Olvera v. American Honda Finance Corporation ( 2024 )

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Rosa Olvera, 5 Case No. 2:24-cv-00186-MMD-MDC Plaintiff, 6 vs. ORDER 7 American Honda Finance Corporation et al., 8 Defendants. APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1) 9 10 11 Pro se plaintiff Rosa Olvera filed an application to proceed in forma pauperis (IFP). ECF No. 1. 12 Plaintiff’s IFP application is DENIED WITHOUT PREJUDICE. Plaintiff must file the long-form IFP or 13 pay the full filing fee. 14 15 DISCUSSION 16 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 17 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 18 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 19 forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 20 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to qualify 21 for a waiver of costs and fees, but he must demonstrate that because of his poverty he cannot pay those 22 costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & Co., 335 23 U.S. 331, 339 (1948). 24 The applicant's affidavit must state the facts regarding the individual's poverty “with some 25 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 1 the discretion to make a factual inquiry into a plaintiff's financial status and to deny a request to proceed 2 in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) (finding that the district 3 4 court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 5 verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's 6 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. 7 LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in 8 themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443- 9 44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma 10 pauperis application). 11 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 12 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 13 persons. The Long Form requires more detailed information than the Short Form. The court typically does 14 not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears that the 15 plaintiff is concealing information about his income for determining whether the applicant qualifies for 16 17 IFP status. When an applicant is specifically ordered to submit the Long Form, the correct form must be 18 submitted, and the applicant must provide all the information requested in the Long Form so that the court 19 is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v. NYE Cty. Dist. 20 Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981, at 3 (D. Nev. Nov. 9, 2016), report 21 and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL, 2016 WL 7493963 22 (D. Nev. Dec. 30, 2016). Federal Rules of Civil Procedure Rule 10(a) commands that the title of every 23 complaint must name all the parties. 24 Plaintiff submitted the short form IFP application. ECF No. 1. However, plaintiff has not answered 25 2 questions one through eight on the form. Id. Plaintiff has not demonstrated that she is unable to pay the 1 filing fee. Because plaintiff has not adequately demonstrated her inability to pay, the Court cannot 2 determine her IFP status at this time. The Court will allow plaintiff another opportunity to show that she 3 4 qualifies for IFP status. Plaintiff must fill out the long form application. Plaintiff must answer all questions 5 on the long form with detailed explanations about income and expenses. Plaintiff cannot leave any 6 questions blank. 7 ACCORDINGLY, 8 IT IS ORDERED that Olvera's application to proceed in forma pauperis (ECF No. 1) is 9 DENIED WITHOUT PREJUDICE. 10 IT IS FURTHER ORDERED that by Wednesday March 6, 2024 Plaintiff must either file (1) file 11 the long form application to proceed in forma pauperis as specified in the Court’s order or (2) pay the full 12 fee for filing a civil action. 13 NOTICE 14 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 15 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 16 17 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 18 may determine that an appeal has been waived due to the failure to file objections within the specified 19 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 20 This circuit has also held that (1) failure to file objections within the specified time and (2) failure 21 to properly address and brief the objectionable issues waives the right to appeal the District Court's order 22 and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 23 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR 24 IA 3-1, the plaintiff must immediately file written notification with the court of any change of address. 25 3 The notification must include proof of service upon each opposing party’s attorney, or upon the opposing 5 party if the party is unrepresented by counsel. Failure to comply with this rule may result in dismissal of 3 || the action. 4 IT IS SO ORDERED. 5 DATED this 6" day of February 2024. 7 i i \ Maximiliano Gail I United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25