Gibbs v. Fey et al

Filing 16

ORDER. IT IS ORDERED that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk shall send a copy of this order to the attention of Albert G. Peralta, Chief of Inmate Services for the Nevada Department of Prisons. IT IS FURTHER ORDERED 11 Motion to Compel is DENIED as moot. IT IS FURTHER ORDERED 13 Motion for Leave to File is GRANTED. IT IS FURTHER ORDERED that this case is removed from the early inmate mediation program IT IS FURTHER ORDERED that the Clerk of Court SHALL ISSUE a summons for Defendant Kyle Ziemann, AND DELIVER THE SAME, along with the 5 complaint,to the U.S. Marshal for service. The Clerk also SHALL SEND to Plaintiff one (1) USM-285 form, one copy of the complaint and a copy of this order. Signed by Magistrate Judge Nancy J. Koppe on 7/18/16. (Copies have been distributed pursuant to the NEF - cc: USM - ADR)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

12

)
)
Plaintiff,
)
)
v.
)
)
DR. MARIA FEY et al.,
)
)
Defendants.
)
)
___________________________________ )

13

I.

7
8
9
10
11

LARRY GIBBS, JR.,

2:15-cv-01958-GMN-NJK
ORDER

DISCUSSION

14

Defendant Kyle Ziemann1 is the only remaining defendant in this case. (See ECF No.

15

4 at 2). On April 22, 2016, this Court issued an order staying the case for 90 days to give

16

Plaintiff and Defendant Ziemann an opportunity to settle their dispute before the filing fee was

17

paid, an answer was filed, or the discovery process began. (Id.). The Court directed the

18

Attorney General’s Office to notify the Court whether it would enter a limited notice of

19

appearance on behalf of Defendant Ziemann for the purpose of settlement. (Id. at 3).

20

On May 13, 2016, the Attorney General’s Office informed the Court that it could not

21

make a limited appearance for the purpose of settlement because Defendant Ziemann was

22

no longer employed by the Nevada Department of Corrections. (ECF No. 6 at 1). The

23

Attorney General’s Office explained that it could not appear on Defendant Ziemann’s behalf

24

because it had not received a request for representation from him. (Id.).

25

On June 16, 2016, this Court entered an order directing the Attorney General’s Office

26

to send a letter to Defendant Ziemann, at his last known address, informing him that he was

27

a defendant in this lawsuit and asking whether he would like the Office to represent him in this

28
1

The Attorney General’s Office has indicated that the correct spelling of Defendant
“Sgt. Zieman” is “Kyle Ziemann.” (ECF No. 12 at 1).

1

matter. (ECF No. 9 at 2). The Court directed the Attorney General’s Office to file an updated

2

notice regarding whether it would enter a limited notice of appearance in light of its

3

communication with Defendant Ziemann. (Id.).

4

General’s Office was unable to enter a limited notice of appearance, the Court would enter a

5

subsequent order that: (1) removed the case from the early inmate mediation program, (2)

6

ruled on the application to proceed in forma pauperis, and (3) began the service process with

7

the U.S. Marshal’s Office. (Id.).

The Court noted that, if the Attorney

8

In compliance with this Court’s order, the Attorney General’s Office has filed an updated

9

notice informing the Court that it cannot enter a limited notice of appearance for Defendant

10

Ziemann because he has failed to respond to the two letters2 that the Office has sent him

11

regarding legal representation. (ECF No. 12 at 1-2).

12

The Court now removes this case from the early inmate mediation program. With

13

respect to the application to proceed in forma pauperis (ECF No. 1), the Court finds that

14

Plaintiff is not able to pay an initial installment payment toward the full filing fee pursuant to 28

15

U.S.C. § 1915. Plaintiff will, however, be required to make monthly payments toward the full

16

$350.00 filing fee when he has funds available.

17

II.

CONCLUSION

18

For the foregoing reasons, IT IS ORDERED that Plaintiff’s application to proceed in

19

forma pauperis (ECF No. 1) without having to prepay the full filing fee is GRANTED. Plaintiff

20

shall not be required to pay an initial installment fee. Nevertheless, the full filing fee shall still

21

be due, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act. The

22

movant herein is permitted to maintain this action to conclusion without the necessity of

23

prepayment of fees or costs or the giving of security therefor. This order granting in forma

24

pauperis status shall not extend to the issuance and/or service of subpoenas at government

25

expense.

26
27
28

2

The Court grants the Attorney General’s Office’s motion to seal exhibits B and C, the
two letters sent to Defendant Ziemann, in order to maintain the privacy of Defendant
Ziemann’s last known physical address. (ECF No. 13).
2

1

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the

2

Prisoner Litigation Reform Act, the Nevada Department of Corrections shall pay to the Clerk

3

of the United States District Court, District of Nevada, 20% of the preceding month’s deposits

4

to the account of Larry Gibbs, Jr., #90051 (in months that the account exceeds $10.00) until

5

the full $350 filing fee has been paid for this action. The Clerk shall send a copy of this order

6

to the attention of Albert G. Peralta, Chief of Inmate Services for the Nevada Department

7

of Prisons, P.O. Box 7011, Carson City, NV 89702.

8

IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise

9

unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by

10
11
12
13
14
15
16

the Prisoner Litigation Reform Act.
IT IS FURTHER ORDERED that this case is removed from the early inmate mediation
program.
IT IS FURTHER ORDERED that the motion to compel the Attorney General’s Office to
notify Defendant Ziemann of this lawsuit (ECF No. 11) is DENIED as moot.
IT IS FURTHER ORDERED that the motion for leave to file exhibits under seal (ECF
No. 13) is GRANTED.

17

IT IS FURTHER ORDERED that the Clerk of Court SHALL ISSUE a summons for

18

Defendant Kyle Ziemann, AND DELIVER THE SAME, along with the complaint (ECF No. 5),

19

to the U.S. Marshal for service. The Clerk also SHALL SEND to Plaintiff one (1) USM-285

20

form, one copy of the complaint and a copy of this order. Plaintiff shall have thirty (30) days

21

within which to furnish to the U.S. Marshal the required USM-285 form with relevant

22

information as to each Defendant on each form.3 Within twenty (20) days after receiving from

23

the U.S. Marshal a copy of the USM-285 form showing whether service has been

24

accomplished, Plaintiff must file a notice with the Court identifying which Defendant(s) were

25

served and which were not served, if any. If Plaintiff wishes to have service again attempted

26

on an unserved Defendant(s), then a motion must be filed with the Court identifying the

27
28

3

Plaintiff shall indicate that Defendant Ziemann’s address has been filed under seal
with the Court. (See ECF No. 14).
3

1

unserved Defendant(s) and specifying a more detailed name and/or address for said

2

Defendant(s), or whether some other manner of service should be attempted.

3

IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon Defendants or,

4

if appearance has been entered by counsel, upon the attorney(s), a copy of every pleading,

5

motion or other document submitted for consideration by the Court. Plaintiff shall include with

6

the original paper submitted for filing a certificate stating the date that a true and correct copy

7

of the document was mailed to the Defendant(s) or counsel for the Defendant(s). The Court

8

may disregard any paper received by a district judge or magistrate judge which has not been

9

filed with the clerk, and any paper received by a district judge, magistrate judge or the clerk

10

which fails to include a certificate of service.

11
12

DATED: This 18th day of July, 2016.

13
14
15

_________________________________
NANCY J. KOPPE
United States Magistrate Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
4