IN RE ERICKSON

No. 3:17-cv-00326-RCJ-VPC.

IN RE KEENNETH ERICKSON, Plaintiff.

United States District Court, D. Nevada

Editors Note
Applicable Law: 28 U.S.C. § 1983
Cause: 28 U.S.C. § 1983 Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


ORDER

VALERIE P. COOKE, Magistrate Judge.

I. DISCUSSION

Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections ("NDOC"), has filed an application to proceed in forma pauperis and multiple incoherent documents and motions. (ECF No. 1, 1-1, 3, 5, 6, 7, 8, 9, 10, 11). Plaintiff has not filed a complaint and has filed an incomplete application to proceed in forma pauperis.

Pursuant to 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 thirty (30) days from the date of this order to submit a complaint to this Court.

Pursuant to 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, Plaintiff must complete an application to proceed in forma pauperis and attach both an inmate account statement for the past six months and a properly executed financial certificate. Plaintiff has not submitted a properly executed financial certificate or an inmate account statement. (See ECF No. 1). As such, the in forma pauperis application is denied without prejudice. Plaintiff will be granted an opportunity to cure the deficiencies of his application to proceed in forma pauperis, or in the alternative, pay the full filing fee for this action. If Plaintiff chooses to file a new application to proceed in forma pauperis he must file a fully complete application to proceed in forma pauperis.

II. CONCLUSION

For the foregoing reasons, IT IS ORDERED the application to proceed in forma pauperis (ECF No. 1) is denied.

IT IS FURTHER ORDERED that the Clerk of the Court SHALL SEND Plaintiff the approved form application to proceed in forma pauperis by a prisoner, as well as the document entitled information and instructions for filing an in forma pauperis application.

IT IS FURTHER ORDERED that within thirty (30) days from the date of this order, Plaintiff shall either: (1) file a fully complete application to proceed in forma pauperis, on the correct form with complete financial attachments in compliance with 28 U.S.C. § 1915(a); or (2) pay the full $400 fee for filing a civil action (which includes the $350 filing fee and the $50 administrative fee).

IT IS FURTHER ORDERED that Plaintiff shall submit a complaint to this Court within thirty (30) days from the date of this order.

IT IS FURTHER ORDERED that the Clerk of the Court shall 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, if Plaintiff does not timely comply with this order, dismissal of this action may result.

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA INSTRUCTIONS FOR FILING A CIVIL RIGHTS COMPLAINT BY AN INMATE UNDER 42 U.S.C. § 1983

A. Who May Use This Form

You must use the attached form if you are an inmate. The attached 42 U.S.C. § 1983 civil rights complaint form is designed to help inmates prepare a complaint seeking relief for alleged violations of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement.

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 § 1983 Civil Rights Action

To initiate a § 1983 civil rights action, you must submit: (1) a completed complaint form and (2) a check or money order for $400 (which includes the $350 filing fee and the $50 administrative fee), or an inmate application to proceed in forma pauperis.

If you have the money to pay the full $400 filing fee, please send a check or money order made payable to "CLERK, U.S. DISTRICT COURT" with your complaint.

If you are unable to pay the entire filing fee at the time you submit your complaint, please complete an inmate's application to proceed in forma pauperis. 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."

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 incarcerated when the complaint is submitted for filing. 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 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

If you are incarcerated at a facility that uses electronic filing, please continue to use electronic filing.

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 9 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 inmate-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.

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. Jury Demand: If you want a jury trial, you must write "JURY TRIAL DEMANDED" in the space below "CIVIL RIGHTS COMPLAINT PURSUANT TO 42 U.S.C. § 1983." Bivens Action: If you are filing a complaint in which you are naming a federal officer as a defendant instead of a state, county, or city official, you should cross out "42 U.S.C. § 1983" and below it write "BIVENS ACTION."

Part A: Jurisdiction

Page 1: Fill in all of the requested information about you on page 1 in the spaces provided. Page 2: Fill in all of the requested information about each of the defendants in the spaces provided. If you are naming more than five defendants, then make a copy of page 2 of the form and provide the necessary information for the additional defendants. Label the page(s) "2-A", "2-B", etc. at the bottom of the page and insert the additional page(s) immediately behind page 2. Page 3: If you wish to assert jurisdiction under a different or additional statute(s), list them on page 3.

Part B: 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 C).

Part C: Cause of Action

• This is where you identify what rights you claim the defendant(s) violated. The form provides three pages for alleging three counts. If you are alleging more than three counts, then attach an additional page for each additional count (so that there is only one count per page). Number the additional pages "6-A", "6-B", etc. and insert the pages immediately behind page 6. • You must identify which civil rights you claim have been violated. • You need to 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.

Part D: Previous Lawsuits and Administrative Relief

• You must identify any other lawsuit you have filed in either state or federal court that relates to the same or similar claims that you have alleged in this civil rights complaint. • You must exhaust any available administrative remedies before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each claim in your complaint. If the grievance procedures were not available for any of your claims, fully explain why on the lines provided.

Part E: 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 the court-approved civil rights form. The amended complaint must be complete in itself 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.

United States District Court DISTRICT OF NEVADA _______________________ Plaintiff/Petitioner, APPLICATION TO PROCEED IN FORMA PA UPERIS v. FOR INMATE ______________________ CASE NUMBER: Defendant/Respondent,

I, _______ declare that I am the (check the appropriate box)

____ Plaintiff ____ Movant (filing 42 U.S.C. § 1983) (filing 28 U.S.C. § 2255 motion) ____ Petitioner ____ Other (writ of habeas corpus 28 U.S.C. §§ 2254 or 2241) ____ 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 formapauperisis 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.

Dated this ___ day of ____, 20__. _________________________ (Signature of Applicant)

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.

Signed at ________________ ________________ (Location) (Signature) _______________ ____________________ (Date) (Inmate Prison Number)

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 ofPri sons (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 $400.00 (which includes the $350 filing fee and a $50 administrative fee), which I must pay in full; and

(a) if my current account balance (line #1 below) is $400.00 or more, I will not qualify for in forma pauperis status and I must pay the full filing fee of $400.00 before I will be allowed to proceed with the action;

(b) if I do NOT have $400.00 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 $50 administrative fee will be waived only if I am granted permission to proceed in forma pauperis.

Type of action (check one): _____ civil rights _____ habeas corpus ________________________ ____________________________ INMATE NAME (printed) SIGNATURE & PRISON NUMBER 1. CURRENT ACCOUNT BALANCE __________________ 2. AVERAGE MONTHLY BALANCE* ___________________ 3. AVERAGE MONTHLY DEPOSITS* ____________________ 4. FILING FEE (based on #1, #2 or #3, whichever is greater) ____________________

I hereby certify that as of this date, the above financial information is accurate for the above named inmate.

(Please sign in ink in a) _______________ (color other than black.) AUTHORIZED OFFICER ____________ _________________ DATE TITLE UNITED STATES DISTRICT COURT DISTRICT OF NEVADA INFORMATION FOR FILING AN APPLICATION TO PROCEED IN FORMA PAUPER'S 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 $400 (which includes the $350 filing fee and the $50 administrative fee). If you are granted leave to proceed in forma pauperis, you must still pay the $350 filing fee (but not the $50 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

If you are incarcerated at a facility that uses electronic filing and you are filing a nonhabeas action, please continue to use electronic filing.

If you are filing a habeas action, you must submit all of your documents by mail.

FootNotes


* 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

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