Opinion
2:24-cv-01728-JAD-DJA
09-20-2024
Robert W. Johnson, Plaintiff, v. Officer Ponticello, Defendant.
ORDER
DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Robert W. Johnson filed an application to proceed in forma pauperis. (ECF No. 1). However, Plaintiff's application is missing certain information. The Court thus denies Plaintiff's application without prejudice.
I. Discussion.
Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or security therefor” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set forth by statute, regulation, or case law to determine when someone is poor enough to earn [in forma pauperis] status.” Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to qualify for a waiver of costs and fees, but he must demonstrate that because of his poverty he cannot pay those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
The applicant's affidavit must state the facts regarding the individual's poverty “with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or her poverty, district courts have the discretion to make a factual inquiry into a plaintiff's financial status and to deny a request to proceed in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) (finding that the district court did not abuse its discretion by denying the plaintiff's request to proceed in forma pauperis because he “failed to verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's personal assets.” Harper v. San Diego City Admin. Bldg., No. 16-cv-00768 AJB (BLM), 2016 U.S. Dist. LEXIS 192145, at *1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443-44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma pauperis application).
On his application, Plaintiff claims to not have employment and to not make money from any source. He also claims to have no money in a checking or savings account, to have no bills, have no property of any kind, have no dependents, and to have no debts. On the docket, Plaintiff includes an address. The Court takes judicial notice of the fact that public records reveal the address is a multi-family home. Plaintiff does not provide any details in the application regarding how he pays rent, how he pays utilities or other bills, or how he lives considering his claim to have no money and no bills. The Court finds that Plaintiff has omitted information from the application. As a result, the Court cannot determine whether Plaintiff qualifies for in forma pauperis status.
The Court will give Plaintiff one opportunity to file a complete in forma pauperis application. The Court further orders that Plaintiff may not respond with a zero or “not applicable” in response to any question without providing an explanation for each of the questions. Plaintiff also may not leave any questions blank. Plaintiff must describe each source of money that he receives, state the amount he received, and what he expects to receive in the future.
The Court denies Plaintiff's in forma pauperis application without prejudice. The Court gives Plaintiff 30 days to file an updated application. Plaintiff must fully answer all applicable questions and check all applicable boxes. Plaintiff may alternatively pay the filing fee in full. Since the Court denies Plaintiff's application, it does not screen the complaint at this time.
IT IS THEREFORE ORDERED that Plaintiff's application to proceed in forma pauperis (ECF No. 1) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff has until October 21, 2024 to file an updated application to proceed in forma pauperis as specified in this order or pay the filing fee. Failure to timely comply with this order may result in a recommendation to the district judge that this case be dismissed.
IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Plaintiff a copy of this order and of the Short Form application to proceed in forma pauperis and its instructions.
This form and its instructions can also be found at https://www.nvd.uscourts.gov/court-information/forms/ under Code AO 240.
INFORMATION FOR FILING AN APPLICATION TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
A. General Information
Please use the attached form if you are not an inmate. The fee for filing a civil case is $405 (which includes the $350 filing fee and the $55 administrative fee). If you are unable to prepay fees or give security for them, you may apply to the court for leave to proceed in forma pauperis. 28 U.S.C. § 1915; District of Nevada Local Special Rule (“LSR”) 1-1.
If you have the money to pay the full filing fee, please send a check or money order made payable to “CLERK, U.S. DISTRICT COURT” with your complaint or petition.
B. Submission of Application
To submit your application to proceed in forma pauperis, complete the attached form and return the form to the court. If you are a plaintiff and are requesting leave to proceed in forma pauperis at the beginning of your case, this application should be returned to the court along with your complaint or petition.
All civil actions must be filed in the clerk's office for the unofficial division of the court in which the action allegedly arose. Local Rule (“LR”) IA1-6,1-8. The Clerk of the Court maintains offices in Las Vegas and Reno at the following addresses:
Unofficial Southern Division (Clark, Esmeralda, Lincoln, & Nye counties):
U.S. District Court Office of the Clerk
333 Las Vegas Boulevard, South, Room #1334 Las Vegas, NV 89101
Unofficial Northern Division (all other counties):
U.S. District Court Office of the Clerk
400 S. Virginia Street, Room #301 Reno, NV 89501
C. Decision
Once the court makes a decision on your application to proceed in forma pauperis, the court will enter an order in your case. The order may grant, deny, or impose a partial filing fee. The order may include additional instructions or request additional information.
If the court grants your application to proceed in forma pauperis, the court must screen your complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Due to the court's caseload, the screening process may take many months.
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of pequry:
1. If incarcerated. I am being held at:__.
If employed there, or have an account in the institution, I have attached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name. I am also submitting a similar statement from any other institution where I was incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer's name and address are:
My gross pay or wages are: __$, and my take-home pay or wages are: $ __ per
(specify pay period)__
3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply)-.
(a) Business, profession, or other self-employment [] Yes [] No
(b) Rent payments, interest, or dividends [] Yes [] No
(c) Pension, annuity, or life insurance payments [] Yes [] No
(d) Disability, or worker's compensation payments[] Yes [] No
(e) Gifts, or inheritances [] Yes [] No
(f) Any other sources [] Yes [] No
If you answered “Yes ” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
4. Amount of money that I have in cash or in a checking or savings account: $.
5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and its approximate value)'.
6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amount of the monthly expense)'.
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support:
8. Any debts or financial obligations (describe the amounts owed and to whom they are payable)'. Declaration: I declare under penalty of peijury that the above information is true and understand that a false statement may result in a dismissal of my claims.