Sharpe v. Grundy et al.

Filing 4

ORDER. IT IS ORDERED that 1 , 3 Plaintiff Ray Sharpe's Applications to Proceed In Forma Pauperis are DENIED WITHOUT PREJUDICE. The Clerk of Court shall RETAIN 1 -1 the Complaint, but SHALL NOT issue summons. The Clerk of Cour t shall MAIL Sharpe a blank IFP application for incarcerated litigants along with instructions for completing the application. See Order for details/deadlines. Signed by Magistrate Judge Peggy A. Leen on 8/23/17. (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 RAY SHARPE, 8 v. 9 Case No. 2:17-cv-01905-JAD-PAL Plaintiff, ORDER ALISHA GRUNDY, et al., 10 (IFP App. – ECF Nos. 1, 3) Defendants. 11 12 This matter is before the court on Plaintiff Ray Sharpe’s Applications to Proceed In Forma 13 Pauperis (ECF Nos. 1, 3). These Applications are referred to the undersigned pursuant to 28 14 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. 15 Mr. Sharpe is a prisoner in the custody of the Nevada Department of Corrections 16 (“NDOC”) at the High Desert State Prison. He is proceeding in this action pro se, which means 17 that he is not represented by an attorney. See LSR 2-1. LSR 1-1 states that any person who is 18 unable to prepay the fees in a civil case may apply to the court for authority to proceed in forma 19 pauperis (“IFP”), meaning without the prepayment of the full $400 filing fee.1 See also 28 U.S.C. 20 § 1915. Sharpe has requested permission to proceed IFP; however, his IFP Applications are either 21 incomplete or submitted on the wrong form. 22 LSR 1-2 and § 1915 specifically require three items be submitted to this court with a 23 prisoner’s IFP application: (1) a financial certificate signed by an authorized officer of the 24 institution in which he or she is incarcerated,2 (2) a copy of his or her inmate trust account 25 1 26 The $400 filing fee consists of a $350 base fee and a $50 administrative fee. Pursuant to the court’s Schedule of Fees dated January 1, 2015, the $50 administrative fee does not apply to persons granted in forma pauperis status under 28 U.S.C. § 1915. 27 2 28 Local Special Rule 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 1 1 statement for the six-month period prior to filing,3 and (3) a signed financial affidavit showing an 2 inability to prepay fees and costs or give security for them.4 Additionally, LSR 1-1 states that a 3 prisoner’s IFP “application shall be made on the form provided by the court.” Id. The District of 4 Nevada has adopted an IFP application specifically for incarcerated litigants. The prisoner IFP 5 application required in this federal district court differs from the application used in Nevada state 6 courts. For example, the financial affidavit and acknowledgement used by this court includes more 7 information than the state court’s affidavit and affirmation. Thus, prisoners must submit the 8 correct form for this court’s review. 9 Here, Mr. Sharpe has submitted two IFP applications. The first IFP Application (ECF 10 No. 1) was submitted on the correct form but it is missing two items: a financial certificate signed 11 by an authorized NDOC officer and a copy of his inmate trust account statement. The second IFP 12 Application (ECF No. 3) was submitted on the form used by the Nevada state courts, which does 13 not contain all the information required in this court. The court notes that Sharpe did submit a 14 copy of his inmate trust account statement but it was not authenticated by an authorized NDOC 15 officer with a signed financial certificate. Although Mr. Sharpe may qualify to proceed IFP, the 16 court cannot determine the amount of the initial partial filing fee because he has not submitted the 17 correct forms and supporting documentation. 18 Applications without prejudice. Therefore, the court will deny Sharpe’s IFP Accordingly, 19 20 /// 21 /// 22 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. 23 24 25 26 27 28 3 28 U.S.C. § 1915(a)(2) requires a prisoner seeking to bring a civil action without prepaying fees to “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, which the prisoner must obtain “from the appropriate official of each prison at which the prisoner is or was confined.” (emphasis added). 4 28 U.S.C. § 1915(a)(1) states that federal courts may authorize a prisoner’s filing of a civil action without prepayment of fees when he “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. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.” 2 1 IT IS ORDERED: 2 1. Plaintiff Ray Sharpe’s Applications to Proceed In Forma Pauperis (ECF Nos. 1, 3) are 3 4 5 6 7 DENIED WITHOUT PREJUDICE. 2. The Clerk of Court shall RETAIN the Complaint (ECF No. 1-1), but SHALL NOT issue summons. 3. The Clerk of Court shall MAIL Sharpe a blank IFP application for incarcerated litigants along with instructions for completing the application. 8 4. Mr. Sharpe must file a new IFP application, accompanied by a signed and executed 9 financial certificate, a signed and executed financial affidavit, and a statement of his 10 11 12 inmate trust account on or before September 22, 2017. 5. Alternatively, Mr. Sharpe shall pay the $400 filing fee, accompanied by a copy of this Order, on or before September 22, 2017. 13 6. Mr. Sharpe’s failure to comply with this Order by (a) submitting a completed IFP 14 application, or (b) paying the filing fee before the September 22, 2017 deadline will 15 result in a recommendation to the district judge that this case be dismissed. 16 17 18 7. In addition, Mr. Sharpe must file a certificate of interested parties as required by LR 7.1-1 of the Local Rules of Practice on or before September 22, 2017. Dated this 23rd day of August, 2017. 19 20 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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