Opinion
2:22-cv-02166-JAD-VCF
01-20-2023
MITCHELL DZIK, Plaintiff, v. NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER (ECF NO. 1)
On December 27, 2022, pro se plaintiff Mitchell Dzik, an inmate in the custody of the Nevada Department of Corrections, submitted a complaint and an application to proceed in forma pauperis. (ECF Nos. 1, 1-1). Plaintiff's application to proceed in forma pauperis is incomplete because Plaintiff did not include a financial certificate or an inmate trust fund account statement for the previous six-month period with the application. The Court will deny Plaintiff's application without prejudice and give Plaintiff the opportunity to correct these deficiencies by March 20, 2023.
The Court notes that Plaintiff included a cover letter with his complaint. (ECF No. 1-4.) In the cover letter, Plaintiff states that he is bringing a criminal complaint, and therefore he should not have to pay a filing fee. (Id.) However, Plaintiff cannot initiate a criminal case because “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” See United States v. Nixon, 418 U.S. 683, 693 (1974). Accordingly, Plaintiff cannot initiate a criminal case or pursue criminal charges in this case. To the extent that Plaintiff wishes to pursue any civil claims in this case, he must file a complete application to proceed in forma pauperis, or pay the $402 filing fee in full.
I. DISCUSSION
The United States District Court for the District of Nevada must collect filing fees from parties initiating civil actions. 28 U.S.C. § 1914(a). The fee for filing a civil-rights action is $402, which includes the $350 filing fee and the $52 administrative fee. See U.S.C. § 1914(b). “Any person who is unable to prepay the fees in a civil case may apply to the court for leave to proceed in forma pauperis.” Nev. Loc. R. Prac. LSR 1-1. For an inmate to apply for in forma pauperis status, the inmate must submit all three of the following documents to the Court: (1) a completed Application to Proceed in Forma Pauperis for Inmate, which is pages 1-3 of the Court's approved form, that is properly signed by the inmate twice on page 3; (2) a completed Financial Certificate, which is page 4 of the Court's approved form, that is properly signed by both the inmate and a prison or jail official; and (3) a copy of the inmate's prison or jail trust fund account statement for the previous six-month period. See 28 U.S.C. § 1915(a)(1)-(2); Nev. Loc. R. Prac. LSR 1-2. In forma pauperis status does not relieve an inmate of his or her obligation to pay the filing fee, it just means that the inmate can pay the fee in installments. See 28 U.S.C. § 1915(b).
As explained above, Plaintiff's application to proceed in forma pauperis is incomplete. The Court will therefore deny Plaintiff's application to proceed in forma pauperis without prejudice and grant Plaintiff an extension of time to either pay the filing fee or file a new fully complete application to proceed in forma pauperis with all three required documents.
II. CONCLUSION
It is therefore ordered that the application to proceed in forma pauperis (ECF No. 1) is denied without prejudice.
It is further ordered that Plaintiff has until March 20, 2023, to either pay the full $402 filing fee or file a new fully complete application to proceed in forma pauperis with all three required documents: (1) a completed application with the inmate's two signatures on page 3, (2) a completed financial certificate that is signed both by the inmate and the prison or jail official, and (3) a copy of the inmate's trust fund account statement for the previous six-month period.
Plaintiff is cautioned that this action will be subject to dismissal without prejudice if Plaintiff fails to timely comply with this order. A dismissal without prejudice allows Plaintiff to refile the case with the Court, under a new case number, when Plaintiff can file a complete application to proceed in forma pauperis or pay the required filing fee.
The Clerk of the Court is directed to send Plaintiff Mitchell Dzik the approved form application to proceed in forma pauperis for an inmate and instructions for the same and retain the complaint (ECF No. 1 -1) but not file it at this time.