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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 WILLIAM SCOTT ROBERTS, 8 v. 9 Case No. 2:17-cv-00865-APG-PAL Plaintiff, ORDER WILLIAM BROGAN, et al., 10 (IFP App. – ECF No. 1) Defendants. 11 12 This matter is before the court on Plaintiff William Scott Roberts’ Application to Proceed 13 In Forma Pauperis (ECF No. 1). This Application is referred to the undersigned pursuant to 28 14 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice. 15 Plaintiff is a prisoner in custody at the Mule Creek State Prison in California. He is 16 proceeding in this action pro se, which means that he is not represented by an attorney. See LSR 17 2-1. He has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis 18 (“IFP”), meaning without prepaying the filing fees, and submitted a proposed complaint. 19 Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a $400 20 filing fee is required to commence a civil action in a federal district court. The court may authorize 21 a prisoner to begin an action without prepaying fees and costs if the prisoner submits an IFP 22 application on the court’s form along with the appropriate supporting documentation. See 28 23 U.S.C. § 1915(a); LSR 1-1, LSR 1-2.1 In general, when a district court grants a prisoner IFP status, 24 federal law states that “the prisoner shall be required to pay the full amount of the filing fee.” 28 25 U.S.C. § 1915(b)(1). Prisoners must pay an initial partial filing fee of the greater of twenty percent 26 27 28 1 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. 1 1 (20%) of the average monthly deposits or twenty percent (20%) of the average monthly balance 2 of his account for the six months immediately preceding the start of this action. 28 U.S.C. 3 § 1915(b)(1). After the initial partial filing fee is paid, the facility having custody of the prisoner 4 will forward payments from the prisoner’s account each month. 28 U.S.C. § 1915(b)(2). Plaintiff 5 is therefore advised that even if this action is dismissed, he must still pay the full filing fee pursuant 6 to § 1915(b) and the monthly payments from his inmate account will continue until the balance is 7 paid. See Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1051–52 (9th Cir. 2016); 8 Andrews v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007). 9 LSR 1-2 and § 1915 specifically require three items be submitted to this court with a 10 prisoner’s IFP application: (1) a financial certificate signed by an authorized officer of the 11 institution in which he or she is incarcerated, (2) a copy of his or her inmate trust account statement 12 for the six-month period prior to filing, and (3) a signed affidavit showing an inability to prepay 13 fees and costs or give security for them. Additionally, LSR 1-1 states that a prisoner’s IFP 14 “application shall be made on the form provided by the court.” Id. The District of Nevada has 15 adopted two types of IFP applications, one for prisoners and a “Short Form” for non-incarcerated 16 persons. The prisoner IFP application required in the District of Nevada differs from the 17 application used in state courts or different federal district courts. For example, the financial 18 affidavit and acknowledgement used by this court includes more information than the state court’s 19 affidavit and affirmation. Prisoners must submit the correct form for this court’s review. 20 Because Plaintiff used the incorrect form, his IFP Application does not contain the 21 appropriate financial information and affidavit for incarcerated litigants or financial certificate as 22 required by § 1915(a) and LSR 1-2. Although Plaintiff may qualify to proceed IFP, the court 23 cannot determine the amount of the initial partial filing fee because he has not submitted the correct 24 application and financial certificate. Therefore, the court will deny Plaintiff’s Application to 25 Proceed In Forma Pauperis without prejudice. 26 If Plaintiff wants to file his complaint, he must prepay the filing fee or submit an IFP 27 application along with the documents identified above on or before February 9, 2018. However, 28 Plaintiff is advised that even if he does, the court must still screen his complaint to determine if it 2 1 states a valid claim for relief. See 28 U.S.C. § 1915A (“The court shall review, before docketing, 2 if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in 3 which a prisoner seeks redress from a government entity or officer or employee of a governmental 4 entity”). 5 Plaintiff’s complaint attempts to state a claim against Defendants William Brogan and 6 Darci M. Poloni for violating his due process rights under the Fifth and Fourteenth Amendments. 7 42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights conferred 8 by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393–94 (1989). To 9 bring a claim under § 1983, a plaintiff must allege: (1) his civil rights were violated; (2) by a person 10 acting under the color of state law. West v. Atkins, 487 U.S. 42, 49–50 (1988). Private parties who 11 are not affiliated with a state or municipal government generally do not act under color of state 12 law. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). State 13 action may be found only if “there is such a close nexus between the State and the challenged 14 action that seemingly private behavior may be fairly treated as that of the State itself.” Villegas v. 15 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir. 2008) (en banc) (internal citation and 16 quotation omitted). A plaintiff bears the burden of alleging state action. Florer, 639 F.3d at 922. 17 Dismissal is appropriate where a complaint is devoid of allegations regarding state action. 18 Villegas, 541 F.3d at 954–57. Plaintiff is advised that his complaint must allege a civil rights 19 violation by a state actor in order to state a colorable civil rights claim. 20 It appears Mr. Roberts is attempting to sue his brother, and an attorney for matters arising 21 out of his deceased mother’s will and her estate. He alleges the defendants committed fraud and 22 denied him the right to contest his mother’s will in violation of his due process rights under the 23 U.S. Constitution. However, it does not appear that Roberts can plead or prove that his brother 24 and the attorney who prepared his mother’s will and handled matters relating to her will and estate 25 were state actors for purposes of filing a federal civil rights complaint against them. Although the 26 court will give Roberts an opportunity to file the appropriate ifp application, and amended 27 complaint if he wishes, he should carefully consider whether he can state a federal claim. As the 28 3 1 court has informed him, if the complaint is dismissed he will owe the filing fee which will be 2 collected from available funds in his inmate account as authorized by law. 3 If Plaintiff chooses to file an amended complaint, he is also informed that the court cannot 4 refer to a prior pleading (i.e., the original complaint) in order to make the amended complaint 5 complete. Local Rule 15-1 requires that an amended complaint be complete in itself without 6 reference to any prior pleading. See LR 15-1(a). This is because an amended complaint supersedes 7 the original complaint. Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). 8 Once a plaintiff files an amended complaint, the original pleading no longer serves any function 9 in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, in an amended 10 complaint, as in an original complaint, each claim and the involvement of each defendant must be 11 sufficiently alleged. 12 Accordingly, 13 IT IS ORDERED: 14 1. Plaintiff William Scott Roberts’ Application to Proceed In Forma Pauperis (ECF No. 1) is DENIED WITHOUT PREJUDICE. 15 16 2. The Clerk of Court shall RETAIN the Complaint (ECF No. 1-1), and shall mail 17 Plaintiff a blank IFP application for incarcerated litigants and blank form complaint for 18 § 1983 civil rights. 19 3. If Plaintiff decides to move forward with the case, he shall submit a new IFP 20 application, accompanied by a signed and executed financial certificate, a signed and 21 executed financial affidavit, and a statement of his inmate trust account on or before 22 February 9, 2018. 4. Alternatively, Plaintiff shall pay the $400 filing fee on or before February 9, 2018. 23 24 /// 25 /// 26 /// 27 /// 28 /// 4 1 5. Plaintiff’s failure to comply with this Order by: (a) submitting a new IFP application, 2 or (b) paying the filing fee, before the February 9, 2018 deadline will result in a 3 recommendation to the district judge that this case be dismissed. 4 Dated this 10th day of January, 2018. 5 6 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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