Ibarra v. Tilton

Full title: JESUS HUERTA IBARRA, Plaintiff, v. JAMES A. TILTON, Defendant

Court: United States District Court, E.D. California

Date published: Jan 18, 2007

1:06-CV-1840 AWI WMW P (E.D. Cal. Jan. 18, 2007)

Opinion

1:06-CV-1840 AWI WMW P.

January 18, 2007

ORDER TO SUBMIT NEW APPLICATION TO PROCEED IN FORMA PAUPERIS AND CERTIFIED COPY OF TRUST ACCOUNT STATEMENT OR PAY FILING FEE

WILLIAM WUNDERLICH, Magistrate Judge

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. However, plaintiff's application to proceed in forma pauperis did not include the required original signature by an authorized officer of the institution of incarceration. Additionally, plaintiff has not filed a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Plaintiff will be provided the opportunity to submit a new application to proceed in forma pauperis and a certified copy of his trust account statement, or to pay the $350.00 filing fee.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk's Office shall send to plaintiff the form for application to proceed in forma pauperis.

2. Within thirty days of the date of service of this order, plaintiff shall submit a completed application to proceed in forma pauperis and a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint, or in the alternative, to pay the $350.00 filing fee for this action. Failure to comply with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

INFORMATION TO PRISONERS SEEKING LEAVE TO PROCEED WITH A CIVIL ACTION IN FEDERAL COURT IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915

In accordance with 1996 amendments to the in forma pauperis (IFP) statute, AS A PRISONER YOU WILL BE OBLIGATED TO PAY THE FULL FILING FEE OF $350.00 FOR A CIVIL ACTION, $5.00 FOR A HABEAS CORPUS PETITION, OR $455.00 FOR AN APPEAL.

If you have the money to pay the filing fee, you should send a cashier's check or money order to the court with your complaint, petition, or notice of appeal.

If you do not have enough money to pay the full filing fee when your action is filed, you can file the action without prepaying the filing fee. However, if you have available funds, THE COURT WILL ASSESS AN INITIAL PARTIAL FILING FEE at the time your action is filed. The initial partial filing fee will be equal to 20 PERCENT OF THE AVERAGE MONTHLY DEPOSITS TO YOUR PRISON OR JAIL ACCOUNT FOR THE SIX MONTHS immediately preceding the filing of the lawsuit, or 20 PERCENT OF THE AVERAGE MONTHLY BALANCE IN YOUR PRISON OR JAIL ACCOUNT FOR THAT SAME SIX MONTH PERIOD, whichever is greater. The court will order the agency that has custody of you to take that initial partial filing fee out of your prison or jail trust account if there are available funds, and to forward the money to the court.

Whether or not the initial partial filing fee has been paid, YOU WILL OWE THE BALANCE OF THE FILING FEE. Until the amount of the filing fee is paid in full, EACH MONTH YOU WILL OWE 20 PERCENT OF YOUR PRECEDING MONTH'S INCOME TOWARD THE BALANCE. The agency that has custody of you will collect that money and send payments to the court any time the amount in the account exceeds $10.00. The balance of the filing fee will be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial.

In order to proceed with an action in forma pauperis you must complete the attached form and return it to the court with your complaint, habeas corpus petition, or appeal. You must have a prison or jail official complete the Certification section at the end of the form and attach to the form a certified copy of your prison or jail account statement for the last six months. 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.

Regardless of whether some or all of the filing fee has been paid, the court is required to screen your complaint and to dismiss the complaint if (1) your allegation of poverty is untrue, (2) the action is frivolous or malicious; (3) your complaint does not state a claim on which relief can be granted, or (4) you sue a defendant for money damages and that defendant is immune from liability for money damages.

If you file more than three actions or appeals while you are a prisoner 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 bringing any other actions in forma pauperis unless you are in imminent danger of serious physical injury. Plaintiff's Name: ___________________________

CDC No: _____________________________________

Address: ____________________________________ _______________________________________________________ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER CASE NUMBER:

) ) Plaintiff/Petitioner, ) vs. ) ) ) Defendants/Respondent. ) ____________________________________) ________________ I, ____________________, declare that I am the plaintiff/respondent in the above-entitled proceeding; that, in support of my request to proceed without prepayment of fees under 28 U.S.C. section 1915, I declare that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the relief sought in the complaint.

In support of this application, I answer the following questions under penalty of perjury: (If "no" DO NOT USE THIS FORM) Have the institution fill out the Certificate portion of this application and attach a certified copy of your prison trust account statement showing transactions for the past six months. and 28 U.S.C. section 1915

1. Are you currently incarcerated? ___ Yes ________ No If "yes" state the place of your incarceration. ____________________________________ 2. Are you currently employed (includes prison employment)? ___ Yes ___ No a. If the answer is "yes" state the amount of your pay. _______________ b. If the answer is "no" state the date of your last employment, the amount of your take-home salary or wages and pay period, and the name and address of your last employer. 3. Have you received any money from the following sources over the last twelve months? a. Business, profession, or other self-employment: ___ Yes ___ No b. Rent payments, interest or dividends: ___ Yes ___ No c. Pensions, annuities or life insurance payments: ___ Yes ___ No d. Disability or workers compensation payments: ___ Yes ___ No e. Gifts or inheritances: ___ Yes ___ No f. Any other sources: ___ Yes ___ No If the answer to any of the above is "yes," describe by that item each source of money. Also state the amount received what you expect you will continue to receive. Please attach an additional sheet if necessary. 4. Do you have cash (includes balance of checking or savings accounts)? ___ Yes ___ No If "yes" state the total amount: _______________ 5. Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property? ___ Yes ___ No If "yes" describe the property and state its value: _______________ 6. Do you have any other assets? ___ Yes ___ No If "yes," list the asset(s) and state the value of each asset listed: 7. List all persons dependent on you for support, stating your relationship to each person listed and how much you contribute to their support. I hereby authorize the agency having custody of me to collect from my trust account and forward to the Clerk of the United States District Court payments in accordance with (b)(2). ____________________ ________________________________________ DATE SIGNATURE OF APPLICANT

CERTIFICATE (To be completed by the institution of incarceration)

I certify that the applicant named herein has the sum of $__________ on account to his/her credit at ____________________ (name of institution). I further certify that during the past six months, the applicant's average monthly balance was $__________. I further certify that during the past six months, the average of monthly deposits to the applicant's account was $__________.

(Please attach a certified copy of the applicant's trust account statement showing transactions for the past six months).

____________________ ________________________________________ DATE SIGNATURE OF AUTHORIZED OFFICER