Opinion
2:22-cv-01373-APG-EJY
10-07-2022
TIMOTHY SANDERS, Plaintiff, v. CASTANEDA, et al., Defendants.
ORDER
ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE
On August 24, 2022, Plaintiff, an inmate in the custody of the Nevada Department of Corrections, filed an application to proceed in forma pauperis (“IFP”) together with a civil rights Complaint under 42 U.S.C. § 1983. ECF Nos. 1, 1-1. Plaintiff did not sign his IFP application nor his complaint. Id. Because Plaintiff did not sign his IFP application, Plaintiff may not proceed with in forma pauperis status. As such, Plaintiff's IFP application is denied without prejudice.
Under Rule 11 of the Federal Rules of Civil Procedure, a plaintiff who is not represented by counsel is required to sign every pleading, including a complaint. Fed.R.Civ.P. 11(a). Plaintiff failed to sign his Complaint; therefore, the Court cannot consider it. If Plaintiff chooses to file an amended complaint, he is advised that the amended complaint replaces the original complaint, thus the amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”). Plaintiff's amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “Amended Complaint.”
Accordingly, IT IS HEREBY ORDERED that Plaintiff's application to proceed in forma pauperis (ECF No. 1) is DENIED without prejudice.
IT IS FURTHER ORDERED that the Court will not consider Plaintiffs unsigned complaint (ECF No. 1-1). If Plaintiff choses to file an amended complaint, the document must be titled “Amended Complaint.” The amended complaint must contain a short and plain statement describing the underlying case showing that Plaintiff is entitled to relief. Fed.R.Civ.P. 8(a)(2). Although the Federal Rules of Civil Procedure adopts a flexible pleading standard, Plaintiff still must give Defendant fair notice of Plaintiff s claims.
Additionally, Plaintiff is advised that if he files an amended complaint, the original Complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended complaint must be complete in and of itself without reference to prior pleadings or other documents. The Court cannot refer to a prior pleading or other documents to make Plaintiffs amended complaint complete.
IT IS FURTHER ORDERED that Plaintiff is granted an extension of time up to and including November 7, 2022 to file a signed application to proceed in forma pauperis containing all three of the required documents and a signed amended complaint. Absent unusual circumstances, the Court will not grant any further extensions of time.
IT IS FURTHER ORDERED that the Clerk of the Court will send Plaintiff the approved form application to proceed in forma pauperis by an inmate, as well as the document entitled information and instructions for filing an in forma pauperis application. The Clerk of Court will also send Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his initial complaint (ECF No. 1-1).
IT IS FURTHER ORDERED that failure to comply with the terms of this Order will result in a recommendation to dismiss this matter without prejudice for Plaintiff to refile the case with the Court, under a new case number, when Plaintiff is able to file a signed IFP application and amended complaint.
INFORMATION FOR FILING AN APPLICATION TO PROCEED IN FORMA PAUPERIS BY AN INMATE UNDER 28 U.S.C. § 1915
Please use the attached form if you are an inmate. If you are an inmate who is unable to pay the entire filing fee at the time you file your complaint or petition, you must submit a completed inmate's application to proceed in forma pauperis to the court. Nev. Local Special Rule (“LSR”) 1-1. Your application must include copies of your inmate trust account statement for the past six months and a properly executed financial certificate signed by an authorized officer at your institution.
If you are filing a non-habeas civil action, including a civil rights action pursuant to 42 U.S.C. § 1983, please follow the instructions outlined in Section A. If you are filing a petition for writ of habeas corpus, please follow the instructions outlined in Section B. To submit your application, please follow the instructions outlined in Section C.
If you have the money to pay the full filing fee, please send a check or money order made payable to “CLERK, U.S. DISTRICT COURT” with your complaint or petition.
