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Navas v. Van Ry

United States District Court, D. Nevada

January 25, 2018

JULIO CESAR NAVAS, Plaintiff,
v.
KEVEN VAN RY, et al., Defendants.

          ORDER

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         The 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 account; or
(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).

         The 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.

         Once 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.

         The 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.

         In 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 ...


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