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Washington v. State

United States District Court, D. Nevada

May 23, 2018

DEYAWN WASHINGTON, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER (IFP APP. - ECF NO. 1)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         This 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.

         Mr. 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.

         Pursuant 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.[1] 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).

         Here, 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] (2) a copy of the prisoner's trust account statement for the six-month period prior to filing, [3] and (3) a financial affidavit and acknowledgement signed by the prisoner showing an inability to prepay fees and costs or give security for them.[4] 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.

         In 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).

         Mr. 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).[5]Accordingly, IT IS ORDERED:

1. Plaintiff Deyawn Washington's Application to Proceed In Forma Pauperis (ECF No. 1) is DENIED WITHOUT PREJUDICE.
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 ...

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