Purdue 113333 v. Arizona Department of Corrections

Opinion

1 MH 2 WO 3 4 5 8 9 Jacob J. Purdue, No. CV-24-01121-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Arizona Department of Corrections, et 13 al., 14 Defendants.

15 16 On May 14, 2024, Plaintiff Jacob J. Purdue, who was then confined in the Arizona 17 State Prison Complex (ASPC)-Lewis,1 filed a pro se Complaint and an Application to 18 Proceed In Forma Pauperis. In a June 3, 2024 Order, the Court denied the Application to 19 Proceed as deficient and gave Plaintiff 30 days to either pay the required fees or file a 20 complete in forma pauperis application. On July 8, 2024, Plaintiff filed a Motion entitled 21 “Response to States Motion Requesting Info & Requesting Time” (Doc. 6) and a second 22 Application to Proceed In Forma Pauperis (Doc. 7). On September 9, 2024, Plaintiff filed 23 a Motion for Investigation (Doc. 8). 24 The Court will deny the Motions and Application to Proceed and will give Plaintiff 25 30 days to either pay the filing and administrative fees or file a new complete Application 26 to Proceed In Forma Pauperis. 27

28 1 On September 16, 2024, Plaintiff filed a Notice of Change of Address indicating that he has been transferred to ASPC-Eyman. 1 I. Payment of Filing Fee 2 When bringing an action, a prisoner must either pay the $350.00 filing fee and a 3 $55.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma 4 pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). 5 An application to proceed in forma pauperis requires an affidavit of indigence and a 6 certified copy of the inmate’s trust account statement (or institutional equivalent) for the 7 six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must 8 submit statements from each institution where he was confined during the six-month 9 period. Id. To assist prisoners in meeting these requirements, the Court requires use of a 10 form application. LRCiv 3.4. 11 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 12 initial partial filing fee of 20% of either the average monthly deposits or the average 13 monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An 14 initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). 15 The balance of the $350.00 filing fee will be collected in monthly payments of 20% of the 16 preceding month’s income credited to an inmate’s account, each time the amount in the 17 account exceeds $10.00. 28 U.S.C. § 1915(b)(2). 18 II. Application Fails to Comply With Statute 19 Plaintiff has used the court-approved form, but he has failed to submit a certified 20 six-month trust account statement, as required. And while Plaintiff’s Motions indicate that 21 he has had difficulty obtaining a certified six-month trust account statement, it is not clear 22 whether he followed the procedures set forth in DO 905.10, which sets forth the process 23 for obtaining a “certified statement of account.”2 The Court has rarely encountered

24 2 Specifically, DO 905.10 states: 25 10.1 To request a certified statement of account, inmates shall send an 26 Inmate Letter, to their Business Office where they are housed. The Business Office designee shall scan and email the Inmate Letter to the Central Office 27 ITA staff. 28 10.2 Within five workdays of receiving the Inmate Letter, Central Office ITA staff shall process the request and generate an email with the signed 1 problems with official certification when it has been requested in accordance with DO 2 905.10, and Plaintiff’s Application to Proceed will therefore be denied without prejudice. 3 If Plaintiff submits another request to ADC officials for a copy of his certified 4 trust account statement, he should comply with the instructions in DO 905.10 and 5 attach a copy of this Order to his request. If Plaintiff finds that he is still unable to 6 complete the Application to Proceed In Forma Pauperis, he must file a declaration signed 7 under penalty of perjury setting forth facts to support that he is unable to comply as the 8 result of acts or omissions that are beyond his control. This declaration must identify when 9 and from whom Plaintiff requested a certified copy of his inmate trust account statement 10 and certification as to the status of his trust account, and the response(s) he received, if any, 11 to his request(s). 12 III. Response to States Motion Requesting Info & Requesting Time 13 In his “Response to States Motion Requesting Info & Requesting Time,” Plaintiff 14 appears to request an extension of time to file an Application to Proceed In Forma Pauperis 15 application. The Court will grant the Motion insofar as Plaintiff will have 30 days from 16 the filing date of this Order to either pay the filing and administrative fees or file a complete 17 in forma pauperis application. 18 IV. Motion for Investigation 19 In his Motion for Investigation, Plaintiff states that the law-library access at ASPC-

