Silva v. State of Nevada et al

Filing 16

ORDER. IT IS ORDERED that 1 Plaintiff's application to proceed informa pauperis without having to prepay the full filing fee is GRANTED. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner Lit igation Reform Act, the Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding months deposits to the account of Matthew J. Silva, #1001326 (in months that the acco unt exceeds $10.00) until the full $350 filing fee has been paid for this action. 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, P.O. Box 70 11, Carson City, NV 89702. IT IS FURTHER ORDERED that this case is removed from the Inmate Early Mediation Program. The mediation scheduled for 6/2/17 14 is vacated. IT IS FURTHER ORDERED that the Clerk of Court SHALL ISSUE a summons for Defendant Thomas J. Martinez, AND DELIVER THE SAME, to the U.S. Marshal for service. The Clerk SHALL SEND to Plaintiff one (1) USM-285 form. The Clerk also SHALL SEND a copy of the complaint (ECF No. 10) and a copy of this order to the U.S. Marshal for service on Defendant(s). Signed by Magistrate Judge Nancy J. Koppe on 4/24/17. (Copies have been distributed pursuant to the NEF - cc: Finance, USM - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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STATE OF NEVADA et al.,
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Defendants.
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___________________________________ )

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I.

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MATTHEW J. SILVA,

2:16-cv-00348-RFB-NJK
ORDER

DISCUSSION

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On April 3, 2017, this Court permitted Plaintiff’s American with Disabilities Act,

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Rehabilitation Act, and Equal Protection Clause claims to proceed against Defendant Thomas

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J. Martinez, the only remaining defendant in this case. (ECF No. 13 at 2). The Court stayed

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the case for ninety (90) days and referred the case to the Inmate Early Mediation Program.

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(Id.) The Court directed the Attorney General’s Office to advise the Court within twenty-one

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(21) days whether it would enter a limited notice of appearance on behalf of Defendant for the

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purpose of settlement. (Id. at 3).

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On April 20, 2017, the Attorney General’s Office filed a notice informing the Court that

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it could not make a limited notice of appearance for the purpose of settlement discussions.

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(ECF No. 15 at 1). The notice explained that Defendant Martinez was no longer employed by

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the Nevada Department of Corrections and that the Attorney General’s Office had not received

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a request for representation by Defendant and, thus, could not appear on Defendant’s behalf

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for the purpose of settlement discussions. (Id.) The notice stated that the Attorney General’s

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Office had mailed a letter to Defendant at his last known address on April 7, 2017, but the

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postal service had returned that letter with a forwarding address. (Id. at 2). The Attorney
General’s Office mailed a letter to the forwarding address but has not received a response

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from Defendant requesting representation. (Id.)

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In light of the notice, the Court now removes this case from the Inmate Early Mediation

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Program, rules on Plaintiff’s application to proceed in forma pauperis, and begins the service

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process with the U.S. Marshal’s Office.

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The Court now grants Plaintiff’s application to proceed in forma pauperis. (ECF No. 1).

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Based on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is

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not able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C.

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§ 1915. Plaintiff will, however, be required to make monthly payments toward the full $350.00

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filing fee when he has funds available.

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II.

CONCLUSION

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

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

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

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

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

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

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

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expense.

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

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

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

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to the account of Matthew J. Silva, #1001326 (in months that the account exceeds $10.00)

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

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

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

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

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

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the Prisoner Litigation Reform Act.
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IT IS FURTHER ORDERED that this case is removed from the Inmate Early Mediation

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Program. The mediation scheduled for June 2, 2017 (ECF No. 14) is vacated.

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

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Defendant Thomas J. Martinez, AND DELIVER THE SAME, to the U.S. Marshal for service.

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The Clerk SHALL SEND to Plaintiff one (1) USM-285 form. The Clerk also SHALL SEND a

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copy of the complaint (ECF No. 10) and a copy of this order to the U.S. Marshal for service

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on Defendant(s). Plaintiff shall have thirty (30) days within which to furnish to the U.S.

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Marshal the required USM-285 forms with relevant information as to each Defendant on each

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

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

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Court identifying which Defendant(s) were served and which were not served, if any. If Plaintiff

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

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filed 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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IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon Defendant(s) or,

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

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

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

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

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

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

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which fails to include a certificate of service.

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IT IS FURTHER ORDERED that the Attorney General’s Office shall file, under seal, but

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shall not serve the inmate Plaintiff the last known address of Defendant Thomas J. Martinez.

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If the last known address of Defendant Thomas J. Martinez is a post office box, the Attorney

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General’s Office shall attempt to obtain and provide the last known physical address.

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24th
DATED: This _____ day of April, 2017.

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_________________________________
United States Magistrate Judge

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