On December 28, 2010, Plaintiff Harvey Deon Kendrick, who is confined in the Arizona State Prison Complex-Tucson in Tucson, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. On February 2, 2011, Plaintiff a First Amended Complaint (Doc. 5). In a February 28, 2011 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to file a complete Application to Proceed In Forma Pauperis.
On March 21, 2011, Plaintiff filed a second Application to Proceed In Forma Pauperis (Doc. 7). The Court will grant the second Application to Proceed and will dismiss the Complaint with leave to amend.
I. Second Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's second 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). The Court will assess an initial partial filing fee of $55.88. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income eachtime the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners
seeking relief against
a governmental entity or an officer or an employee of a governmental
entity. 28 U.S.C.§ 1915A(a). The Court must dismiss a complaint or portion thereof if
a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a
claim upon which relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
Local Rule of Civil Procedure 3.4(a) requires in part that "[a]ll complaints . . . by incarcerated persons shall be signed and legibly written or typewritten on forms approved by the Court and in accordance with the instructions provided with the forms." Plaintiff's First Amended Complaint violates the "one claim per count" rule that is set forth in the form Complaint and accompanying instructions. Plaintiff's First Amended Complaint consists of three counts which assert far more than three claims. For example, Plaintiff raises five "cause[s] of action"in Count Two. Plaintiff's First Amended Complaint will therefore be dismissed without prejudice, with leave to amend, in order for Plaintiff to file a second amended complaint that complies with Local Rule of Civil Procedure 3.4(a).
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to comply with Local Rule of Civil Procedure 3.4(a). Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it
is the "Second Amended Complaint." The second amended complaint must
be retyped or rewritten in its
entirety on the court-approved form and may not incorporate any part
of the original Complaint or First Amended Complaint by reference. Plaintiff may
include only one claim per count.
A second amended complaint supersedes the original Complaint and
Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992);
Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After
amendment, the Court will
treat the original Complaint and First Amended Complaint as
nonexistent. Ferdik, 963 F.2d
at 1262. Any cause of action that was raised in the original
Complaint or First Amended
Complaint is waived if it is not raised in a second amended
complaint. King v. Atiyeh, 814
F.2d 565, 567 (9th Cir. 1987).
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he ...