Allison v. The State of Nevada

Opinion

3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** Ronald Allison, 8 Case No. 2:21-cv-01411-RFB-MDC Plaintiff, 9 vs. ORDER 10 The State of Nevada, 11 Defendant.

Incarcerated pro se plaintiff Ronald Allison filed a complaint, but he did not pay the filing fee or 13 14 file an application to proceed in forma pauperis. 15 Under 28 U.S.C. § 1914(a), a filing fee is required to commence a civil action in federal court. 16 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 17 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 18 pay such fees or give security therefor.” If the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915(h), 19 as amended by the Prison Litigation Reform Act ("PLRA"), he remains obligated to pay the entire fee in 20 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 21 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 22 Under the PLRA, a prisoner seeking leave to proceed IFP must submit a "certified copy of the 23 trust fund account statement (or institutional equivalent) for the prisoner for the six-month period 24 immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 25 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 1 average monthly balance in the account for the past six months, whichever is greater, unless the prisoner 2 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 3 4 prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any 5 month in which the prisoner's account exceeds $10, and forward those payments to the Court until the 6 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 7 Plaintiff must pay the full filing fee or file an application to proceed in forma pauperis that 8 complies with the PLRA. 9 ACCORDINGLY, 10 I ORDER that Plaintiff has until Monday, February 19, 2024, to pay the filing fee in full or file 11 an application to proceed in forma pauperis. Failure to comply with this order may result in dismissal of 12 this case or an order that this case be administratively closed. 13 NOTICE 14 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 15 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 16 17 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 18 may determine that an appeal has been waived due to the failure to file objections within the specified 19 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 20 This circuit has also held that (1) failure to file objections within the specified time and (2) 21 failure to properly address and brief the objectionable issues waives the right to appeal the District 22 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 23 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 24 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 25 2 change of address. The notification must include proof of service upon each opposing party’s attorney,

5 |} OF upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 3 || result in dismissal of the action. 4 IT IS SO ORDERED. Ah _ ALS 5 DATED this 19th day of January 2024. Y ip x 6 Li) JMAXIMILIMKO D. COUOVILLIER III UNITED STATES GISTRATE JUDGE 2 fo 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25