Ross v. Williams et al

Filing 5

ORDER. IT IS HEREBY ORDERED that the Clerk of the Court shall send Plaintiff the approved form application to proceed in forma pauperis by an inmate, as well as the document entitled information and instructions for filing an in forma pauperis appli cation. (Attached for distribution to P via HDSP Law Library.) IFP/Filing fee due 6/28/2021. IT IS FURTHER ORDERED that 3 the Motion for Court Order Directing NDOC to Complete Financial Certificate is DENIED as moot. IT IS FURTHER ORDERED that the Clerk of the Court shall retain 1 -1 Plaintiff's civil rights Complaint but will not file it at this time. Signed by Magistrate Judge Elayna J. Youchah on 4/28/2021. (Attachments: # 1 IFP Instructions/Form) (Copies have been distributed pursuant to the NEF - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JESSE ARON ROSS, Plaintiff, 4 v. 5 6 Case No. 2:21-cv-00630-APG-EJY ORDER BRIAN WILLIAMS, et al., Defendants. 7 8 9 I. DISCUSSION 10 On April 16, 2021, Plaintiff, an inmate in the custody of the Nevada Department of 11 Corrections (“NDOC”), submitted a civil rights Complaint under 42 U.S.C. § 1983. ECF No. 1-1. 12 Plaintiff neither paid the full $402 filing fee nor filed an application to proceed in forma pauperis. 13 On April 27, 2021, Plaintiff filed a Motion for Court Order Directing NDOC to Complete 14 Financial Certificate. ECF No. 3. In his Motion, Plaintiff states that in anticipation of filing this 15 action, he has submitted the Court approved financial certificates to the prison law library, one each 16 month since January 1, 2021. Plaintiff further states there has been no response from the prison, and 17 the prison has not returned the completed financial certificates to Plaintiff. Id. at 2. 18 Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, an inmate seeking to commence a 19 civil action may apply to proceed in forma pauperis, which allows the inmate to file the civil action 20 without prepaying the full $402 filing fee. To apply for in forma pauperis status, the inmate must 21 submit all three of the following documents to the Court: 22 (1) a completed Application to Proceed in Forma Pauperis for Inmate, on this Court’s 23 approved form (i.e. pages 1 through 3 with the inmate’s two signatures on page 3), 24 (2) a Financial Certificate properly signed by both the inmate and a prison or jail official 25 (i.e. page 4 of this Court’s approved form), and 26 27 28 1 (3) a copy of the inmate’s prison or jail trust fund account statement for the previous 2 six-month period. If Plaintiff has not been at the facility a full six-month period, Plaintiff 3 must still submit an inmate account statement for the dates he has been present at the facility. 4 In the event Plaintiff is having difficulty obtaining the required financial certificate and 5 inmate account statement for the previous six-month period from prison officials, Plaintiff shall file 6 a declaration detailing when he requested the documents, who he spoke to about the status of the 7 documents, who he followed up with after he did not receive the documents, and their responses. 8 Plaintiff’s declaration shall include dates of his requests, dates of his follow-up requests, names of 9 the prison officials that he spoke to about the matter, and their responses. If Plaintiff’s declaration 10 demonstrates that he has done all that was possible to acquire the documents from prison officials, 11 the Court will consider his application to proceed in forma pauperis complete. 1 12 Accordingly, the Court grants Plaintiff a one-time extension until on or before June 28, 13 2021 to file a fully complete application to proceed in forma pauperis containing all three of the 14 required documents or, alternatively, the first three pages of the application to proceed in forma 15 pauperis and a declaration detailing the efforts he took to acquire the financial certificate and inmate 16 account statement from prison officials. Absent unusual circumstances, the Court will not grant any 17 further extensions of time. If Plaintiff does not file a fully complete application to proceed in forma 18 pauperis with all three required documents or, alternatively, the first three pages of the application 19 to proceed in forma pauperis and a declaration detailing the efforts he took to acquire the financial 20 certificate and inmate account statement from prison officials on or before June 28, 2021, the Court 21 will recommend dismissal of this case without prejudice for Plaintiff to file a new case with the 22 Court when Plaintiff is able to acquire all three of the documents needed to file a fully complete 23 application to proceed in forma pauperis or, alternatively, the first three pages of the application to 24 25 26 27 1 Plaintiff must still submit the first three pages of the application to proceed in forma pauperis on this Court’s approved form with his declaration. If Plaintiff does not submit the first three pages of the application to proceed in forma pauperis with the declaration, the Court will recommend dismissal of this case without prejudice for Plaintiff to open a new case when he is able to acquire the required documents. 