20 certified statement, and a memo of instructions to the corresponding Business Office. 21 10.3 The Business Office staff shall process and document the request in 22 accordance with the Unit Certified Statement Procedure. The signed Inmate Letter is authorization to charge the inmate for the Certified Statement. 23 10.3.1 Inmates shall incur a charge $0.25 per page. A notice shall be sent to 24 the Business Manager to collect the fee. If funds are not available, the inmate’s Spendable Account shall be placed on hold for the amount. 25 10.4 The inmate shall present the completed form “Application to Proceed 26 in Forma Pauperis” and the certified statements to their assigned Correctional Officer III for certification. The certified application shall be returned to the 27 inmate who is responsible for filing a petition with the court. The application shall not be certified by the unit’s Business Office. 28 1 Eyman is insufficient and expresses concern that his July 8, 2024 filings did not reach the 2 Court. He asks the Court to “look into” the lack of law library access at ASPC-Lewis. The 3 Court construes Plaintiff’s Motion as a Motion for a Temporary Restraining Order or 4 Preliminary Injunction. 5 To obtain a temporary restraining order or preliminary injunction, the moving party 6 must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable 7 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and 8 that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 9 U.S. 7, 20 (2008). The moving party has the burden of proof on each element of the test. 10 Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). 11 Plaintiff has neither addressed the elements of the Winter test nor shown that he is likely 12 to suffer irreparable harm in the absence of the requested relief. The Motion for 13 Investigation will therefore be denied. 14 V. Warnings 15 A. Address Changes 16 Plaintiff must file and serve a notice of a change of address in accordance with Rule 17 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 18 relief with a notice of change of address. Failure to comply may result in dismissal of this 19 action. 20 B. Possible Dismissal 21 If Plaintiff fails to timely comply with every provision of this Order, including these 22 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 23 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 24 to comply with any order of the Court). 25 IT IS ORDERED: 26 (1) Plaintiff’s “Response to States Motion Requesting Info & Requesting Time” 27 (Doc. 6) is denied. 28 . . . . 1 (2) Plaintiffs Motion for Investigation (Doc. 8), construed as a Motion for 2 Temporary Restraining Order or Preliminary Injunction, is denied. 3 (3) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 7) is denied 4 without prejudice. 5 (4) Within 30 days of the date this Order is filed, Plaintiff must either pay the 6) $350.00 filing fee and $55.00 administrative fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement (or institutional 8 equivalent). 9 (5) If Plaintiff fails to either pay the $350.00 filing fee and $55.00 administrative 10 fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk 11 of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff and deny any pending unrelated motions as moot. 13 (6) The Clerk of Court must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas). 15 Dated this 13th day of November, 2024. 16 17 a 3 18 19 _ James A. Teil Org Senior United States District Judge 20 21 22 23 24 25 26 27 28

Instructions for Prisoners Applying for Leave to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court

You must pay the $350.00 filing fee plus the $55.00 administrative fees for a civil action. If you later file an appeal, you will be obligated to pay the $505.00 filing fee for the appeal.

If you have enough money to pay the full $405.00 filing and administrative fees, you should send a cashier=s check or money order payable to the Clerk of the Court with your complaint.

If you do not have enough money to pay the full $405.00 filing and administrative fees, you can file the action without prepaying the fees. However, the Court will assess an initial partial filing fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the average monthly balance in your prison or jail account for the six months immediately preceding the filing of the lawsuit. The Court will order the agency that has custody of you to withdraw the initial partial filing fee from your prison or jail account as soon as funds are available and to forward the money to the Court.

