Orth v. Duffy

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 SEAN RODNEY ORTH, 5 Case No. 2:21-cv-01988-GMN-VCF Plaintiff, 6 vs. ORDER 7 PHILLIP DUFFY, et al., 8 Defendants.

A P LA EP U APL P VI E EC R A TI OST I ( FO E IFN LC E T N AO O N P . R A1O ) M; C M EE NOE DTD I E OI DN N F FO OR RM A 9 COMPLAINT (ECF NO. 6); MOTION FOR 10 LEAVE TO FILE AN AMENDED COMPLAINT (ECF NO. 15) 11

12 Pro se plaintiff Sean Rodney Orth filed an application to proceed in forma pauperis (IFP). ECF 13 No. 1. I deny Orth’s IFP application without prejudice. I also deny his motions for leave to file an 14 amended complaint without prejudice, with leave to refile. ECF Nos. 6 and 15. 15 DISCUSSION 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. § 19 1915(h), as amended by the Prison Litigation Reform Act (“PLRA”), he remains obligated to pay the 20 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 21 22 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 23 Under the PLRA, a prisoner seeking leave to proceed IFP must submit a “certified copy of the 24 trust fund account statement (or institutional equivalent) for the prisoner for the six-month period 25 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 1 payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 2 average monthly balance in the account for the past six months, whichever is greater, unless the prisoner 3 4 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 5 prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any 6 month in which the prisoner's account exceeds $10, and forward those payments to the Court until the 7 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 8 Plaintiff is currently incarcerated. ECF No. 1. Plaintiff left portions of his IFP application blank. 9 For example, question one states that if the answer is “no” the inmate must provide more information 10 under “part 1b”: plaintiff checked “no” to question one but left part 1b blank. Id. at 1. Plaintiffs’ 11 application to proceed in forma pauperis is denied without prejudice. Since I deny plaintiff’s IFP 12 application, I do not screen his complaint now. Plaintiff also filed multiple motions to file an amended 13 complaint, so it is unclear which proposed amended complaint the plaintiff wishes the Court to screen. 14 Since I deny his IFP application, I also deny his motions for leave to file an amended complaint without 15 prejudice, with leave to refile. 16 17 ACCORDINGLY, 18 I ORDER that Orth’s application to proceed in forma pauperis (ECF No. 2) is DENIED without 19 prejudice. 20 I FURTHER ORDER that Orth has until Friday, May 20, 2022, to file an updated IFP 21 application or pay the filing fee. Failure to timely comply with this Order may result in case closure or a 22 recommendation for dismissal with prejudice. 23 I FURTHER ORDER that Orth’s motions for leave to file an amended complaint (ECF Nos. 6 24 and 15) are DENIED without prejudice. 25 2 I FURTHER ORDER that Orth has until Friday, May 20, 2022, to file a new proposed amended

5 complaint for screening. 3 NOTICE 4 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 5 || recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 6 || of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 7 || may determine that an appeal has been waived due to the failure to file objections within the specified 8 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file ° objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR JA 3-1, the plaintiff must immediately file

4 written notification with the court of any change of address. The notification must include proof of

15 service upon each opposing party’s attorney, or upon the opposing party if the party is unrepresented by 16 || Counsel. Failure to comply with this rule may result in dismissal of the action. 17 IT IS SO ORDERED. 18 DATED this 20th day of April 2022. . « ce oe 19

(CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25