Aught, Jr. v. Omni Limousine, Inc. ( 2024 )

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Phillip Charles Aught, Jr., 5 2:24-cv-01324-APG-MDC Plaintiff(s), 6 vs. ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF NO. 7 Omni Limousine, Inc, 2) WITHOUT PREJUDICE WITH LEAVE TO REFILE 8 Defendant(s). 9 10 Pro se plaintiff Phillip Charles Aught, Jr. filed an Application To Proceed In Forma Pauperis 11 (“IFP”). ECF No. 2. The Court denies Aught’s IFP application without prejudice, with leave to refile. 12 I. LEGAL STANDARD 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 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 16 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 II. PLAINTIFF’S IFP APPLICATION 22 Aught filed the long form IFP application. ECF No. 2. Plaintiff states that he makes $2,500 per 23 month. Id. at 1. He states that he has no money in his bank account, has no assets, and has no bills, 24 25 except that he pays his ex-spouse $2,000 per month in alimony and child support. Id. at 1-5. He also 2 states that he receives public assistance. Id. at 5. 1 The Court finds that plaintiff’s IFP application is incomplete, so it cannot determine if plaintiff 2 qualifies for IFP status. It is unclear how plaintiff lives without any bills, any rent, or any expenses 3 4 (including for groceries or basic needs). Based on the limited information plaintiff provides, it appears 5 that he has a surplus each month since he has no bills whatsoever. The Court thus finds that the 6 application is incomplete. The Court will allow plaintiff another opportunity to show that he qualifies for 7 IFP status. Plaintiff must resubmit the long form application. Plaintiff must answer all questions on the 8 long form with detailed explanations about his income and expenses. Plaintiff cannot leave any 9 questions blank or respond that a question is “N/A” without an explanation. If plaintiff has no bills, he 10 must explain how he lives with no expenses in response to question number eleven which asks for 11 additional information to help explain why he cannot pay the costs of these proceedings. 12 IT IS SO ORDERED THAT: 13 1. Plaintiff’s Application To Proceed In Forma Pauperis (ECF No. 2) is DENIED without 14 prejudice. 15 2. By October 16, 2024, plaintiff shall either (1) file the long form application to proceed in forma 16 17 pauperis as specified in the Court’s order or (2) plaintiff must pay the full fee for filing a civil 18 action. 19 3. Failure to timely comply with this Order may result in a recommendation that this case be 20 dismissed with prejudice. 21 NOTICE 22 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 23 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 24 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 25 3 may determine that an appeal has been waived due to the failure to file objections within the specified 1 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 2 objections within the specified time and (2) failure to properly address and brief the objectionable issues 3 4 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 5 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 6 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 7 notification with the court of any change of address. The notification must include proof of service upon 8 each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 9 Failure to comply with this rule may result in dismissal of the action. 10 It is so ordered. 11 Date: September 16, 2024. 12 _________________________ 13 Hon. Maximiliano D. Couvillier III United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 4