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Smith v. Wilkinson

United States District Court, Ninth Circuit

August 1, 2013

Ronnie Lee Smith, Plaintiff,
v.
Ronald Wilkinson, Defendant.

ORDER

G. MURRAY SNOW, District Judge.

On June 18, 2013, Plaintiff Ronnie Lee Smith, who is confined in the Yavapai County Jail in Camp Verde, Arizona, filed a pro se civil rights Complaint. (Doc. 1.) Plaintiff has not paid the filing and administrative fees or filed an Application to Proceed In Forma Pauperis, although he did file an "Affidavit to Proceed In Forma Pauperis. " (Doc. 2.) Plaintiff has also filed a "Motion to Effect Service of Process." (Doc. 4.) The Court will deny the Motion as premature. The Court will also deny the deficient Affidavit to Proceed In Forma Pauperis and will give Plaintiff 30 days to: (1) pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis; and (2) file an amended complaint on the court-approved form.

I. Payment of Filing Fee

When bringing an action, a prisoner must either pay the $350.00 filing fee and a $50.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the $350.00 filing fee[1] incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of indigence and a certified copy of the inmate's trust account statement for the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each institution where the inmate was confined during the six-month period. Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4.

If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an initial partial filing fee of 20% of either the average monthly deposits or the average monthly balance in Plaintiff's account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of the $350.00 filing fee will be collected in monthly payments of 20% of the preceding month's income credited to an inmate's account, each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).

II. Affidavit Fails to Comply With Statute

Plaintiff has not used the court-approved form, but instead filed an "Affidavit to Proceed In Forma Pauperis. " In his Affidavit, Plaintiff states that he is "destitute and cannot afford to pay the required filing fees." Because this Affidavit does not comply with the statutory requirements for filing in forma pauperis, the Court will deny the Affidavit and will give Plaintiff 30 days to either pay the $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis.

III. Failure to File Complaint on Court-Approved Form

Pursuant to Local Rule of Civil Procedure 3.4, "[a]ll complaints and applications to proceed in forma pauperis by incarcerated persons shall be signed and legibly written or typewritten on forms approved by the Court." Plaintiff has not filed his Complaint on the court-approved form and the Court is unable to determine the precise number and nature of Plaintiff's claims. The Court will therefore dismiss the Complaint and grant Plaintiff 30 days to file an amended complaint on the court-approved form.

If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.

Plaintiff must clearly designate on the face of the document that it is a "First Amended Complaint." Any 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 by reference. Plaintiff may include only one claim per count.

An amended complaint supersedes the original 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 original Complaint will be treated as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint is waived if it is not raised in the amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

IV. Motion

Plaintiff has filed a Motion in which he asks the Court to direct the United States Marshal to effect service of process upon the Defendant. Plaintiff's request is premature. At this point, Plaintiff has not filed an amended complaint, paid the filing and administrative fees or filed an Application to Proceed In Forma Pauperis. If Plaintiff files an amended complaint, pays the filing and administrative fees or files a complete Application to Proceed In Forma Pauperis, the Court will screen the amended complaint pursuant to 28 U.S.C. § 1915A. If the Court determines that an answer is required, the Court will direct the Clerk of Court to send Plaintiff a service packet containing summonses and request for waiver forms for Plaintiff to complete and return to the Court. If Plaintiff completes and returns the service packet to the Clerk of Court within the time period stated in the service order, the Court will forward the service packet to the United States Marshal, who will seek waivers of service or serve the defendants. Because Plaintiff's Motion is premature, it is denied.

V. Warnings

A. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

C. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See, Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) Plaintiff's Affidavit 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 $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement.

(3) If Plaintiff fails to either pay the $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff.

(4) The Complaint (Doc. 1) is dismissed without prejudice. Plaintiff has 30 days from the date this Order is filed to file an amended complaint on the court-approved form.

(5) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice.

(6) Plaintiff's Motion to Effect Service of Process (Doc. 4) is denied as premature.

(7) The Clerk of the Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner and a form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).


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