Iden v. Bean ( 2024 )

2 DISTRICT OF NEVADA 2 3 RICHARD IDEN, Case No. 3:24-cv-00406-MMD-CLB 3 4 Plaintiff ORDER 4 5 v. 5 6 BEAN, 6 7 Defendant 7 8 8 9 On September 9, 2024, pro se plaintiff Richard Iden, an inmate in the custody of 9 10 the Nevada Department of Corrections, submitted a complaint under 42 U.S.C. § 1983. 10 11 (ECF No. 1-1). Plaintiff has neither paid the full $405 filing fee for this matter nor filed an 11 12 application to proceed in forma pauperis. (See ECF No. 1). 12 13 I. FILING FEE 13 14 The United States District Court for the District of Nevada must collect filing fees 14 15 from parties initiating civil actions. 28 U.S.C. § 1914(a). As of December 1, 2023, the fee 15 16 for filing a civil-rights action is $405, which includes the $350 filing fee and the $55 16 17 administrative fee. See 28 U.S.C. § 1914(b). “Any person who is unable to prepay the 17 18 fees in a civil case may apply to the court for leave to proceed in forma pauperis.” Nev. 18 19 Loc. R. Prac. LSR 1-1. For an inmate to apply for in forma pauperis status, the inmate 19 20 must submit all three of the following documents to the Court: (1) a completed 20 21 Application to Proceed in Forma Pauperis for Inmate, which is pages 1–3 of the 21 22 Court’s approved form, that is properly signed by the inmate twice on page 3; (2) a 22 23 completed Financial Certificate, which is page 4 of the Court’s approved form, that is 23 24 properly signed by both the inmate and a prison or jail official; and (3) a copy of the 24 25 inmate’s prison or jail trust fund account statement for the previous six-month 25 26 period. See 28 U.S.C. § 1915(a)(1)–(2); Nev. Loc. R. Prac. LSR 1-2. In forma pauperis 26 27 status does not relieve an inmate of his or her obligation to pay the filing fee, it just means 27 28 that the inmate can pay the fee in installments. See 28 U.S.C. § 1915(b). 28 2 The Court also notes a possible exhaustion issue. Under the Prison Litigation 2 3 Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under 3 4 [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 4 5 other correctional facility until such administrative remedies as are available are 5 6 exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and 6 7 unexhausted claims cannot be brought in court. Booth v. Churner, 532 U.S. 731, 741 7 8 (2001); Jones v. Bock, 549 U.S. 199, 211 (2007). 8 9 “In a few cases, a prisoner’s failure to exhaust may be clear from the face of the 9 10 complaint. However, such cases will be rare because a plaintiff is not required to say 10 11 anything about exhaustion in his complaint.” Albino v. Baca, 747 F.3d 1162, 1169 (9th 11 12 Cir. 2014). The “failure to exhaust is an affirmative defense under the PLRA” and “inmates 12 13 are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 13 14 549 U.S. at 216. However, if it later comes to light that the plaintiff failed to exhaust his 14 15 administrative remedies on the claims raised in the complaint, the district court will 15 16 dismiss the unexhausted claims from the case. Id. at 219-21 (holding that the district court 16 17 may dismiss the unexhausted claims from the complaint but may proceed with the 17 18 exhausted claims). The plaintiff must exhaust his or her claims before filing a lawsuit and 18 19 cannot finish the exhaustion process during the case. See McKinney v. Carey, 311 F.3d 19 20 1198, 1199-1200 (9th Cir. 2002) (holding that the “district court must dismiss an action 20 21 involving prison conditions when the plaintiff did not exhaust his administrative remedies 21 22 prior to filing suit but [was] in the process of doing so when a motion to dismiss [was] 22 23 filed”). 23 24 In the complaint, Plaintiff states that on August 21, 2024, Plaintiff was transported 24 25 on a hot bus without air conditioning or water. (ECF No. 1-1 at 2-3.) Plaintiff initiated this 25 26 case on September 9, 2024, less than three weeks later. It seems unlikely that Plaintiff 26 27 would have been able to fully exhaust his administrative remedies during that period. If 27 28 Plaintiff needs to finish exhausting his administrative remedies, he may choose to file a 28 2 that if Plaintiff chooses to proceed with this case, he may be required to pay the full $405 2 3 filing fee, which includes the $350 filing fee and $55 administrative fee, even if the Court 3 4 later dismisses this case. 4 5 III. CONCLUSION 5 6 It is therefore ordered that Plaintiff has until November 20, 2024, to either pay the 6 7 full $405 filing fee or file a fully complete application to proceed in forma pauperis with all 7 8 three required documents: (1) a completed application with the inmate’s two signatures 8 9 on page 3, (2) a completed financial certificate that is signed both by the inmate and the 9 10 prison or jail official, and (3) a copy of the inmate’s trust fund account statement for the 10 11 previous six-month period. 11 12 Plaintiff is cautioned that this action will be subject to dismissal without prejudice if 12 13 Plaintiff fails to timely comply with this order. A dismissal without prejudice allows Plaintiff 13 14 to refile the case with the Court, under a new case number, when Plaintiff can file a 14 15 complete application to proceed in forma pauperis or pay the required filing fee. 15 16 The Clerk of the Court is directed to send Plaintiff the approved form application to 16 17 proceed in forma pauperis for an inmate and instructions for the same and retain the 17 18 complaint (ECF No. 1-1) but not file it at this time. 18 19 It is further ordered that if Plaintiff believes that he needs to finish exhausting his 19 20 administrative remedies before proceeding with a civil rights case, he may choose to file 20 21 a notice of voluntary dismissal without prejudice by November 20, 2024. 21 22 22 23 DATED THIS 20th day of September 2024. 23 24 24 25 25 UNITED STATES MAGISTRATE JUDGE 26 26 27 27 1 A dismissal without prejudice means that a plaintiff does not give up the right to 28 refile the case with the Court, under a new case number, when the plaintiff has exhausted 28