Kennedy v. Henroid et al

Filing 9

ORDER adopting and accepting ECF No. 7 Report and Recommendation; granting Plaintiff's ECF No. 1 IFP application - NDOC to pay Clerk from inmate account (copy of order sent to Finance and NDOC Chief of Inmate Services); dismiss ing Counts I and III as malicious with prejudice; dismissing Count II without prejudice but without leave to amend; dismissing Count IV without prejudice; giving Plaintiff 30 days to file an amended complaint; directing Clerk to send Plaintiff 1983 form and instructions (mailed 1/15/2019). Signed by Judge Robert C. Jones on 1/15/2019. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT CCOURT

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DISTRICT OF NEVADA

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KEVIN LEE KENNEDY,

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Plaintiff,
vs.

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SCOTT HENROID, et al.,
Defendants.

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) Case No.: 3:18-00161-RCJ-CBC
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) ORDER
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Before the Court is the Report and Recommendation of United States Magistrate
Judge Carla Baldwin Carry (ECF No. 71) entered on November 21, 2018,

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recommending that the Court grant Plaintiff’s application to proceed in forma pauperis

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(ECF No. 1) without having to prepay the full filing fee. No objection to the Report and

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Recommendation has been filled.

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This action was referred to Judge Carry under 28 U.S.C. § 636(b)(1)(B) and

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Local Rule IB 1-4 of the Rules of Practice of the United States District Court for the
District of Nevada.
The Court has considered the pleadings and memoranda of the parties and other
relevant matters of record pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2.

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Refers to Court’s docket number.

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IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendation (ECF No. 7) entered on November 21, 2018, is ADOPTED and

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ACCEPTED.
IT IS FURTHER ORDERED that that Plaintiff’s application to proceed in forma

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pauperis (ECF No. 1) without having to prepay the full filing fee is granted. Plaintiff will

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not be required to pay an initial installment fee. Nevertheless, the full filing fee will still

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be due, under 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act.

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The movant herein is permitted to maintain this action to conclusion without necessity of

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prepayment of fees or costs or the giving of security therefor. This order granting in

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forma pauperis status will not extend to the issuance and/or service of subpoenas at

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government expense.

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IT IS FURTHER ORDERED that, under 28 U.S.C. § 1915 (b)(2), the Nevada
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Department of Corrections must pay to the Clerk of the United States District Court,

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District of Nevada, 20% of the proceeding month’s deposit to the account of Kevin Lee

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Kennedy, #79138 (in months that the account exceeds $10.00) until the full $350.00

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filing fee has been paid for this action. The Clerk will send a copy of this order to the

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Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011,
Carson City, NV 89702.
IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise
unsuccessful, the full filing fee will still be due, under 28 U.S.C. §1915, as amended by

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the Prisoner Litigation Reform Act.
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IT IS FURTHER RECOMMENDED that Counts I and III be dismissed as
malicious with prejudice.

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IT IS FURTHER RECOMMENDED that Count II be dismissed without prejudice
but without leave to amend at this time.

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IT IS FURTHER RECOMMENDED that Count IV be dismissed without prejudice.

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IT IS FURTHER RECOMMENDED that Plaintiff shall thirty days (30) to file an

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amended complaint to the extent Plaintiff can assert facts that address the defects of

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the complaint. Failure to file a timely amended complaint will result in a

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recommendation that this case be dismissed in its entirety.

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IT IS FURTHER RECOMMENDED that the Clerk of the Court shall send to

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Plaintiff the approved form for filing a § 1983 complaint and instructions for the same. If

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Plaintiff chooses to file a first amended complaint, he must use the approved form and

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he shall write the words “First Amended” above the words “Civil Rights Complaint” in the

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caption.
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IT IS SO ORDERED.
Dated this 15th day of January, 2019.

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ROBERT C. JONES
Senior District Judge

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