Opinion
Case No. 3:20-cv-00678-MMD-CLB
12-09-2020
MARCEL EUGENE THOMAS, Plaintiff v. PERRY RUSSELL, Defendant
ORDER
I. DISCUSSION
On December 7, 2020, Plaintiff, an inmate in the custody of the Nevada Department of Corrections ("NDOC"), submitted an application to proceed in forma pauperis. (ECF No. 1). Plaintiff has not submitted a complaint or a fully complete application to proceed in forma pauperis.
Under Federal Rule of Civil Procedure 3, "[a] civil action is commenced by filing a complaint with the court." Fed. R. Civ. P. 3. As such, the Court grants Plaintiff until February 8, 2021 to submit a complaint to this Court.
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 , 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.
Plaintiff has not submitted an application to proceed in forma pauperis on this Court's approved form together with a Financial Certificate and an inmate account statement for the previous six-month period. Accordingly, the Court denies Plaintiff's application to proceed in forma pauperis (ECF No. 1) without prejudice because the application is incomplete. The Court will grant Plaintiff a one-time extension to file a fully complete application to proceed in forma pauperis containing all three of the required documents. Plaintiff will file a fully complete application to proceed in forma pauperis on or before February 8, 2021. 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 on or before February 8, 2021, this case will be subject to dismissal without prejudice for Plaintiff to file a new case with the Court when Plaintiff is able to acquire all three of the documents needed to file a fully complete application to proceed in forma pauperis.
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 the 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 February 8, 2021 to proceed with this case.
The Court additionally notes that Plaintiff's mail was returned electronically from Northern Nevada Correctional Center ("NNCC") at ECF No. 4. According to the Nevada Department of Corrections ("NDOC") inmate database, Plaintiff is located at Stewart Conservation Camp ("SCC") and not at the address listed with the Court. Pursuant to Nevada Local Rule of Practice IA 3-1, a "pro se party must immediately file with the court written notification of any change of mailing address, email address, telephone number, or facsimile number. The notification must include proof of service on each opposing party or the party's attorney. Failure to comply with this rule may result in the dismissal of the action, entry of default judgment, or other sanctions as deemed appropriate by the court." Nev. Loc. R. IA 3-1. The Court grants Plaintiff until on or before February 8, 2021 to file his updated address with the Court. If Plaintiff does not update the Court with his current address on or before February 8, 2021, this case will be subject to dismissal without prejudice. As a one-time courtesy, the Clerk of the Court will send a copy of this order to Plaintiff at both NNCC and SCC.
II. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff will submit a complaint to this Court on or before February 8, 2021.
IT IS FURTHER ORDERED that the Clerk of the Court will send to Plaintiff the approved form for filing a 42 U.S.C. § 1983 complaint and instructions for the same.
IT IS FURTHER ORDERED that Plaintiff's application to proceed in forma pauperis (ECF No. 1) is denied without prejudice to file a new fully complete application to proceed in forma pauperis with all three documents.
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.
IT IS FURTHER ORDERED that on or before February 8, 2021, 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 complaint and 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 February 8, 2021, 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 is able to file a complaint and 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 if Plaintiff does not update the Court with his current address on or before February 8, 2021, this case will be subject to dismissal without prejudice.
IT IS FURTHER ORDERED that as one-time courtesy, the Clerk of the Court will send a copy of this order to Plaintiff at both NNCC and SCC.
DATED: December 9, 2020
/s/_________
UNITED STATES MAGISTRATE JUDGE