Nunn v. CERT Officers of Ely State Prison ( 2023 )

2 DISTRICT OF NEVADA 2 3 3 TYRONE NOEL NUNN, Case No.: 3:23-cv-00571-ART-CLB 4 4 Plaintiff, 5 ORDER 5 v. 6 (ECF Nos. 1, 1-3, 1-4, 1-5, 3, 4) 6 CERT OFFICERS OF ELY STATE 7 PRISON, et al., 7 8 Defendants. 8 9 I. DISCUSSION 9 10 A. Application to Proceed In Forma Pauperis 10 11 On November 16, 2023, pro se plaintiff Tyrone Noel Nunn, an inmate in the custody 11 12 of the Nevada Department of Corrections, submitted an application to proceed in forma 12 13 pauperis together with several other documents. (ECF Nos. 1, 1-1, 1-2, 1-3, 1-4, 1-5, 1- 13 14 6, 1-7, 1-8). On November 28, 2023, Plaintiff refiled the same application to proceed in 14 15 forma pauperis. (ECF No. 4). Plaintiff’s applications to proceed in forma pauperis are 15 16 incomplete because he submitted a financial certificate for Nevada State Court, 16 17 rather than using this Court’s approved form. The Court will deny Plaintiff’s 17 18 applications without prejudice and give Plaintiff the opportunity to correct this deficiency 18 19 by February 9, 2024. 19 20 The United States District Court for the District of Nevada must collect filing fees 20 21 from parties initiating civil actions. 28 U.S.C. § 1914(a). The fee for filing a civil-rights 21 22 action is $402, which includes the $350 filing fee and the $52 administrative fee. See 28 22 23 U.S.C. § 1914(b). “Any person who is unable to prepay the fees in a civil case may apply 23 24 to the court for leave to proceed in forma pauperis.” Nev. Loc. R. Prac. LSR 1-1. For an 24 25 inmate to apply for in forma pauperis status, the inmate must submit all three of the 25 26 following documents to the Court: (1) a completed Application to Proceed in Forma 26 27 Pauperis for Inmate, which is pages 1–3 of the Court’s approved form, that is properly 27 28 signed by the inmate twice on page 3; (2) a completed Financial Certificate, which is 28 2 prison or jail official; and (3) a copy of the inmate’s prison or jail trust fund account 2 3 statement for the previous six-month period. See 28 U.S.C. § 1915(a)(1)–(2); Nev. 3 4 Loc. R. Prac. LSR 1-2. In forma pauperis status does not relieve an inmate of his or her 4 5 obligation to pay the filing fee, it just means that the inmate can pay the fee in installments. 5 6 See 28 U.S.C. § 1915(b). 6 7 B. Other Filings 7 8 Plaintiff filed two civil rights complaints on this Court’s approved form (ECF Nos. 8 9 1-1, 1-2) and three ex parte motions for appointment of counsel, each referencing 9 10 different claims (ECF Nos. 1-3, 1-4, 1-5). Plaintiff also filed a summons (ECF No. 1-6), a 10 11 civil rights complaint (ECF No. 1-7), and an affidavit of exhaustion of administrative 11 12 remedies (ECF No. 1-8). It is not clear whether Plaintiff intended all these documents to 12 13 be filed in a single action, or whether he intended to initiate several different cases. 13 14 Because the Clerk of the Court received all the documents together in a single PDF, the 14 15 Clerk of the Court filed them in a single case. 15 16 If Plaintiff intended all these documents to be filed together in a single case, then 16 17 the Court notes that the Court will not piecemeal Plaintiff’s complaint together from 17 18 multiple filings. Plaintiff’s operative complaint must contain all claims, defendants, and 18 19 factual allegations that Plaintiff wishes to pursue in this lawsuit. Accordingly, the Court 19 20 gives Plaintiff until February 9, 2024, to file a single complete first amended complaint. 20 21 Plaintiff’s operative complaint must contain all claims, defendants, and factual allegations 21 22 that Plaintiff wishes to pursue in this lawsuit. If Plaintiff does not file a single complete 22 23 complaint, the Court will screen the first complaint that Plaintiff has filed (ECF No. 1-1). 23 24 The Court will not consider any of the allegations or claims in Plaintiff’s other filings when 24 25 screening the complaint. 25 26 If Plaintiff intended to file any of these documents in a different, ongoing case, the 26 27 Court notes that Plaintiff must write the case number of a case on any document for that 27 28 document to be filed in an ongoing case. If Plaintiff intended to initiate several different 28 2 complaint and a separate application to proceed in forma pauperis for each case that he 2 3 opens. 