A. Non-Habeas Civil Actions
The fee for filing any civil action other than a petition for writ of habeas corpus is $402 (which includes the $350 filing fee and the $52 administrative fee). If you are granted leave to proceed in forma pauperis, you must still pay the $350 filing fee (but not the $52 administrative fee) in the form of several installment payments. 28 U.S.C. § 1915(b).
You must pay an initial partial filing fee of 20 percent of the greater of: (a) the average monthly deposits to your account for the 6-month period immediately before the complaint was filed, or (b) the average monthly balance in your account for the 6-month period immediately before the complaint was filed. The court will use the information provided on the financial certificate and the inmate trust account statement to determine the filing fee immediately due and will send instructions to you and the prison or jail trust account office for payment if in forma pauperis status is granted.
After the initial partial filing fee is paid, your prison's or jail's trust account office will forward to the court each month 20 percent of the most recent month's income from your prison or jail trust account, to the extent that your account exceeds $10. Monthly payments will be required until the full filing fee of $350 is paid. If you have no funds over $10 in your account, you will not be required to pay a part of the filing fee for that month.
If your application to proceed in forma pauperis is granted, you will be liable for the full $350 filing fee even if your civil action is dismissed. The court will continue to collect payments until the entire filing fee is paid.
B. Habeas Actions
The fee for filing a petition for a writ of habeas corpus is $5. There is no administrative fee. If you are granted leave to proceed in forma pauperis, you will not be required to pay any portion of this fee. If you are not granted leave to proceed in forma pauperis, you must pay the $5 fee in one payment and not in installments.
If you use a habeas form to file a non-habeas civil action, you will be required to pay the fee applicable to all non-habeas civil actions.
C. Submission of Application
To submit your application to proceed in forma pauperis, complete the attached form and return the form to the court with your complaint or petition.
In civil actions filed by pro se (self-represented) inmates, the action must be filed in the unofficial division of the court in which the inmate is held when the complaint or petition is submitted for filing. Nev. Local Rule (“LR”) IA 1-6, 1-8. The Clerk of the Court maintains offices in Las Vegas and Reno at the following addresses:
Unofficial Southern Division (Clark, Esmeralda, Lincoln, & Nye counties):
U.S. District Court Office of the Clerk
333 Las Vegas Boulevard, South, Room #1334
Las Vegas, NV 89101
Unofficial Northern Division (all other counties):
U.S. District Court Office of the Clerk
400 S. Virginia Street, Room #301
Reno, NV 89501
Please continue to use electronic filing if it is available at your facility or institution.
APPLICATION TO PROCEED IN FORMA PAUPERIS FOR INMATE
I, ___, declare that I am the (check the appropriate box)
___ Plaintiff (filing 42 U.S.C. § 1983) ___ Movant (filing 28 U.S.C. § 2255 motion)
___ Petitioner (writ of habeas corpus 28 U.S.C. §§ 2254 or 2241)
___ Other ___ Defendant/Respondent
in this case. I am unable to prepay the fees of this proceeding or give security because of my poverty. I acknowledge and consent that a portion of any recovery, as directed by the court, shall be paid to the clerk for reimbursement of all fees incurred by me as a result of being granted leave to proceed in forma pauperis.
In further support of this application, I answer the following questions:
1. Are you presently employed? ___ Yes ___ No
a. If the answer is “yes,” state the amount of your salary or wages per month, and give the name and address of your employer. (List gross and net salary.)
b. If the answer is “no,” state the date of last employment and the amount of the salary or wages per month which you received.
2. Have you received within the past twelve months any money from any of the following sources?
a. Business, profession or other form of self-employment? ___Yes ___No
b. Rent payments, interest or dividends? ___ Yes ___ No
c. Pensions, annuities or life insurance payments? ___ Yes ___ No
d. Gifts or inheritances? ___Yes ___No
e. Any other sources? ___Yes ___No
If the answer to any of the above is “yes,” describe each source of money and state the amount received from each during the past twelve months.
