Motley v. Vandyke ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Courtney Motley, 2:24-cv-00981-CDS-MDC 4 Plaintiff(s), ORDER DENYING THE IFP APPLICATION WITHOUT PREJUDICE, WITH LEAVE TO 5 vs. REFILE (ECF NO. 1) 6 B. Vandyke, et al., 7 Defendant(s). 8 Incarcerated pro se plaintiff Courtney Motley filed an Application to Proceed In Forma Pauperis 9 (“IFP”). ECF No. 1. The Court DENIES the IFP application without prejudice, with leave to refile. Id. 10 I. LEGAL STANDARD 11 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 12 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 13 pay such fees or give security therefor.” If the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915(h), 14 as amended by the Prison Litigation Reform Act ("PLRA"), he remains obligated to pay the entire fee in 15 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 16 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 Under the PLRA, a prisoner seeking leave to proceed IFP must submit a "certified copy of the 18 trust fund account statement (or institutional equivalent) for the prisoner for the six-month period 19 immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 20 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 21 payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 22 average monthly balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 24 prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any 25 1 month in which the prisoner's account exceeds $10, and forward those payments to the Court until the 2 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 3 II. PLAINTIFF’S IFP APPLICATION 4 Plaintiff Motley is currently incarcerated. Plaintiff’s IFP application is deficient for several 5 reasons. First, while plaintiff submitted the prisoner IFP application, a copy of declaration and the 6 financial certificate, the financial certificate is from 2021. ECF No. 1 at 4. Second, plaintiff’s trust fund 7 account statement (or institutional equivalent) is also from 2021, instead of from the past six months. 8 The Court thus denies plaintiff’s IFP application, with leave to refile one that complies with the PLRA. 9 IT IS ORDERED that: 10 1. Plaintiff Courtney Motley’s Application to Proceed In Forma Pauperis (ECF No. 1) is 11 DENIED without prejudice. 12 2. By August 29, 2024, plaintiff Motley shall either pay the full filing fee OR file a fully 13 complete IFP application. The IFP application must include: 14 a. A completed financial certificate with a current date; and 15 b. A copy of the inmate's trust fund account statement for the previous six-month 16 period. 17 3. Failure to timely comply with this Order may result in a recommendation that this case be 18 19 dismissed with prejudice. 20 4. The Clerk of the Court is directed NOT to issue summons. The Court will issue a screening 21 order on the complaint after plaintiff either files a new IFP or pays the filing fee. See 28 22 U.S.C. § 1915(e)(2). 23 NOTICE 24 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 25 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 1 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 2 may determine that an appeal has been waived due to the failure to file objections within the specified 3 4 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 5 objections within the specified time and (2) failure to properly address and brief the objectionable issues 6 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 7 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 8 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 9 notification with the court of any change of address. The notification must include proof of service upon 10 each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 11 Failure to comply with this rule may result in dismissal of the action. 12 13 DATED this 30th day of July 2024. 14 IT IS SO ORDERED. 15 _________________________ 16 Hon. Maximiliano D. Couvillier III United States Magistrate Judge 17 18 19 20 21 22 23 24 25