United States District Court, D. Nevada
William G. Cobb United States Magistrate Judge
is an inmate incarcerated within the Nevada Department of
Corrections (NDOC), currently housed at Northern Nevada
Correctional Center (NNCC). On August 22, 2019, he filed an
application to proceed in forma pauperis and pro se petition.
(ECF Nos. 1, 1-1.)
Local Rules of Practice for the District of Nevada provide:
“Any person who is unable to prepay the fees in a civil
case may apply to the court for authority to proceed in
forma pauperis (IFP). The application must be made on
the form provided by the court and must include a financial
affidavit disclosing the applicant's income, assets, and
liabilities.” LSR 1-1. When a prisoner seeks to proceed
without prepaying the filing fee, in addition to filing the
affidavit, the prisoner is required to submit a certified
copy of the trust fund account statement (or institutional
equivalent) for the six-month period immediately preceding
the filing of the complaint. The statement must be obtained
from the appropriate official at the prison or detention
facility where the prisoner is or was confined. 28 U.S.C.
prisoner brings a civil action IFP, the prisoner is still
required to pay the full amount of the filing fee. The court
is required to assess, and when funds exist, collect an
initial partial payment of 20 percent of the greater of: (A)
the average monthly deposits in the prisoner's account or
(B) the average monthly balance in the prisoner's account
for the six-month period immediately preceding the filing of
the complaint. Thereafter, whenever the prisoner's
account exceeds $10, the prisoner must make monthly payments
of 20 percent of the preceding month's income credited to
the prisoners account until the filing fees are paid. The
funds are to be forwarded by the agency having custody of the
prisoner. 28 U.S.C. § 1915(b)(1), (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
over time. If, on the other hand, Plaintiff is filing a
petition for writ of habeas corpus and seeking to proceed
IFP, if the court determines he qualifies for IFP status, he
will be required to pay only a $5 filing fee.
has submitted an IFP application, but the financial
certificate is not completed; therefore, his IFP application
will be denied without prejudice so that he may submit a
complete IFP application for an inmate.
Plaintiff has filed his completed IFP application or paid the
filing fee, (unless he is pursuing habeas relief) 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.
attached complaint is not completely legible, but it appears
he may take issue with a State court conviction or sentence.
If this is the case, then Plaintiff needs to file a petition
for habeas corpus after exhausting applicable State remedies.
If he is not seeking habeas relief, he needs to submit an
amended complaint that makes clear the relief he seeks and
that includes factual allegations to state a claim upon which
relief may be granted.
Plaintiffs IFP application (ECF No. 1) is DENIED
WITHOUT PREJUDICE. The 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.
Plaintiffs petition (ECF No. 1-1) is DISMISSED
WITHOUT PREJUDICE. The Clerk shall
SEND Plaintiff a copy of both the
instructions and form for filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, as well as
the 1983 civil rights complaint packet in case Plaintiff
wishes to pursue a civil rights claim under section 1983.
Plaintiff has 30 days from the date of this
Order to file an amended complaint: either a petition for
writ of habeas corpus under 28 U.S.C. § 2254, or a civil
rights complaint under section 1983. The amended complaint
must be legible.
Plaintiff fails to timely file a completed IFP application or
pay the filing fee as well as timely file an amended
complaint, this action will be dismissed.