Gioiosa v. Walsh
ORDER. IT IS ORDERED that 1 Plaintiff's application to proceed in forma pauperis without having to prepay the full filing fee is GRANTED.IT IS FURTHER ORDERED that NDOC will forward payments from the account of Anthony Gioiosa, Sr. to the Clerk of the USDC, District of Nevada, 20% of the preceding month's deposits until the full $350 filing fee has been paid for this action. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §§ 1915(e) and 1915A(b), this action is DISMISSED with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court shall close this case and enter judgment accordingly. Signed by Judge Gloria M. Navarro on 6/3/2021. (Copies have been distributed pursuant to the NEF - cc: Chief of Inmate Svcs - MR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
ANTHONY GIOIOSA, SR.,
JENNIFER WALSH, et al.,
Case No. 2:20-cv-00760-GMN-DJA
This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. §
12 1983 by a state prisoner. On April 12, 2021, the Court issued a screening order pursuant
13 to 28 U.S.C. §1915A. (ECF No. 3). The Court ordered that the complaint be filed and
14 that it be dismissed with leave to amend within 30 days. (Id. at 9-10). The 30-day period
15 has now expired, and Plaintiff has not filed an amended complaint or otherwise
16 responded to the Court’s order.
Also pending before the Court is Plaintiff’s application to proceed in forma pauperis
18 (ECF No. 1). Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is granted.
19 Based on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff
20 is not able to pay an initial installment payment toward the full filing fee pursuant to 28
21 U.S.C. § 1915. Plaintiff will, however, be required to make monthly payments toward the
22 full $350.00 filing fee when he has funds available.
1 I. DISCUSSION
Section 1915A requires that, before docketing a complaint filed by an inmate, the
3 Court must identify any cognizable claims and dismiss any claims that are frivolous,
4 malicious, fail to state a claim upon which relief may be granted, or seek monetary relief
5 from a defendant who is immune from such relief. See 28 U.S.C. 1915A. Similarly, under
6 the Prison Litigation Reform Act (PLRA), a federal court must dismiss, at any time, an
7 incarcerated person’s claim if the claim “is frivolous or malicious, fails to state a claim on
8 which relief may be granted, or seeks monetary relief against a defendant who is immune
9 from such relief.” 28 U.S.C. § 1915(e)(2).
In its Screening Order, the Court found that Plaintiff failed to state any cognizable
11 claim for relief. (ECF No. at 4-8). In making these findings, the Court noted the
12 deficiencies of each of Plaintiff’s claims. (Id.). The Court dismissed Plaintiff’s claims
13 without prejudice for failure to state a claim but with leave to amend. (Id. at 9).
The Court granted Plaintiff 30 days from the date the Screening Order was
15 entered—that is, until Tuesday, May 12, 2021—to file an amended complaint curing the
16 deficiencies of his complaint. The Court specifically notified Plaintiff that, if he failed to file
17 an amended complaint curing the deficiencies of his complaint within this 30-day period,
18 this action would be “dismissed with prejudice for failure to state a claim.” (Id. at 10).
19 Plaintiff did not file an amended complaint within the 30-day period granted by the Court.
20 By failing to timely amend his complaint, Plaintiff has effectively elected to stand upon a
21 complaint that, as this Court previously found, fails to state a cognizable claim. See
22 Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017).
Accordingly, as Plaintiff filed a complaint that fails to state a cognizable claim, and
24 as the Court notified Plaintiff of the deficiencies of the complaint, and as the Court
1 provided Plaintiff an opportunity to amend his complaint, and as Plaintiff has not amended
2 his complaint, the Court will now dismiss the complaint with prejudice and will enter
3 judgment accordingly.
5 II. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Plaintiff's application to proceed in forma pauperis (ECF No.
8 1) without having to prepay the full filing fee is GRANTED. Plaintiff will not be required to
9 pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to
10 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. The movant herein is
11 permitted to maintain this action to conclusion without the necessity of prepayment of fees
12 or costs or the giving of security therefor. This order granting in forma pauperis status will
13 not extend to the issuance and/or service of subpoenas at government expense.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by
15 the Prison Litigation Reform Act, the Nevada Department of Corrections will forward
16 payments from the account of Anthony Gioiosa, Sr., #1170052 to the Clerk of the United
17 States District Court, District of Nevada, 20% of the preceding month's deposits (in
18 months that the account exceeds $10.00) until the full $350 filing fee has been paid for
19 this action. The Clerk of the Court will send a copy of this order to the Finance Division of
20 the Clerk’s Office. The Clerk will send a copy of this order to the attention of Chief of
21 Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson
22 City, NV 89702.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §§ 1915(e) and 1915A(b),
2 this action is DISMISSED with prejudice as the complaint (ECF No. 4) fails to state a
3 cognizable claim upon which relief may be granted.
IT IS FURTHER ORDERED that the Clerk of the Court shall close this case and
5 enter judgment accordingly.
7 DATED THIS
day of May 2021.
Gloria M. Navarro
United States Magistrate Judge
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