Pennington v. Arizona Department of Corrections et al

Filing 6

ORDER denying without prejudice 2 Plaintiff's Application/Motion for Leave to Proceed In Forma Pauperis. Within 30 days of the date this Order is filed, Plaintiff must either pay the $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. Clerk must enter dismissal without prejudice if plaintiff fails to comply. Signed by Senior Judge Stephen M McNamee on 4/28/14. (Attachments: # 1 IFP Form). (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kevin Pennington,

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Plaintiff,

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No. CV 14-8032-PCT-RCB (JFM)

vs.

ORDER

Arizona Department of Corrections, et
al.,

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Defendants.

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Plaintiff Kevin Pennington, who is confined in the Arizona State Prison-Kingman,

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

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

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Proceed and will give Plaintiff 30 days to pay the filing and administrative fees or file a

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complete Application to Proceed In Forma Pauperis.

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I.

Payment of Filing Fee

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

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$50.00 administrative fee in a lump sum or, if granted the privilege of proceeding in

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forma pauperis, pay the $350.00 filing fee1 incrementally as set forth in 28 U.S.C.

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JDDL

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Effective May 1, 2013, the Clerks of Court for the United States District Courts
are required to collect a $50.00 administrative fee for the filing of a civil action, suit, or
proceeding in a district court. See Judicial Conference Schedule of Fees, District Court
Miscellaneous Fee Schedule &14 (effective May 1, 2013), foll. 28 U.S.C. § 1914.
However, the administrative fee “does not apply to applications for a writ of habeas
corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” Id.

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§ 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of

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indigence and a certified copy of the inmate’s trust account statement for the six months

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preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit

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statements from each institution where the inmate was confined during the six-month

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period. Id. To assist prisoners in meeting these requirements, the Court requires use of a

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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 $ 350.00 filing fee will be collected in monthly payments of 20% of

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

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the account 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 submitted page two of the court-approved form, but not page one.

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Moreover, Plaintiff has crossed out and left blank the “Consent to Collection of Fees

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from Trust Account” section. This part of the in forma pauperis application must be

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filled out, signed, and dated. In light of these deficiencies, the Court will deny the

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Application to Proceed and will give Plaintiff 30 days to either pay the $400.00 filing and

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administrative fees or file a complete Application to Proceed In Forma Pauperis.

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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.

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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

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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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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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Possible Dismissal

IT IS ORDERED:
(1)

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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$400.00 filing and administrative fees or file a complete Application to Proceed In

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Forma Pauperis and a certified six-month trust account statement.

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(3)

If Plaintiff fails to either pay the $400.00 filing and administrative fees or

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file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of

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Court must enter a judgment of dismissal of this action without prejudice and without

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further notice to 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 28th day of April, 2014.

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JDDL

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