After the initial partial filing fee has been paid, you will owe the balance of the $350.00 filing fee (you will not be required to pay the $55.00 administrative fee). Until the filing fee is paid in full, each month you will owe 20% of your preceding month’s income. The agency that holds you in custody will collect that money and forward it to the Court any time the amount in your account exceeds $10.00. These installment fees are calculated on a per-case basis. This means that you will be required to pay 20% of your preceding month=s income for each civil non-habeas corpus case in which you have an outstanding filing fee balance. For example, if you are making payments toward filing fee balances in two civil non-habeas corpus cases, 40% of your preceding month=s income will be collected each month. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial.

To file an action without prepaying the filing fee, and to proceed with an action in forma pauperis, you must complete the attached form and return it to the Court with your complaint. You must have a prison or jail official complete the certificate on the bottom of the form and attach a certified copy of your prison or jail account statement for the last six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your account statement from each institution at which you were confined. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied.

Even if some or all of the filing fee has been paid, the Court is required to dismiss your action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a claim against a defendant for money damages and that defendant is immune from liability for money damages.

If you file more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from filing any other action in forma pauperis unless you are in imminent danger of serious physical injury. ___________________________________________ Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

_____________________________________ , CASE NO. __________________________________ Plaintiff, APPLICATION TO PROCEED v. IN FORMA PAUPERIS BY A PRISONER _____________________________________ , CIVIL (NON-HABEAS) Defendant(s).

I, , declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these proceedings or to give security therefor and that I believe I am entitled to relief.

In support of this application, I answer the following questions under penalty of perjury:

1. Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained? GYes GNo If “Yes,” how many have you filed? . Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a claim upon which relief may be granted? GYes GNo If “Yes,” how many of them? .

2. Are you currently employed at the institution where you are confined? GYes GNo If “Yes,” state the amount of your pay and where you work.

3. Do you receive any other payments from the institution where you are confined? GYes GNo If “Yes,” state the source and amount of the payments.

1 4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where you are confined? GYes GNo If “Yes,” state the sources and amounts of the income, savings, or assets.

I declare under penalty of perjury that the above information is true and correct.

________________________________ ____________________________________________ DATE SIGNATURE OF APPLICANT

ACKNOWLEDGEMENT OF COLLECTION OF FILING FEES FROM TRUST ACCOUNT

I, , acknowledge that upon granting this Application, the Court will order designated correctional officials at this institution, or any other correctional institution to which I am transferred, to withdraw money from my trust account for payment of the filing fee, as required by 28 U.S.C. § 1915(b). The Court will require correctional officials to withdraw an initial partial payment equal to 20% of the greater of: (A) the average monthly deposits to my account for the six-month period preceding my filing of this action, or (B) the average monthly balance in my account for the six-month period preceding my filing of this action. After the initial payment, if the amount in my account is at least $10.00, the Court will require correctional officials to withdraw from my account 20% of each month’s income and forward it to the Court until the required filing fee is paid in full. I understand that I am required to pay the entire fee, even if my case is dismissed by the Court before the fee is fully paid. I further understand that if I file more than one action, correctional officials will be ordered to withdraw 20% of each month’s income, for each action, simultaneously. Accordingly, if I have filed two actions, correctional officials will withdraw 40% of my income each month; three actions will require 60% of my income each month, etc.

________________________________ ____________________________________________ DATE SIGNATURE OF APPLICANT

CERTIFICATE OF CORRECTIONAL OFFICIAL AS TO STATUS OF APPLICANT=S TRUST ACCOUNT

I, , certify that as of the date applicant signed this application: (Printed name of official) The applicant=s trust account balance at this institution is: $ The applicant=s average monthly deposits during the prior six months is: $ The applicant=s average monthly balance during the prior six months is: $ The attached certified account statement accurately reflects the status of the applicant=s account.

DATE AUTHORIZED SIGNATURE TITLE/ID NUMBER INSTITUTION