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 Deyawn Washington
Application to Proceed In Forma Pauperis (ECF No. 1)
pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local
Rules of Practice. 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.
Washington is a prisoner in the custody of the Nevada
Department of Corrections at the High Desert State Prison. He
proceeding in this action pro se, which means that
he is not represented by an attorney. See LSR 2-1.
Washington has also requested permission 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
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. § 1915(b)(2).
Mr. Washington 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,  (2) a copy of the prisoner's trust
account statement for the six-month period prior to filing,
(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. Mr.
Washington submitted the required affidavit and
acknowledgement on the form provided by this court, but he
did not include a certified copy of his inmate trust account
statement or the correct financial certificate. The prisoner
IFP application required in this federal district court
differs from the application used in Nevada state courts. It
appears that he submitted the financial certificate provided
by the Nevada state courts, which does not contain the
appropriate financial information regarding an inmate's
current account balance, average account balance, average
monthly deposits, and the resulting filing fee as required by
§ 1915(a). Thus, prisoners must submit the correct form
for this court's review. Although he may qualify to
proceed IFP, the court cannot determine the amount of the
initial partial filing fee because Mr. Washington has not
submitted the certified trust fund account statement and the
correct financial certificate signed by an authorized prison
official. Therefore, the court will deny Mr. Washington's
IFP Application without prejudice.
addition, the court notes that it is required to conduct a
preliminary screening in any case in which a prisoner is
granted IFP status or seeks damages from a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. §§ 1915(e)(2), 1915A(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 a responsive pleading); 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”). In
its screening, the court identifies any plausible claims and
dismisses any claims that are frivolous, malicious, fail to
state a claim upon which relief may be granted or seek
monetary relief from a defendant who is immune from such
relief. 42 U.S.C. § 1997e; 28 U.S.C. § 1915A(b).
Mr. Washington 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).
Washington's complaint attempts to state a claim against
defendants, for violating his due process and equal
protection rights for failing to bring him to trial in his
state criminal proceeding within 60 days. He claims he did
not waive his right to trial within 60 days, that his trial
was set 95 days from his initial arraignment and as a result
there was a delay in getting the case formally dismissed.
This delay “caused a snowball effect” and kept
him in custody on a parole violation longer because he could
not get to the Parole Board to have his parole reinstated.
Mr. Washington is advised that federal district courts do not
have appellate jurisdiction over a state court, whether by
direct appeal, mandamus, or otherwise. See, e.g.,
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16
(1923); D.C. Court of Appeals v. Feldman, 460 U.S.
462, 482-86 (1983). It is unclear whether Washington has any
pending criminal case, or whether he is incarcerated as a
result of a prior conviction and parole violation. When a
prisoner files a civil rights action, the Younger
abstention doctrine generally prevents federal courts from
interfering in pending state criminal proceedings, even if
there is an allegation of a constitutional violation.
Younger v. Harris, 401 U.S. 37, 53-54
(1971).Accordingly, IT IS
1. Plaintiff Deyawn Washington's Application to Proceed
In Forma Pauperis (ECF No. 1) is DENIED WITHOUT
2. The Clerk of Court shall RETAIN the Complaint (ECF No.
1-1), but SHALL NOT issue summons.
3. The Clerk of Court shall MAIL Mr. Washington a blank IFP
application for incarcerated litigants along with
instructions for completing the application.
4. Mr. Washington must file a completed IFP application on or
before June 22, 2018, and must include: (i)
a financial certificate signed by an authorized prison
official and Mr. Washington, (ii) a financial affidavit and
acknowledgement signed by Mr. Washington, and (iii) a
statement of his inmate trust account for the six-month
period prior to filing.
5. Alternatively, Mr. Washington shall pay the $400 filing
fee, accompanied by a copy of this Order, on or before
June 22, 2018.
6. Mr. Washington's failure to comply with this Order by
(a) submitting a completed IFP application with the required
documents, or (b) paying the filing fee before the
June20, 2018 deadline will
result in a ...