McCreary v. Dzurenda

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA Paul McCreary, Robert Sturgis, and Matthew Case No.: 2:25-cv-01687-APG-BNW Travis Houston, 4 Order Dismissing Plaintiff Houston from Plaintiffs this Action and Instructing Remaining 5 Plaintiffs How to Proceed v. 6 [ECF No. 1] James Dzurenda, et al., Defendants I. DISCUSSION 10 Plaintiffs Paul McCreary, Robert Sturgis, and Matthew Travis Houston, who are in the custody of the Nevada Department of Corrections (NDOC), have attempted to initiate a 42 12 U.S.C. § 1983 action together. McCreary and Houston have filed a joint application to proceed in forma pauperis which contains a partial application completed by McCreary and a financial certificate and inmate accounting statement from Houston. ECF No. 1. The civil rights complaint is a recycled complaint from one of Houston’s other cases with some blue line additions attempting to add McCreary and Sturgis to the allegations. Compare ECF No. 1-1 with Houston v. Wiese II, 2:25-cv-01364-JAD-DJA, ECF No. 1-1. Although McCreary and Houston have signed the complaint in this case, Sturgis has not. ECF No. 1-1 at 6. I now address Houston’s vexatious litigant status, deny the application to proceed in forma pauperis as incomplete, dismiss the complaint without prejudice, and give McCreary and Sturgis leave to amend.

22 /// /// 1 A. Houston is a vexatious litigant.

2 As he is aware, Houston is subject to a vexatious litigant pre-filing order issued by Judge Dorsey. See Houston v. Encore Event Technologies, et al., 2:22-cv-01740-JAD-EJY, ECF No. 30. Under that order, before Houston can file a new action in this court “using any pages he has already filed in another case,” he must satisfy three conditions: 6 • Apply to the Chief Judge of this district for leave to file the document by submitting to the clerk’s office an application bearing the title “Application to 7 Chief District Judge Seeking Leave to File.” • That application must be supported by a declaration from Houston, made 8 under penalty of perjury, stating that: (1) the matters asserted in the new complaint or petition are different from those asserted in the actions he has 9 previously filed in this district; (2) the new claim or claims are not frivolous or made in bad faith; (3) he has conducted a reasonable investigation of the facts and 10 such investigation supports the claim or claims. • Houston must attach a copy of [Judge Dorsey’s] order to any such 11 application.

12 Id. at 8. Under that order, “the Clerk of Court is authorized to reject, refuse to file, and discard any new case-commencement document submitted without prior compliance with this order.” Id. at 9.

15 Houston has not satisfied any of these conditions in this case. Instead, he attempts to bypass the pre-filing requirements by filing lawsuits with other inmates who are not deemed vexatious litigants. Because Houston has not complied with the pre-filing order, I dismiss or deny all documents filed by Houston and those filed on his behalf without prejudice.

19 Additionally, I dismiss Houston from this action without prejudice for failing to comply with the pre-filing order requirements.

21 /// /// /// 1 B. McCreary and Sturgis may continue with this lawsuit.

2 Because McCreary and Sturgis are not subject to vexatious litigant pre-filing orders they may proceed with this lawsuit if they so choose. However, before they can proceed, McCreary and Sturgis will have to satisfy the matter of the filing fee and file an amended complaint.

5 1. Filing fee issue 6 This court must collect filing fees from parties initiating civil actions. 28 U.S.C. § 1914(a). As of December 1, 2023, the fee for filing a civil-rights action is $405, which includes the $350 filing fee and the $55 administrative fee. See 28 U.S.C. § 1914(b). “Any person who is unable to prepay the fees in a civil case may apply to the court for leave to proceed in forma pauperis.” Nev. Loc. R. Prac. LSR 1-1. For an inmate to apply for in forma pauperis status, the inmate must submit all three of the following documents to the court: 12 (1) a completed Application to Proceed in Forma Pauperis for Inmate, which is pages 1–3 of the court’s approved form, that is properly signed by the inmate twice on page 3; 14 (2) a completed Financial Certificate, which is page 4 of the court’s approved form, that is properly signed by both the inmate and a prison or jail official; and 16 (3) a copy of the inmate’s prison or jail trust fund account statement for the previous six-month period.

