Nunn v. Ely State Prison

2 DISTRICT OF NEVADA [3] 3 TYRONE NOEL NUNN, Case No.: 3:23-cv-00540-MMD-CSD [4] 4 Plaintiff, 5 ORDER 5 v. 6 (ECF Nos. 4, 5, 6) 6 ELY STATE PRISON, et al., [7] 7 Defendants. [8] This is one of numerous civil-rights actions under 42 U.S.C. § 1983 that pro se [9] Plaintiff Tyrone Noel Nunn, an inmate in the custody of the Nevada Department of [10] Corrections, has filed since September 2023. On November 8, 2023, this Court ordered [11] Plaintiff to submit a complaint and either pay the full $402 filing fee for a civil action or file [12] a complete application to proceed in forma pauperis (“IFP”) on or before January 5, 2024. [13] (ECF No. 3). Before that deadline expired, Plaintiff filed a document titled “Initiation of [14] Actions”1 that is a collection of handwritten statutes, a vague “affidavit” about exhaustion [15] of administrative remedies, multiple ex parte requests for the appointment of counsel, [16] prison classification papers, documents from one of Plaintiff’s state criminal cases, an [17] incomplete IFP application, and a proposed summons. (ECF Nos. 4, 5). Plaintiff [18] subsequently filed a document which appears to be a motion to consolidate several cases [19] and includes several more requests for appointment of counsel and affidavits. (ECF No. [20] 6). [21] For the reasons discussed below, the Court denies Plaintiff’s requests for [22] appointment of counsel and grants him a final extension of time to file a single, complete [23] complaint and either pay the full $402 filing fee or file a completed financial certificate on [25] this Court’s approved form. [28] 28 1 The Clerk’s Office identified this document as a “motion for appointment of 2 A. Plaintiff must file a single, complete complaint. [2] 3 “A civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. [3] 4 3. Generally, a complaint must contain “a short and plain statement of the claim showing [4] 5 that the [plaintiff] is entitled to relief” and “a demand for the relief sought, which may [5] 6 include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8. “A civil-rights [6] 7 complaint filed by a person who is not represented by an attorney must be submitted on [7] 8 the form provided by this court or must be legible and contain substantially all the [8] 9 information called for by the court’s form.” Nev. Loc. R. LSR 2-1. And the complaint must [9] 10 be signed personally by the unrepresented party. Fed. R. Civ. P. 11(a). Furthermore, a [10] 11 party must state its claims or defenses in numbered paragraphs, each limited as far as [11] 12 practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). “[E]ach claim founded [12] 13 on a separate transaction or occurrence . . . must be stated in a separate count.” Id. [13] 14 Furthermore, “[p]laintiffs generally have ‘no right to maintain two separate actions [14] 15 involving the same subject matter at the same time in the same court and against the [15] 16 same defendant.’” Adams v. Cal. Dept. of Health Servs., 487 F.3d 684 , 688 (9th Cir. [16] 17 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008), (quoting [17] 18 Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)). And duplicative litigation by a [18] 19 litigant who is proceeding under IFP status can be dismissed as malicious and thus [19] 20 constitute a strike under the Prison Litigation Reform Act, 28 U.S.C. § 1915 . See Cato v. [20] 21 United States, 70 F.3d 1103 , 1105 n.2 (9th Cir. 1995). [21] 22 It is not clear whether any of the documents that Plaintiff filed are intended to [22] 23 constitute a complaint. Plaintiff’s filings include at least 11 different documents with titles [23] 24 indicating that they are some combination of a motion for appointment of counsel, an [24] 25 affidavit, and a civil rights complaint. (See ECF No. 4 at 11, 21; ECF No. 6 at 4, 9, 12, [25] 26 22, 25, 27, 37, 40, 45). These documents include different claims and different [26] 27 defendants. (Id.). Some of them are duplicates from other cases (ECF No. 6 at 45-48), [27] 28 and all of them have been simultaneously filed in multiple other cases. (See ECF No. 4 [28] 2 Plaintiff gives no indication as to which, if any, of these documents represent the [2] 3 complaint or the claims that he wishes to pursue in this case, as opposed to a complaint [3] 4 or claims for one of his other cases. Furthermore, none of the documents comply with [4] 5 Federal Rules of Civil Procedure 8 and 10. Accordingly, the Court does not accept any [5] 6 of the filed documents as an operative complaint in this case. [6] 7 The Court gives Plaintiff a final extension of time to file a single complaint that [7] 8 complies with these rules and indicates the claims and defendants that Plaintiff is [8] 9 pursuing in this case. The Court reiterates for Plaintiff’s benefit that he may not bring [9] 10 multiple different complaints in a single case. Nor may he bring the same complaint in [10] 11 multiple different cases. Rather, Plaintiff must bring a single, unique complaint in each of [11] 12 his cases. [12] 13 B. Plaintiff must either pay the $402 filing fee or file a financial certificate. [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). The fee for filing a civil-rights [15] 