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Thinelk v. Madden

United States District Court, D. Arizona

March 6, 2014

Chris Leroy Thinelk, Plaintiff,
v.
Mark Madden, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Plaintiff Chris Leroy Thinelk, who is confined in the Arizona State Prison Complex-Eyman in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will deny the deficient Application to Proceed and will give Plaintiff 30 days to pay the filing and administrative fees 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 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. Application Fails to Comply With Statute

Plaintiff has used the court-approved form, but the "Certificate of Correctional Official as to Status of Applicant's Trust Account" section has not been completed by a correctional official, and Plaintiff has not submitted a certified six-month trust account statement. In addition, Plaintiff, although answering under penalty of perjury, states in his Application that he has never brought an action or appeal in a federal court while incarcerated or detained. This is untrue. See Thinelk v. Madden, 12-CV-1789-PHX-RCB (SPL) (D. Ariz.); Thinelk v. Madden, 12-CV-1019-PHX-RCB (SPL) (D. Ariz.). In light of these deficiencies, the Court will deny the Application to Proceed 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.

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. 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 13-19, 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 13-19.

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. 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 Clerk of the Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas).


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