Almy v. Davis et al

Filing 4

ORDER DISMISSING CASE - ORDERED that the # 1 Application to proceed in forma pauperis is DENIED and that this action is DISMISSED without prejudice to the filing of a new complaint on the proper form in a new action together with either an IFP on t he required form with all required attachments or the required $350.00 filing fee. The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. The Clerk shall send plaintiff a copy of the papers that he filed herein. ( Mailed to P 5/12/2011 together with 1983 and IFP forms w instructions ) Signed by Judge Edward C. Reed, Jr on 5/11/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KEVIN DREW ALMY,

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3:11-cv-00332-ECR-RAM
Plaintiff,

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vs.
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ORDER
D. DAVIS, et al.
Defendants.

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This pro se prisoner civil rights case by an inmate in state custody comes before the
Court on plaintiff’s application (#1) to proceed in forma pauperis and for initial review.

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The papers submitted are subject to multiple defects.

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First, the pauper application is not on the Court’s required form. Under 28 U.S.C. §

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1915(a)(2) and Local Rules LSR 1-1 and 1-2, a plaintiff must submit an application on the

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Court’s required form. Plaintiff instead submitted an entirely handwritten motion in which he,

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inter alia, seeks to challenge the propriety of the Court’s dismissal of his prior action in No.

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3:11-cv-00023-ECR-VPC. Plaintiff must use the required pauper form.

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Second, plaintiff failed to attach the required attachments for a pauper application.

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Both a financial certificate properly executed by an appropriate institutional officer and a

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statement of the plaintiff’s inmate trust fund account for the past six months are required by

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28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2. Plaintiff attached neither an executed

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financial certificate nor a statement of his inmate trust fund account for the past six months.

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Third, the plaintiff did not file a complaint on the Court’s Section 1983 complaint form

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as required by Local Rule LSR 2-1, instead using only selected pages from the form. The

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accompanying motion (#1-1) reveals that plaintiff intentionally refused to do so. Plaintiff

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maintains that the Court improperly dismissed his prior action in No. 3:11-cv-00023-ECR-VPC

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for failure to state a claim because the required Section 1983 complaint form allegedly did not

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provide him enough space to state his claims with the requisite specificity. Plaintiff is

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incorrect. Civil rights plaintiffs may include additional pages for each count and file a motion

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for leave to file a complaint exceeding the page limit with the complaint. Hundreds of

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complaints are filed in this Court every year in which plaintiffs state a claim for relief using the

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required complaint form. The prior action, on its face, in any event was dismissed without

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leave to amend, not based upon a remediable lack of specificity.

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Given that plaintiff has failed to use the required pauper form, has failed to attach the

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required financial materials for a pauper form, and – intentionally – has failed to use the

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required Section 1983 complaint form, this action will be dismissed without prejudice. A

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subsequent action is not a proper vehicle for challenging the Court’s rulings in a prior case.

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Plaintiff must follow the local rules, must use the required forms, and must follow the

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instructions for the forms. If plaintiff instead chooses to refuse to follow the local rules, to

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refuse to use the required forms, and to refuse to follow the instructions for the forms, his

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action will be dismissed without prejudice forthwith.

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IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis

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is DENIED and that this action shall be DISMISSED without prejudice to the filing of a new

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complaint on the proper form in a new action together with either a pauper application on the

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required form with all required attachments or the required $350.00 filing fee.

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The Clerk of Court shall enter final judgment accordingly, dismissing this action without
prejudice. The Clerk shall send plaintiff a copy of the papers that he filed herein.
DATED: May 11, 2011.

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_________________________________
EDWARD C. REED
United States District Judge

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