Welch v. Ruebart et al

Filing 5

ORDER - IT IS ORDERED that Plaintiff's motion to have his documents filed in the unofficial Southern District of Nevada (ECF No. 4 ) is DENIED. It is further ordered that if Plaintiff wishes to pursue this action, he will submit a compl aint and file a complete application to proceed in forma pauperis, or the full $402 filing fee, to this Court on or before January 27, 2023 (1/27/2023). It is further ordered that If Plaintiff does not wish to purse this action, he may fi le a motion for voluntary dismissal. It is further ordered that, if Plaintiff fails to timely comply with this order, this case will be subject to dismissal without prejudice. Signed by Magistrate Judge Carla Baldwin on 11/21/2022. (Copies have been distributed pursuant to the NEF - CJS)

Case 3:22-cv-00423-ART-CLB Document 5 Filed 11/21/22 Page 1 of 3

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

KENTRELL WELCH,

5
6
7

v.

Plaintiff,

ORDER

WILLIAM RUEBART, et al.,
Defendants.

8
9

Case No. 3:22-cv-00423-ART-CLB

I.

DISCUSSION

10

Plaintiff initiated this case with a motion for a temporary restraining order and a

11

motion for “mandatory injunction.” (ECF Nos. 1-1, 1-2.) On September 22, 2022, The

12

Court ordered Plaintiff to file an application to proceed in forma pauperis and a civil rights

13

complaint in this case. (ECF No. 3.) Plaintiff has filed a motion seeking clarification.

14

(ECF No. 4.)

15

In his motion, Plaintiff states that his documents were improperly filed in the

16

unofficial Northern District of Nevada. (Id. at 2.) The documents relate to two ongoing

17

cases in the unofficial Southern District of Nevada. (Id.) Plaintiff appears to state that his

18

motions are related to those two cases, but that they need to be filed in a separate, new

19

case. (Id.) It is not clear why Plaintiff believes that his motions should be filed in a new

20

case if they are related to two ongoing cases. Plaintiff also states that he already has a

21

motion for a temporary restraining order in the unofficial Northern District of Nevada, and

22

he does not want to refile the same documents again in the unofficial Northern District of

23

Nevada. (Id. at 3.) Plaintiff asks the Court to file his documents in the unofficial Southern

24

District of Nevada. (Id. at 3-4.)

25

Pursuant to Nevada Local Rule of Practice IA 1-8(a), “[i]n civil actions filed by

26

inmates proceeding pro se, the action must be filed in the unofficial division of the court

27

in which the inmate is held when the complaint or petition is submitted for filing.” Plaintiff

28

is currently incarcerated at Ely State Prison, which is in the unofficial Northern District of
1

Case 3:22-cv-00423-ART-CLB Document 5 Filed 11/21/22 Page 2 of 3

1

Nevada. As such, the Court denies Plaintiff’s request to file his documents in the unofficial

2

Southern District of Nevada. Any new case that Plaintiff brings must be filed in the

3

unofficial Northern District of Nevada.

4

Furthermore, the Court notes that duplicative litigation by a plaintiff proceeding in

5

forma pauperis may be dismissed as malicious under 28 U.S.C. § 1915(e). See Cato v.

6

United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (citing Bailey v. Johnson, 846 F.2d

7

1019, 1021 (5th Cir.1988) (holding that repetitious litigation of virtually identical causes of

8

action is subject to dismissal as malicious)); Pittman v. Moore, 980 F.2d 994, 994-95 (5th

9

Cir.1993) (holding that it is malicious for a “pauper” to file a lawsuit that duplicates

10

allegations of another pending federal lawsuit by the same plaintiff). To the extent that

11

Plaintiff is attempting to bring duplicative claims, the Court advises Plaintiff that he should

12

not bring duplicative claims regardless of whether they are filed in the unofficial Northern

13

or Southern Districts of Nevada. It does not matter which district Plaintiff files a duplicative

14

claim in. Any duplicative cases may be subject to dismissal as malicious.

15

Considering Plaintiff’s motion for clarification, the Court will grant Plaintiff an

16

extension until January 27, 2023, to file a complaint and to file an application to proceed

17

in forma pauperis or pay the $402 filing fee in full. If Plaintiff does not file a civil rights

18

complaint and file an application to proceed in forma pauperis or pay the filing fee in full,

19

this case will be subject to dismissal without prejudice. If Plaintiff does not wish to pursue

20

this action, he may file a motion for voluntary dismissal.

21

II.

22
23

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion to have his

documents filed in the unofficial Southern District of Nevada (ECF No. 4) is DENIED.

24

It is further ordered that if Plaintiff wishes to pursue this action, he will submit a

25

complaint and file a complete application to proceed in forma pauperis, or the full $402

26

filing fee, to this Court on or before January 27, 2023.

27
28

It is further ordered that If Plaintiff does not wish to purse this action, he may file a
motion for voluntary dismissal.
2

Case 3:22-cv-00423-ART-CLB Document 5 Filed 11/21/22 Page 3 of 3

1
2

It is further ordered that, if Plaintiff fails to timely comply with this order, this case
will be subject to dismissal without prejudice.

3
4

DATED THIS 21st day of November 2022.

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
3