18 See 28 U.S.C. § 1915(a)(1)–(2); Nev. Loc. R. Prac. LSR 1-2. In forma pauperis status does not relieve an inmate of his or her obligation to pay the filing fee, it just means that the inmate can pay the fee in installments. See 28 U.S.C. § 1915(b).

21 I deny the application to proceed in forma pauperis without prejudice as incomplete. ECF No. 1. If McCreary and Sturgis want to pursue this lawsuit, they may either pay the $405 filing fee in full together or each file their own individual applications to proceed in forma pauperis.

1 See Johnson v. High Desert State Prison, 127 F.4th 123, 133 (9th Cir. 2025) (holding that prisoners can file a suit together and pay the filing fee up front by splitting the amount however they choose, or they can each file applications to proceed in forma pauperis and each pay the full amount of the filing fee until the filing fees are paid under 28 U.S.C. § 1915(b)(1)-(2)). If they are proceeding in forma pauperis, they must each file a fully complete application.

6 2. Amended complaint 7 I dismiss the complaint (ECF No. 1-1) without prejudice but grant McCreary and Sturgis leave to file an amended complaint. If they choose to file an amended complaint, they may not attempt to litigate any issues on behalf of Houston and may include only allegations pertaining to themselves. Additionally, if McCreary and Sturgis want to pursue this action together, they will both have to sign the documents they submit to this court. Although pro se litigants have the right to plead and conduct their own cases personally, they have no authority to represent anyone other than themselves. See 28 U.S.C. § 1654; Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987).

15 If McCreary and Sturgis choose to file an amended complaint, they are advised that an amended complaint supersedes (replaces) the original complaint and, thus, the amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard GFeiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Their amended complaint must contain all claims, defendants, and factual allegations that they wish to pursue in this lawsuit. They should file the amended complaint on this court’s approved prisoner civil rights form and mark the box “First Amended Complaint.”

3 Alternatively, McCreary and/or Sturgis may file a motion to voluntarily dismiss themselves from this case.

5 II. CONCLUSION 6 I THEREFORE ORDER that plaintiff Matthew Travis Houston is dismissed without prejudice from this case for failing to comply with this court’s vexatious litigant pre-filing order.

8 I FURTHER ORDER that the application to proceed in forma pauperis (ECF No. 1) is denied without prejudice as incomplete.

10 I FURTHER ORDER that the complaint (ECF No. 1-1) is dismissed without prejudice with leave to amend for McCreary and Sturgis.

12 I FURTHER ORDER that McCreary and Sturgis have until October 31, 2025, to either pay the full $405 filing fee or file fully complete individual applications to proceed in forma pauperis with all three required documents: (1) a completed application with the inmate’s two signatures on page 3, (2) a completed financial certificate that is signed both by the inmate and the prison or jail official, and (3) a copy of the inmate’s trust fund account statement for the previous six-month period.

18 I FURTHER ORDER that McCreary and Sturgis have until October 31, 2025, to file an amended complaint that contains allegations pertaining only to themselves. If they choose to file an amended complaint, they should use the approved form and mark “First Amended Complaint” in the caption.

22 McCreary and Sturgis are cautioned that this action will be subject to dismissal without prejudice if they fail to timely comply with this order. A dismissal without prejudice allows McCreary and Sturgis to refile the case with the court, under a new case number, when they can file a complete application to proceed in forma pauperis or pay the required filing fee and submit proper complaint.

4 The Clerk of the Court will send McCreary and Sturgis: (1) the approved form for filing a 5] § 1983 complaint with instructions; (2) a copy of the original complaint (ECF No. 1-1); and 6|| (3) the approved form application to proceed in forma pauperis for an inmate and instructions for 7|| the same.

8 Dated: September 14, 2025 9 GA Andrew P. Gordon 10 Chief United States District Judge 1]