16 action is $402, which includes the $350 filing fee and the $52 administrative fee. See id. [16] 17 at § 1914(b). “Any person who is unable to prepay the fees in a civil case may apply to [17] 18 the court for leave to proceed in forma pauperis.” Nev. Loc. R. LSR 1-1. For an inmate [18] 19 to apply for in forma pauperis status, the inmate must submit all three of the following [19] 20 documents to the Court: (1) a completed Application to Proceed in Forma Pauperis [20] 21 for Inmate, which is pages 1–3 of the Court’s approved form, that is properly signed by [21] 22 the inmate twice on page 3; (2) a completed Financial Certificate, which is page 4 of the [22] 23 Court’s approved form, that is properly signed by both the inmate and a prison or jail [23] 24 official; and (3) a copy of the inmate’s prison or jail trust fund account statement for [24] 25 the previous six-month period. See 28 U.S.C. § 1915 (a)(1)–(2); Nev. Loc. R. LSR 125 26 2. In forma pauperis status does not relieve an inmate of his or her obligation to pay the [26] 27 filing fee, it just means that the inmate can pay the fee in installments. See 28 U.S.C. § 27 28 1915(b). [28] 2 certificate on this Court’s approved form. (See ECF No. 5 at 4). Rather, Plaintiff [2] 3 submitted a financial certificate that purports to be for state court. (Id.) The Court grants [3] 4 Plaintiff a final extension of time to either pay the full $402 filing fee or file a completed [4] 5 financial certificate on this Court’s approved form. [5] 6 C. The requests for appointment of counsel are denied without prejudice. [6] 7 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 7 8 1983 civil-rights actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). [8] 9 Under 28 U.S.C. § 1915 (e)(1), “[t]he court may request an attorney to represent any [9] 10 person unable to afford counsel.” However, the court will appoint counsel for indigent [10] 11 civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965 , 970 [11] 12 (9th Cir. 2009). “When determining whether exceptional circumstances exist, a court [12] 13 must consider the likelihood of success on the merits as well as the ability of the petitioner [13] 14 to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. [14] 15 (quotation omitted). “Neither of these considerations is dispositive and instead must be [15] 16 viewed together.” Id. [16] 17 Plaintiff’s filings include multiple requests for appointment of counsel for a variety [17] 18 of different claims. (ECF No. 4 at 11, 21, 32; ECF No. 6 at 9, 12, 22, 25, 27, 31, 35, 37, [18] 19 40, 49). The Court finds that exceptional circumstances warranting the appointment of [19] 20 counsel do not currently exist. Plaintiff has neither settled the matter of the filing fee nor [20] 21 filed a complaint that clearly indicates the claims that Plaintiff is pursuing in this case. The [21] 22 requests for appointment of counsel are therefore denied without prejudice. [22] 23 D. The motion for consolidation is denied without prejudice. [23] 24 Plaintiff filed a motion requesting that this case be consolidated with seven other [24] 25 cases and proceed before a three-judge panel. (ECF No. 6 at 3). Federal Rule of Civil [25] 26 Procedure 42(a) provides that a court may consolidate the actions if the actions “involve [26] 27 a common question of law or fact.” Fed. R. Civ. P. 42(a)(2). Plaintiff has not yet filed a [27] 28 single, complete complaint that indicates the claims that Plaintiff is pursuing in this case. [28] 4| As such, the Court cannot determine whether this case has any questions in common 2| with Plaintiff's other cases, and the Court denies the motion without prejudice. 3) IL. CONCLUSION 4 For the foregoing reasons, it is ordered that Plaintiff's requests for appointment of 5| counsel (ECF No. 4, 6) are denied without prejudice. 6 It is further ordered that Plaintiff's incomplete application to proceed in forma 7| pauperis (ECF No. 5) is denied without prejudice. 8 It is further ordered that Plaintiff's motion to consolidate cases (ECF No. 6) is g| denied without prejudice. 10 It is further ordered that, on or before March 15, 2024, Plaintiff will either pay the 41| full $402 filing fee or file a complete application to proceed in forma pauperis on this 42| Court's approved form. 13 It is further ordered that, on or before March 15, 2024, Plaintiff will submit a single, 44| complete complaint, indicating the claims and defendants that Plaintiff is pursuing in this 15| specific action to this Court. 16 Plaintiff is cautioned that this action will be subject to dismissal without prejudice if 17| he fails to timely comply with this order. A dismissal without prejudice allows Plaintiff to 18| refile the case with the Court, under a new case number, when he can file a complaint 49| and either pay the required filing fee or file a complete application to proceed in forma 20| pauperis. It is further ordered that the Clerk of the Court will send Plaintiff Tyrone Noel Nunn 22| the approved form for filing a 42 U.S.C. § 1983 complaint and instructions for the same 23| and the approved form application to proceed in forma pauperis for an inmate and 24| instructions for the same. 20 DATED: February 20, 2024. [26] CS SO