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Smith v. Odegard

United States District Court, Ninth Circuit

August 21, 2013

Ronnie Lee Smith, Plaintiff,
v.
C.D. Odegard, et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

On May 7, 2013, Plaintiff Ronnie Lee Smith, who is confined in the Yavapai County Jail in Camp Verde, Arizona, filed a pro se civil rights Complaint but did not pay the $350.00 filing fee and $50.00 administrative fee[1] or file an Application to Proceed In Forma Pauperis, although in his Complaint he included an "Affidavit to Proceed In Forma Pauperis. " In an Order dated July 10, 2013, the Court denied Plaintiff's Affidavit to Proceed In Forma Pauperis, but granted him 30 days to either pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and to file an amended complaint on the court-approved form. Plaintiff has now filed an incomplete Application to Proceed In Forma Pauperis (Doc. 5) along with a document in which he states that he does not consent to have the funds removed from his jail account (Doc. 6). To date, Plaintiff has not filed an amended complaint. The Court will deny the deficient application to proceed, but will grant Plaintiff another 30 days to (1) either 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 fee 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 he 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 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. Application Fails to Comply With Statute

Plaintiff has used the court-approved form, but has not signed the "Consent to Collection of Fees from Trust Account" section. The "Certificate of Correctional Official as to Status of Applicant's Trust Account" section is also not completed, and Plaintiff has not submitted a certified six-month trust account statement. Rather, in the signature line of the "Consent to Collection of Fees from Trust Account" section, Plaintiff refers the Court to his written statement in which he says he does not consent to have funds removed from his jail account. Plaintiff writes about the cost of a telephone call from the jail and a $2 daily fee that is charged by the jail even if his account is empty. Plaintiff states that when he "is absolved of [his] alleged crimes and returned to freedom [he] will gladly pay the filing and administrative fees." (Doc. 6.) If Plaintiff wishes to pursue this case, he must either pay the filing fee or file a new application to proceed in forma pauperis. As noted in this Order and on the fee application, fees will only be collected when the amount in Plaintiff's account exceeds $10.00 and only 20% of the prior month's income will be collected. Therefore, the Court will deny the deficient Application to Proceed and will give Plaintiff another 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

As noted in the Court's prior Order, 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 did not file his original Complaint on the court-approved form and the Court was unable to determine the precise number and nature of Plaintiff's claims. The Court therefore dismissed the Complaint and granted Plaintiff 30 days to file an amended complaint on the court-approved form. To date, Plaintiff has not filed an amended complaint. The Court will grant Plaintiff an additional 30 days to file a First Amended Complaint on the court-approved form.

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. 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 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 5) 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 Applicaiton 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) 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) The Clerk of 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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