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 application. (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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JESSE ARON ROSS,
Plaintiff,

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v.

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Case No. 2:21-cv-00630-APG-EJY
ORDER

BRIAN WILLIAMS, et al.,
Defendants.

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I.

DISCUSSION

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On April 16, 2021, Plaintiff, an inmate in the custody of the Nevada Department of

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Corrections (“NDOC”), submitted a civil rights Complaint under 42 U.S.C. § 1983. ECF No. 1-1.

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Plaintiff neither paid the full $402 filing fee nor filed an application to proceed in forma pauperis.

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On April 27, 2021, Plaintiff filed a Motion for Court Order Directing NDOC to Complete

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Financial Certificate. ECF No. 3. In his Motion, Plaintiff states that in anticipation of filing this

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action, he has submitted the Court approved financial certificates to the prison law library, one each

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month since January 1, 2021. Plaintiff further states there has been no response from the prison, and

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the prison has not returned the completed financial certificates to Plaintiff. Id. at 2.

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Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, an inmate seeking to commence a

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civil action may apply to proceed in forma pauperis, which allows the inmate to file the civil action

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without prepaying the full $402 filing fee. To apply for in forma pauperis status, the inmate must

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submit all three of the following documents to the Court:

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(1) a completed Application to Proceed in Forma Pauperis for Inmate, on this Court’s

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approved form (i.e. pages 1 through 3 with the inmate’s two signatures on page 3),

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(2) a Financial Certificate properly signed by both the inmate and a prison or jail official

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(i.e. page 4 of this Court’s approved form), and

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(3) a copy of the inmate’s prison or jail trust fund account statement for the previous

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six-month period. If Plaintiff has not been at the facility a full six-month period, Plaintiff

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must still submit an inmate account statement for the dates he has been present at the facility.

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In the event Plaintiff is having difficulty obtaining the required financial certificate and

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inmate account statement for the previous six-month period from prison officials, Plaintiff shall file

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a declaration detailing when he requested the documents, who he spoke to about the status of the

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documents, who he followed up with after he did not receive the documents, and their responses.

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Plaintiff’s declaration shall include dates of his requests, dates of his follow-up requests, names of

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the prison officials that he spoke to about the matter, and their responses. If Plaintiff’s declaration

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demonstrates that he has done all that was possible to acquire the documents from prison officials,

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the Court will consider his application to proceed in forma pauperis complete. 1

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Accordingly, the Court grants Plaintiff a one-time extension until on or before June 28,

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2021 to file a fully complete application to proceed in forma pauperis containing all three of the

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required documents or, alternatively, the first three pages of the application to proceed in forma

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pauperis and a declaration detailing the efforts he took to acquire the financial certificate and inmate

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account statement from prison officials. Absent unusual circumstances, the Court will not grant any

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further extensions of time. If Plaintiff does not file a fully complete application to proceed in forma

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pauperis with all three required documents or, alternatively, the first three pages of the application

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to proceed in forma pauperis and a declaration detailing the efforts he took to acquire the financial

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certificate and inmate account statement from prison officials on or before June 28, 2021, the Court

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will recommend dismissal of this case without prejudice for Plaintiff to file a new case with the

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Court when Plaintiff is able to acquire all three of the documents needed to file a fully complete

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application to proceed in forma pauperis or, alternatively, the first three pages of the application to

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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.

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proceed in forma pauperis and a declaration detailing the efforts he took to acquire the financial

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certificate and inmate account statement from prison officials.

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A dismissal without prejudice means Plaintiff does not give up the right to refile the case

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with the Court, under a new case number, when Plaintiff has all three documents needed to submit

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with the application to proceed in forma pauperis or, alternatively, the first three pages of the

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application to proceed in forma pauperis and a declaration detailing the efforts he took to acquire

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the financial certificate and inmate account statement from prison officials. Plaintiff may choose

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not to file an application to proceed in forma pauperis and instead pay the full filing fee of $402 on

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or before June 28, 2021 to proceed with this case.

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The Court will retain Plaintiff’s civil rights Complaint (ECF No. 1-1), but the Court will not

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file the Complaint unless and until Plaintiff timely files a fully complete application to proceed in

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forma pauperis with all three documents, or, alternatively, the first three pages of the application to

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proceed in forma pauperis and a declaration detailing the efforts he took to acquire the financial

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certificate and inmate account statement from prison officials, or pays the full $402 filing fee.

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II.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that the Clerk of the Court shall send

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Plaintiff the approved form application to proceed in forma pauperis by an inmate, as well as the

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document entitled information and instructions for filing an in forma pauperis application.

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IT IS FURTHER ORDERED that on or before June 28, 2021, Plaintiff shall either pay the

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full $402 filing fee for a civil action (which includes the $350 filing fee and the $52 administrative

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fee) or file with the Court:

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(1) a completed Application to Proceed in Forma Pauperis for Inmate on this Court’s

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approved form (i.e. pages 1 through 3 of the form with the inmate’s two signatures on page

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3),

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(2) a Financial Certificate properly signed by both the inmate and a prison or jail official

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(i.e. page 4 of this Court’s approved form), and

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(3) a copy of the inmate’s prison or jail trust fund account statement for the previous

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six-month period. If Plaintiff has not been at the facility a full six-month period, Plaintiff

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must still submit an inmate account statement for the dates he has been present at the facility.

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IT IS FURTHER ORDERED that if Plaintiff is not able to obtain his financial certificate and

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inmate account statement from prison officials, Plaintiff shall file the first three pages of the

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application to proceed in forma pauperis together with a declaration detailing the efforts he took to

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acquire the financial certificate and inmate account statement from prison officials.

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IT IS FURTHER ORDERED that, if Plaintiff does not file a fully complete application to

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proceed in forma pauperis with all three documents, or, alternatively, the first three pages of the

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application to proceed in forma pauperis and a declaration detailing the efforts he took to acquire

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the financial certificate and inmate account statement from prison officials, or pay the full $402 filing

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fee for a civil action on or before June 28, 2021, the Court will recommend dismissal of this action

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without prejudice for Plaintiff to refile the case with the Court, under a new case number, when

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Plaintiff has all three documents needed to file a complete application to proceed in forma pauperis.

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IT IS FURTHER ORDERED that the Motion for Court Order Directing NDOC to Complete

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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.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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