Almy v. Dzurenda et al

Filing 5

ORDER advising that if Plaintiff seeks to remove this case from screening, he must pay the full $400 filing fee. If Plaintiff chooses not to pay the filing fee, the Court will screen Plaintiff's complaint in due course, which may take several months. Signed by Magistrate Judge William G. Cobb on 10/2/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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JAMES DZURENDA et al.,
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Defendants.
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___________________________________ )

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I.

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KEVIN ALMY,

3:17-cv-00045-MMD-WGC
ORDER

DISCUSSION

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On January 24, 2017, Plaintiff filed an application to proceed in forma pauperis for

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prisoners and submitted a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1, 1-

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1). In September 2017, Plaintiff was released from prison. (See ECF No. 4). Plaintiff now

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asserts that he is no longer subject to the filing fee or screening process because he is no

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longer incarcerated. (Id. at 1). Plaintiff seeks to proceed with pre-trial discovery. (Id.)

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The Court acknowledges that Plaintiff is no longer subject to the screening

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requirements of 28 U.S.C. § 1915A because Plaintiff is no longer a “prisoner” within the

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meaning of the statute. See 28 U.S.C. § 1915A(a), (c). However, Plaintiff is subject to the

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screening requirement under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Under § 1915(e)(2)(B)(i)-(iii),

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“the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted;

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or (iii) seeks monetary relief against a defendant who is immune from such relief.” This

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provision applies to all actions filed in forma pauperis, whether or not the plaintiff is

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incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see also Calhoun v.

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Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

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As such, even though Plaintiff is no longer incarcerated, the Court must screen

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Plaintiff’s complaint under § 1915(e)(2) because Plaintiff seeks to proceed in forma pauperis

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in this action. Plaintiff may remove himself from the screening process in this case if he pays

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the $400 filing fee for initiating this civil action.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that, if Plaintiff seeks to remove this case

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from screening, he shall pay the full $400 fee for filing a civil action (which includes the $350

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filing fee and the $50 administrative fee).

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IT IS FURTHER ORDERED that, if Plaintiff chooses not to pay the $400 filing fee, the

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Court will screen Plaintiff’s civil rights complaint in due course. Due to the Court’s caseload,

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the screening process may take several months.

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2nd
DATED: This _____ day of October, 2017.

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_________________________________
United States Magistrate Judge

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