28 -2- 1 proceed in forma pauperis and a declaration detailing the efforts he took to acquire the financial 2 certificate and inmate account statement from prison officials. 3 A dismissal without prejudice means Plaintiff does not give up the right to refile the case 4 with the Court, under a new case number, when Plaintiff has all three documents needed to submit 5 with the application to proceed in forma pauperis or, alternatively, the first three pages of the 6 application to proceed in forma pauperis and a declaration detailing the efforts he took to acquire 7 the financial certificate and inmate account statement from prison officials. Plaintiff may choose 8 not to file an application to proceed in forma pauperis and instead pay the full filing fee of $402 on 9 or before June 28, 2021 to proceed with this case. 10 The Court will retain Plaintiff’s civil rights Complaint (ECF No. 1-1), but the Court will not 11 file the Complaint unless and until Plaintiff timely files a fully complete application to proceed in 12 forma pauperis with all three documents, or, alternatively, the first three pages of the application to 13 proceed in forma pauperis and a declaration detailing the efforts he took to acquire the financial 14 certificate and inmate account statement from prison officials, or pays the full $402 filing fee. 15 II. CONCLUSION 16 For the foregoing reasons, IT IS HEREBY ORDERED that the Clerk of the Court shall send 17 Plaintiff the approved form application to proceed in forma pauperis by an inmate, as well as the 18 document entitled information and instructions for filing an in forma pauperis application. 19 IT IS FURTHER ORDERED that on or before June 28, 2021, Plaintiff shall either pay the 20 full $402 filing fee for a civil action (which includes the $350 filing fee and the $52 administrative 21 fee) or file with the Court: 22 (1) a completed Application to Proceed in Forma Pauperis for Inmate on this Court’s 23 approved form (i.e. pages 1 through 3 of the form with the inmate’s two signatures on page 24 3), 25 (2) a Financial Certificate properly signed by both the inmate and a prison or jail official 26 (i.e. page 4 of this Court’s approved form), and 27 28 -3- 1 (3) a copy of the inmate’s prison or jail trust fund account statement for the previous 2 six-month period. If Plaintiff has not been at the facility a full six-month period, Plaintiff 3 must still submit an inmate account statement for the dates he has been present at the facility. 4 IT IS FURTHER ORDERED that if Plaintiff is not able to obtain his financial certificate and 5 inmate account statement from prison officials, Plaintiff shall file the first three pages of the 6 application to proceed in forma pauperis together with a declaration detailing the efforts he took to 7 acquire the financial certificate and inmate account statement from prison officials. 8 IT IS FURTHER ORDERED that, if Plaintiff does not file a fully complete application to 9 proceed in forma pauperis with all three documents, or, alternatively, the first three pages of the 10 application to proceed in forma pauperis and a declaration detailing the efforts he took to acquire 11 the financial certificate and inmate account statement from prison officials, or pay the full $402 filing 12 fee for a civil action on or before June 28, 2021, the Court will recommend dismissal of this action 13 without prejudice for Plaintiff to refile the case with the Court, under a new case number, when 14 Plaintiff has all three documents needed to file a complete application to proceed in forma pauperis. 15 IT IS FURTHER ORDERED that the Motion for Court Order Directing NDOC to Complete 16 17 18 19 Financial Certificate (ECF No. 3) is DENIED as moot. IT IS FURTHER ORDERED that the Clerk of the Court shall retain Plaintiff’s civil rights Complaint (ECF No.1-1) but will not file it at this time. DATED this 28th day of April, 2021. 20 21 22 23 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 -4-

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