Crespo-Gutierrez v. Ramirez

Filing 5

ORDER Denying without prejudice 3 Plaintiff's Second Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall have until Wednesday, 4/7/2014, to file a new, completed Application to Proceed In Forma Pauperis along with a complaint. IT IS FURTHER ORDERED that 4 Plaintiff's Motion for Clarification is DENIED. Signed by Magistrate Judge Carl W. Hoffman on 03/06/2014. (Copies have been distributed pursuant to the NEF - CC: Blank Prisoner IFP and Instructions to Plaintiff - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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AXEL CRESPO-GUTIERREZ,
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Plaintiff,
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vs.
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ANA MARIA RESENDIZ RAMIREZ,
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Defendant.
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____________________________________)

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Case No. 2:14-cv-00175-GMN-CWH
ORDER

This matter is before the Court on Plaintiff’s Second Motion/Application for Leave to Proceed

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In Forma Pauperis (#3), filed on March 5, 2014. In addition, this matter is also before the Court on

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Plaintiff’s Motion for Clarification (#4), filed on March 5, 2014.

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I.

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In Forma Pauperis Application
Pursuant to 28 U.S.C. § 1914(a), a filing fee of $350.00 is required to commence a civil action

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in federal district court in addition to a $50 administrative fee, effective May 1, 2013, for a total of

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$400. The court may authorize the commencement of an action “without prepayment of fees and costs

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or security therefor, by a person who makes affidavit that [s]he is unable to pay such costs or give

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security therefore.” 28 U.S.C. § 1915(a).

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On February 3, 2014, the Court denied without prejudice Plaintiff’s First Motion/Application

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for Leave to Proceed In Forma Pauperis for lack of sufficient information and granted him 30 days to

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file a new application. See Order #1. Plaintiff filed his Second Motion/Application, which suffers from

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the same lack of information to determine whether he is eligible to proceed in forma pauperis. Plaintiff

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reports that he has monthly income of $10.00 in response to question 12, but lists no income in

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response to question 1. Plaintiff also attaches his inmate banking history. However, Plaintiff failed to

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use the required form for a prisoner who is requesting in forma pauperis status. Accordingly, Plaintiff’s
Second Motion/Application shall be denied without prejudice and he will be given thirty (30) days to

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submit a second, completed application along with a complaint.

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II.

Screening the Complaint
Having concluded that Plaintiff is not entitled at this time to proceed in forma pauperis, the

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Court need not screen the complaint under 28 U.S.C. § 1915(e)(2)(B), which requires the dismissal of

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the case at any time if the Court determines that it is frivolous or malicious or fails to state a claim upon

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which relief can be granted or seeks monetary relief against a defendant who is immune from such

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relief. However, the Court notes that Plaintiff failed to submit a complaint along with his Second

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Motion/Application. Plaintiff is ordered to submit a complaint along with his Third

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Motion/Application. Failure to do so may result in a recommendation that this action be dismissed.

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Additionally, the Court notes that Plaintiff fails to state a cause of action based on federal law. It

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appears as though Plaintiff is alleging marriage fraud, but fails to state the federal law that this claim

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arises under so federal question jurisdiction under 28 U.S.C. § 1331 does not exist. Therefore, Plaintiff

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should be aware of this defect when filing new complaint.

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III.

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Motion for Clarification
Plaintiff filed a Motion for Clarification regarding Order #2. Plaintiff requests verification of

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his address because of his concern over a mail delay. He indicates that there was a delay in the mail and

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he did not receive the February 3, 2014 Order until February 24, 2014. Plaintiff’s address is correctly

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listed on the docket and no change needs to be made. Additionally, Plaintiff requests advice regarding

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the Court’s note about the deficiencies in the complaint. Given that the Court has not screened the

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complaint and Plaintiff failed to file points and authorities in accordance with Local Rule 7-2, the Court

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will deny Plaintiff’s request for clarification.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Plaintiff’s Second Motion/Application to Proceed In Forma

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Pauperis (#3) is denied without prejudice.

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IT IS FURTHER ORDERED that the Clerk of the Court shall mail a blank copy of the form

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for a prisoner filing a Motion/Application to Proceed In Forma Pauperis to Plaintiff at the following

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address:

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Axel Crespo-Gutierrez
6564 State Hwy 96 - 137440
Olney Springs, CO 81062

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IT IS FURTHER ORDERED that Plaintiff shall have until Wednesday, April 7, 2014, to file

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a new, completed Application to Proceed In Forma Pauperis along with a complaint. In the alternative,

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Plaintiff may make the necessary arrangements to pay the filing fee of four hundred dollars ($400),

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accompanied by a copy of this Order. Failure to comply with this Order will result in a

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recommendation to the District Judge that this action be dismissed.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Clarification (#4) is denied.

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Dated this 6th day of March, 2014.

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________________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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