Bishop #74645 v. Babeu et al

Filing 17

ORDER, within 30 days, Plaintiff must either file a non-prisoner Application to Proceed in District Court Without Prepaying Fees or Costs as described in this order or pay the $338.24 balance of the $350.00 filing fee; if Plaintiff fails either to comply with this order, the Clerk must enter a judgment of dismissal of this action without prejudice. Signed by Senior Judge Stephen M McNamee on 11/21/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Aaron Joseph Bishop,

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No. CV 14-00371 PHX SMM (MEA)

Plaintiff,
v.

ORDER

Paul R. Babeu, et al.,

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Defendants.

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Plaintiff Aaron Joseph Bishop, who was formerly confined in the Arizona State

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Prison Complex-Eyman, in Florence, Arizona, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Docs.

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1, 6). Plaintiff has since filed a First Amended Complaint. (Doc. 15). On November 10,

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2014, Plaintiff filed a Notice of Change of Address (Doc. 16) indicating he is no longer in

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custody.

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The Court granted Plaintiff leave to proceed in forma pauperis and assessed the

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statutory filing fee of $350.00. (Doc. 9). Plaintiff was cautioned that in the event of his

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release, he would be required to pay the balance of the filing fee within 120 days or show

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cause within 30 days why he cannot pay. Currently, Plaintiff owes $338.24 towards the

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fee.

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payment of filing fees by released prisoners has changed. Under the new procedure, a

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JDDL

Since the entry of the Court’s last Order, this District’s procedure concerning

plaintiff who was a prisoner when he commenced a case, but who has since been

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released, may file a non-prisoner application to proceed in forma pauperis and will not be

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required to pay the balance of the filing and administrative fees if he meets the non-

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prisoner indigency standards. In light of the change in this District’s procedure, and

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because Plaintiff is no longer incarcerated, the Court will grant Plaintiff leave either to

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file a non-prisoner application to proceed in forma pauperis or pay the remaining balance

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of the filing and administrative fees. If Plaintiff files a non-prisoner application to

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proceed in forma pauperis and meets the indigency criteria for a non-prisoner, he will not

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be required to pay the balance of the filing and administrative fees that he would be

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required to pay if he were still incarcerated.

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Accordingly, Plaintiff will be given 30 days from the date this Order is filed either

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to file a non-prisoner Application to Proceed in District Court Without Prepaying Fees or

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Costs or pay the $338.24 balance of the filing fee. Pursuant to 28 U.S.C. § 1915(e)(2),

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the Court is required to screen complaints brought by all plaintiffs who are proceeding in

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forma pauperis and must dismiss a complaint or portion thereof if the plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Because Plaintiff filed his Complaint while he was incarcerated and is seeking

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relief against a governmental entity or an officer or an employee of a governmental

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entity, the Court must still screen the complaint pursuant to 28 U.S.C. § 1915A(a) and

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must dismiss the complaint or portion thereof if Plaintiff has raised claims that are legally

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frivolous or malicious, that fail to state a claim upon which relief may be granted, or that

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seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1)-(2).

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

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may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with

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any order of the Court).

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JDDL

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IT IS ORDERED:
(1)

Within 30 days from the date this Order is filed, Plaintiff must either file a

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non-prisoner Application to Proceed in District Court Without Prepaying Fees or Costs as

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described above or pay the $338.24 balance of the $350.00 filing fee.

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(2)

If Plaintiff fails either to file a non-prisoner Application to Proceed in

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District Court Without Prepaying Fees or Costs or pay the 338.24 balance of the filing

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fee, the Clerk of Court must enter a judgment of dismissal of this action without

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prejudice.

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(3)

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The Clerk of the Court must mail Plaintiff a non-prisoner Application to

Proceed in District Court Without Prepaying Fees or Costs.
DATED this 21st day of November, 2014,

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JDDL

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Name
Address
City, State, Zip
Telephone number

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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Plaintiff,

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vs.

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Defendant.

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CV
MOTION TO PROCEED
IN FORMA PAUPERIS and
SUPPORTING INFORMATION

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I, ___________________________________, declare that I am the Plaintiff in this action;

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that I hereby request to proceed without being required to prepay fees, costs or give security

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therefore. I state that, because of my poverty, I am unable to pay the fees of said proceeding;

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that I believe I am entitled to relief.

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In further support of this application, I answer the following questions:

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1.

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Are you presently employed?
a.

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Yes

No

If the answer is "yes", state the amount of your salary or wages per month and
give the name and address of your employer.

