Moreno v. Nev. Dept. Corr.

Opinion

2 UNITED STATES DISTRICT COURT 3

DISTRICT OF NEVADA 4

* * * 5

6 FLAVIO MORENO, Case No. 3:18-cv-00137-MMD-CBC

7 Plaintiff, ORDER v. 8 NEV. DEPT. CORR. et al., 9 Defendants. 10 11 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 12 1983 by an incarcerated person. Plaintiff has submitted an application to proceed in forma 13 pauperis. (ECF No. 1). Based on the financial information provided, the Court finds that 14 Plaintiff is unable to prepay the full filing fee in this matter. 15 The Court entered a screening order on April 25, 2019. (ECF No. 4). The screening 16 order imposed a 90-day stay and the Court entered a subsequent order in which the 17 parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 4, 12). The 18 Office of the Attorney General has filed a status report indicating that settlement has not 19 been reached and informing the Court of its intent to proceed with this action. (ECF No. 20 15). 21 Plaintiff has filed identical motions for temporary restraining order (“TRO”) and 22 preliminary injunction (ECF Nos. 7, 8). In the original complaint, Plaintiff was alleging that 23 prison officials refused to provide Plaintiff with surgery. (See ECF No. 5). The motions for 24 TRO and preliminary injunction acknowledge that prison officials provided Plaintiff with 25 surgery but Plaintiff seeks another surgery because he alleges the surgery was 26 unsuccessful. (See ECF No. 7 at 3–8). The Court denies the motions without prejudice 27 because the relief sought in the motions are not related to the original complaint. See Pac. 28 Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015) (holding 2 it. When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the 3 court does not have the authority to issue an injunction”). 4 For the foregoing reasons, it is therefore ordered that: 5 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is granted. 6 Plaintiff will not be required to pay an initial installment of the filing fee. In the event that 7 this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 8 1915(b)(2). 9 2. The movant herein is permitted to maintain this action to conclusion without 10 the necessity of prepayment of any additional fees or costs or the giving of security 11 therefor. This order granting leave to proceed in forma pauperis will not extend to the 12 issuance and/or service of subpoenas at government expense. 13 3. Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections 14 shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the 15 preceding month’s deposits to Plaintiff’s account (Flavio Moreno, #1049218), in the 16 months that the account exceeds $10.00, until the full $350.00 filing fee has been paid for 17 this action. The Clerk of the Court will send a copy of this order to the Finance Division of 18 the Clerk’s Office. The Clerk of the Court will also send a copy of this order to the attention 19 of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, 20 Carson City, NV 89702. 21 4. The Clerk of the Court must electronically serve a copy of this order and a 22 copy of Plaintiff’s complaint (ECF No. 5) on the Office of the Attorney General of the State 23 of Nevada by adding the Attorney General of the State of Nevada to the docket sheet. 24 This does not indicate acceptance of service. 25 5. Service must be perfected within 90 days from the date of this order pursuant 26 to Fed. R. Civ. P. 4(m). 27 6. Subject to the findings of the screening order (ECF No. 4), within 21 days of 28 the date of entry of this order, the Attorney General’s Office must file a notice advising the 2 names of the defendants for whom it does not accept service, and (c) the names of the 3 defendants for whom it is filing the last-known-address information under seal. As to any 4 of the named defendants for whom the Attorney General’s Office cannot accept service, 5 the Office must file, under seal, but will not serve the inmate Plaintiff the last known 6 address(es) of those defendant(s) for whom it has such information. If the last known 7 address of the defendant(s) is a post office box, the Attorney General’s Office must attempt 8 to obtain and provide the last known physical address(es). 9 7. If service cannot be accepted for any of the named defendant(s), Plaintiff 10 must file a motion identifying the unserved defendant(s), requesting issuance of a 11 summons, and specifying a full name and address for the defendant(s). For the 12 defendant(s) as to which the Attorney General has not provided last-known-address 13 information, Plaintiff must provide the full name and address for the defendant(s). 14 8. If the Attorney General accepts service of process for any named 15 defendant(s), such defendant(s) must file and serve an answer or other response to the 16 complaint (ECF No. 5) within 60 days from the date of this order. 17 9. Plaintiff must serve upon defendant(s) or, if an appearance has been 18 entered by counsel, upon their attorney(s), a copy of every pleading, motion or other 19 document submitted for consideration by the Court. Plaintiff will include with the original 20 document submitted for filing a certificate stating the date that a true and correct copy of 21 the document was mailed or electronically filed to the defendants or counsel for the 22 defendants. If counsel has entered a notice of appearance, Plaintiff must direct service to 23 the individual attorney named in the notice of appearance, at the physical or electronic 24 address stated therein. The Court may disregard any document received by a district judge 25 or magistrate judge which has not been filed with the Clerk, and any document received 26 by a district judge, magistrate judge, or the Clerk which fails to include a certificate showing 27 proper service. 28 10. This case is no longer stayed. 1 11. | The motions for TRO/preliminary injunction (ECF Nos. 7, 8) are denied 2 || without prejudice. 3 DATED THIS 17" day of September 2019. 4 ( a

MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28