Lyons v. Cox et al

Filing 23

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposit s to Plaintiffs account (Phillip J. Lyons, #33833), in the months that the account exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The Clerk shall electronically SERVE a copy of this order and a copy of Plai ntiff's complaint 8 on the Office of the Attorney General of the State of Nevada. The clerk shall issue summons for Defendant Hoye, and deliver the same and a copy of the complaint 8 to the US Marshal for service. Signed by Magistrate Judge Nancy J. Koppe on 4/6/15. (Copies have been distributed pursuant to the NEF - cc: finance; NDOC Chief of Inmate Services; 285 form & complaint to plaintiff - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PHILLIP J. LYONS,

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Plaintiff,
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v.
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JAMES G. COX et al.,
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Defendants.
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___________________________________ )

2:14-cv-46-RFB-NJK
ORDER

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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state

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prisoner. Plaintiff has submitted an application to proceed in forma pauperis. (ECF No. 1).

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Based on the financial information provided, the Court finds that Plaintiff is unable to prepay

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the full filing fee in this matter.

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The Court entered a screening order on November 14, 2014. (ECF No. 7). The

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screening order imposed a 90-day stay and the Court entered a subsequent order in which the

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parties were encouraged to engage in informal settlement discussions. (ECF No. 7, 20).

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Plaintiff’s limited purpose counsel has filed a joint status report indicating that settlement has

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not been reached among Plaintiff and Defendant Hoye and the NDOC Defendants. (ECF No.

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21).

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For the foregoing reasons, IT IS ORDERED that:

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1.

Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is GRANTED.

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Plaintiff shall not be required to pay an initial installment of the filing fee. In the event that this

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action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2).

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The movant herein is permitted to maintain this action to conclusion without the

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necessity of prepayment of any additional fees or costs or the giving of security therefor. This

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order granting leave to proceed in forma pauperis shall not extend to the issuance of

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subpoenas at government expense.

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3.

Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall

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pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding

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month’s deposits to Plaintiff’s account (Phillip J. Lyons, #33833), in the months that the

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account exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The

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Clerk of the Court shall SEND a copy of this order to the Finance Division of the Clerk’s Office.

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The Clerk of the Court shall also SEND a copy of this order to the attention of the Chief of

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Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV

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89702.

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IT IS FURTHER ORDERED as to the NDOC Defendants:

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1.

The Clerk of the Court shall electronically SERVE a copy of this order and a copy

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of Plaintiff’s complaint (ECF No. 8) on the Office of the Attorney General of the State of

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Nevada, attention Kat Howe.

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2.

Subject to the findings of the screening order (ECF No. 7), within twenty-one

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(21) days of the date of entry of this order, the Attorney General’s Office shall file a notice

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advising the Court and Plaintiff of: (a) the names of the defendants for whom it accepts

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service; (b) the names of the defendants for whom it does not accept service, and (c) the

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names of the defendants for whom it is filing last-known-address information under seal. As

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to any of the named defendants for which the Attorney General’s Office cannot accept service,

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the Office shall file, under seal, the last known address(es) of those defendant(s) for whom

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it has such information.

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3.

If service cannot be accepted for any of the named defendant(s), Plaintiff shall

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file a motion identifying the unserved defendant(s), requesting issuance of a summons, and

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specifying a full name and address for the defendant(s). For the defendant(s) as to which the

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Attorney General has not provided last-known-address information, Plaintiff shall provide the
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full name and address for the defendant(s).
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If the Attorney General accepts service of process for any named defendant(s),

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such defendant(s) shall file and serve an answer or other response to the complaint within

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sixty (60) days from the date of this order.
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Henceforth, Plaintiff shall serve upon defendant(s) or, if an appearance has been

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entered by counsel, upon their attorney(s), a copy of every pleading, motion or other document

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submitted for consideration by the Court. Plaintiff shall include with the original paper

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submitted for filing a certificate stating the date that a true and correct copy of the document

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was mailed to the defendants or counsel for the defendants. If counsel has entered a notice

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of appearance, Plaintiff shall direct service to the individual attorney named in the notice of

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appearance, at the address stated therein. The Court may disregard any paper received by

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a district judge or magistrate judge which has not been filed with the Clerk, and any paper

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received by a district judge, magistrate judge, or the Clerk which fails to include a certificate

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showing proper service.

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IT IS FURTHER ORDERED as to Defendant Hoye:

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1.

The Clerk of Court SHALL ISSUE summons for Defendant Hoye, AND DELIVER

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THE SAME, along with the complaint (ECF No. 8), to the U.S. Marshal for service. The Clerk

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also SHALL SEND to Plaintiff one (1) USM-285 form, one copy of the complaint and a copy

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of this order. Plaintiff shall have thirty (30) days within which to furnish to the U.S. Marshal

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the required USM-285 form(s) with relevant information as to each Defendant on each form.

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Within twenty (20) days after receiving from the U.S. Marshal a copy of the USM-285 forms

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showing whether service has been accomplished, Plaintiff must file a notice with the Court

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identifying which Defendants were served and which were not served, if any. If Plaintiff wishes

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to have service again attempted on an unserved Defendant(s), then a motion must be filed

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with the Court identifying the unserved Defendant(s) and specifying a more detailed name

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and/or address for said Defendant(s), or whether some other manner of service should be

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attempted.

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Plaintiff shall serve upon Defendants or, if appearance has been entered by

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counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted

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for consideration by the Court. Plaintiff shall include with the original paper submitted for filing

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a certificate stating the date that a true and correct copy of the document was mailed to the

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Defendants or counsel for the Defendants. The Court may disregard any paper received by

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a district judge or magistrate judge which has not been filed with the clerk, and any paper

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received by a district judge, magistrate judge or the clerk which fails to include a certificate of

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service.

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DATED: This 6th day of April, 2015.

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_________________________________
NANCY J. KOPPE
United States Magistrate Judge

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