Kern v. Johnson

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA

4 STEPHEN R.F. KERN, JR., Case No. 3:21-cv-00131-MMD-CLB

5 Plaintiff ORDER

6 v.

7 CALVIN JOHNSON,

8 Defendant

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

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