Mathis v. Chappell

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 12/2/2015. Signed by Judge Jon S. Tigar on November 4, 2015. (Attachments: # 1 Blank complaint form (two copies provided), # 2 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 11/4/2015)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER
UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983

4
5

I.

42 U.S.C. § 1983

6

You may file an action under 42 U.S.C. § 1983 to challenge federal constitutional or
statutory violations by state actors which affect the conditions of your confinement.

7
8

A § 1983 action may not be used to challenge the length of your sentence or the validity
of your conviction. Such claims must be addressed in a petition for a writ of habeas corpus, on
the correct forms provided by the clerk of the court.

9
II.

Filing a § 1983 Action

10
11

To file a § 1983 action, you must submit: (1) an original complaint and (2) a check or
money order for $400.00 or an original Prisoner’s In Forma Pauperis Application.

12

This packet includes a complaint form and a Prisoner’s In Forma Pauperis Application.
When these forms are fully completed, mail the originals to:

13
Clerk’s Office
United States District Court
Northern District of California
450 Golden Gate Avenue Box 36060
San Francisco, CA 94102

14
15
16
III.

Filing Fees

17
18
19
20
21
22

The fee for filing a § 1983 action is $400.00 ($350 filing fee plus $50 administrative fee),
to be paid at the time of filing. If you are unable to pay the full fee when you file your complaint,
you may petition the court to proceed in forma pauperis, using the Prisoner’s In Forma Pauperis
Application in this packet. Even if you are granted leave to proceed in forma pauperis, you must
still pay the $350 filing fee (not the $50 administrative fee), but the filing fee will be paid in
several installments.
You must fully complete the Prisoner’s In Forma Pauperis Application and sign and
declare under penalty of perjury that the facts stated therein are true and correct. Each plaintiff
must submit his or her own Prisoner’s In Forma Pauperis Application. You must use the
Prisoner’s In Forma Pauperis Application provided with this packet and not any other version.

23
IV.

Complaint Form

24
25
26
27
28

You must complete the entire complaint form. All questions must be answered in order
for your action to proceed. Your responses must be typewritten or legibly handwritten and you
must sign and declare under penalty of perjury that the facts stated in the complaint are true and
correct.
Under 42 U.S.C. § 1997e, you are required to exhaust available administrative remedies
before filing a § 1983 action; you must indicate clearly in the space provided on the complaint
form whether you have done so.
PrisonerCiv05-13.wpd

1

V.

2

In order to encourage the just, speedy and inexpensive determination of § 1983 cases
filed in this district, the parties may waive their right to proceed before a district judge and
consent to proceed before a magistrate judge for all purposes. In accordance with 28 U.S.C. §
636(c), upon the consent of all the parties to proceed before a magistrate judge for all purposes,
the magistrate judge assigned to this case will conduct all proceedings, decide all dispositive and
non-dispositive matters, and order the entry of the final judgment. The party who does not
prevail may appeal directly to the Ninth Circuit Court of Appeals in the same manner as an
appeal from the final judgment of a district judge.

3
4
5

Consent to Magistrate Judge Jurisdiction

6
7
8
9

Magistrate judges are selected through a statutorily prescribed merit selection process
and are appointed by the judges of this court. The court encourages the parties to consent to
magistrate judge jurisdiction as it may result in an earlier resolution of the matter. Because of
different calendar pressures, magistrate judges may be able to set hearings and trials sooner than
district judges. But you are free to decline consent to magistrate judge jurisdiction. Please
indicate on the last page of the complaint form whether you consent or decline to consent to
magistrate judge jurisdiction.

10
VI.

After Complaint Is Filed

11
12

You will be notified as soon as the court issues any order in your case. It is your
responsibility to keep the court informed of any changes of address to ensure you receive court
orders. Failure to so do may result in dismissal of your action.

13
VII.

Repeat Filers

14
15
16

If you are seeking leave to proceed in forma pauperis and, while incarcerated or detained,
you have filed § 1983 actions on three or more prior occasions which were dismissed as
frivolous, malicious, or for failure to state a claim upon which relief may be granted, you may
not file a new § 1983 action unless you are under imminent danger of serious physical injury. 28
U.S.C. § 1915(g).

17
VIII. Inquiries and Copying Requests
18
19
20

Because of the large volume of cases filed by inmates in this court and very limited court
resources, the court cannot answer questions concerning the status of your case or provide copies
of documents, except at a charge of fifty cents ($0.50) per page. You should keep a copy of each
document submitted to the court for your own records.

21
22
23
24
25
26
27
28
PrisonerCiv05-13.wpd

-2-

1
2

COMPLAINT BY A PRISONER UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983
Name:

(Last)

3
4
5

__________________________________________________________________
(First)

(Middle)

Prisoner Number: _____________________________
Institutional Address:

_____________________________________________________
_____________________________________________________

6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

_____________________________________
(Enter your full name.)

11
vs.
12
_____________________________________
13
14
_____________________________________
15

(Enter the full name(s) of the defendant(s) in this action.)

