Harper et al v. McCabe et al

Filing 4

ORDER: Plaintiffs Jones, Ayers, Austin-Blake, Carrissa Bobak, Bobby Bobak, Doughtery, Perez, Murphy, Vogt, McCoy, Foster, Dial, Burbank, Sevick, Puett, Beeding, O'Sullivan, Burns, Maher, and Watkins are dismissed from this action. Plaintiff H arper must proceed only on his own behalf. Plaintiff Harper's Application to Proceed In Forma Pauperis (Doc. 2 ) is denied without prejudice. Within 30 days of the date this Order is filed, Plaintiff Harper must either pay the $350.00 fi ling fee and $50.00 administrative fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement. The complaint is dismissed without prejudice with 30 days leave to amend. Clerk must enter dismissal without prejudice if Plaintiff fails to comply. Signed by Judge David G Campbell on 10/26/15. (EJA)

Download PDF
1 2 KM WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary Jerome Harper, et al., 10 11 12 No. CV 15-08208-PCT-DGC (DKD) Plaintiffs, v. ORDER Jim McCabe, et al., 13 Defendants. 14 15 Plaintiff Gary Jerome Harper, who is confined in the Mohave County Jail, and 16 Plaintiffs Cathy Jones, Steve Ayers, Cameo Austin-Blake, Carrissa Bobak, Bobby Bobak, 17 Jackie Doughtery, Eric Perez, Annette Murphy, Robert Vogt, Nicholas McCoy, Steven 18 Foster, Jeffry Dial, Geoff Burbak, Jeff Sevick, Chad Puett, Tyler Beeding, Ryan 19 O’Sullivan, Michelle Burns, Ronald Maher, and David Watkins have filed a pro se civil 20 rights Complaint pursuant to 42 U.S.C. § 1983. 21 incomplete Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss 22 all Plaintiffs except Plaintiff Harper. The Court will also dismiss the Complaint with 23 leave to amend and deny the deficient Application to Proceed. Plaintiff Harper will have 24 30 days to pay the filing and administrative fees or file a complete Application to Proceed 25 In Forma Pauperis, and file an amended complaint on the court-approved form. 26 I. Plaintiff Harper has also filed an Dismissal of Plaintiffs 27 Generally, plaintiffs may join in one action if they assert any right to relief arising 28 out of the same occurrence or series of occurrences and if any question of law or fact in JDDL 1 common to all plaintiffs will arise in the action. Fed. R. Civ. P. 20. Rule 21 of the 2 Federal Rules of Civil Procedure, however, authorizes the Court to drop parties on just 3 terms and sever claims. See Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 4 1375 (9th Cir. 1980) (even if the specific requirements of Rule 20 may be satisfied, a trial 5 court must examine other relevant factors to determine if joinder of a party will comport 6 with principles of fundamental fairness). 7 Even if Plaintiffs in this action are properly joined, the Court has found that 8 management of pro se multi-plaintiff inmate litigation presents significant burdens to 9 both the parties and the Court. Plaintiffs are inmates proceeding pro se, and, although 10 each Plaintiff may appear on his own behalf, none may appear as an attorney for the 11 others. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). Therefore, 12 during the prosecution of this action, each Plaintiff would be required to sign and submit 13 his own motions and notices related to his claims in the action, and all Plaintiffs would be 14 required to individually sign any motion or notice filed on behalf of all Plaintiffs. 15 Because of security concerns related to inmate correspondence and face-to-face 16 communications, Plaintiffs would have at best only a very limited opportunity to discuss 17 case strategy, share discovery, or even provide each other copies of the motions and 18 notices they file with the Court. Joint prosecution of the lawsuit by multiple inmates 19 would be limited, if not virtually impossible, due to the regulation of inmate-to-inmate 20 correspondence. Moreover, inmates are subject to transfer at any time to a facility other 21 than the one they are incarcerated in at the time of the lawsuit and it is unclear, in this 22 case, if each of the named Plaintiffs is presently incarcerated. 23 With these concerns in mind, the Court concludes that unitary adjudication of 24 Plaintiffs’ claims would result in unfairness to Plaintiffs, Defendants, and the Court’s 25 goals of achieving judicial economy and maintaining efficient control of the Court’s 26 docket. Allowing each Plaintiff to proceed separately will overcome the unfairness 27 created by these circumstances. The Court notes that only Plaintiff Harper signed the 28 Complaint and Application to Proceed. Accordingly, the Court will dismiss Plaintiffs JDDL -2- 1 Jones, Ayers, Austin-Blake, Carrissa Bobak, Bobby Bobak, Doughtery, Perez, Murphy, 2 Vogt, McCoy, Foster, Dial, Burbank, Sevick, Puett, Beeding, O’Sullivan, Burns, Maher, 3 and Watkins. Plaintiff Harper may litigate this action on his own behalf. The dismissed 4 Plaintiffs must proceed individually by filing new actions on their own behalf. 