McCreary v. Sandoval et al

Filing 14

ORDER that 1 Plaintiff's Motion to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the clerk shall send a copy of this order to the finance division of the clerk's office and to the chief of inmate services for the Neva da Department of Corrections. IT IS FURTHER ORDERED that 2 Plaintiff's Motion to Submit into Evidence/Discovery is DENIED as moot. IT IS FURTHER ORDERED that this action is DISMISSED for failure to state a claim. Clerk shall enter judgment a ccordingly. IT IS FURTHER ORDERED that any appeal from the dismissal of this action is not taken in good faith. Signed by Judge Miranda M. Du on 7/9/12. (Copies have been distributed pursuant to the NEF - cc: USDC Finance and Chief of Inmate Services - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PAUL McCREARY,

Case No. 2:12-cv-00317-MMD-CWH
Plaintiff,

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ORDER
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v.
BRIAN SANDOVAL, et al.,
Defendants.

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The court determined that the complaint failed to state a claim upon which relief

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can be granted, and the court directed plaintiff to file an amended complaint to correct

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the deficiencies of the complaint. Order (dkt. no. 3). Plaintiff has not complied with the

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court’s order within the allotted time. The court will therefore dismiss this action.

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Plaintiff’s motion to submit into evidence/discovery (dkt. no. 2) is moot because
the court is dismissing the action.

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Twice, plaintiff has appealed orders of this court. First, plaintiff appealed the

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court’s order (dkt. no. 3) dismissing the complaint and directing plaintiff to file an

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amended complaint. The court of appeals dismissed (dkt. no. 8) that appeal because

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the court of appeals lacked jurisdiction.

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mandate of the court of appeals (dkt. no. 10). Plaintiff has now appealed (dkt. no. 11)

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that order. Whatever plaintiff’s reasons for appealing a clerical order might be, the

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appeal does not deprive this court of jurisdiction to dispose of the action.

This court then entered an order on the

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IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma

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pauperis (dkt. no. 1) is GRANTED. Plaintiff shall not be required to pay an initial partial

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filing fee. However, even though this action is to be dismissed, the full filing fee must still

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be paid pursuant to 28 U.S.C. § 1915(b)(2).

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada

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Department of Corrections shall pay to the Clerk of the United States District Court,

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District of Nevada, 20% of the preceding month’s deposits to plaintiff’s account (inmate

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#78362), in the months that the account exceeds $10.00, until the full $350 filing fee has

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been paid for this action. The clerk shall send a copy of this order to the finance division

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of the clerk’s office. The clerk shall also send a copy of this order to the attention of the

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chief of inmate services for the Nevada Department of Corrections, P.O. Box 7011,

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Carson City, NV 89702.

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IT IS FURTHER ORDERED that plaintiff’s motion to submit into evidence/
discovery (dkt. no. 2) is DENIED as moot.

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IT IS FURTHER ORDERED that this action is DISMISSED for failure to state a

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claim upon which relief can be granted and for plaintiff’s failure to comply with the court’s

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order. The clerk of the court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal
from the dismissal of this action is not taken in good faith.

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DATED THIS 9th day of July 2012.

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UNITED STATES DISTRICT JUDGE
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