)
)
)
)
)
)
)
)
)
)
)
)

Case No. __________________
(Leave blank; to be provided by Clerk of Court)

COMPLAINT UNDER THE
CIVIL RIGHTS ACT,
42 U.S.C. § 1983

16
17

I. Exhaustion of Administrative Remedies.

18

Note: You must exhaust available administrative remedies before your claim can go forward. The court will dismiss any
unexhausted claims.

19
20

A.

Place of present confinement ________________________________

21

B.

Is there a grievance procedure in this institution?

22

C.

If so, did you present the facts in your complaint for review through the grievance
procedure?

23
24
25
26

D.

YES G

YES G

_______________

NO G

NO G

If your answer is YES, list the appeal number and the date and result of the appeal at each
level of review. If you did not pursue any available level of appeal, explain why.
1. Informal appeal:

27
28

COMPLAINT Page 1 of 4

1

2. First formal level:

2
3
3. Second formal level:

4
5
6
7

4. Third formal level:

8
9
10

E.

YES G

11
12

Is the last level to which you appealed the highest level of appeal available to you?

F.

NOG

If you did not present your claim for review through the grievance procedure, explain why.

13
14
15
16

II. Parties.

17

A.

Write your name and present address. Do the same for additional plaintiffs, if any.

B.

For each defendant, provide full name, official position and place of employment.

18
19
20
21
22
23
24
25
26
27
28

COMPLAINT Page 2 of 4

1

III. Statement of Claim.

2

State briefly the facts of your case. Be sure to describe how each defendant is involved and
to include dates, when possible. Do not give any legal arguments or cite any cases or statutes. If
you have more than one claim, each claim should be set forth in a separate numbered paragraph.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

IV. Relief.

17

Your complaint must include a request for specific relief. State briefly exactly what you
want the court to do for you. Do not make legal arguments and do not cite any cases or statutes.

18
19
20
21
22
23
24

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.

25

Signed this ___ day of ______________, 20___

26
___________________________________
27

(Plaintiff’s signature)

Please continue to the next page.

28

COMPLAINT Page 3 of 4

1
MAGISTRATE JUDGE JURISDICTION
2
3
4

Please indicate below by checking one of the two boxes whether you choose to consent or
decline to consent to magistrate judge jurisdiction in this matter. Sign this form below your
selection.
Q

Consent to Magistrate Judge Jurisdiction

5
6

In accordance with the provisions of 28 U.S.C. § 636(c), I voluntarily consent to have a
United States magistrate judge conduct all further proceedings in this case, including trial and
entry of final judgment.

7
OR
8
9

Q

Decline Magistrate Judge Jurisdiction

11

In accordance with the provisions of 28 U.S.C. § 636(c), I decline to have a United States
magistrate judge conduct all further proceedings in this case, including trial and entry of final
judgment.

12

Signed this ___ day of ______________, 20___

10

13
____________________________________
14

(Plaintiff’s signature)

15
16
17
18
19
20
21
22
23
24
25
26
27
28

COMPLAINT Page 4 of 4

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
INSTRUCTIONS FOR PRISONER’S
IN FORMA PAUPERIS APPLICATION

4

7

You must submit to the court a completed Prisoner’s In Forma Pauperis Application if
you are unable to pay the entire filing fee at the time you file your complaint or petition. Your
application must include copies of the prisoner trust account statement showing transactions for
the last six months and a certificate of funds in prisoner’s account, signed by an authorized
officer of the institution.

8

A.

9

The fee for filing any civil action other than a petition for a writ of habeas corpus is
$400.00 ($350 filing fee plus $50 administrative fee). Even if you are granted leave to proceed in
forma pauperis, you must still pay the $350 filing fee (not the $50 administrative fee), but the
filing fee will be paid in several installments. 28 U.S.C. § 1915.

5
6

10

Non-habeas Civil Actions

11
12
13
14

You must pay an initial partial filing fee of 20 percent of the greater of (a) the average
monthly deposits to your account for the 6-month period immediately before the complaint was
filed or (b) the average monthly balance in your account for the 6-month period immediately
before the complaint was filed. The court will use the information provided on the certificate of
funds and the trust account statement to determine the filing fee immediately due and will send
instructions to you and the prison trust account office for payment if in forma pauperis status is
granted.

15
16
17

After the initial partial filing fee is paid, your prison’s trust account office will forward to
the court each month 20 percent of the most recent month’s income to your prison trust account,
to the extent the account balance exceeds ten dollars ($10.00). Monthly payments will be
required until the full filing fee is paid. If you have no funds over ten dollars ($10.00) in your
account, you will not be required to pay part of the filing fee that month.

18
19

If your application to proceed in forma pauperis is granted, you will be liable for the
full $350.00 filing fee even if your civil action is dismissed. That means the court will
continue to collect payments until the entire filing fee is paid.

20
B.

Habeas Actions

21
22
23
24

The fee for filing a petition for a writ of habeas corpus is $5.00 ($5 filing fee plus $0
administrative fee). If you are granted leave to proceed in forma pauperis, you will not be
required to pay any portion of this fee. If you are not granted leave to proceed in forma pauperis,
you must pay the fee in one payment and not in installments.
If you use a habeas form to file a non-habeas civil action, you will be required to pay
the fee applicable to all non-habeas civil actions.

