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Neuendorf v. St. Joseph's Hospital

United States District Court, Ninth Circuit

December 13, 2013

John Calvin Neuendorf, II, Plaintiff,
v.
St. Joseph's Hospital, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, District Judge.

Plaintiff John Calvin Neuendorf, II, who is confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and a deficient Application to Proceed In Forma Pauperis. On March 26, 2013, the Court denied the Application to Proceed and dismissed the action under the "three strikes" provision of 28 U.S.C. § 1915(g). On April 5, 2013, Plaintiff filed a Motion for Reconsideration (Doc. 10) in which he argued that the dismissal under § 1915(g) was in error. On May 21, 2013, Plaintiff filed a Notice of Appeal.

In a July 17, 2013 Order, the Court granted the Motion for Reconsideration and gave Plaintiff 30 days within which to file a complete Application to Proceed In Forma Pauperis. On September 19, 2013, Plaintiff's Appeal was dismissed for lack of jurisdiction. On November 4, 2013, Plaintiff filed a second appeal.

Pending before the Court is Plaintiff's August 26, 2013, incomplete Application to Proceed In Forma Pauperis (Doc. 26). The Court will deny the deficient Application and give Plaintiff a final 30 days to pay the filing fee or file a complete Application to Proceed In Forma Pauperis.

I. Payment of Filing Fee

When bringing an action, a prisoner must either pay the $350.00 filing 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 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 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's Application to Proceed was filed on the court-approved form, but the "Certificate of Correctional Official as to Status of Applicant's Trust Account" section is not completed and Plaintiff has not submitted a certified six-month trust account statement. In light of these deficiencies, the Court will give Plaintiff 30 days to either pay the $350.00 filing fee or file a complete Application to Proceed In Forma Pauperis.

The Arizona Department of Corrections ("ADOC") has notified the Court that a certified trust fund account statement showing deposits and average monthly balances is available from the ADOC's Central Office. Accordingly, Plaintiff must obtain the certified copy of his ADOC trust fund account statement for the six months immediately preceding the filing of the Complaint from the ADOC's Central Office.

III. Motions

On August 14, 2013, Plaintiff filed a Motion to Amend/Correct seeking permission to file an amended complaint. The Court will grant the Motion and give Plaintiff 30 days within which to file an amended complaint. However, Plaintiff should note that if he does not comply with the in forma pauperis requirements, the Court will not review an amended complaint and will dismiss this action.

On September 4, 2013, Plaintiff filed a Motion for Clarification in which he requests the filing status of several documents. The Court will grant the Motion to the extent that the Court will direct the Clerk of Court to send Plaintiff a copy of the docket for this case. The Court will deny the Motion with respect to all other relief requested. To the extent he requests copies of documents, Plaintiff should note that the Clerk of Court charges 50 cents per page for reproducing any record or paper. See Judicial Conference Schedule of Fees & 4, foll. 28 U.S.C. § 1914. An inmate has no right to free copies of pleadings. See In Re Richard, 914 F.2d 1526, 127 (6th Cir. 1990) ( per curiam ) (28 U.S.C. § 1915 "does not give a litigant a right to have documents copied and returned to him at government expense").

On November 4, 2013, Plaintiff filed a Motion to Appoint Counsel. There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when "exceptional circumstances" are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue involved. Id. "Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Having considered both elements, it does not appear at this time that exceptional circumstances are present that would require the appointment of counsel in this case. Plaintiff is in no different position than many pro se prisoner litigants. The Court will deny without prejudice Plaintiff's Motion to Appoint Counsel.

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

Because Plaintiff is currently confined in ASPC-Eyman and this case is subject to General Order 12-25, Plaintiff is not required to submit an additional copy of every filing for use by the Court, as would ordinarily be required by Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a prison other than ASPC-Eyman, he will be notified of the requirements regarding copies for the Court that are required for inmates whose cases are not subject to General Order 12-25.

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 August 26, 2013 Application to Proceed In Forma Pauperis (Doc. 27) is denied.

(2) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee 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 $350.00 filing fee 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) Plaintiff's August 14, 2013 Motion to Amend/Correct (Doc. 26) is granted. Plaintiff has 30 days from the filing date of this Order to file an amended complaint on the court-approved form.

(5) Plaintiff's September 4, 2013 Motion for Clarification (Doc. 28) is granted. to the extent that the Clerk of Court must send Plaintiff a copy of the docket for this case. The Motion is denied with respect to all other relief requested.

(6) Plaintiff's October 29, 2013 Motion to Appoint Counsel (Doc. 30) is denied.

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


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