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b.

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If the answer is "no", state the date of last employment and the amount of the
salary and wages per month which you received.

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2.

Is your spouse employed?
a.

Yes

No

If the answer is "yes", state the amount of your spouse's salary or wages per
month and give the name and address of your spouse's employer.

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ATTACHMENT 6

b.

If the answer is "no", state the date of last employment and the amount of the
salary and wages per month which your spouse received.

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3.

Have you received within the past twelve months any money from any of the following
sources?

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a.

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Rent payments, interest or dividends

Yes

No

Pensions, annuities or life insurance payments Yes

No

Gifts or inheritances

Yes

No

e.

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No

d.

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Yes

c.

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Business or other form of self employment

b.

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Any other sources

Yes

No

If the answer to any of the above is "yes", describe each source of money and state the

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amount received from each during the past twelve months.

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4.

If the answer is "yes", what is the amount of money you own in cash _________,

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checking account ___________, savings account ___________.

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5.

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No

If the answer is "yes", describe and give estimated value of each.

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Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable
property (excluding household furnishing and clothing)? Yes

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Do you own any cash, or do you have money in checking or savings accounts?

6.

List the number of persons who are dependent upon you for support, state your
relationship to those persons, and indicate how much you contribute towards their
support.
I declare under penalty of perjury that the forgoing is true and correct.
DATED this ___ day of ________________, 200__.

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______________________________
Your signature in ink
______________________________
Your name typed or printed
______________________________
______________________________
Address
_______________________________
Telephone Number

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,

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vs.

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Defendant.

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CV
ORDER

I, ___________________________________, District Judge/Magistrate Judge of the United
States District Court for the District of Arizona, hereby:
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GRANT the application for leave to proceed in forma pauperis, without prepayment of costs
or fees or the necessity of giving security therefore. Plaintiff shall be responsible for service

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by waiver or of the summons and complaint.

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GRANT the application for leave to proceed in forma pauperis, without prepayment of costs

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or fees or the necessity of giving security therefore. Service by waiver or of the summons and
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complaint shall be at government expense on the defendants by the U.S. Marshal or his
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authorized representative.
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DENY the application for leave to proceed in forma pauperis without prepayment of costs
or fees or the necessity of giving security therefore. Plaintiff shall have 10 days from the
entry of this Order to pay the filing fee of $350.00. The Clerk of Court is directed to enter

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ATTACHMENT 7

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dismissal of this action without further notice if Plaintiff fails to pay the filing fee of $350.00

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within 10 days of the entry of this Order.

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The Clerk shall forthwith notify the Plaintiff of the entry of this Order.

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DATED this ___ day of ________________, 200__.

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United States District/Magistrate Judge

FEDERAL RULES OF CIVIL PROCEDURE

Rule 4. Summons
(a) Form.
The summons shall be signed by the clerk, bear the seal of the court, identify the court and the
parties, be directed to the defendant, and state the name and address of the plaintiff's attorney or, if
unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear
and defend, and notify the defendant that failure to do so will result in a judgment by default against
the defendant for the relief demanded in the complaint. The court may allow a summons to be
amended.
(b) Issuance
Upon or after filing the complaint, the plaintiff may present a summons to the clerk for signature and
seal. If the summons is in proper form, the clerk shall sign, seal, and issue it to the plaintiff for
service on the defendant. A summons, or a copy of the summons if addressed to multiple defendants,
shall be issued for each defendant to be served.
(c) Service with Complaint; by Whom Made.
(1) A summons shall be served together with a copy of the complaint. The plaintiff is responsible
for service of a summons and complaint within the time allowed under subdivision (m) and shall
furnish the person effecting service with the necessary copies of the summons and complaint.
(2) Service may be effected by any person who is not a party and who is at least 18 years of age. At
the request of the plaintiff, however, the court may direct that service be effected by a United States
marshal, deputy United States marshal, or other person or officer specially appointed by the court
for the purpose. Such an appointment must be made when the plaintiff is authorized to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 or is authorized to proceed as a seaman under 28
U.S.C. § 1916.
(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.
(1) A defendant who waives service of a summons does not thereby waive any objection to the
venue or to the jurisdiction of the court over the person of the defendant.
(2) An individual, corporation, or association that is subject to service under subdivision (e) , (f) ,
or (h) and that receives notice of an action in the manner provided in this paragraph has a duty to
avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a
defendant of the commencement of the action and request that the defendant waive service of a
summons. The notice and request
ATTACHMENT 8