5 II. Payment of Filing Fee 6 When bringing an action, a prisoner must either pay the $350.00 filing fee and a 7 $50.00 administrative fee in a lump sum or, if granted the privilege of proceeding in 8 forma pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. 9 § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of 10 indigence and a certified copy of the inmate’s trust account statement for the six months 11 preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit 12 statements from each institution where the inmate was confined during the six-month 13 period. Id. To assist prisoners in meeting these requirements, the Court requires use of a 14 form application. LRCiv 3.4. 15 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 16 initial partial filing fee of 20% of either the average monthly deposits or the average 17 monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An 18 initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). 19 The balance of the $350.00 filing fee will be collected in monthly payments of 20% of 20 the preceding month’s income credited to an inmate’s account, each time the amount in 21 the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). 22 III. Application Fails to Comply With Statute 23 Plaintiff Harper has used the court-approved form, but he has not submitted a 24 certified six-month trust account statement. In light of this deficiency, the Court will 25 deny the Application to Proceed and will give Plaintiff Harper 30 days to either pay the 26 $400.00 filing and administrative fees or file a complete Application to Proceed In Forma 27 Pauperis and certified six-month trust account statement. 28 /// JDDL -3- 1 IV. Failure to File on Form 2 Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints and 3 applications to proceed in forma pauperis by incarcerated persons shall be signed and 4 legibly written or typewritten on forms approved by the Court and in accordance with the 5 instructions provided with the forms.” The Complaint is not filed on the court-approved 6 form. The Court will therefore dismiss the Complaint without prejudice, with leave to 7 amend. Within 30 days, Plaintiff Harper may submit an amended complaint on a court- 8 approved form, on his own behalf. The Clerk of Court will mail Plaintiff Harper a court- 9 approved form to use for filing an amended complaint. If Plaintiff Harper fails to use the 10 court-approved form, the Court may strike the amended complaint and dismiss the case 11 without further notice to Plaintiff. 12 Plaintiff Harper must clearly designate on the face of the document that it is the 13 “First Amended Complaint.” The first amended complaint must be retyped or rewritten 14 in its entirety on the court-approved form and may not incorporate any part of the original 15 Complaint by reference. Plaintiff may include only one claim per count. 16 For each count, Plaintiff Harper must write short, plain statements telling the 17 Court: (1) the constitutional right the Plaintiff believes was violated; (2) name of the 18 Defendant who violated the right; (3) exactly what that Defendant did or failed to do; 19 (4) how the action or inaction of that Defendant is connected to the violation of that 20 Plaintiff’s constitutional right; and (5) what specific injury that Plaintiff suffered because 21 of that Defendant’s conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 22 Plaintiff Harper must repeat this process for each person he names as a Defendant. 23 If Plaintiff Harper fails to affirmatively link the conduct of each named Defendant with 24 the specific injury suffered by Plaintiff, the allegation against that Defendant will be 25 dismissed for failure to state a claim. Conclusory allegations that a Defendant or group 26 of Defendants has violated a constitutional right are not acceptable, and will be 27 dismissed. 28 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, JDDL -4- 1 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 2 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 3 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 4 in the original complaint and that was voluntarily dismissed or was dismissed without 5 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 6 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 7 V. Warnings 8 A. 9 If Plaintiff Harper is released while this case remains pending, and the filing fee 10 has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the 11 Court that he intends to pay the unpaid balance of his filing fee within 120 days of his 12 release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to 13 comply may result in dismissal of this action. Release 14 B. 15 Plaintiff Harper must file and serve a notice of a change of address in accordance 16 with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a 17 motion for other relief with a notice of change of address. Failure to comply may result 18 in dismissal of this action. Address Changes 19 C. 20 Plaintiff Harper must submit an additional copy of every filing for use by the 21 Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without 22 further notice to Plaintiff. Copies 23 D. 24 If Plaintiff Harper fails to timely comply with every provision of this Order, 25 including these warnings, the Court may dismiss this action without further notice. See 26 Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply 27 with any order of the Court). 