Ruiz v. Elko Police Department ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 VICTOR RUIZ, Case No.: 3:23-cv-00366-RCJ-CSD 4 Plaintiff Order 5 v. 6 ELKO POLICE DEPARTMENT, 7 Defendant 8 9 Plaintiff, who is an inmate in custody of the Elko County Jail, filed an application to 10 proceed in forma pauperis (IFP) (ECF No. 1) and pro se complaint (ECF No. 1-1). On August 7, 11 2023, the court denied Plaintiff’s IFP application without prejudice as incomplete, and the court 12 gave him 30 days to file a completed IFP application. (ECF No. 3.) 13 On September 11, 2023, Plaintiff filed a new IFP application. (ECF No. 4.) On October 14 10, 2023, he filed a third IFP application. (ECF No. 5.) 15 A person may be granted permission to proceed IFP if the person “submits an affidavit 16 that includes a statement of all assets such [person] possesses [and] that the person is unable to 17 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 18 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). 19 The Local Rules of Practice for the District of Nevada provide: “Any person who is 20 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 21 The application must be made on the form provided by the court and must include a financial 22 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 23 1 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 2 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 3 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 4 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 5 An inmate submitting an application to proceed IFP must also “submit a certificate from 6 the institution certifying the amount of funds currently held in the applicant’s trust account at the 7 institution and the net deposits in the applicant’s account for the six months prior to the date of 8 submission of the application.” LSR 1-2; see also 28 U.S.C. § 1915(a)(2). If the inmate has been 9 at the institution for less than six months, “the certificate must show the account’s activity for 10 this shortened period.” LSR 1-2. 11 If a prisoner brings a civil action IFP, the prisoner is still required to pay the full amount 12 of the filing fee. 28 U.S.C. § 1915(b)(1). The court will assess and collect (when funds exist) an 13 initial partial filing fee that is calculated as 20 percent of the greater of the average monthly 14 deposits or the average monthly balance for the six-month period immediately preceding the 15 filing of the complaint. 28 U.S.C. § 1915(b)(1)(A)-(B). After the initial partial filing fee is paid, 16 the prisoner is required to make monthly payments equal to 20 percent of the preceding month’s 17 income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2). The agency that has custody 18 of the prisoner will forward payments from the prisoner’s account to the court clerk each time 19 the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). 20 The court will first address the IFP application filed on September 11, 2023. (ECF No. 4.) 21 Plaintiff’s certified account statement indicates that his average monthly balance for the 22 last six months was $0 and his average monthly deposits were $0. The signature on the financial 23 signature is not legible. Moreover, it is followed by a page that has a handwritten ledger that lists 1 dates ranging from January 2, 2023 through August 15, 2013, which Ruiz purports to be his six- 2 month transaction history. The court finds that the failure to include a certificate with a legible 3 signature from a person with authority from the Elko County Jail as well as an official record of 4 his transactions from the last six months justifies denial of his second IFP application (ECF No. 5 4). 6 Plaintiff’s third IFP application (ECF No. 5) is also inadequate. It does not contain a 7 legible signature on the financial certificate and the six-month transaction history is completely 8 missing. Therefore, the third IFP application (ECF No. 4) is also denied. 9 CONCLUSION 10 (1) Plaintiff’s IFP applications (ECF Nos. 4 and 5) are DENIED. 11 (2) The Clerk shall SEND Plaintiff a copy of the instructions and application to proceed 12 IFP for an inmate. Plaintiff has 30 days from the date of this Order to either file his completed 13 IFP application or pay the full $402 filing fee. The application must be accompanied by all of the 14 required documents, including: 15 (a) the completed application to proceed IFP for an inmate on the court’s 16 approved form (i.e., pages 1-3 with the inmate’s two signatures on page 3); 17 (b) a financial certificate properly signed by both the inmate and a prison or jail 18 official (i.e., page 4 of the court’s approved form); and 19 (c) a copy of the inmate’s prison or jail trust fund account statement for the 20 previous six month period. 21 Once Plaintiff has filed his completed IFP application and financial certificate or paid the 22 filing fee, the court will screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) or 28 U.S.C. 23 § 1915A, or both. Both require dismissal of a complaint, or any portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. If the complaint is dismissed on screening, 3} there will be no refund of the filing fee, and an inmate proceeding IFP 1s still required to pay the $350 filing fee over time. 5 If Plaintiff fails to timely file a completed IFP application and financial certificate or pay the filing fee, the court will recommend dismissal of this action without prejudice. 7 IT IS SO ORDERED. 8 Dated: December 1, 2023 0 CS Oo Craig S. Denney 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23