United States District Court, D. Nevada
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
Julio Cesar Navas, who is incarcerated in Lovelock
Correctional Center (LCC), a facility of the Nevada
Department of Corrections (NDOC), filed his civil rights
complaint pursuant to 42 U.S.C. § 1983 on January 24,
2018. The complaint was not accompanied by an application to
proceed in forma pauperis (IFP) or the $350 filing fee.
Local Rules of Practice for the District of Nevada provide:
“Any person who is unable to prepay the fees in a civil
case may apply to the court for authority to proceed [IFP].
The application must be made on the form provided by the
court and must include a financial affidavit disclosing the
applicant's income, assets, expenses, and
liabilities.” LSR 1-1. When a prisoner seeks to proceed
without prepaying the filing fee:
[I]n addition to filing the affidavit filed [as described
above], [the prisoner] shall submit a certified copy of the
trust fund account statement (or institutional equivalent)
for the prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal, obtained
from the appropriate official of each prison at which the
prisoner is or was confined.
28 U.S.C. § 1915(a)(2). Notwithstanding the foregoing:
(1) … [I]f a prisoner brings a civil
action…[IFP], the prisoner shall be required to pay
the full amount of a filing fee. The court shall assess and,
when funds exist, collect, as a partial payment of any court
fees required by law, an initial partial filing fee of 20
percent of the greater of --
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint of notice of appeal.
(2) After payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(1), (2).
Clerk shall SEND Plaintiff a copy
of the instructions and application to proceed IFP for an
inmate. Plaintiff has THIRTY (30)
DAYS from the date of this Order to either file
his completed IFP application or pay the $350 filing fee.
Plaintiff has filed his completed IFP application or paid the
filing fee, the court will screen the complaint pursuant to
28 U.S.C. § 1915(e)(2)(B), or 28 U.S.C. § 1915A, or
both. 28 U.S.C. § 1915(e)(2)(B) applies to a plaintiff
proceeding IFP, and 28 U.S.C. § 1915A applies to
complaints filed by prisoners who seek redress from a
governmental entity or officer or employee of a governmental
entity. Both require dismissal of a complaint, or any portion
thereof, that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against a defendant immune from such relief.
court has undertaken a brief review of Plaintiff's
complaint. If Plaintiff proceeds with his IFP application or
pays the filing fee, it is likely the undersigned would
recommend dismissal of the action for failure to state a
claim upon which relief may be granted. Plaintiff names as
defendants Thomas Quals and Kevin Van Ry. His allegations are
somewhat vague, but as the court interprets them, he alleges
in Count I that he was arrested in July 2002, and was
subsequently convicted of a crime. Attorney Thomas Quals was
appointed to file his direct criminal appeal. Plaintiff
apparently lost his direct appeal, which he attributes to his
appointed attorney. He goes on to allege in Count II that the
attorney signed an affidavit on May 4, 2006, and knew
Plaintiff was not guilty and defended him, but agreed with
what was said by the deputy district attorney. He claims he
has been falsely incarcerated for sixteen years.
Count III, he appears to refer to his criminal trial attorney
Kevin Van Ry, and asserts that Van Ry conceded the charges
the district attorney had against him; that he wanted to
testify, but Van Ry advised him against it, and encouraged
him to take a deal Plaintiff did not want to take. He ...