Mitchell Jr. v. Timothy ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Sean Mitchell Jr., 2:24-cv-01246-RFB-MDC 4 Plaintiff(s), ORDER ON IFP AND COMPLAINT 5 vs. 6 Timothy, et al., 7 Defendant(s). 8 Pending before the Court is pro se plaintiff Sean Mitchell Jr.’s Motion/Application to Proceed In 9 Forma Pauperis (“IFP”) (ECF No. 2) and Complaint (ECF No. 2-2). For the reasons stated below, the 10 Court DENIES the IFP application WITHOUT PREJUDICE. The Court also orders plaintiff to file a 11 signed amended complaint in accordance with Rule 11 of the Federal Rules of Civil Procedure. 12 DISCUSSION 13 I. IN FORMA PAUPERIS 14 A. Legal Standard 15 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 16 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 17 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 18 forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 19 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to 20 qualify for a waiver of costs and fees, but he must demonstrate that because of his poverty he cannot pay 21 those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & 22 Co., 335 U.S. 331, 339 (1948). 23 The applicant's affidavit must state the facts regarding the individual's poverty “with some 24 particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 25 (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 court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 4 verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's 5 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. 6 LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in 7 themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443- 8 44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma 9 pauperis application). 10 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 11 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 12 persons. The Long Form requires more detailed information than the Short Form. The court typically 13 does not order an applicant to submit the Long Form unless the Short Form is inadequate, more 14 information is needed, or it appears that the plaintiff is concealing information about his income for 15 determining whether the applicant qualifies for IFP status. When an applicant is specifically ordered to 16 submit the Long Form, the correct form must be submitted, and the applicant must provide all the 17 information requested in the Long Form so that the court is able to make a fact finding regarding the 18 applicant's financial status. See e.g., Greco v. NYE Cty. Dist. Jude Robert Lane, 2016 WL 7493981, at 19 *3 (D. Nev. Nov. 9, 2016), report and recommendation adopted sub nom. Greco v. Lake, No. 20 215CV001370MMDPAL, 2016 WL 7493963 (D. Nev. Dec. 30, 2016). 21 B. Analysis 22 Plaintiff’s IFP application (ECF No. 2) contains discrepancies and is not submitted on the 23 Court’s approved form. Plaintiff submitted a District Court, Clark County, Nevada IFP application 24 rather than the United States District Court, District of Nevada IFP application. Under LSR 1-1, an IFP 25 application, “must be made on the form provided by the court….” The Court will give plaintiff another 1 opportunity to cure his deficiencies and submit the IFP application on the Court’s approved form, as 2 described below. 3 Plaintiff’s IFP application contains discrepancies. Plaintiff states in his IFP application that he is 4 unemployed, homeless, and that his only source of income is $291 in food stamps. ECF No. 2 at 1-2. 5 However, plaintiff also states that he spends $40/month on utilities, $400/month on childcare, and 6 $125/month on transportation. Id. at 2. Plaintiff does not explain how he is able to maintain his monthly 7 expenses, which are almost double1 his monthly income, and which consists solely of food stamps. The 8 lack of explanation concerning given that plaintiff also maintains he has $0 in his checking and/or 9 savings account. The Court is unable determine how plaintiff is able to maintain payments that far 10 exceed his monthly income, and with no money in his accounts. Therefore, the Court will deny his IFP 11 application without prejudice. The Court grants plaintiff leave to file the correct, Long Form IPF 12 application approved by the Court, which may be found at the Court’s website. Plaintiff must o file a 13 fully complete Long Form IFP application by Monday, August 12, 2024. 14 II. COMPLAINT 15 The Court notes that plaintiff failed to sign his Complaint (ECF No. 2-2). Under Rule 11 of the 16 Federal Rules of Civil Procedure, a plaintiff who is not represented by counsel is required to sign his 17 complaint. Fed. R. Civ. P. 11(a). Because Plaintiff did not sign the complaint, the Court cannot consider 18 it for screening. Rule 11 provides that “omission of the signature” may be “corrected promptly after 19 being called to the attention of the attorney or party.” As such, the Court will grant plaintiff an 20 opportunity to cure the defect. If plaintiff chooses to cure the defect, he should file the new, properly 21 signed complaint, in the form of an amended complaint. Thus, plaintiff may not merely file a signature 22 page. Plaintiff is advised that an amended complaint supersedes the original complaint and, thus, the 23 amended complaint must be complete in itself. See Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 24 2010) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967)). (“[W]hen a plaintiff files an amended 25 1 Plaintiff’s monthly expenses total to $565/month, however, he claims he only makes $291/month in food stamps. 1 |} complaint, ‘[t]he amended complaint supersedes the original, the latter being treated thereafter as non- 2 || existent.’”) (internal citations omitted). Therefore, the Court will give plaintiff until Monday, August 3 || 12, 2024, to cure the defect and file an amended complaint that is properly signed by plaintiff. 4 5 ACCORDINGLY, 6 IT IS ORDERED that: 1. Plaintiffs IFP application (ECF No. 2) is DENIED WITHOUT PREJUDICE. 3 2. Plaintiff must either pay the filing fee or submit a fully complete long-form IFP application 9 by Monday, August 12, 2024. 10 3. Plaintiff must submit a signed amended complaint by Monday, August 12, 2024. 11 4. Failure to timely comply with the order may result in a recommendation that the case be 12 dismissed. 13 14 DATED this 12" day of July 2024. 15 IT IS SO ORDERED. Aff fi 4 {X 16 Jf “yf \ 17 Hon. Maximilia D. Gouvillier II United States Magistvate Judge 18 19 NOTICE 20 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 21 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 22 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 23 may determine that an appeal has been waived due to the failure to file objections within the specified 24 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 25 1 This circuit has also held that (1) failure to file objections within the specified time and (2) 2 failure to properly address and brief the objectionable issues waives the right to appeal the District 3 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 4 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 Pursuant to LR IA 3-1, the plaintiff must immediately file a written notification with the court of any 6 change of address. The notification must include proof of service upon each opposing party’s attorney, 7 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 8 result in dismissal of the action. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25