Nunn v. University Medical Center ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 TYRONE NOEL NUNN, Case No. 3:23-cv-00496-LRH-CLB 4 Plaintiff, ORDER 5 v. 6 UNIVERSITY MEDICAL CENTER, et al., 7 Defendants. 8 9 I. DISCUSSION 10 On October 12, 2023, this Court directed Plaintiff Tyrone Noel Nunn, an inmate in 11 the custody of the Nevada Department of Corrections (“NDOC”), to file a complaint and 12 an application to proceed in forma pauperis in this matter. (ECF No. 3). 13 On November 28, 2023, Plaintiff filed an application to proceed in forma pauperis. 14 (ECF No. 5). However, Plaintiff’s application to proceed in forma pauperis is incomplete. 15 Plaintiff has not submitted a completed financial certificate on this Court’s approved form. 16 (See id. at 4). 17 Plaintiff did not submit a complaint but instead filed a motion for appointment of 18 counsel. (ECF No. 4). However, the motion for appointment of counsel appears to ask 19 the Court to grant Plaintiff in forma pauperis status. (Id. at 3). Plaintiff’s motion is 42 20 pages long and contains documents that do not relate to the motion for counsel. (Id. at 21 1-42). 22 A. Filing Fee 23 The United States District Court for the District of Nevada must collect filing fees 24 from parties initiating civil actions. 28 U.S.C. § 1914(a). The fee for filing a civil-rights 25 action is $402, which includes the $350 filing fee and the $52 administrative fee.1 See 28 26 U.S.C. § 1914(b). “Any person who is unable to prepay the fees in a civil case may apply 27 28 1 The filing fee for cases initiated on December 1, 2023, or later, is $405, which includes the $350 statutory filing fee and the $55 administrative fee. 1 to the court for leave to proceed in forma pauperis.” Nev. Loc. R. Prac. LSR 1-1. For an 2 inmate to apply for in forma pauperis status, the inmate must submit all three of the 3 following documents to the Court: (1) a completed Application to Proceed in Forma 4 Pauperis for Inmate, which is pages 1–3 of the Court’s approved form, that is properly 5 signed by the inmate twice on page 3; (2) a completed Financial Certificate, which is 6 page 4 of the Court’s approved form, that is properly signed by both the inmate and a 7 prison or jail official; and (3) a copy of the inmate’s prison or jail trust fund account 8 statement for the previous six-month period. See 28 U.S.C. § 1915(a)(1)–(2); Nev. 9 Loc. R. Prac. LSR 1-2. In forma pauperis status does not relieve an inmate of his or her 10 obligation to pay the filing fee, it just means that the inmate can pay the fee in installments. 11 See 28 U.S.C. § 1915(b). 12 As explained above, Plaintiff’s application to proceed in forma pauperis is 13 incomplete. The Court will grant Plaintiff an extension of time to either pay the $402 filing 14 fee or file a completed financial certificate on this Court’s approved form. 15 B. Complaint 16 As explained in this Court’s previous order, under Federal Rule of Civil Procedure 17 3, “[a] civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3; 18 see ECF No. 3. The Court will sua sponte grant Plaintiff one final opportunity to submit a 19 complaint to this Court on or before February 2, 2024. 20 C. Motion for Appointment of Counsel 21 Plaintiff has filed a motion for appointment of counsel but does not explain why he 22 needs counsel. (ECF No. 4). A litigant does not have a constitutional right to appointed 23 counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 24 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an 25 attorney to represent any person unable to afford counsel.” However, the court will 26 appoint counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. 27 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether 28 ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of success on the 1| merits as well as the ability of the petitioner to articulate his claims pro se in light of the 2| complexity of the legal issues involved.” /d. “Neither of these considerations is dispositive and instead must be viewed together.” /d. 4 In the instant case, the Court denies the motion for appointment of counsel without 5 | prejudice. Plaintiff has not submitted a complaint, settled the matter of the filing fee, and 6 | has not set forth any exceptional circumstances warranting the appointment of counsel. 7) UL CONCLUSION 8 For the foregoing reasons, it is ordered that the Clerk of the Court will send Plaintiff 9 | the approved form and instructions for an application to proceed in forma pauperis by an inmate and the approved form and instructions for filing a 42 U.S.C. § 1983 complaint for inmate. 12 It is further ordered that on or before February 2, 2024, Plaintiff will either pay the 13 | full $402 filing fee or file a completed financial certificate on this Court’s approved form. 14 It is further ordered that on or before February 2, 2024, Plaintiff will submit a complaint to this Court. 16 It is further ordered that the motion for appointment of counsel (ECF No. 4) is 17 | denied without prejudice. 18 Plaintiff is cautioned that this action will be subject to dismissal without prejudice if Plaintiff fails to timely comply with this order. A dismissal without prejudice allows Plaintiff 20 | to refile the case with the Court, under a new case number, when Plaintiff can file a 21 complaint and a complete application to proceed in forma pauperis or pay the required 22 | filing fee. 23 24 DATED: December 27, 2023 . 25 26 UNITED sae rT JUDGE 27 28 -3-