Roberts v. Brogan et al

Filing 7

ORDER. IT IS ORDERED that 1 Plaintiff William Scott Roberts' Application to Proceed In Forma Pauperis is DENIED WITHOUT PREJUDICE. The Clerk of Court shall RETAIN 1 -1 the Complaint, and shall mail Plaintiff a blank IFP application for incarcerated litigants and blank form complaint for § 1983 civil rights. See Order for details/deadlines. Signed by Magistrate Judge Peggy A. Leen on 1/10/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WILLIAM SCOTT ROBERTS,

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v.

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Case No. 2:17-cv-00865-APG-PAL
Plaintiff,

ORDER

WILLIAM BROGAN, et al.,

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(IFP App. – ECF No. 1)
Defendants.

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This matter is before the court on Plaintiff William Scott Roberts’ Application to Proceed

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In Forma Pauperis (ECF No. 1). This Application is referred to the undersigned pursuant to 28

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U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.

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Plaintiff is a prisoner in custody at the Mule Creek State Prison in California. He is

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proceeding in this action pro se, which means that he is not represented by an attorney. See LSR

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2-1. He has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis

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(“IFP”), meaning without prepaying the filing fees, and submitted a proposed complaint.

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Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a $400

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filing fee is required to commence a civil action in a federal district court. The court may authorize

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a prisoner to begin an action without prepaying fees and costs if the prisoner submits an IFP

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application on the court’s form along with the appropriate supporting documentation. See 28

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U.S.C. § 1915(a); LSR 1-1, LSR 1-2.1 In general, when a district court grants a prisoner IFP status,

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federal law states that “the prisoner shall be required to pay the full amount of the filing fee.” 28

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U.S.C. § 1915(b)(1). Prisoners must pay an initial partial filing fee of the greater of twenty percent

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The $400 filing fee consists of a $350 base fee and a $50 administrative fee. Pursuant to the court’s
Schedule of Fees, the $50 administrative fee does not apply to prisoners granted IFP status under 28 U.S.C.
§ 1915. Thus, prisoners granted IFP status are only required to pay the $350 base fee.

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(20%) of the average monthly deposits or twenty percent (20%) of the average monthly balance

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of his account for the six months immediately preceding the start of this action. 28 U.S.C.

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§ 1915(b)(1). After the initial partial filing fee is paid, the facility having custody of the prisoner

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will forward payments from the prisoner’s account each month. 28 U.S.C. § 1915(b)(2). Plaintiff

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is therefore advised that even if this action is dismissed, he must still pay the full filing fee pursuant

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to § 1915(b) and the monthly payments from his inmate account will continue until the balance is

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paid. See Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1051–52 (9th Cir. 2016);

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Andrews v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007).

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LSR 1-2 and § 1915 specifically require three items be submitted to this court with a

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prisoner’s IFP application: (1) a financial certificate signed by an authorized officer of the

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institution in which he or she is incarcerated, (2) a copy of his or her inmate trust account statement

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

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fees and costs or give security for them. Additionally, LSR 1-1 states that a prisoner’s IFP

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“application shall be made on the form provided by the court.” Id. The District of Nevada has

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adopted two types of IFP applications, one for prisoners and a “Short Form” for non-incarcerated

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persons. The prisoner IFP application required in the District of Nevada differs from the

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application used in state courts or different federal district courts. For example, the financial

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affidavit and acknowledgement used by this court includes more information than the state court’s

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affidavit and affirmation. Prisoners must submit the correct form for this court’s review.

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Because Plaintiff used the incorrect 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 correct

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application and financial certificate. Therefore, the court will deny Plaintiff’s Application to

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Proceed In Forma Pauperis without prejudice.

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If Plaintiff wants to file his complaint, he must prepay the filing fee or submit an IFP

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application along with the documents identified above on or before February 9, 2018. However,

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Plaintiff is advised that even if he does, the court must still screen his complaint to determine if it
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states a valid claim for relief. See 28 U.S.C. § 1915A (“The court shall review, before docketing,

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if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in

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which a prisoner seeks redress from a government entity or officer or employee of a governmental

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entity”).

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Plaintiff’s complaint attempts to state a claim against Defendants William Brogan and

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Darci M. Poloni for violating his due process rights under the Fifth and Fourteenth Amendments.

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42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights conferred

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by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393–94 (1989). To

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bring a claim under § 1983, a plaintiff must allege: (1) his civil rights were violated; (2) by a person

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acting under the color of state law. West v. Atkins, 487 U.S. 42, 49–50 (1988). Private parties who

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are not affiliated with a state or municipal government generally do not act under color of state

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law. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). State

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action may be found only if “there is such a close nexus between the State and the challenged

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action that seemingly private behavior may be fairly treated as that of the State itself.” Villegas v.

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Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir. 2008) (en banc) (internal citation and

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quotation omitted). A plaintiff bears the burden of alleging state action. Florer, 639 F.3d at 922.

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Dismissal is appropriate where a complaint is devoid of allegations regarding state action.

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Villegas, 541 F.3d at 954–57. Plaintiff is advised that his complaint must allege a civil rights

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violation by a state actor in order to state a colorable civil rights claim.

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It appears Mr. Roberts is attempting to sue his brother, and an attorney for matters arising

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out of his deceased mother’s will and her estate. He alleges the defendants committed fraud and

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denied him the right to contest his mother’s will in violation of his due process rights under the

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U.S. Constitution. However, it does not appear that Roberts can plead or prove that his brother

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and the attorney who prepared his mother’s will and handled matters relating to her will and estate

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were state actors for purposes of filing a federal civil rights complaint against them. Although the

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court will give Roberts an opportunity to file the appropriate ifp application, and amended

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complaint if he wishes, he should carefully consider whether he can state a federal claim. As the

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court has informed him, if the complaint is dismissed he will owe the filing fee which will be

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collected from available funds in his inmate account as authorized by law.

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If Plaintiff chooses to file an amended complaint, he is also informed that the court cannot

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refer to a prior pleading (i.e., the original complaint) in order to make the amended complaint

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complete. Local Rule 15-1 requires that an amended complaint be complete in itself without

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reference to any prior pleading. See LR 15-1(a). This is because an amended complaint supersedes

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the original complaint. Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).

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Once a plaintiff files an amended complaint, the original pleading no longer serves any function

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in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff William Scott Roberts’ Application to Proceed In Forma Pauperis (ECF
No. 1) is DENIED WITHOUT PREJUDICE.

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2. The Clerk of Court shall RETAIN the Complaint (ECF No. 1-1), and shall mail

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Plaintiff a blank IFP application for incarcerated litigants and blank form complaint for

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§ 1983 civil rights.

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3. If Plaintiff decides to move forward with the case, he shall submit a new IFP

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application, accompanied by a signed and executed financial certificate, a signed and

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executed financial affidavit, and a statement of his inmate trust account on or before

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February 9, 2018.
4. Alternatively, Plaintiff shall pay the $400 filing fee on or before February 9, 2018.

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5. 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 February 9, 2018 deadline will result in a

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recommendation to the district judge that this case be dismissed.

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Dated this 10th day of January, 2018.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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