Douglas v. Kalanta ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD WILLIAM DOUGLAS, JR. et Case No. 1:21-cv-01535-NONE-EPG al., 11 ORDER VACATING FINDINGS AND Plaintiff, RECOMMENDATIONS, RECOMMENDING 12 THAT PLAINTIFF DOUGLAS’ v. APPLICATION TO PROCEED IN FORMA 13 PAUPERIS BE DENIED WILLIAM JOSEPH KALANTA, et al., 14 (ECF No. 3) Defendants. 15 ORDER REQUIRING ALL PLAINTIFFS TO FILE APPLICATIONS TO PROCEED IN 16 FORMA PAUPERIS OR PAY FILING FEE NO LATER THAN DECEMBER 2, 2021 17 18 19 Plaintiffs Richard William Douglas, Jr., Christine Anne Hurtt, and David R.L. Henderson, 20 proceeding pro se, filed this lawsuit on October 18, 2021. (ECF No. 1). On the same day, Plaintiff 21 Douglas filed an application to proceed in forma pauperis (IFP). (ECF No. 2). Because review of 22 the application indicated that Plaintiff Douglas could afford to pay the filing fee in this case, the 23 Court issued findings and recommendations on October 20, 2021, that the application be denied 24 and that Plaintiffs be directed to pay the filing fee to proceed with this action. 25 On October 28, 2021, Plaintiff Douglas filed objections stating, among other things, that 26 his amount of available cash has recently decreased, that he has saved this money for “emergency 27 relocation costs when defendants find out where [he is] through third party stalking,” and that his 28 only income is from Social Security disability benefits. (ECF No. 4, p. 1). After reviewing the 1 objections, the Court will give Plaintiff Douglas the opportunity to present this information in a 2 renewed IFP application and will require Plaintiffs Hurtt and Henderson to also submit IFP 3 applications. 4 Notably, the IFP statute, 28 U.S.C. § 1915(a)(1), authorizes a Plaintiff to commence a suit 5 by submitting “an affidavit that includes a statement of all assets such [person] possesses that the 6 person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of 7 the action, defense or appeal and affiant's belief that the person is entitled to redress.” To be 8 considered to be an affidavit, the Plaintiff must have taken an oath or sworn by his statement. 9 Williams v. Pierce Cty. Bd. of Comm’rs, 267 F.2d 866, 867 (9th Cir. 1959) (discussing § 1915). 10 Here, while Plaintiff Douglas’s IFP application was sworn under penalty of perjury, his 11 objections contain new factual allegations that are unsworn and thus the Court may not rely on 12 them for determining IFP status. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 13 (“When a claim of poverty is made under section 1915 ‘it is proper and indeed essential for the 14 supporting affidavits to state the facts as to affiant’s poverty with some particularity, definiteness 15 and certainty.”’) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). Thus, the 16 Court will require Plaintiff Douglas to file a renewed IFP application and Plaintiffs Hurtt and 17 Henderson to file initial IFP applications. 18 Based on the foregoing, IT IS ORDERED that: 19 1. The Court’s October 20, 2021 findings and recommendations (ECF No. 3) are 20 vacated; and 21 2. No later than December 2, 2021, Plaintiff Douglas shall file a renewed IFP 22 application and Plaintiffs Hurtt and Henderson shall file initial IFP applications, with each IFP 23 application filled out in its entirety and stating all circumstances that the Plaintiffs wish for the 24 Court to consider; 25 3. The Clerk of Court is directed to mail each Plaintiff the standard court IFP form 26 (Form – AO 240); 27 4. Alternatively, Plaintiffs may decide to pay the $402.00 filing fee in full, no later 28 than December 2, 2021, in lieu of submitting IFP applications. 1 5. Plaintiffs are cautioned that failure to timely submit IFP applications in proper 2 | form, or to pay the filing fee, may result in the dismissal of this action. 3 4 IT IS SO ORDERED. S| Dated: _November 2, 2021 [Jee ey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28