United States District Court, D. Nevada
ORDER (IFP APP. - ECF NO. 1)
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiff Brian Daniels'
Application to Proceed In Forma Pauperis (ECF No.
1). This Application is referred to the undersigned pursuant
to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local
Rules of Practice.
Daniels is a prisoner in the custody of the Nevada Department
of Corrections at the Ely State Prison. He proceeding in this
action pro se, which means that he is not
represented by an attorney. See LSR 2-1. He has
submitted a proposed complaint and requested authority to
proceed in forma pauperis ("IFP"), meaning
without prepaying the filing fee.
to 28 U.S.C. § 1914(a) and the Judicial Conference
Schedule of Fees, a $400 filing fee is required to commence a
civil action in a federal district court. The court may
authorize a prisoner to begin an action without prepaying the
filing fee if the prisoner submits an IFP application on the
court's form along with the required supporting
documentation. 28 U.S.C. § 1915(a); LSR 1 -1, LSR 1
-2.In general, when a district court grants a
prisoner IFP status, federal law states that "the
prisoner shall be required to pay the full amount of the
filing fee." 28 U.S.C. § 1915(b)(1). Prisoners must
pay an initial partial filing fee of the greater of 20
percent (20%) of the average monthly deposits or 20 percent
(20%) of the average monthly balance of his account for the
six months immediately preceding the start of this action.
Id. A prisoner's failure to pay the initial
partial filing fee before the deadline stated in the
court's order, which typically allow 30 days, is
"cause for dismissal of the case." LSR 1-3(c).
After the initial partial filing fee is paid, the facility
having custody of the prisoner will forward payments from the
prisoner's account each month. 28 U.S.C. §
court is required to conduct a preliminary screening in any
case in which a prisoner is granted IFP status. 28 U.S.C.
§§ 1915(e)(2), l9l5A(a); Jones v. Bock,
549 U.S. 199, 213-14 (2007) (screening is required before
allowing an IFP complaint to move forward, issuing summonses,
or requiring an answer); see also LSR 1-3(e)
(stating that IFP applicants in civil rights actions
"must pay the full partial filing fee before the court
will order service of process"). Mr. Daniels is
therefore advised that even if this action is dismissed, he
must still pay the $350 base filing fee pursuant to §
1915(b) and the monthly payments will continue from his
inmate account until the balance is paid. See Washington
v. L.A. County Sheriff's Dep 't, 833 F.3d 1048,
1051-52 (9th Cir. 2016).
Daniels has requested authority to proceed IFP; however, his
IFP Application is incomplete. The Local Rules and §
1915 specifically require three items be submitted to this
court with a prisoner's IFP application: (1) a financial
certificate signed by an authorized prison official,
a copy of the prisoner's trust account statement for the
six-month period prior to filing,  and (3) a financial
affidavit and acknowledgement signed by the prisoner showing
an inability to prepay fees and costs or give security for
them. Additionally, LSR 1-1 states that a
prisoner's IFP "application must be made on the form
provided by the court." Id. The District of
Nevada has adopted two types of IFP applications, one for
prisoners and one for non-incarcerated persons.
prisoner IFP application required in this federal district
court differs from the application used in Nevada state
courts. For example, the financial affidavit and
acknowledgement used by this court includes more information
than the state court's affidavit and affirmation. Thus,
prisoners must submit the correct form for this court's
Mr. Daniels submitted the form used by the Nevada state
courts. His application therefore lacks the appropriate
financial information and documentation required by §
1915(a) and the Local Rules. Although Daniels may qualify to
proceed IFP, the court cannot determine the amount of the
initial partial filing fee because he has not submitted the
correct IFP application, inmate account statements, financial
certificate signed by an authorized prison official, or
financial affidavit and acknowledgement. Therefore, the court
will deny Daniels's IFP Application without prejudice.
Mr. Daniels failed to submit his complaint on the court's
approved form. LSR 2-1 of the Local Rules of Practice states
that a "civil rights complaint filed by a person who is
not represented by counsel must be submitted on the form
provided by this court'' Id. (emphasis added).
Daniels submitted a proposed complaint on what appears to be
lined notebook paper. If he wants to move forward with his
claims, he must submit the correct IFP application along with
an amended complaint on the court's approved form. Thus,
the Clerk of the Court will be directed to mail Daniels a
blank civil rights complaint and prisoner IFP application
along with the instructions for completing the forms.
IT IS ORDERED:
Plaintiff Brian Daniels' Application to Proceed In
Forma Pauperis (ECF No. 1) is DENIED without
prejudice 2. The Clerk of the Court shall MAIL Mr.
Daniels one blank form complaint for § 1983 civil rights
actions and IFP application for incarcerated litigants along
with the instructions for completing the forms and one copy
of the proposed Complaint (ECF No. 1-1).
Daniels must file a completed IFP application on or before
June 7, 2018, and must include: (i) a
financial certificate signed by an authorized prison official
and Daniels, (ii) a financial affidavit and acknowledgement
signed by Daniels, and (iii) a statement of his inmate trust
account for the six-month period prior to filing.
Alternatively, Mr. Daniels shall pay the $400 filing fee on
or before June 7, 2018.
Daniels's Complaint (ECF No. 1-1), is
DISMISSED with leave to file an ...