Banks v. Werner et al

Filing 2

ORDER Denying without prejudice Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff has until 8/4/2016 to file a new IFP application or pay the filing fee of $400.00 accompanied by a copy of this Order. The Clerk of the Court shall file the 1 -1 Complaint but shall not issue Summons. Plaintiff's Complaint is Dismissed with leave to amend. Plaintiff shall have until 8/4/2016 to file an Amended Complaint. Plaintiff's failure to comply w ith this Order will result in a recommendation to the District Judge that this case be dismissed. Signed by Magistrate Judge Peggy A. Leen on 7/5/2016. (Copies have been distributed pursuant to the NEF - IFP form/instructions; Complaint form/instructions mailed to Plaintiff - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FREDRICK BANKS,

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Plaintiff,

ORDER

v.

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Case No. 2:16-cv-01154-GMN-PAL

(IFP App. – ECF No. 1)

S.A. ROBERT WERNER, et al.,
Defendants.

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This matter is before the Court on Plaintiff Fredrick Banks’ Application to Proceed In

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Forma Pauperis (ECF No. 1), filed May 19, 2016.

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undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-7 of the Local Rules of

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Practice.

This Application is referred to the

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Plaintiff is a prisoner in the custody of the Federal Bureau of Prisons and is proceeding in

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this action pro se, which means that he is not represented by an attorney. See LSR 2-1. Plaintiff

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has requested authority to proceed IFP in this action; however, his IFP Application is incomplete.

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LSR 1-2 and § 1915 specifically require three items be submitted to this Court with a prisoner’s

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IFP application: (1) a financial certificate signed by an authorized officer of the institution in

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which he or she is incarcerated,1 (2) a copy of his or her inmate trust account statement for the

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six-month period prior to filing,2 and (3) a signed affidavit showing an inability to prepay fees

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LSR 1-2 provides:
An application to proceed in forma pauperis received from an incarcerated or
institutionalized person shall be accompanied by a certificate from the institution
certifying the amount of funds currently held in the applicant’s trust account at the
institution and the net deposits in the applicant’s account for the six (6) months preceding
the submission of the application. If the applicant has been at the institution for less than
six (6) months, the certificate shall show the account’s activity for such period.

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28 U.S.C. § 1915(a)(2) states:
A prisoner seeking to bring a civil action or appeal a judgment in a civil action or
proceeding without prepayment of fees or security therefor, in addition to filing the

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and costs or give security for them.3 Additionally, LSR 1-1 states that an IFP “application shall

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be made on the form provided by the Court.” Id. The District of Nevada has adopted two types

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of IFP applications, one for prisoners and a “Short Form” for non-incarcerated persons. The

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financial affidavit required for prisoners differs from the “Short Form” for non-incarcerated

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litigants; thus, prisoners must submit the correct form for the Court’s review.

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At the time Plaintiff filed his IFP application, he was incarcerated at a federal prison.

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However, Plaintiff submitted a hand-written request to proceed IFP on a blank piece of paper.

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Because Plaintiff did not use the court’s form, his IFP Application does not contain the

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appropriate financial information and affidavit for incarcerated litigants or financial certificate as

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required by § 1915(a) and LSR 1-2. Although Plaintiff may qualify to proceed IFP, the Court

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cannot determine the amount of the initial partial filing fee because he has not submitted the

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correct application and supporting documents. Therefore, the Court will deny Plaintiff’s IFP

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Application without prejudice.

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In addition, Plaintiff failed to submit the correct form complaint for incarcerated litigants.

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LSR 2-1 of the Local Rules of Practice states that a “civil rights complaint filed by a person who

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is not represented by counsel shall be on the form provided by this Court.” Id. (emphasis added).

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Plaintiff submitted a complaint on a plain sheet paper, not the court’s approved form. If Plaintiff

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wants to move forward with his claims, he must submit the correct IFP application along with an

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amended complaint on the court’s approved form. Thus, the Clerk of the Court will be directed

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to mail Plaintiff a blank IFP application and civil rights complaint along with the instructions for

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affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined.
(emphasis added).
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28 U.S.C. § 1915(a)(1) states:
any court of the United States may authorize the commencement, prosecution or defense
of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment
of fees or security therefor, by a person who submits an affidavit that includes a statement
of all assets such prisoner possesses that the person is unable to pay such fees or give
security therefor.

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completing the forms. See INFORMATION & INSTRUCTIONS FOR FILING CIVIL RIGHTS COMPLAINT

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PURSUANT TO 42 U.S.C. § 1983 IN THE UNITED STATES DISTRICT COURT, DISTRICT OF NEVADA.4
Plaintiff is further cautioned to make sure that his filings are written clearly and legibly

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so that the Court can read the text of the filings.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff Fredrick Banks’ Application to Proceed In Forma Pauperis (ECF No. 1) is
DENIED without prejudice.

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2. The Clerk of Court SHALL MAIL Plaintiff: a blank IFP application for incarcerated

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litigants along with instructions for completing the application.

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3. Plaintiff must file a new IFP application, accompanied by a signed and executed

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financial certificate, a signed and executed financial affidavit, and a statement of his

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inmate trust account.

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4. Plaintiff shall have until August 4, 2016, to file a new IFP application.

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5. Alternatively, Plaintiff shall pay the filing fee of four hundred dollars ($400.00),
accompanied by a copy of this Order, on or before August 4, 2016.

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6. Plaintiff’s failure to comply with this Order by (a) submitting a new IFP application,

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or (b) paying the filing fee before the August 4, 2016, deadline will result in a

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recommendation to the District Judge that this case be dismissed.

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IT IS FURTHER ORDERED:

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1. The Clerk of the Court SHALL FILE the Complaint (ECF No. 1-1), but SHALL NOT
issue summons.

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2. Plaintiff’s Complaint is DISMISSED with leave to amend.

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3. The Clerk of Court SHALL MAIL Plaintiff a blank form complaint for § 1983 civil
rights actions along with instructions for completing the form.

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4. Plaintiff shall have until August 4, 2016, to file an amended complaint.

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The

The civil rights complaint form and instructions are also available for download on the Court’s website at
http://www.nvd.uscourts.gov/Forms.aspx (last visited July 5, 2016).

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amended complaint must be a complete document in and of itself and will supersede

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the original complaint in its entirety. Any allegations, parties, or requests for relief

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from prior papers that are not carried forward in the amended complaint will no

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longer be before the court.

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5. Plaintiff shall clearly title the amended complaint as such by placing the words

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“FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42

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U.S.C. § 1983” in the caption on the first page and write 2:16-cv-01154-GMN-PAL

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in the space for “Case No.”

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6. Plaintiff’s failure to comply with this Order by submitting an amended complaint on

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the correct form before the August 4, 2016, deadline will result in a recommendation

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to the District Judge that this case be dismissed.

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Dated this 5th day of July, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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