Derello 37292 v. Unknown Party ( 2021 )

1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 21-01946-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown, 13 Defendant. 14 15 On November 15, 2021, Plaintiff Douglas Wayne Derello, Jr., who is confined in 16 the Arizona State Prison Complex-Eyman, filed a pro se civil rights Motion to Perpetuate 17 Preservation of Documents pursuant to Rule 27(a) of the Federal Rules of Civil Procedure. 18 Plaintiff did not pay the $49.00 miscellaneous filing fee or file an Application to Proceed 19 In Forma Pauperis. The Court will give Plaintiff 30 days to pay the filing fee or file a 20 complete Application to Proceed In Forma Pauperis.1 21 . . . . 22 . . . . 23 24 1 Plaintiff should take note that a duty to preserve evidence arises “when a party 25 knows or should know that certain evidence is relevant to pending or future litigation.” Surowiec v. Cap. Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011) 26 (quoting Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 800 (N.D. Tex. 2011)). In addition to filing a Rule 27(a) motion, Plaintiff can separately request Arizona 27 Department of Corrections officials retain “in the anticipation of litigation” the video footage he refers to in his Motion. See Fed. R. Civ. P. 37(e) (authorizing sanctions “[i]f 28 electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery”). 1 I. Payment of Filing Fee 2 The fee for filing “any document that is not related to a pending case or proceeding” 3 is $49.00. See 28 U.S.C. § 1914(b); Judicial Conference Schedule of Fees, District Court 4 Miscellaneous Fee Schedule 1 (effective Dec. 1, 2020), foll. 28 U.S.C. § 1914. A prisoner 5 must either pay the $49.00 filing fee in a lump sum or, if granted the privilege of proceeding 6 in forma pauperis, pay the $49.00 filing fee incrementally as set forth in 28 U.S.C. 7 § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of 8 indigence and a certified copy of the inmate’s trust account statement for the six months 9 preceding the filing of the Motion. See 28 U.S.C. § 1915(a)(2). An inmate must submit 10 statements from each institution where he was confined during the six-month period. Id. 11 To assist prisoners in meeting these requirements, the Court requires use of a form 12 application. LRCiv 3.4. 13 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 14 initial partial filing fee of 20% of either the average monthly deposits or the average 15 monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An 16 initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). 17 The balance of the $49.00 filing fee will be collected in monthly payments of 20% of the 18 preceding month’s income credited to an inmate’s account, each time the amount in the 19 account exceeds $10.00. 28 U.S.C. § 1915(b)(2). 20 Because Plaintiff has not paid the $49.00 filing fee or filed an Application to 21 Proceed In Forma Pauperis, Plaintiff will be permitted 30 days from the filing date of this 22 Order to submit a properly executed and certified Application to Proceed In Forma 23 Pauperis, using the form included with this Order, or pay the $49.00 filing and 24 administrative fees. 25 The Arizona Department of Corrections (ADC) has notified the Court that a 26 certified trust fund account statement showing deposits and average monthly balances is 27 available from the ADC’s Central Office. Accordingly, Plaintiff must obtain the certified 28 1 copy of his ADC trust fund account statement for the six months immediately preceding the 2 filing of the Complaint from the ADC’s Central Office. 3 II. Warnings 4 A. Address Changes 5 Plaintiff must file and serve a notice of a change of address in accordance with Rule 6 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 7 relief with a notice of change of address. Failure to comply may result in dismissal of this 8 action. 9 B. Possible Dismissal 10 If Plaintiff fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 13 to comply with any order of the Court). 14 IT IS ORDERED: 15 (1) Within 30 days of the date this Order is filed, Plaintiff must either pay the 16 $49.00 filing fee or file a complete Application to Proceed In Forma Pauperis and a 17 certified six-month trust account statement. 18 (2) If Plaintiff fails to either pay the $49.00 filing fee or file a complete 19 Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a 20 judgment of dismissal of this action without prejudice and without further notice to Plaintiff 21 and deny any pending unrelated motions as moot. 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . l | (3) The Clerk of Court must mail Plaintiff a court-approved form for filing an 2 | Application to Proceed In Forma Pauperis (Non-Habeas). 3 | Dated this 23rd day of November, 2021. | Wik Jp) | ‘chal T. bude Michael T. Liburdi 7 | United States District Judge s| 10 | 11 | 12 | 13| 14 | 15 | 16 | 17| 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 |