28 .... Possible Dismissal JDDL -5- 1 IT IS ORDERED: 2 (1) Plaintiffs Jones, Ayers, Austin-Blake, Carrissa Bobak, Bobby Bobak, 3 Doughtery, Perez, Murphy, Vogt, McCoy, Foster, Dial, Burbank, Sevick, Puett, Beeding, 4 O’Sullivan, Burns, Maher, and Watkins are dismissed from this action. Plaintiff Harper 5 must proceed only on his own behalf. 6 7 (2) denied without prejudice. 8 9 10 Plaintiff Harper’s Application to Proceed In Forma Pauperis (Doc. 2) is (3) Within 30 days of the date this Order is filed, Plaintiff Harper must either pay the $350.00 filing fee and $50.00 administrative fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement. 11 (4) If Plaintiff Harper fails to either pay the $350.00 filing fee and $50.00 12 administrative fee or file a complete Application to Proceed In Forma Pauperis within 30 13 days, the Clerk of Court must enter a judgment of dismissal of this action without 14 prejudice and without further notice to Plaintiff. 15 16 (5) The Clerk of the Court must mail Plaintiff Harper a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas). 17 (6) The Complaint (Doc. 1) is dismissed without prejudice for failure to 18 comply with Local Rule of Civil Procedure 3.4. Plaintiff Harper has 30 days from the 19 date this Order is filed to file an amended complaint in compliance with this Order. 20 (7) If a Plaintiff Harper fails to file an amended complaint within 30 days, the 21 Clerk of Court must, without further notice, enter a judgment of dismissal of that 22 Plaintiff’s case action without prejudice and without further notice to that Plaintiff. 23 .... 24 .... 25 .... 26 .... 27 .... 28 .... JDDL -6- 1 (8) The Clerk of Court must mail each Plaintiff a court-approved form for 2 filing a civil rights complaint by a prisoner and a court-approved form for filing an 3 Application to Proceed In Forma Pauperis (Non-Habeas). 4 Dated this 26th day of October, 2015. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL -7- Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona 1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. 2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law. 3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915” for additional instructions. 5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. 6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $400 filing and administrative fees or the application to proceed in forma pauperis to: Revised 5/1/2013 1 Phoenix & Prescott Divisions: OR U.S. District Court Clerk U.S. Courthouse, Suite 130 401 West Washington Street, SPC 10 Phoenix, Arizona 85003-2119 Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street Tucson, Arizona 85701-5010 7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case. 8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. A certificate of service should be in the following form: I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Defendant(s) (Signature) 9. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights complaint form. You may file one amended complaint without leave (permission) of Court before any defendant has answered your original complaint. See Fed. R. Civ. P. 15(a). After any defendant has filed an answer, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Prison Litigation Reform Act; screening your amendment will take additional processing time. 10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead, the relevant information should be paraphrased. You should keep the exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial. 11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion. 2 12. Completing the Civil Rights Complaint Form. HEADING: 1. Your Name. Print your name, prison or inmate number, and institutional mailing address on the lines provided. 2. Defendants. If there are four or fewer defendants, print the name of each. If you name more than four defendants, print the name of the first defendant on the first line, write the words “and others” on the second line, and attach an additional page listing the names of all of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom. 3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief. Part A. JURISDICTION: 1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983 for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for federal defendants; or “other.” If you mark “other,” identify the source of that authority. 2. Location. Identify the institution and city where the alleged violation of your rights occurred. 