3. Do you own any cash, or do you have money in checking or savings accounts (include any funds in prison accounts, and any funds on deposit with a bank, saving & loan, etc., outside the prison) ? ___Yes ___No
If the answer is “yes,” state the total value and list the location of each account, type of account, and amount or balance in the account. Do not include your account number(s).
4. Do you own or have any interest in any real estate, stocks, bonds, notes, trusts, automobiles or other valuable property (excluding ordinary household furnishings and clothing)? ___Yes ___ No
If the answer is “yes,” describe the property, its location and state its approximate value.
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support each month.
6. Do you receive any income from disability, Social Security or any other pension?
___Yes ___No
If the answer is “yes,” describe the source and amount received each month.
7. Have you placed any property, assets or money in the name or custody of anyone else in the last two years?
___Yes ___No
If the answer is “yes,” give the date, describe the property, assets or money, give the name of the person given custody of the item and the reason for the transfer.
ACKNOWLEDGMENT
I, the undersigned, acknowledge that I have read the foregoing and that the information contained therein is true and correct to my own knowledge and belief.
Further, I state that I have not directly or indirectly paid or caused to be paid to any inmate, agent of an inmate, or family member of any inmate a sum of money, favors or anything else for assistance in the preparation of this document or any other document in connection with this action.
Further, I acknowledge that if any of the information included in this motion for leave to proceed in forma pauperis is false or misleading, I understand that sanctions may be imposed against me. Those sanctions may include, but are not limited to, the following:
(1) dismissal of my case with prejudice;
(2) imposition of monetary sanctions;
(3) the Nevada Department of Prisons may bring disciplinary proceedings for a violation of MJ-48 of the Code of Penal Discipline, which can include all sanctions authorized under the Code including the loss of good time credits and punitive confinement; and
(4) perjury charges.
Further, I hereby authorize the United States District Court, District of Nevada, or its representative, to investigate my financial status, and authorize any individual, corporation, or governmental entity to release any such information to the said Court or its representative.
Further, I acknowledge and consent that a portion of any recovery, as directed by the court, shall be paid to the clerk for reimbursement of all fees and costs incurred by me as a result of being granted leave to proceed in forma pauperis.
I understand that a false statement or answer to any question in this declaration will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.
FINANCIAL CERTIFICATE
I request that an authorized officer of the institution in which I am confined, or other designated entity, such as Inmate Services for the Nevada Department of Prisons (NDOC), complete the below Financial Certificate.
I understand that:
(1) if I commence a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, the filing fee is $5.00, and that such fee will have to be paid by me if the court denies my in forma pauperis application;
(2) if I commence a civil rights action in federal court pursuant to 42 U.S.C. § 1983, the filing fee is $402.00 (which includes the $350 filing fee and a $52 administrative fee), which I must pay in full; and
(a) if my current account balance (line #1 below) is $402.00 or more, I will not qualify for in forma pauperis status and I must pay the full filing fee of $402.00 before I will be allowed to proceed with the action;
(b) if I do NOT have $402.00 in my account as reflected on line #1 below, before I will be allowed to proceed with an action I will be required to pay 20% of my average monthly balance (line #2 below), or the average monthly deposits to my account (line #3 below), whichever is greater, and thereafter I must pay installments of 20% of the preceding month's deposits to my account in months that my account balance exceeds $10.00 (if I am in the custody of the NDOC, I hereby authorize the NDOC to make such deductions from deposits to my account, and I further understand that if I have a prison job, then the 20% of my paycheck that is guaranteed to me as spendable money will be sent to the court for payment of the filing fee); and
(c) I must continue to make installment payments until the $350.00 filing fee is fully paid, without regard to whether my action is closed or my release from confinement. The $52 administrative fee will be waived only if I am granted permission to proceed in forma pauperis.
