United States District Court, D. Nevada
C. Jones, United States District Judge.
the Court is Plaintiff's application to proceed in
forma pauperis. (ECF No. 1). Based on the information
regarding Plaintiff's financial status, the Court finds
that Plaintiff is not able to pay an initial installment
payment toward the full filing fee pursuant to 28 U.S.C.
§ 1915. Plaintiff will, however, be required to make
monthly payments toward the full $350.00 filing fee when he
has funds available.
42 U.S.C. § 1983, the Plaintiff sues Elko County and his
public defender, Ms. Julie Cavanaugh-Bill, because Ms.
Cavanaugh-Bill allegedly filed an appeal from his criminal
conviction too late. However, the Plaintiff cannot get the
relief that he requests under Section 1983.
Supreme Court has held that a prisoner in state custody
cannot use a Section 1983 action to challenge “the fact
or duration of his confinement, ” but instead must seek
federal habeas corpus relief or the appropriate state relief.
Wilkinson v. Dotson, 544 U.S. 74, 78 (2005); see
Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016)
(reiterating that the Supreme Court has “long held that
habeas is the exclusive vehicle for claims brought by state
prisoners that fall within the core of habeas, and such
claims may not be brought in a § 1983 action”). In
Wilkinson, the Supreme Court held that “a
state prisoner's [Section] 1983 action is barred (absent
prior invalidation)-no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings)-if success in that action would necessarily
demonstrate the invalidity of confinement or its
duration.” Id. at 81- 82. See Nettles v.
Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (reiterating
that the Supreme Court has “long held that habeas is
the exclusive vehicle for claims brought by state prisoners
that fall within the core of habeas, and such claims may not
be brought in a [Section] 1983 action”).
foregoing reasons, it is ordered that Plaintiff's
application to proceed in forma pauperis (ECF No. 1)
without having to prepay the full filing fee is
granted. Plaintiff will not
be required to pay an initial installment fee. Nevertheless,
the full filing fee will still be due, pursuant to 28 U.S.C.
§ 1915, as amended by the Prisoner Litigation Reform
Act. The movant herein is permitted to maintain this action
to conclusion without the necessity of prepayment of fees or
costs or the giving of security therefor. This order granting
in forma pauperis status will not extend to the
issuance and/or service of subpoenas at government expense.
further ordered that, pursuant to 28 U.S.C. §
1915(b)(2), the Elko County Jail will pay to the Clerk of the
United States District Court, District of Nevada, 20% of the
preceding month's deposits to the account of Wade
Alan Knight, #31672 (in months that the account
exceeds $10.00) until the full $350.00 filing fee has been
paid for this action. If Plaintiff should be transferred and
become under the care of the Nevada Department of
Corrections, the Elko County Jail Accounting Supervisor is
directed to send a copy of this order to the attention of the
Chief of Inmate Services for the Nevada Department of
Corrections, P.O. Box 7011, Carson City, NV 89702, indicating
the amount that Plaintiff has paid toward his filing fee, so
that funds may continue to be deducted from Plaintiffs
account. The Clerk will send a copy of this order to the Elko
County Jail Accounting Supervisor, 775 West Silver Street,
Elko, NV 89801.
further ordered that, even if this action is dismissed, or is
otherwise unsuccessful, the full filing fee will still be
due, pursuant to 28 U.S.C. §1915, as amended by the
Prisoner Litigation Reform Act.
FURTHER ORDERED that the case is dismissed, without
prejudice, in its entirety for failure to state a claim.
FURTHER ORDERED that the Clerk of the Court shall send
Plaintiff two copies of an in forma pauperis
application form for a prisoner, one copy of the instructions
for the same, two copies of a blank 28 U.S.C. § 2254
habeas corpus form, and one copy of instructions for the
FURTHER ORDERED that Plaintiff may file a habeas corpus
petition and an in forma pauperis application in a
new action, but he may not file any further documents in this
FURTHER ORDERED that this Court certifies that any in
forma pauperis appeal from this order would be taken
“in good ...