Melone v. Federal Bureau of Investigation

1 JL WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Joseph Benedict Melone, No. CV 21-02097-PHX-MTL (MTM) 10 Plaintiff, v. ORDER Federal Bureau of Investigation, et al., Defendants.

15 Plaintiff Joseph Benedict Melone, who is confined in the Arizona State Prison Complex-Yuma, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend because it is not on a court-approved form, deny the deficient Application to Proceed, and give Plaintiff 30 days to (1) pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and (2) file an amended complaint using the court-approved form included with this Order.

22 I. Payment of Filing Fee 23 When bringing an action, a prisoner must either pay the $350.00 filing fee and a $52.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1).

26 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.

3 LRCiv 3.4.

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).

8 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).

11 II. Application Fails to Comply With Statute 12 Plaintiff has used the court-approved form, but he has not submitted a certified six- month trust account statement. In light of this deficiency, the Court will deny the Application to Proceed and will give Plaintiff 30 days to either pay the $402.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis.

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

21 III. Statutory Screening of Prisoner Complaints 22 The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

28 Local Rule of Civil Procedure 3.4 requires in part that “[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 and in accordance with the instructions provided with the forms.” Plaintiff’s Complaint is not on a court-approved form as required by Local Rule of Civil Procedure 3.4. Plaintiff’s Complaint will therefore be dismissed without prejudice, with leave to amend, in order for Plaintiff to file an amended complaint on a court-approved form.

7 IV. Leave to Amend 8 Within 30 days, Plaintiff may submit a first amended complaint on a court-approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.

12 Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first 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.

16 A first 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 18 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 22 F.3d 896, 928 (9th Cir. 2012) (en banc).

23 V. Warnings 24 A. Address Changes 25 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.

1 B. Possible Dismissal 2 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, 963 F.2d 4 at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

6 IT IS ORDERED: 7 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied without prejudice.

9 (2) Within 30 days of the date this Order is filed, Plaintiff must either pay the $350.00 filing fee and $52.00 administrative fee or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement.

12 (3) If Plaintiff fails to either pay the $350.00 filing fee and $52.00 administrative 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 and deny any pending unrelated motions as moot.

16 (4) The Complaint (Doc. 1) is dismissed for failure to file on a court-approved form. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.

19 (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 and deny any pending unrelated motions as moot.

22 . . . .

23 . . . .

24 . . . .

25 . . . .

26 . . . .

27 . . . .

28 . . . . l | (6) The Clerk of Court must mail Plaintiff a court-approved form for filing an | Application to Proceed In Forma Pauperis (Non-Habeas) and a court-approved form for | filing a civil rights complaint by a prisoner.

4 | Dated this 15th day of December, 2021.

Mi Chak T. df burde Michael T. Liburdi | United States District Judge | | | | | | 17| | | | | | | | | | | |