Opinion
3:22-cv-00456-ART-CSD
10-18-2022
THEODORE STEVENS, Plaintiff v. SGT. MALM, et al., Defendants
ORDER
I. DISCUSSION
On October 17, 2022, Plaintiff, an inmate in the custody of the Nevada Department of Corrections, submitted a civil rights complaint under 42 U.S.C. § 1983. (ECF No. 1 -1). Plaintiff has neither paid the full $402 filing fee for this matter nor filed an application to proceed in forma pauperis.
Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, an inmate seeking to begin a civil action in this Court may apply to proceed in forma pauperis in order to file the civil action without prepaying the full $402 filing fee. 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, on this Court's approved form (i.e. pages 1 through 3 with the inmate's two signatures on page 3),
(2) a Financial Certificate properly signed by both the inmate and a prison or jail official (i.e. page 4 of this Court's approved form), and
(3) a copy of the inmate's prison or jail trust fund account statement for the previous six-month period.
The Court will grant Plaintiff a one-time opportunity to file a fully complete application to proceed in forma pauperis containing all three of the required documents, or in the alternative, pay the full $402 filing fee for this action on or before December 19, 2022. Absent unusual circumstances, the Court will not grant any further extensions of time.
If Plaintiff is unable to file a fully complete application to proceed in forma pauperis with all three required documents or pay the full $402 filing fee on or before December 19, 2022, this case will be subject to dismissal without prejudice for Plaintiff to file a new case with the Court when Plaintiff is either able to acquire all three of the documents needed to file a fully complete application to proceed in forma pauperis or pays the full $402 filing fee.
A dismissal without prejudice means Plaintiff does not give up the right to refile the case with the Court, under a new case number, when Plaintiff has all three documents needed to submit with an application to proceed in forma pauperis. Alternatively, Plaintiff may choose not to file an application to proceed in forma pauperis and instead pay the full filing fee of $402 on or before December 19, 2022, to proceed with this case.
The Court will retain Plaintiff's civil rights complaint (ECF No. 1-1), but the Court will not file the complaint unless and until Plaintiff timely files a fully complete application to proceed in forma pauperis with all three documents or pays the full $402 filing fee.
II. CONCLUSION
For the foregoing reasons, IT IS 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.
IT IS FURTHER ORDERED that on or before December 19, 2022, Plaintiff will either pay the full $402 filing fee for a civil action (which includes the $350 filing fee and the $52 administrative fee) or file with the Court:
(1) a completed Application to Proceed in Forma Pauperis for Inmate on this Court's approved form (i.e. pages 1 through 3 of the form with the inmate's two signatures on page 3),
(2) a Financial Certificate properly signed by both the inmate and a prison or jail official (i.e. page 4 of this Court's approved form), and
(3) a copy of the inmate's prison or jail trust fund account statement for the previous six-month period.
IT IS FURTHER ORDERED that, if Plaintiff does not file a fully complete application to proceed in forma pauperis with all three documents or pay the full $402 filing fee for a civil action on or before December 19, 2022, this case will be subject to dismissal without prejudice for Plaintiff to refile the case with the Court, under a new case number, when Plaintiff has all three documents needed to file a complete application to proceed in forma pauperis or pays the full $402 filing fee.
IT IS FURTHER ORDERED that the Clerk of the Court will retain the complaint (ECF No. 1-1) but will not file it at this time.
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.