United States District Court, D. Nevada
ORDER RE: ECF NO. 1-1
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
who is an inmate in custody of the Nevada Department of
Corrections (NDOC), housed in Ely State Prison (ESP), has
filed and pro se civil rights complaint under 42 U.S.C.
§ 1983. He alleges that he asked his assigned Washoe
County Public Defender in his criminal cases to withdraw, and
this was ignored even though he could afford to hire counsel,
violating his rights. (ECF No. 1-1.)
plaintiff filing a complaint in this court must either pay
the filing fee or submit a completed in forma pauperis (IFP)
application if he is unable to do so. 28 U.S.C. §
1915(a)(1); LSR 1-1.
plaintiff filing a complaint is an inmate and wishes to
proceed IFP, he must also “submit a certificate from
the institution certifying the amount of funds currently held
in the applicant's trust account at the institution and
the net deposits in the applicant's account for the six
months prior to the date of submission of the
application.” LSR 1-2; see also 28 U.S.C.
§ 1915(a)(2). If the inmate has been at the institution
for less than six months, “the certificate must show
the account's activity for this shortened period.”
prisoner brings a civil action IFP, the prisoner is still
required to pay the full $350 filing fee. 28 U.S.C. §
1915(b)(1). The court will assess and collect (when funds
exist) an initial partial filing fee that is calculated as 20
percent of the greater of the average monthly deposits or the
average monthly balance for the six-month period immediately
preceding the filing of the complaint. 28 U.S.C. §
1915(b)(1)(A)-(B). After the initial partial filing fee is
paid, the prisoner is required to make monthly payments equal
to 20 percent of the preceding month's income credited to
the prisoner's account. 28 U.S.C. § 1915(b)(2). The
agency that has custody of the prisoner will forward payments
from the prisoner's account to the court clerk each time
the account exceeds $10 until the filing fees are paid. 28
U.S.C. § 1915(b)(2).
regular filing fee is $400, consisting of the $350 filing fee
and a $50 administrative fee. If an inmate does not qualify
for IFP status, he must pay the full $400 filing fee. If the
inmate qualifies for IFP status, the $50 administrative fee
is waived, and the inmate will only pay the $350 filing fee
did not pay the filing fee or submit a completed IFP
application for an inmate. It seems Plaintiff may not qualify
for IFP status in light of his allegation that he could
afford to pay private defense counsel in his criminal cases;
however, because that is not a certainty, the court will give
Plaintiff an opportunity to either pay the $400 filing fee or
submit a completed IFP application for an inmate and pay the
$350 fee over time.
Clerk shall SEND Plaintiff a copy of the
instructions and application to proceed IFP for an inmate.
Plaintiff has 30 days from the date of this
Order to either file his completed IFP application or pay the
full $400 filing fee.
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. 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 who is immune from such relief. If
the complaint is dismissed on screening, there will be no
refund of the filing fee, and an inmate proceeding IFP is
still required to pay the $350 filing fee over time.
court has undertaken a preliminary review of Plaintiff s
complaint and finds it is likely that Plaintiffs civil rights
complaint under section 1983 would be dismissed with
prejudice. This is because a claim under 1983 requires state
action and the assigned public defender would not be a state
actor when acting in the role of advocate. See Georgia v.
McCollum, 505 U.S. 42, 53 (1992); Polk County v.
Dodson, 454 U.S. 312, 320-25 (1981); Jackson v.
Brown, 513 F.3d 1057, 1079 (9th Cir. 2008).
light of this, Plaintiff is reminded that if he elects to
proceed with this action by paying the $400 filing fee or
submitting an inmate IFP application paying the fee over
time, the filing fee paid (either the $400 if non-IFP, or
$350 over time as an IFP inmate) will not be
refunded if his action is dismissed. If Plaintiff s intent
was to assert a claim for ineffective assistance of counsel,
he should alert the court, and this action will be dismissed
so that Plaintiff may assert such a claim in a habeas action
after exhausting applicable state remedies.