25
26
27
28

PRISONER’S IN FORMA PAUPERIS APPLICATION (Rev. 5/13)

1
2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
6

Plaintiff,

7

vs.

8
Defendant.

9

)
)
)
)
)
)
)
)
)
)
)

CASE NO.
PRISONER’S
APPLICATION TO PROCEED
IN FORMA PAUPERIS

10
I,

11

, declare under penalty of perjury that I am the plaintiff

12

in the above entitled case and that the information I offer throughout this application is true and

13

correct. I offer this application in support of my request to proceed without being required to

14

prepay the full amount of fees and costs or give security. I state that because of my poverty I am

15

unable to pay the costs of this action or give security, and that I believe that I am entitled to

16

relief.

17

IN SUPPORT OF THIS APPLICATION, I PROVIDE THE FOLLOWING INFORMATION:

18

1.

19

If your answer is “yes,” state both your gross and net salary or wages per month, and give the
name and address of your employer:

YES G

Are you presently employed?

NO G

20
Gross:

Net:

21
Employer (name and address):
22
23
24
25

If the answer is “no,” state the date of last employment and the amount of the gross and net
salary and wages per month which you received. (If you are imprisoned, specify the last place of
employment prior to imprisonment.)

26
27
28
1
PRISONER’S IN FORMA PAUPERIS APPLICATION (Rev. 5/13)

1
2

2.

Have you received, within the past twelve (12) months, any money from any of the
following sources:

3

a.

Business, profession or
self employment?

YES G

NO G

b.

Income from stocks, bonds
or royalties?

YES G

NO G

6

c.

Rent payments?

YES G

NO G

7

d.

Pensions, annuities or
life insurance payments?

YES G

NO G

e.

Federal or state welfare payments,
Social Security or other government source?

YES G

NO G

4
5

8
9
10
11

If the answer is “yes” to any of the above, describe each source of money and state the amount
received from each.

12
13
3.

YES G

Are you married?

NO G

14
Spouse’s Full Name:
15
Spouse’s Place of Employment:
16
Spouse’s Monthly Salary, Wages or Income:
17
Gross $

Net $

18
4.

a.

List amount you contribute to your spouse’s support: $

b.

List the persons other than your spouse who are dependent upon you for support
and indicate how much you contribute toward their support. (NOTE: For minor
children, list only their initials and ages. Do not include their names.)

19
20
21
22
23

5.

24

Estimated Market Value: $

25

6.

26

Make

27

Is it financed? Yes

28

YES G

Do you own or are you buying a home?

Monthly Payment: $

Amount of Mortgage: $
YES G

Do you own an automobile?
Year
No

NO G

Model
If so, Total due: $

2
PRISONER’S IN FORMA PAUPERIS APPLICATION (Rev. 5/13)

NO G

YES G

1

7.

Do you have a bank account?

2

NO G

Name(s) and address(es) of bank (do not include account numbers):

3
4
5

Present balance(s): $

6

Do you own any cash?

YES G NO G

7

Do you have any other assets?

YES G NO G

8

If “yes,” provide a description of each asset and its estimated market value.

Amount: $

9
10
11

8.

What are your monthly expenses?

12

Rent: $

Utilities:

13

Food: $

Clothing:

14

9.

15

If yes, list them below. (Do not include account numbers.)

16

Name of Account

YES G

Do you have any charge accounts/credit cards?

Monthly Payment

NO G

Total Owed on This Acct.

17

$

$

18

$

$

19

$

$

20

10.
Do you have any other debts? (List current obligations, indicating amounts and to whom
they are payable. Do not include account numbers.)

21
22
23

11.
Does the complaint you are seeking to file raise claims that have been presented in other
lawsuits?
YES G
NO G

24
25

If so, please list the case name(s) and number(s) of the prior lawsuit(s), and the name of the court
in which they were filed.

26
27
28
3
PRISONER’S IN FORMA PAUPERIS APPLICATION (Rev. 5/13)

1
2
3
4

I consent to prison officials withdrawing from my trust account and paying to the court
the initial partial filing fee and all installment payments required by the court.
I declare under the penalty of perjury that the foregoing is true and correct and
understand that a false statement herein may result in the dismissal of my claims.

5
6
7

DATE

SIGNATURE OF APPLICANT

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
PRISONER’S IN FORMA PAUPERIS APPLICATION (Rev. 5/13)

1
2

Case Number:

3
4
5
6
7
8

CERTIFICATE OF FUNDS

9

IN

10

PRISONER’S ACCOUNT

11
12
13

I certify that attached hereto is a true and correct copy of the prisoner’s trust account
statement showing transactions of

for the last six months
(Prisoner’s name)

where (s)he is confined.

14
(Name of Institution)

15

I further certify that the average deposits each month to this prisoner’s account for the
and the average balance in the prisoner’s

16

most recent 6-month period were $

17

account each month for the most recent 6-month period was $

.

18
19
20

Dated: ________________, 20__

Print Name:

___________________________________

Signature:

___________________________________
Authorized Officer of the Institution

21
22
23
24
25
26
27
28

5