3 4 C. Requests for Appointment of Counsel 4 5 Within his application to proceed in forma pauperis, Plaintiff requested that the 5 6 Court appoint counsel. (ECF No. 1 at 5-6). It appears that Plaintiff is requesting that 6 7 counsel be appointed specifically to assist him in filing a complete application to proceed 7 8 in forma pauperis. (Id.) Plaintiff also filed three ex parte motions for appointment of 8 9 counsel, each referencing different claims. (ECF Nos. 1-3, 1-4, 1-5). Plaintiff subsequently 9 10 filed a motion for appointment of counsel in all his ongoing court cases. (ECF No. 3). 10 11 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 11 12 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). 12 13 Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any 13 14 person unable to afford counsel.” However, the court will appoint counsel for indigent civil 14 15 litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th 15 16 Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances’ exist, 16 17 a court must consider ‘the likelihood of success on the merits as well as the ability of the 17 18 petitioner to articulate his claims pro se in light of the complexity of the legal issues 18 19 involved.” Id. “Neither of these considerations is dispositive and instead must be viewed 19 20 together.” Id. 20 21 The Court does not find exceptional circumstances that warrant the appointment 21 22 of counsel. As to Plaintiff’s request regarding appointment of counsel to assist in 22 23 preparing an application to proceed in forma pauperis, the Court is aware that there are 23 24 sometimes delays when inmates request financial certificates and trust fund account 24 25 statements from NDOC officials. However, these delays are faced by all inmates and do 25 26 not constitute exceptional circumstances warranting the appointment of counsel. Plaintiff 26 27 does not articulate any other exceptional circumstances that would justify appointment of 27 28 counsel to assist him in preparing an application to proceed in forma pauperis. 28 2 Plaintiff is pursuing in this case. The Court cannot assess Plaintiff’s likelihood to succeed 2 3 on the merits, or his ability to articulate his claims until Plaintiff either files a single 3 4 complaint or clarifies what claims he is pursuing in this case. The Court denies all of 4 5 Plaintiff’s requests for appointment of counsel without prejudice. 5 6 II. CONCLUSION 6 7 It is therefore ordered that both of Plaintiff’s applications to proceed in forma 7 8 pauperis (ECF Nos. 1, 4) are denied without prejudice. 8 9 It is further ordered that all of Plaintiff’s requests for appointment of counsel (ECF 9 10 Nos. 1, 1-3, 1-4, 1-5, 3) are denied without prejudice. 10 11 It is further ordered that Plaintiff has until February 9, 2024, to either pay the full 11 12 $402 filing fee or file a new fully complete application to proceed in forma pauperis with 12 13 all three required documents: (1) a completed application with the inmate’s two signatures 13 14 on page 3, (2) a completed financial certificate that is signed both by the inmate and the 14 15 prison or jail official, and (3) a copy of the inmate’s trust fund account statement for the 15 16 previous six-month period. 16 17 Plaintiff is cautioned that this action will be subject to dismissal without prejudice if 17 18 Plaintiff fails to timely comply with this order. A dismissal without prejudice allows Plaintiff 18 19 to refile the case with the Court, under a new case number, when Plaintiff can file a 19 20 complete application to proceed in forma pauperis or pay the required filing fee. 20 21 The Clerk of the Court is directed to send Plaintiff Tyrone Noel Nunn the approved 21 22 form application to proceed in forma pauperis for an inmate and instructions for the same. 22 23 It is further ordered that Plaintiff is granted leave to file a single complete first 23 24 amended complaint. If Plaintiff chooses to file a first amended complaint, Plaintiff will file 24 25 the first amended complaint within 30 days from the date of entry of this order. If Plaintiff 25 26 does not file a first amended complaint, the Court will screen the first complaint that 26 27 Plaintiff filed (ECF No. 1-1) without considering any of the allegations in Plaintiff’s other 27 28 filings. 28 1 The Clerk of the Court is directed to send to Plaintiff the approved form for filing a 2| § 1983 complaint, instructions for the same, and a copy of documents that he filed to 3] initiate this case (ECF Nos. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8). If Plaintiff chooses to file 4| a first amended complaint, he must use the approved form and he will write the words 5| “First Amended” above the words “Civil Rights Complaint” in the caption. 6 DATED THIS _6th_ day of December 2023. 8 ° wn SO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28