1. CURRENT ACCOUNT BALANCE
2. AVERAGE MONTHLY BALANCE*
3. AVERAGE MONTHLY DEPOSITS*
4. FILING FEE (based on #1, #2 or #3, whichever is greater)
* for the past six (6) months, from all sources, including amount in any savings account that is in excess of minimum amount that must be maintained
I hereby certify that as of this date, the above financial information is accurate for the above named inmate.
Instructions for Filing a Civil Rights Complaint by an Incarcerated Individual
A. Who May Use This Form
If you are incarcerated, you must use the attached form (unless you are challenging your sentence or conviction, see next paragraph). The attached civil rights complaint form is designed to help you prepare a complaint seeking relief for alleged violations of your federal civil rights. These complaints are usually about the conditions of your confinement, but they may relate to other issues (except for your sentence and conviction, see next paragraph).
Do not use this form if you are challenging the length of your sentence or the validity of your conviction. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered judgment.
B. Filing a Civil Rights Action
To initiate a civil rights action, you must submit:
1) a completed complaint form
and
2) a check or money order for $402 (which includes the $350 filing fee and the $52 administrative fee), or an inmate application to proceed in forma pauperis.
If you can pay the full $402 filing fee, please send a check or money order made payable to “CLERK, U.S. DISTRICT COURT” with your complaint. If you cannot pay the entire filing fee when you submit your complaint, please complete an inmate's application to proceed in forma pauperis, which is available at your institution. You may request the packet titled “Information for Filing an Application to Proceed In Forma Pauperis by an Inmate under 28 U.S.C. § 1915.”
You must file your complaint in the unofficial division where you are incarcerated. See Local Rules of Practice for the United States District Court for the District of Nevada (“LR”) IA 1-6, 1-8. The Clerk of the Court maintains offices in Las Vegas and Reno at these addresses:
Unofficial Southern Division (Clark, Esmeralda, Lincoln, & Nye counties):
U.S. District Court Office of the Clerk
333 Las Vegas Boulevard, South, Room #1334
Las Vegas, NV 89101
Unofficial Northern Division (all other counties):
U.S. District Court Office of the Clerk
400 S. Virginia Street, Room #301
Reno, NV 89501
Please continue to use electronic filing if it is available at your facility or institution.
C. Completing the Civil Rights Complaint Form
General Information
• You must complete the form in its entirety. All questions must be answered in order for your action to proceed. Your responses must be typewritten or legibly handwritten. You must sign page 6 of the form and declare under penalty of perjury that the facts stated in the complaint are true and correct.
• Do not write on the back of any of the pages. All information must be clearly and concisely written in the space provided on the form. Do not write in the margins. If you attach additional pages to the form, you must identify which section of the complaint is being continued and number the pages accordingly (e.g., 2-A, 2-B, 3-A, 3-B, etc.).
• All incarcerated litigants are required to follow the Local Rules of Practice for the United States District Court for the District of Nevada. A copy of the Local Rules is maintained at each Nevada Department of Corrections Facility.
• All incarcerated litigants are required to follow General Order 2021-05 for the United States District Court for the District of Nevada.
• A civil cover sheet is not required in prisoner civil rights cases.
Length
• Your complaint or amended complaint may not be more than 30 pages long.
• It is not necessary to attach exhibits or affidavits to the complaint or any amended complaint. Rather, the complaint or any amended complaint must sufficiently state the facts and claims without reference to exhibits or affidavits. Failure to state the facts and claims within the body of the complaint or amended complaint, without reference to any attached exhibits or affidavits, may result in dismissal.
• If you believe that you need to file a complaint or amended complaint that is longer than 30 pages, you must file a motion seeking permission to exceed the page limit and explain your reasons for exceeding the 30-page limit. Your motion to exceed the page limit may not be longer than 3 pages.
Heading/Caption
• Your Name: Print your full name, prison or inmate number, and institutional mailing address on the lines provided.
