1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 JENNIFER PORTILLO, Case No. 2:23-cv-00794-GMN-NJK

4 Plaintiff ORDER

5 v.

6 STATE OF NEVADA, et al.,

7 Defendants

8 9 I. DISCUSSION 10 Plaintiff Jennifer Portillo, who is in the custody of the Nevada Department of 11 Corrections1 (“NDOC”), has filed an application to proceed in forma pauperis (ECF No. 1- 12 1) and has submitted both a civil rights complaint pursuant to

(ECF No. 13 1-1) and a petition for writ of habeas corpus under

(ECF No. 1-2). The 14 Court now addresses Plaintiff’s initiating documents and application to proceed in forma 15 pauperis. 16 A. Initiating documents 17 Plaintiff cannot pursue both § 1983 and habeas actions in the same case. See 18 Nettles v. Grounds,

(9th Cir. 2016) (reiterating that “habeas is the 19 exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, 20 and such claims may not be brought in a § 1983 action”); Wilkinson v. Dotson,

74, 81–82 (2005) (holding that “a state prisoner's § 1983 action is barred (absent prior 22 invalidation)—no matter the relief sought (damages or equitable relief), no matter the 23 target of the prisoner's suit (state conduct leading to conviction or internal prison 24 proceedings)—if success in that action would necessarily demonstrate the invalidity of 25 confinement or its duration”). Plaintiff may pursue either her § 1983 complaint or her 26 27 1 In her May 19, 2023, letter, Plaintiff, who was still at the Clark County Detention Center (“CCDC”), noted that she was scheduled for transport to Florence McClure 28 Women’s Correctional Center (“FMWCC”) later that day. (ECF No. 1-3). Plaintiff is no longer listed in the CCDC inmate database. 1 habeas petition in this case but not both. She may file the other action in a separate 2 case. 3 By July 21, 2023, Plaintiff will file a notice with the Court indicating whether she: 4 (1) wishes to pursue her § 1983 civil rights complaint (ECF No. 1-1) and strike her habeas 5 petition (ECF No. 1-2) in this case; or (2) strike her § 1983 civil rights complaint (ECF No. 6 1-1) and pursue her habeas petition (ECF No. 1-2) in this case. If Plaintiff does not 7 designate one of these options, the Court will dismiss the entire case without prejudice 8 because Plaintiff cannot proceed simultaneously on both her § 1983 complaint and 9 habeas petition in the same case. 10 B. In forma pauperis application 11 Plaintiff’s application to proceed in forma pauperis is incomplete because she has 12 not submitted a completed financial certificate and an inmate trust fund account statement 13 for the previous six-month period with the application. (ECF No. 1). The Court will deny 14 Plaintiff’s application without prejudice and give Plaintiff the opportunity to correct these 15 deficiencies by July 21, 2023. 16 The United States District Court for the District of Nevada must collect filing fees 17 from parties initiating civil actions.

(a). The fee for filing a civil-rights 18 action is $402, which includes the $350 filing fee and the $52 administrative fee. See 28

(a)-(b). The filing fee for a habeas corpus action is $5.

20 “Any person who is unable to prepay the fees in a civil case may apply to the court 21 for leave to proceed in forma pauperis.” Nev. Loc. R. Prac. LSR 1-1. For an inmate to 22 apply for in forma pauperis status, the inmate must submit all three of the following 23 documents to the Court: (1) a completed Application to Proceed in Forma Pauperis 24 for Inmate, which is pages 1–3 of the Court’s approved form, that is properly signed by 25 the inmate twice on page 3; (2) a completed Financial Certificate, which is page 4 of the 26 Court’s approved form, that is properly signed by both the inmate and a prison or jail 27 official; and (3) a copy of the inmate’s prison or jail trust fund account statement for 28 the previous six-month period. See

(a)(1)–(2); Nev. Loc. R. Prac. LSR 1 1-2. 2 As explained above, Plaintiff’s application to proceed in forma pauperis is 3 incomplete. The Court will therefore deny Plaintiff’s application to proceed in forma 4 pauperis without prejudice and grant Plaintiff an extension of time to either pay the filing 5 fee or file a new fully complete application to proceed in forma pauperis with all three 6 required documents. 7 II. CONCLUSION 8 It is therefore ordered that the application to proceed in forma pauperis (ECF No. 9 1) is denied without prejudice. 10 It is further ordered that Plaintiff has until July 21, 2023, to file a new fully complete 11 application to proceed in forma pauperis with all three required documents: (1) a 12 completed application with the inmate’s two signatures on page 3, (2) a completed 13 financial certificate that is signed both by the inmate and the prison or jail official, and (3) a 14 copy of the inmate’s trust fund account statement for the previous six-month period. 15 It is further ordered that, if Plaintiff fails to file a fully complete application to proceed 16 in forma pauperis by the deadline, the Court will dismiss this case without prejudice. 17 It is further ordered that, by July 21, 2023, Plaintiff will file a notice with the Court 18 indicating whether she: (1) wishes to pursue her § 1983 civil rights complaint (ECF No. 1- 19 1) and strike her habeas petition (ECF No. 1-2) in this case; or (2) strike her § 1983 civil 20 rights complaint (ECF No. 1-1) and pursue her habeas petition (ECF No. 1-2) in this 21 case. 22 It is further ordered that, if Plaintiff fails to inform the Court whether she is pursuing 23 her § 1983 civil rights complaint or habeas petition in this case, the Court will dismiss the 24 entire case without prejudice because Plaintiff cannot pursue both actions simultaneously 25 in the same case. 26 /// 27 /// 28 /// 1 It is further ordered that the Clerk of the Court is directed to send Plaintiff the 2 approved form application to proceed in forma pauperis for an inmate and instructions for 3 the same. 4 It is further ordered that the Clerk of the Court will update Plaintiff’s address to 5 Florence McClure Women's Correctional Center pursuant to her letter (ECF No. 1-3) and 6 update her prison number to 1269516. 7 8 DATED THIS __2_5__ day of May 2023. 9

10 Gloria M. Navarro, Judge United States District Court 11

12

13

14

15

16

17 18 19 20 21 22 23 24 25 26 27 28