Carrillo v. Thomas

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA

4 GILBERTO CARRILLO, Case No. 3:21-cv-00423-MMD-CLB

5 Plaintiff ORDER

6 v.

7 KATHY THOMAS, et al.,

8 Defendants

9 10 I. DISCUSSION 11 On September 21, 2021, Plaintiff, Plaintiff, an inmate in the custody of the Nevada 12 Department of Corrections (“NDOC”),submitted a civil rights complaint under 42 U.S.C. § 13 1983 and filed an application to proceed in forma pauperis. (ECF Nos. 1-1, 1). Plaintiff’s 14 complaint and Plaintiff's application to proceed in forma pauperis are both incomplete. 15 Plaintiff's Complaint 16 Upon review, the Court notes that Plaintiff did not sign the complaint. (ECF No. 1- 17 1). Under Rule 11 of the Federal Rules of Civil Procedure, a plaintiff who is not 18 represented by counsel is required to sign his complaint. Fed. R. Civ. P. 11(a). Because 19 Plaintiff did not sign the complaint, the Court cannot consider it. 20 As such, the Court grants Plaintiff a one-time extension to submit a signed 21 amended complaint to the Court on or before November 22, 2021. If Plaintiff chooses to 22 file an amended complaint, he is advised that an amended complaint supersedes 23 (replaces) the original complaint and, thus, the amended complaint must be complete in 24 itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 25 (9th Cir. 1989). Therefore, a mere signature page will not be sufficient. Plaintiff should 26 file the amended complaint on this Court’s approved prisoner civil rights form, and it must 27 be entitled “First Amended Complaint.” 28 / / / 1 Plaintiff's Application to Proceed in Forma Pauperis 2 Plaintiff has filed an incomplete application to proceed in forma pauperis. (ECF 3 No. 1). Plaintiff has not submitted a financial certificate or an inmate account statement 4 with his application. 5 Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, an inmate seeking to begin 6 a civil action in this Court may apply to proceed in forma pauperis in order to file the civil 7 action without prepaying the full $402 filing fee. To apply for in forma pauperis status, the 8 inmate must submit all three of the following documents to the Court: 9 (1) a completed Application to Proceed in Forma Pauperis for Inmate, this 10 Court’s approved form (i.e. pages 1 through 3 with the inmate’s two signatures on 11 page 3), 12 (2) a Financial Certificate properly signed by both the inmate and a prison or jail 13 official (i.e. page 4 of this Court’s approved form), and 14 (3) a copy of the inmate’s prison or jail trust fund account statement for the 15 previous six-month period. 16 Accordingly, the Court denies Plaintiff's application to proceed in forma pauperis 17 (ECF No. 1) without prejudice because the application is incomplete. 18 The Court will grant Plaintiff a one-time extension until on or before November 19 22, 2021, to file either a fully complete application to proceed in forma pauperis containing 20 all three of the required documents or pay the full $402 filing fee. Absent unusual 21 circumstances, the Court will not grant any further extensions of time. 22 If Plaintiff does not file either a fully complete application to proceed in forma 23 pauperis with all three required documents or pay the full $402 filing fee on or before 24 November 22, 2021, this case will be subject to dismissal without prejudice for Plaintiff 25 to file a new case with the Court when Plaintiff is able to either acquire all three of the 26 documents needed to file a fully complete application to proceed in forma pauperis or 27 pays the full $402 filing fee. 28 A dismissal without prejudice means Plaintiff does not give up the right to refile the 1 case with the Court, under a new case number, when Plaintiff is able to file a signed 2 amended complaint and has all three documents needed to submit with the application 3 to proceed in forma pauperis. Plaintiff may also choose not to file an application to 4 proceed in forma pauperis and instead pay the full filing fee of $402 on or before 5 November 22, 2021 to proceed with this case. 6 II. CONCLUSION 7 For the foregoing reasons, IT IS ORDERED that the Clerk of the Court will send to 8 Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a 9 copy of his original complaint. (ECF No. 1-1). If Plaintiff files an amended complaint, he 10 should use the Court's approved form and he must write the words “First Amended” above 11 the words “Civil Rights Complaint” in the caption. 12 IT IS FURTHER ORDERD that if Plaintiff chooses to file a signed amended 13 complaint, Plaintiff will file the signed amended complaint to this Court on or before 14 November 22, 2021. 15 IT IS FURTHER ORDERED that, if Plaintiff does not file a signed amended 16 complaint on or before November 22, 2021, this case will be subject to dismissal without 17 prejudice for Plaintiff to refile the case with the Court, under a new case number, when 18 Plaintiff is able to file a signed amended complaint. 19 IT IS FURTHER ORDERED that Plaintiff’s application to proceed in forma pauperis 20 (ECF No. 1) is denied without prejudice to file either a new and fully complete application 21 to proceed in forma pauperis with all three documents or pay the full $402 filing fee. 22 IT IS FURTHER ORDERED that the Clerk of the Court will send Plaintiff the 23 approved form application to proceed in forma pauperis by an inmate, as well as the 24 document entitled information and instructions for filing an in forma pauperis application. 25 IT IS FURTHER ORDERED that on or before November 22, 2021, Plaintiff will 26 either pay the full $402 filing fee for a civil action (which includes the $350 filing fee and 27 the $52 administrative fee) or file with the Court: 28 (1) a completed Application to Proceed in Forma Pauperis for Inmate on this 1 Court’s approved form (i.e. pages 1 through 3 of the form with the inmate’s two 2 signatures on page 3), 3 (2) a Financial Certificate properly signed by both the inmate and a prison or jail 4 Official (i.e. page 4 of this Court’s approved form), and 5 (3) a copy of the inmate’s prison or jail trust fund account statement for the previous six-month period. 7 IT IS FURTHER ORDERED that, if Plaintiff does not file a fully complete application to proceed in forma pauperis with all three documents or pay the full $402 9 | filing fee for a civil action on or before November 22, 2021, this case will be subject to dismissal without prejudice for Plaintiff to refile the case with the Court, under a new case 11| number, when Plaintiff has all three documents needed to file a complete application to proceed in forma pauperis or pays the full $402 filing fee. 13 DATED: September 23, 2021 14 .

15 UNITED STATES\MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28

-4-