LeWine v. Sonnama Hills Apts ( 2023 )

2 UNITED STATES DISTRICT COURT 3 4 DISTRICT OF NEVADA Judith LeWine, 5 Case No. 2:23-cv-01835-APG-VCF Plaintiff(s), 6 vs. Order denying plaintiff’s in forma pauperis 7 application without prejudice Sonnama Hills Apts, agent of 8 Edna Manaser, et al., Defendant(s). 9 10 Pro se plaintiff Judith LeWine filed an application to proceed in forma pauperis (IFP) and a 11 complaint. ECF Nos. 1 and 1-1. I deny LeWine’s IFP application without prejudice. 12 DISCUSSION 13 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 14 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 15 16 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 17 forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 18 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to 19 qualify for a waiver of costs and fees but he must demonstrate that because of his poverty he cannot pay 20 those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & 21 Co., 335 U.S. 331, 339 (1948). 22 The applicant's affidavit must state the facts regarding the individual's poverty “with some 23 particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 24 (citation omitted). If an individual is unable or unwilling to verify his or her poverty, district courts have 25 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 1 court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 2 verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's 3 4 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. 5 LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in 6 themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443- 7 44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma 8 pauperis application). 9 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 10 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 11 persons. The Long Form requires more detailed information than the Short Form. The court typically 12 does not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears 13 that the plaintiff is concealing information about his income for determining whether the applicant 14 qualifies for IFP status. When an applicant is specifically ordered to submit the Long Form, the correct 15 form must be submitted, and the applicant must provide all the information requested in the Long Form 16 17 so that the court is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v. 18 NYE Cty. Dist. Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981, at 3 (D. Nev. Nov. 19 9, 2016), report and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL, 20 2016 WL 7493963 (D. Nev. Dec. 30, 2016). 21 LeWine filled out the short form but she left questions 5, 7, and 8 completely blank. ECF No. 1. 22 She states that she receives $729 a month in income and that her bills are $1000 a month, but she does 23 not specify what the bills are or how she pays the bills that exceed her income. Id. Since so much of the 24 application is blank, I cannot determine if plaintiff qualifies for in forma pauperis status. Id. I will, 25 2 however, give plaintiff another opportunity to file a complete IFP application. I order that she must fill 1 out the long form, it must be complete, and she must sign it under penalty of perjury. Plaintiff may not 2 leave any portion of it blank. Since I deny plaintiff’s IFP application, I do not screen her complaint 3 4 now.1 5 ACCORDINGLY, 6 I ORDER that plaintiff LeWine’s application to proceed in forma pauperis (ECF No. 1) is 7 DENIED without prejudice. 8 I FURTHER ORDER that plaintiff has until Thursday, January 4, 2024, to either file an updated 9 IFP application using the Long Form as specified in this order OR pay the filing fee. Failure to timely 10 comply with this Order may result in case closure or a recommendation for dismissal with prejudice. 11 NOTICE 12 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 13 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 14 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 15 may determine that an appeal has been waived due to the failure to file objections within the specified 16 17 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 18 objections within the specified time and (2) failure to properly address and brief the objectionable issues 19 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 20 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 21 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 22 notification with the court of any change of address. The notification must include proof of service upon 23 24 1 Per 28 U.S.C. § 1915(e)(2)(B), if I grant plaintiff’s IFP application, I will screen plaintiff’s complaint 25 to determine whether the complaint is frivolous, malicious, or fails to state a plausible claim. 3 each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 5 Failure to comply with this rule may result in dismissal of the action. 3 IT IS SO ORDERED. 4 DATED this 5th day of December 2023. □ Go! 5 CAM FERENBACH 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25