Durand v. Maritza

• Court: District Court, D. Nevada
• Decided: May 4, 2022
• Docket: 3:22-cv-00056
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ROBERTO DURAND, Case No. 3:22-cv-00056-RCJ-CSD 4 Plaintiff ORDER 5 v. 6 MARITZA, 7 Defendant 8 9 I. DISCUSSION 10 On March 3, 2022, this Court ordered Plaintiff to file a fully complete application to 11 proceed in forma pauperis ("IFP application") or pay the full $402 filing fee for a civil action 12 on or before March 21, 2022. (ECF No. 3 at 2). The Court specifically noted that Plaintiff’s 13 application to proceed in forma pauperis was not complete because had not submitted 14 an inmate account statement for the previous six-month period. (Id. at 1.) 15 On February 8, 2022, February 28, 2022, March 14, 2022, March 30, 2022, and 16 April 26, 2022, Plaintiff filed five incomplete IFP applications. (ECF Nos. 4, 6, 7, 8, 10). 17 Plaintiff has not submitted an inmate account statement for the previous six-month period 18 with any of his newly filed IFP application documents. The Plaintiff is advised that a 19 Financial Certificate (page 4 of this Court's application) and an inmate account statement 20 for the previous six-month period are two separate documents, and the Court requires 21 both to consider his IFP application fully complete. 22 Because it appears that an extension of the initial deadline and another court order 23 are meaningful alternatives to dismissal here, the Court will grant Plaintiff one final 24 opportunity to submit an inmate account statement for the previous six-month period to 25 the Court on or before June 4, 2022. See Henderson v. Duncan, 779 F.2d 1421, 1424 26 (9th Cir. 1986) (providing that “district court need not exhaust every sanction short of 27 dismissal before finally dismissing a case, but must explore possible and meaningful 28 alternatives”). 1 Plaintiff has also filed a motion entitled “Preemptory Challenge of Judge.” (ECF 2| No. 9 at 1.) The motion is filed on a standard Nevada State Court form and cites to 3| Nevada State Supreme Court Rule 48.1. (/d.) The motion refers to the undersigned as the currently assigned judge. (/d.) The Court liberally construes this as a motion to have anew Magistrate Judge assigned pursuant to 28 U.S.C. § 144. 6 Under 28 U.S.C. § 144, a party may file an affidavit asking that a new judge be 7 | assigned on the grounds that the assigned judge “has a personal bias or prejudice either against him or in favor of any adverse party.” Plaintiff did not provide such an affidavit or provide any explanation of the basis for his request that a new Magistrate Judge be assigned to this case. As such, the motion is denied. 11) Il. CONCLUSION 12 For the foregoing reasons, IT |S ORDERED that Plaintiff's incomplete applications 13 | to proceed in forma pauperis (ECF Nos. 4, 6, 7, 8, 10) are DENIED without prejudice. 14 IT IS ORDERED that on or before June 4, 2022, Plaintiff shall either: (1) file a fully complete IFP application, on the correct form with complete financial attachments in 16 | compliance with 28 U.S.C. § 1915(a); or (2) pay the full $402 fee for filing a civil action 17 | (which includes the $350 filing fee and the $52 administrative fee). 18 IT IS FURTHER ORDERED that, if Plaintiff does not timely comply with this order, this case will be subject to dismissal without prejudice for Plaintiff to refile the case with 20 | the Court, under a new case number, when Plaintiff is able to submit a fully complete application to proceed in forma pauperis or pay the full $402 filing fee for a civil action. 22 IT IS FURTHER ORDERED that the Court construes Plaintiffs “Preemptory 23 | Challenge of Judge” (ECF No. 9) as a motion requesting that a new Magistrate Judge be 24 | assigned to this case pursuant to 28 U.S.C. § 144. The motion is DENIED. 25 26 DATED THIS 4th day of May 2022. Cos 28 UNITED STATES MAGISTRATE JUDGE

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