Brunson v. Social Security ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 GLENDA BRUNSON, Case No. 2:19-cv-00917-RFB-DJA 7 Plaintiff, ORDER 8 v. 9 SOCIAL SECURITY, 10 Defendant. 11 12 This matter is before the Court on Plaintiff Glenda Brunson’s second application to 13 proceed in forma pauperis submitted on August 1, 2019. (ECF No. 5). The Court previously 14 reviewed her first application and found it to be incomplete because out of eight sections, she 15 only fully responded to one and partially to another. (ECF No. 4). 16 The Ninth Circuit has recognized that “there is no formula set forth by statute, regulation, 17 or case law to determine when someone is poor enough to earn IFP status.” Escobedo v. 18 Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be absolutely destitute to 19 qualify for a waiver of costs and fees; nonetheless, she must demonstrate that because of her 20 poverty she cannot pay those costs and still provide herself with the necessities of life. See 21 Adkins v. E.I DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). The applicant’s affidavit 22 must state the facts regarding the individual’s poverty “with some particularity, definiteness and 23 certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citation omitted). If an 24 individual is unable or unwilling to verify his or her poverty, district courts have the discretion to 25 make a factual inquiry into a plaintiff’s financial status and to deny a request to proceed in forma 26 pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) (finding that the district 27 court did not abuse its discretion by denying the plaintiff’s request to proceed IFP because he 1 “failed to verify his poverty adequately”). If the court determines that an individual’s allegation 2 of poverty is untrue, “it shall dismiss the case.” 28 U.S.C. § 1915(e)(2). 3 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 4 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non- 5 incarcerated persons. In particular, the Long Form requires comprehensive information regarding 6 the applicant and his or her spouse’s sources of income, employment history, bank accounts, 7 assets, monthly expenses, age, and years of schooling among other things. As the name suggests, 8 the Long Form requires more detailed information than the Short Form. The Court typically does 9 not order an applicant to submit the Long Form unless the Short Form is inadequate for 10 determining whether the applicant qualifies for IFP status. Thus, when an applicant is 11 specifically ordered to submit the Long Form, the correct form must be submitted and the 12 applicant must provide all the information requested in the Long Form so that the Court is able to 13 make a fact finding regarding the applicant's financial status. 14 Here, Plaintiff’s has twice submitted an incomplete short form application. For example, 15 Plaintiff fails to complete the section entitled gross pay or wages while indicating that she has no 16 other assets or expenses. Without a complete application the Court is unable to assess Plaintiff’s 17 in forma pauperis status. The Court therefore will deny Plaintiff’s second application to proceed 18 in forma pauperis without prejudice. Plaintiff must properly complete a long form application to 19 proceed in forma pauperis, or in the alternative, pay the full filing fee for this action. If Plaintiff 20 chooses to file a new long form application to proceed in forma pauperis, then Plaintiff must file 21 a complete application that answers each question presented on the form. The Court will retain 22 plaintiff’s complaint (ECF No. 1-1), but will not file it until the matter of the payment of the 23 filing fee is resolved. 24 IT IS THEREFORE ORDERED that the Clerk of the Court must send Plaintiff a copy of 25 the long form application (AO 239) (the “Long Form”). 26 IT IS FURTHER ORDERED that by November 18, 2019, plaintiff must either: (1) file a 27 completed long form application to proceed in forma pauperis in compliance with 28 U.S.C. § 1 filing fee and the $50 administrative fee. Plaintiff is advised that failure to timely comply with 2 this order will result in a recommendation that this case be dismissed. 3 4 DATED: October 21, 2019 5 6 DANIEL J. ALBREGTS 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