Newson v. Cochran ( 2021 )

1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rafeal Deshawn Newson, No. CV 21-00821-PHX-JAT (MHB) 10 Plaintiff, 11 v. ORDER 12 Gayle Cochran, et al., 13 Defendants. 14 15 Plaintiff Rafeal Deshawn Newson,1 who is confined in the Stanley Correctional 16 Institution in Stanley, Wisconsin, has filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 deny the deficient Application to Proceed and will give Plaintiff 30 days to pay the filing 19 and administrative fees or file a complete Application to Proceed In Forma Pauperis. 20 I. Payment of Filing Fee 21 When bringing an action, a prisoner must either pay the $350.00 filing fee and a 22 $52.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma 23 pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). 24 An application to proceed in forma pauperis requires an affidavit of indigence and a 25 certified copy of the inmate’s trust account statement for the six months preceding the filing 26 of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each 27 institution where the inmate was confined during the six-month period. Id. To assist 28 1 Plaintiff is also known as Marquis Lee Johnson. 1 prisoners in meeting these requirements, the Court requires use of a form application. 2 LRCiv 3.4. 3 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 4 initial partial filing fee of 20% of either the average monthly deposits or the average 5 monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An 6 initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). 7 The balance of the $350.00 filing fee will be collected in monthly payments of 20% of the 8 preceding month’s income credited to an inmate’s account, each time the amount in the 9 account exceeds $10.00. 28 U.S.C. § 1915(b)(2). 10 II. Application Fails to Comply With Statute 11 Plaintiff has not used the court-approved form for filing an Application to Proceed 12 In Forma Pauperis by a prisoner; rather, he has filed a non-prisoner Application to Proceed 13 In District Court Without Prepaying Fees or Costs. Plaintiff also has not submitted a 14 certified six-month trust account statement. In light of these deficiencies, the Court will 15 deny the Application to Proceed and will give Plaintiff 30 days to either pay the $402.00 16 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. 17 The Court notes that Plaintiff’s Complaint asserts claims based on his March 20, 18 1999 arrest and subsequent prosecution and conviction in Maricopa County Superior Court 19 case #CR199904319.2 Plaintiff should be aware that prosecutors are absolutely immune 20 from liability for damages under § 1983 for their conduct in “initiating a prosecution and 21 in presenting the State’s case” insofar as that conduct is “intimately associated with the 22 judicial phase of the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) 23 (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). Immunity even extends to 24 prosecutors for “eliciting false or defamatory testimony from witnesses or for making false 25 26 2 This conviction is under the name Marquis L. Johnson. See https://corrections.az.gov/public-resources/inmate-datasearch (search by inmate number 27 149257 in Inactive Inmates) (last accessed May 10, 2021). Plaintiff was convicted of drive- by shooting, aggravated assault, endangerment, and flight from a law enforcement vehicle 28 and was sentenced to a 19.5-year term of imprisonment. Id. Plaintiff was released from ADC custody on May 5, 2019 and was extradited to Wisconsin pursuant to a detainer. Id. 1 or defamatory statements during, and related to, judicial proceedings.” Buckley, 509 U.S. 2 at 270; see also Broam v. Bogan, 320 F.3d 1023, 1029-30 (9th Cir. 2003) (prosecutor 3 absolutely immune from liability for failure to investigate the accusations against a 4 defendant before filing charges; for knowingly using false testimony at trial; and for 5 deciding not to preserve or turn over exculpatory material before trial, during trial, or after 6 conviction); Roe v. City & County of S.F., 109 F.3d 578, 583-84 (9th Cir. 1997) (absolute 7 immunity for decision to prosecute or not to prosecute and for professional evaluation of a 8 witness and evidence assembled by the police). 9 Plaintiff should also take note that the applicable statute of limitations in an action 10 under 42 U.S.C. § 1983 is the forum state’s statute of limitations for personal injury actions. 11 Wilson v. Garcia, 471 U.S. 261, 276 (1985). The Arizona statute of limitations for personal 12 injury actions is two years. See Ariz. Rev. Stat. § 12-542(1). 13 Accrual of § 1983 claims is governed by federal law. Wallace v. Kato, 549 U.S. 14 384, 388 (2007). Under federal law, a claim accrues when the plaintiff “knows or has 15 reason to know of the injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d 16 568, 574 (9th Cir. 2012); Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 17 1998). 18 III. Warnings 19 A. Address Changes 20 Plaintiff must file and serve a notice of a change of address in accordance with Rule 21 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 22 relief with a notice of change of address. Failure to comply may result in dismissal of this 23 action. 24 B. Possible Dismissal 25 If Plaintiff fails to timely comply with every provision of this Order, including these 26 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 27 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 28 to comply with any order of the Court). 1| ITIS ORDERED: 2 (1) `` Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied without prejudice. 4 (2) Within 30 days of the date this Order is filed, Plaintiff must either pay the 5 | $350.00 filing fee and $52.00 administrative fee or file a complete Application to Proceed 6| In Forma Pauperis and a certified six-month trust account statement. 7 (3) If Plaintiff fails to either pay the $350.00 filing fee and $52.00 administrative 8 | fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk 9| of Court must enter a judgment of dismissal of this action without prejudice and without 10 | further notice to Plaintiff and deny any pending unrelated motions as moot. 11 (4) The Clerk of Court must mail Plaintiff a court-approved form for filing an 12 | Application to Proceed In Forma Pauperis (Non-Habeas). 13 Dated this 12th day of May, 2021. 14 15 a 16 7 _ James A. Teil Org Senior United States District Judge 18 19 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 $52.00 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 $402.00 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 $402.00 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 $52.00 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