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing

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fee of $6.10.

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(3)

The Complaint (Doc. 1) is dismissed for failure to comply with Local Rule

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of Civil Procedure 3.4. Plaintiff has 30 days from the date this Order is filed to file a first

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amended complaint in compliance with this Order.

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(4)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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Court must, without further notice, enter a judgment of dismissal of this action without

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prejudice.

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(5)

The Motion for Hearing (Doc. 5) is denied as premature.

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(6)

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

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civil rights complaint by a prisoner.
DATED this 25th day of February, 2014.

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