Johnson v. Maningo Law et al

Filing 5

ORDER Denying without prejudice 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS ORDERED that: Plaintiff must either pay the full filing fee OR file a fully complete IFP application by June 10, 2024. The IFP application mu st include: See order for details. Failure to timely comply with this Order may result in a recommendation that the case be dismissed. The Clerk of Court is directed to send to plaintiff the approved form application to proceed IFP for an inm ate and instructions for the same. The Clerk of the Court is directed NOT to issue summons. The Court will issue a screening order on the complaint after plaintiff either files a new IFP or pays the filing fee. Signed by Magistrate Judge Maximiliano D. Couvillier, III on 5/9/2024. (For Distribution by law library.) (Attachments: # 1 IFP Inmate Application)(Copies have been distributed pursuant to the NEF - ALZ)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Adrian Johnson, Plaintiff(s), 4 5 vs. 6 Maningo Law, et al, 7 8 2:24-cv-00827-RFB-MDC Order Defendant(s). Plaintiff is an inmate in the custody of High Desert State Prison. On May 2, 2024, plaintiff 9 submitted a complaint under 42 U.S.C. § 1983 and applied to proceed IFP. ECF Nos. 1, 1-1. Plaintiff’s 10 IFP application is incomplete because plaintiff did not include a completed financial certificate and an 11 inmate trust fund account statement for the previous six-month period with the application. The Court 12 denies the IFP application (ECF No. 1) without prejudice and order gives plaintiff to either file a 13 complete IFP application or pay the full filing fee by June 10, 2024. 14 15 DISCUSSION Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action "without prepayment of fees or 16 security thereof" if the plaintiff submits a financial affidavit that demonstrates the plaintiff "is unable to 17 pay such fees or give security therefor." If the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915(h), 18 as amended by the Prison Litigation Reform Act ("PLRA"), he must pay the entire fee in installments, 19 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 20 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 21 Under the PLRA, a prisoner seeking leave to proceed IFP must submit a "certified copy of the 22 trust fund account statement (or institutional equivalent) for the prisoner for the six-month period 23 immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 24 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 25 payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 1 average monthly balance in the account for the past six months, whichever is greater, unless the prisoner 2 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 3 prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any 4 month in which the prisoner's account exceeds $10, and forward those payments to the Court until the 5 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). Even if this action is dismissed, the prisoner must 6 still pay the full filing fee pursuant to § 1915(b) and the monthly payments from his inmate account will 7 continue until the balance is paid. 8 9 For an inmate to apply for in forma pauperis status, the inmate must submit all three of the following documents to the Court: (1) a completed Application to Proceed in Forma Pauperis for 10 Inmate, which is pages 1–3 of the Court’s approved form, that is properly signed by the inmate twice on 11 page 3; (2) a completed Financial Certificate, which is page 4 of the Court’s approved form, that is 12 properly signed by both the inmate and a prison or jail official; and (3) a copy of the inmate’s prison or 13 jail trust fund account statement for the previous six-month period. See 28 U.S.C. § 1915(a)(1)–(2); 14 Nev. Loc. R. Prac. LSR 1-2. 15 As explained above, plaintiff’s IFP application is incomplete. Plaintiff has not submitted a 16 financial certificate that has been signed by both him and a prison or jail official. Plaintiff has also not 17 provided an inmate trust fund account statement for the previous six-month period. Therefore, the Court 18 denies plaintiff’s IFP application and orders him to either pay the filing fee or file a new, complete, IFP 19 application with the requirement documents. 20 21 ACCORDINGLY, 22 IT IS ORDERED that: 23 1. The IFP application (ECF No. 1) is DENIED WITHOUT PREJUDICE. 24 2. Plaintiff must either pay the full filing fee OR file a fully complete IFP application by June 25 10, 2024. The IFP application must include: 1 a. A completed application with the inmate’s two signatures on page 3; 2 b. A completed financial certificate that is signed by both the inmate and a prison or jail 3 4 5 6 7 8 9 official; and c. A copy of the inmate’s trust fund account statement for the previous six-month period. 3. Failure to timely comply with this Order may result in a recommendation that the case be dismissed. 4. The Clerk of Court is directed to send to plaintiff the approved form application to proceed IFP for an inmate and instructions for the same. 10 5. The Clerk of the Court is directed NOT to issue summons. The Court will issue a screening 11 order on the complaint after plaintiff either files a new IFP or pays the filing fee. See 28 12 U.S.C. § 1915(e)(2). 13 14 15 NOTICE Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 16 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 17 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 18 may determine that an appeal has been waived due to the failure to file objections within the specified 19 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 20 This circuit has also held that (1) failure to file objections within the specified time and (2) 21 failure to properly address and brief the objectionable issues waives the right to appeal the District 22 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 23 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 24 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 25 change of address. The notification must include proof of service upon each opposing party’s attorney, 1 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 2 result in dismissal of the action. 3 4 DATED this 9th day of May 2024. 5 IT IS SO ORDERED. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _________________________ Hon. Maximiliano D. Couvillier III United States Magistrate Judge

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