Opinion
3:22-cv-00263-ART-CSD
07-31-2023
ROBERTO DURAND, Plaintiff, v. MARIE BROWN Defendant.
ORDER
ANNE TRAUM UNITED STATES DISTRICT JUDGE
Pro se Plaintiff Roberto Durand, an inmate in the custody of the Nevada Department of Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983 against Defendant Marie Brown. (ECF No. 1-1.) Plaintiff has filed multiple Motions for Leave to Proceed in forma pauperis. (ECF Nos. 3, 4, 5.) United States Magistrate Judge Craig S. Denney denied these IFP applications without prejudice because Plaintiff failed to include the required inmate account statement. (ECF No. 6.) Plaintiff filed another IFP application, but he did not include the required inmate account statement. (ECF No. 7.) Before the Court is a Report and Recommendation (“R&R”) by Judge Denney (ECF No. 8), recommending the Court deny Plaintiff's most recent IFP application (ECF No. 7) for failure to include the inmate account statement. (ECF No 8.) Plaintiff filed two objections to the R&R. (ECF Nos. 9, 10 (“Objection”).) Plaintiff then filed an additional IFP application which does not have the required inmate account statement. (ECF No. 11.) Because the Court agrees with Judge Denney's analysis as to the IFP application, the Court will adopt the R&R in part but grant Plaintiff an additional opportunity to file a proper IFP application. Accordingly, the Court will deny Plaintiff's IFP applications (ECF No. 7, 11), and instruct Plaintiff to file an IFP application within the next 30 days that includes a certified copy of the inmate trust fund account statement.
This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the Court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” Id. The Court's review is thus de novo because Plaintiff filed his Objection. (ECF Nos. 9, 10.)
Plaintiff objected to the Report and Recommendation, stating that he requested authorization for filing fees to be withdrawn from his account. (ECF Nos. 9, 10). In his most recent IFP application, Plaintiff does not include the required inmate account statement. (ECF No. 11.) For the action to proceed, Plaintiff must either pay the $402 filing fee or complete an IFP application and attach 1) a financial certificate and 2) a certified copy of the trust fund account statement for the six-month period immediately preceding the filing of the complaint. Because the most recent IFP application is still missing this certified copy of the inmate trust fund account, it will be dismissed.
It is therefore ordered that Judge Denney's Report and Recommendation (ECF No. 8) is accepted and adopted in part.
It is further ordered that Plaintiff's latest IFP applications (ECF No. 7,11) be denied.
It is further ordered that Plaintiff file within 30 days of this order a new IFP application that includes both the financial certificate and the certified copy of the trust fund account statement.