Rios v. Griffen et al

Filing 24

ORDER - IFP Application ECF Nos. 6 , 10 is GRANTED. NDOC shall pay Clerk $350 filing fee from inmate account. The Clerk shall SEND a copy of this order to the to the Finance Division of the Clerk's Office. (Emailed on 1 /28/2025). The Clerk will send a copy of this order to the attention of Chief of Inmate Services for the Nevada Department of Corrections at formapauperis@doc.nv.gov. (Emailed to NDOC on 1/28/2025). Clerk shall electronically S ERVE a copy of this order a copy of Plaintiff's complaint (ECF No. 21 ) on the AG by adding the AG to the docket sheet. (E-service 1/28/2025; complaint via NEF regeneration). Service must be perfected within ninety (90) days from the date of this order pursuant to Fed. R. Civ. P. 4(m). (due by 4/27/2025) AG shall file notice re acceptance of service within twenty one (21) days of the date of entry of this order (2/17/2025) and file under seal addresses for Ds for which service not accepted. If AG accepts service, then answer due within sixty (60) days from the date of this order (due by 3/28/2025). Henceforth P shall serve Ds or Ds' counsel a copy of every pleading submitted for consideration, together with a certificate of service. This case is no longer stayed. IT IS ORDERED that Plaintiffs motion for release from incarceration (ECF No. 19 ) is denied without prejudice. Signed by Magistrate Judge Brenda Weksler on 1/27/2025. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - GA)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 THOMAS RIOS, Case No. 2:24-cv-01184-APG-BNW 4 Plaintiff, 5 6 ORDER v. OFFICER GRIFFEN, et al., 7 Defendants. 8 9 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 10 1983 by a state prisoner. Plaintiff has submitted an application to proceed in forma 11 pauperis. (ECF Nos. 6, 10). Based on the financial information provided, the Court finds 12 that Plaintiff is unable to prepay the full filing fee in this matter. 13 The Court entered a screening order on December 13, 2024. (ECF No. 20). The 14 screening order imposed a 90-day stay and the Court entered a subsequent order in 15 which the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 16 20, 22). The parties did not settle at mediation. (ECF No. 23). This case will proceed 17 onto the normal litigation track. 18 Finally, the Court denies without prejudice Plaintiff’s motion for release from 19 incarceration. (ECF No. 19). To the extent Plaintiff is asking the Court to alter his 20 confinement, he fails. The Supreme Court has held that a prisoner in state custody cannot 21 use a § 1983 action to challenge “the fact or duration of his confinement,” but instead 22 must seek federal habeas corpus relief or the appropriate state relief. Wilkinson v. Dotson, 23 544 U.S. 74, 78 (2005). 24 For the foregoing reasons, IT IS ORDERED that: 25 1. 26 Plaintiff’s application to proceed in forma pauperis (ECF Nos. 6, 10) is GRANTED. Plaintiff shall not be required to pay an initial installment of the filing fee. In 27 28 1 1 the event that this action is dismissed, the full filing fee must still be paid pursuant to 28 2 U.S.C. § 1915(b)(2). 3 2. The movant herein is permitted to maintain this action to conclusion without 4 the necessity of prepayment of any additional fees or costs or the giving of security 5 therefor. 6 3. Pursuant to 28 U.S.C. § 1915, the Nevada Department of Corrections will 7 forward payments from the account of Thomas Rios, 1095769 to the Clerk of the United 8 States District Court, District of Nevada, 20% of the preceding month's deposits (in 9 months that the account exceeds $10.00) until the full $350 filing fee has been paid for 10 this action. The Clerk of the Court will send a copy of this order to the Finance Division 11 of the Clerk’s Office. The Clerk will send a copy of this order to the attention of Chief of 12 Inmate 13 formapauperis@doc.nv.gov. 14 4. Services for the Nevada Department of Corrections at The Clerk of the Court shall electronically SERVE a copy of this order and 15 a copy of Plaintiff’s second amended complaint (ECF No. 21) on the Office of the Attorney 16 General of the State of Nevada by adding the Attorney General of the State of Nevada to 17 the docket sheet. This does not indicate acceptance of service. 18 19 20 5. Service must be perfected within ninety (90) days from the date of this order pursuant to Fed. R. Civ. P. 4(m). 6. Subject to the findings of the screening order (ECF No. 20), within twenty- 21 one (21) days of the date of entry of this order, the Attorney General’s Office shall file a 22 notice advising the Court and Plaintiff of: (a) the names of the defendants for whom it 23 accepts service; (b) the names of the defendants for whom it does not accept service, 24 and (c) the names of the defendants for whom it is filing the last-known-address 25 information under seal. As to any of the named defendants for whom the Attorney 26 General’s Office cannot accept service, the Office shall file, under seal, but shall not serve 27 the inmate Plaintiff the last known address(es) of those defendant(s) for whom it has such 28 2 1 information. If the last known address of the defendant(s) is a post office box, the Attorney 2 General's Office shall attempt to obtain and provide the last known physical address(es). 7. 3 If service cannot be accepted for any of the named defendant(s), Plaintiff 4 shall file a motion identifying the unserved defendant(s), requesting issuance of a 5 summons, and specifying a full name and address for the defendant(s). 6 defendant(s) as to which the Attorney General has not provided last-known-address 7 information, Plaintiff shall provide the full name and address for the defendant(s). 8. 8 For the If the Attorney General accepts service of process for any named 9 defendant(s), such defendant(s) shall file and serve an answer or other response to the 10 second amended complaint (ECF No. 21) within sixty (60) days from the date of this order. 9. 11 Plaintiff shall serve upon defendant(s) or, if an appearance has been 12 entered by counsel, upon their attorney(s), a copy of every pleading, motion or other 13 document submitted for consideration by the Court. If Plaintiff electronically files a 14 document with the Court’s electronic-filing system, no certificate of service is required. 15 Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. However, if Plaintiff 16 mails the document to the Court, Plaintiff shall include with the original document 17 submitted for filing a certificate stating the date that a true and correct copy of the 18 document was mailed to the defendants or counsel for the defendants. If counsel has 19 entered a notice of appearance, Plaintiff shall direct service to the individual attorney 20 named in the notice of appearance, at the physical or electronic address stated therein. 21 The Court may disregard any document received by a district judge or magistrate judge 22 which has not been filed with the Clerk, and any document received by a district judge, 23 magistrate judge, or the Clerk which fails to include a certificate showing proper service 24 when required. 25 /// 26 /// 27 /// 28 3 1 10. This case is no longer stayed. 2 11. Plaintiff’s motion for release from incarceration (ECF No. 19) is denied 3 without prejudice. 4 DATED THIS 27th day of January 2025. 5 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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