• Defendants: If there are five or fewer defendants, print the name of each. If you are suing more than five defendants, print the name of the first defendant on the first line and write “see additional pages for defendants” on the second line. On an additional page, you must list the names of all defendants. Insert this additional page after page 1 and number the page “1-A” at the bottom.
• Identify Complaint: You must mark the box identifying whether the instant complaint is the original, first amended, or second amended complaint.
• Jury Demand: If you want a jury trial, you must check the box for “Jury Trial Demanded.”
Part A: Jurisdiction
• 42 U.S.C. § 1983 Action: If you are filing a complaint naming a state, county, or city official as a defendant, mark the box for “28 U.S.C. § 1343(a)(3); 42 U.S.C. § 1983.”
• Bivens Action: If you are filing a complaint naming a federal officer as a defendant, mark the box for “28 U.S.C. § 1331; Bivens v. Six Unknown Named Agents.”
• Fill in the requested information about your current institution/city and the institution/city where the violations occurred.
Part B: Defendants
• Fill in the requested information about each of the defendants in the spaces provided. If you are naming more than five defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A”, “2-B”, etc. at the bottom of the page. Insert the additional page(s) immediately behind page 2.
Part C: Nature of the Case
• Briefly give an overview of your case by providing general facts about your case. This is not the place to provide detailed information about what each defendant did to violate your rights (see Part D).
Part D: Cause(s) of Action
• This is where you identify what rights you claim the defendant(s) violated. The form provides three pages for alleging three claims. If you are alleging more than three claims, then attach an additional page for each additional claim (so that there is only one claim per page). Number the additional pages “5-A,” “5-B,” etc. and insert the pages immediately behind page 5. Remember, your complaint may not exceed 30 pages.
o Claims: You must identify which civil right was violated. You may allege the violation of only one civil right per claim.
o Issues Involved: Check the box that most closely identifies the issue involved in your claim. You may check only one box per claim. If you mark the box “Other,” you must identify the specific issue involved.
o Date(s): Identify the date(s) or date range of the alleged violation.
o Supporting Facts: You must state facts supporting the violation. You should be as specific as possible and describe what each individual defendant did to violate your rights. You should name the individual defendants and include dates when possible.
• You must follow the Federal Rules of Civil Procedure when drafting your claims and allegations.
o Your complaint must contain “a short and plain statement of the claim showing that [you are] entitled to relief.” Fed.R.Civ.P. 8(a)(2). o “Each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1).
o “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b).
Each claim founded on a separate transaction or occurrence must be stated in a separate claim. Id.
o You may add multiple claims to a lawsuit when those claims are against the same defendant. Fed.R.Civ.P. 18(a).
o You may add multiple parties to a lawsuit where the right to relief arises out of the “same transaction, occurrence, or series of transactions or occurrences.”
Fed. R. Civ. P. 20(a)(2)(A). o Unrelated claims that involve different defendants must be brought in separate lawsuits.
Part E: Previous Lawsuits
• You must answer the questions in this section by marking “yes” or “no.”
Part F: Request for Relief
• Print the relief you are seeking in the space provided.
Signature
• You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. If someone wrote this civil rights complaint for you (such as an inmate law clerk), that person must write their name on the line next to your signature.
D. Amended Complaints
If you need to change any information in the initial complaint, you must file an amended complaint. The amended complaint must be written on a new, blank copy of the attached civil rights complaint form. The amended complaint must be complete and may not incorporate by reference any part of your prior complaint. Any allegations or defendants not included in the amended complaint are considered abandoned. Please refer to LR 15-1 and Fed.R.Civ.P. 15 for how and when a party may move the court to file an amended complaint.
