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JDDL


Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 1 of 8

MDR






IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA


Arnold James Begay,

Plaintiff,

vs.

United States President Barack Hussein
Obama, II,,



Defendant.

No. CV 12-1948-PHX-PGR (BSB)

ORDER




I.

Procedural History
On September 13, 2012, Plaintiff Arnold James Begay, who is confined in the
Federal Correctional Institution-Marianna (FCI-Marianna) in Marianna, Florida, filed an
untitled Document that appears to be a pro se Complaint. On September 24, 2012,
Plaintiff filed an untitled Document regarding the caption and requesting that he be
transferred closer to the Court. On October 12, 2012, Plaintiff filed a Letter notifying the
Court, among other things, that he was confined in the Nevada Southern Detention
Center.

In an October 23, 2012 Order, the Court noted that Plaintiff had not paid the
$350.00 civil action filing fee or filed an Application to Proceed In Forma Pauperis. The
Court gave Plaintiff 30 days to pay the fee or file a complete Application to Proceed In
Forma Pauperis. The Clerk of Court mailed the Order to Plaintiff at the Nevada
Southern Detention Center.









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Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 2 of 8



On November 1, 2012, the Order was returned to the Court as undeliverable, with

a notation that Plaintiff was “Not [an] NSDC Detainee.”

On November 16, 2012, Plaintiff filed another untitled Document requesting that
the Court investigate the Defendant. The Document was mailed to the Court in an
envelope that lists Plaintiff’s return address as the Federal Correctional Institution-
Herlong (FCI-Herlong). On January 7, 2013, Plaintiff filed a Letter requesting that the
Court order FCI-Herlong to “replace everything they have thrown away” and to have his
“personal property go with [him].”

In a January 23, 2013 Order, the Court directed the Clerk of Court to update
Plaintiff’s address and send a copy of the October 23rd Order to Plaintiff at FCI-
Herlong.. In the Order, the Court also gave Plaintiff 30 days from the date the Order was
filed to comply with the October 23rd Order by either paying the filing fee or filing a
complete Application to Proceed In Forma Pauperis. The Court warned Plaintiff that the
Clerk of Court would enter a judgment of dismissal of the action, without prejudice and
without further notice to Plaintiff, if he failed to either pay the filing fee or file a complete
Application to Proceed within 30 days.

On March 18, 2013, the Clerk of Court entered Judgment, dismissing the action
because Plaintiff had failed to either pay the filing fee or file an Application to Proceed
within 30 days of the January 23rd Order.

On March 20, 2013, Plaintiff filed a Motion for Extension of Time to Proceed In

Forma Pauperis (Doc. 12) and an Application to Proceed In Forma Pauperis (Doc. 11).
Prison Mailbox Rule
II.

Under the “prison mailbox rule,” a document is deemed “filed” when delivered by
the prisoner to a prison official for mailing. See Houston v. Lack, 487 U.S. 266, 276
(1988); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). Plaintiff’s Motion for
Extension of Time was signed on March 14, 2013, and the Certificate of Correctional
Official as to Status of Applicant’s Trust Account Statement in the Application to
Proceed In Forma Pauperis was signed on March 15, 2013. It appears, therefore, that the



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Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 3 of 8



two documents were delivered to a prison official for mailing before the Clerk of Court
entered Judgment. Thus, the Court will vacate the Judgment.
III. Motion for Extension of Time

In his Motion for Extension to Time, Plaintiff seeks an extension of time to file his
Application to Proceed In Forma Pauperis, claiming that he did not receive either of the
Court’s Orders until he arrived at FCI-Marianna on March 13, 2013. The Court, in its
discretion, will grant the Motion for Extension of Time and will consider the March 20,
2013 Application to Proceed In Forma Pauperis to be timely filed.
IV. 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).
Application Fails to Comply With Statute
V.

Plaintiff has used the court-approved form, but has left blank the “Consent to
Collection of Fees from Trust Account” section. This part of the in forma pauperis
application must be filled out, signed, and dated. In addition, Plaintiff has not submitted



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Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 4 of 8



a certified six-month trust account statement. In light of these deficiencies, the Court will
deny the Application to Proceed and will give Plaintiff 30 days to either pay the $350.00
filing fee or file a complete Application to Proceed In Forma Pauperis.
VI. 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. Plaintiff must file a Notice of
Change of Address, not simply place his current address on a pleading. Failure to
comply may result in dismissal of this action.
B. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See

LRCiv 5.4. Failure to comply may result in the filing being stricken without further
notice to Plaintiff.
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:

must reopen this case.
Plaintiff’s Motion for Extension to Time to Proceed In Forma Pauperis

(Doc. 12) is granted. The March 20, 2013 Application to Proceed is deemed timely
filed.

without prejudice.

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 11) is denied

(2)

(1)

The March 18, 2013 Judgment (Doc. 10) is vacated. The Clerk of Court

(3)



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Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 5 of 8




(4) 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.

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.

(6)
an Application to Proceed In Forma Pauperis (Non-Habeas).

currently confined in the Federal Correctional Institution-Marianna.



The Clerk of Court must update the docket to reflect that Plaintiff is

The Clerk of the Court must mail Plaintiff a court-approved form for filing

(5)

(7)

Dated this 2nd day of May, 2013.





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Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 6 of 8

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 full filing fee of $350.00 for a civil action. If you later file an appeal,

you will be obligated to pay the $455.00 filing fee for the appeal.

If you have enough money to pay the full filing fee, you should send a cashier’s check
or money order payable to the Clerk of the Court with your complaint, petition, or notice of
appeal.

If you do not have enough money to pay the full filing fee, you can file the action
without prepaying the filing fee. 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 filing 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. 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.

Revised 4/9/06

Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 7 of 8

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

Plaintiff,

vs.

Defendant(s).

,

,

)
) CASE NO.
)
)
)
)
)
)
)

APPLICATION TO PROCEED
IN FORMA PAUPERIS

BY A PRISONER

CIVIL (NON-HABEAS)

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?

If "Yes," state the amount of your pay and where you work.

GYes

GNo

3. Do you receive any other payments from the institution where you are confined? GYes

If "Yes," state the source and amount of the payments.

GNo

Revised 4/9/06

1

Case 2:12-cv-01948-PGR--BSB Document 14 Filed 05/07/13 Page 8 of 8

4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where

you are confined?
If "Yes," state the sources and amounts of the income, savings, or assets.

GYes

GNo

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

DATE

SIGNATURE OF APPLICANT

CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT

I,

, hereby consent to having the designated correctional officials at this
institution release to the Court my trust account information. I further consent to having the designated
correctional officials at this institution withdraw from my trust account the funds required to comply with the
order of this Court for the payment of filing fees in accordance with 28 U.S.C. § 1915(b).

My consent includes withdrawal from my account by correctional officials of partial initial payments to this

Court 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.

My consent also includes monthly withdrawals from my account by correctional officials of an amount equal
to 20% of each month’s income. Whenever the amount in my account reaches $10.00, correctional officials will
withdraw that amount and forward it to the Court until the required filing fee is paid in full. I understand that I
am liable for paying the entire fee, even if my case is dismissed by the Court before the fee is fully paid.

DATE

SIGNATURE OF APPLICANT

CERTIFICATE OF CORRECTIONAL OFFICIAL

AS TO STATUS OF APPLICANT’S TRUST ACCOUNT

I,

(Printed name of official)

, certify that as of the date applicant signed this application:

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

Revised 4/9/06

2