3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A,” “2B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2. Part B. PREVIOUS LAWSUITS: You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2. Part C. CAUSE OF ACTION: You must identify what rights each defendant violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages. 3 1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count. 2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked “Other,” you must identify the specific issue involved. 3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible. 4. Injury. State precisely how you were injured by the alleged violation of your rights. 5. Administrative Remedies. You must exhaust any available administrative remedies before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If the grievance procedures were not available for any of your counts, fully explain why on the lines provided. Part D. REQUEST FOR RELIEF: Print the relief you are seeking in the space provided. SIGNATURE: You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. Unless you are an attorney, you may not bring an action on behalf of anyone but yourself. FINAL NOTE You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages. 4 Name and Prisoner/Booking Number Place of Confinement Mailing Address City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA (Full Name of Plaintiff) Plaintiff, vs. (1) (Full Name of Defendant) (2) (3) (4) Defendant(s). G Check if there are additional Defendants and attach page 1-A listing them. ) , ) ) ) ) CASE NO. ) (To be supplied by the Clerk) , ) ) , ) ) CIVIL RIGHTS COMPLAINT , ) BY A PRISONER ) , ) G Original Complaint G First Amended Complaint ) ) G Second Amended Complaint A. JURISDICTION 1. 2. This Court has jurisdiction over this action pursuant to: G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983 G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). G Other: . Institution/city where violation occurred: . Revised 5/1/2013 1 550/555 B. DEFENDANTS 1. Name of first Defendant: . The first Defendant is employed as: at . (Position and Title) 2. (Institution) . The second Defendant is employed as: Name of second Defendant: at . (Position and Title) 3. (Institution) Name of third Defendant: . The third Defendant is employed as: at . (Position and Title) 4. (Institution) Name of fourth Defendant: at (Position and Title) . The fourth Defendant is employed as: . (Institution) If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page. C. PREVIOUS LAWSUITS 1. Have you filed any other lawsuits while you were a prisoner? 2. If yes, how many lawsuits have you filed? G Yes G No . Describe the previous lawsuits: a. First prior lawsuit: 1. Parties: v. 2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . . b. Second prior lawsuit: v. 1. Parties: 2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . . c. Third prior lawsuit: 1. Parties: v. 2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . . If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2 D. CAUSE OF ACTION 1. COUNT I State the constitutional or other federal civil right that was violated: . 2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: . 3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. . 4. Injury. State how you were injured by the actions or inactions of the Defendant(s). . 5. Administrative Remedies: a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your G Yes G No institution? b. Did you submit a request for administrative relief on Count I? G Yes G No c. Did you appeal your request for relief on Count I to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . 3 1. COUNT II State the constitutional or other federal civil right that was violated: . 2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: . 3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. . 4. Injury. State how you were injured by the actions or inactions of the Defendant(s). . 5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count II? G Yes G No c. Did you appeal your request for relief on Count II to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . 4 1. COUNT III State the constitutional or other federal civil right that was violated: . 2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: . 3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. . 4. Injury. State how you were injured by the actions or inactions of the Defendant(s). . 5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your G Yes G No institution? b. Did you submit a request for administrative relief on Count III? G Yes G No c. Did you appeal your request for relief on Count III to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page. 5 E. REQUEST FOR RELIEF State the relief you are seeking: . I declare under penalty of perjury that the foregoing is true and correct. Executed on DATE SIGNATURE OF PLAINTIFF (Name and title of paralegal, legal assistant, or other person who helped prepare this complaint) (Signature of attorney, if any) (Attorney’s address & telephone number) ADDITIONAL PAGES All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number all pages. 6 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?