A. JURISDICTION
1) This Court has jurisdiction over this action pursuant to:
[ ] 28 U.S.C. § 1343(a)(3); 42 U.S.C. § 1983
[ ] 28 U.S.C. § 1331; Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
[ ] Other:
2) Institution/city where Plaintiff currently resides:
3) Institution/city where violation(s) occurred:
B. DEFENDANTS
1. Name of first Defendant: . The first Defendant is employed as: at ___. (Position of Title) (Institution)
2. Name of second Defendant: . The second Defendant is employed as: at ___. (Position of Title) (Institution)
3. Name of third Defendant: . The third Defendant is employed as: at ___. (Position of Title) (Institution)
4. Name of fourth Defendant: . The fourth Defendant is employed as: at ___. (Position of Title) (Institution)
5. Name of fifth Defendant: . The fifth Defendant is employed as: at ___. (Position of Title) (Institution)
If you name more than five Defendants, answer the questions listed above for each additional Defendant on a separate page.
C. NATURE OF THE CASE
Briefly state the background of your case.
D. CAUSE(S) OF ACTION
CLAIM 1
1. State the constitutional or other federal civil right that was violated:
2. Claim 1. Identify the issue involved. Check only one. State additional issues in separate claims.
[ ] Basic necessities [ ] Medical care [ ] Mail
[ ] Disciplinary proceedings [ ] Exercise of religion [ ] Property
[ ] Access to the court [ ] Excessive force by officer [ ] Retaliation
[ ] Threat to safety [ ] Other:.
3. Date(s) or date range of when the violation occurred:.
4. Supporting Facts: State as briefly as possible the FACTS supporting Claim 1. Describe exactly what each specific defendant (by name) did to violate your rights. State the facts clearly in your own words without citing legal authority or argument.
CLAIM 2
1. State the constitutional or other federal civil right that was violated:
2. Claim 2. Identify the issue involved. Check only one. State additional issues in separate claims.
[ ] Basic necessities [ ] Medical care [ ] Mail
[ ] Disciplinary proceedings [ ] Exercise of religion [ ] Property
[ ] Access to the court [ ] Excessive force by officer [ ] Retaliation
[ ] Threat to safety [ ] Other:.
3. Date(s) or date range of when the violation occurred:.
4. Supporting Facts: State as briefly as possible the FACTS supporting Claim 2. Describe exactly what each specific defendant (by name) did to violate your rights. State the facts clearly in your own words without citing legal authority or argument.
CLAIM 3
1. State the constitutional or other federal civil right that was violated:
2. Claim 3. Identify the issue involved. Check only one. State additional issues in separate claims.
[ ] Basic necessities [ ] Medical care [ ] Mail
[ ] Disciplinary proceedings [ ] Exercise of religion [ ] Property
[ ] Access to the court [ ] Excessive force by officer [ ] Retaliation
[ ] Threat to safety [ ] Other:.
3. Date(s) or date range of when the violation occurred:.
4. Supporting Facts: State as briefly as possible the FACTS supporting Claim 3. Describe exactly what each specific defendant (by name) did to violate your rights. State the facts clearly in your own words without citing legal authority or argument.
If you assert more than three claims, answer the questions listed above for each additional claim on a separate page.
E. PREVIOUS LAWSUITS
1. Have you filed any other lawsuits while incarcerated? [ ] Yes [ ] No
2. Has this Court or any other court designated you as subject to “three strikes” under 28 U.S.C. § 1915(g)? [ ] Yes [ ] No
3. If you have “three strikes” under 28 U.S.C. § 1915(g), does this complaint demonstrate that you are “under imminent danger of serious physical injury?” [ ] Yes [ ] No
F. REQUEST FOR RELIEF
I believe I am entitled to the following relief:
I understand that a false statement or answer to any question in this complaint will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.
ADDITIONAL PAGES
You must answer all questions concisely in the proper space on the form. Your complaint may not be more than 30 pages long. It is not necessary to attach exhibits or affidavits to the complaint or any amended complaint. Rather, the complaint or any amended complaint must sufficiently state the facts and claims without reference to exhibits or affidavits. If you need to file a complaint that is more than 30 pages long, you must file a motion seeking permission to exceed the page limit and explain the reasons that support the need to exceed 30 pages in length.