Johnson v. Officer Ponticello ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Robert W. Johnson, Case No. 2:24-cv-01728-JAD-DJA 6 Plaintiff, 7 Order v. 8 Officer Ponticello, 9 Defendant. 10 11 Pro se Plaintiff Robert W. Johnson filed an application to proceed in forma pauperis. 12 (ECF No. 1). However, Plaintiff’s application is missing certain information. The Court thus 13 denies Plaintiff’s application without prejudice. 14 I. Discussion. 15 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of 16 fees or security therefor” if the plaintiff submits a financial affidavit that demonstrates the 17 plaintiff “is unable to pay such fees or give security therefor.” The Ninth Circuit has recognized 18 that “there is no formula set forth by statute, regulation, or case law to determine when someone 19 is poor enough to earn [in forma pauperis] status.” Escobedo v. Applebees, 787 F.3d 1226, 1235 20 (9th Cir. 2015). An applicant need not be destitute to qualify for a waiver of costs and fees, but 21 he must demonstrate that because of his poverty he cannot pay those costs and still provide 22 himself with the necessities of life. Adkins v. E.I DuPont de Nemours & Co., 335 U.S. 331, 339 23 (1948). 24 The applicant’s affidavit must state the facts regarding the individual’s poverty “with 25 some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 26 (9th Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or her 27 poverty, district courts have the discretion to make a factual inquiry into a plaintiff’s financial 1 Fed.Appx. 578 (9th Cir. 2008) (finding that the district court did not abuse its discretion by 2 denying the plaintiff’s request to proceed in forma pauperis because he “failed to verify his 3 poverty adequately”). “Such affidavit must include a complete statement of the plaintiff’s 4 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16-cv-00768 AJB (BLM), 2016 5 U.S. Dist. LEXIS 192145, at *1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient 6 grounds for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 7 443-44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on 8 in forma pauperis application). 9 On his application, Plaintiff claims to not have employment and to not make money from 10 any source. He also claims to have no money in a checking or savings account, to have no bills, 11 have no property of any kind, have no dependents, and to have no debts. On the docket, Plaintiff 12 includes an address. The Court takes judicial notice of the fact that public records reveal the 13 address is a multi-family home. Plaintiff does not provide any details in the application regarding 14 how he pays rent, how he pays utilities or other bills, or how he lives considering his claim to 15 have no money and no bills. The Court finds that Plaintiff has omitted information from the 16 application. As a result, the Court cannot determine whether Plaintiff qualifies for in forma 17 pauperis status. 18 The Court will give Plaintiff one opportunity to file a complete in forma pauperis 19 application. The Court further orders that Plaintiff may not respond with a zero or “not 20 applicable” in response to any question without providing an explanation for each of the 21 questions. Plaintiff also may not leave any questions blank. Plaintiff must describe each source 22 of money that he receives, state the amount he received, and what he expects to receive in the 23 future. 24 The Court denies Plaintiff’s in forma pauperis application without prejudice. The Court 25 gives Plaintiff 30 days to file an updated application. Plaintiff must fully answer all applicable 26 questions and check all applicable boxes. Plaintiff may alternatively pay the filing fee in full. 27 Since the Court denies Plaintiff’s application, it does not screen the complaint at this time. 1 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 2 pauperis (ECF No. 1) is denied without prejudice. 3 IT IS FURTHER ORDERED that Plaintiff has until October 21, 2024 to file an 4 updated application to proceed in forma pauperis as specified in this order or pay the filing fee. 5 Failure to timely comply with this order may result in a recommendation to the district judge that 6 this case be dismissed. 7 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Plaintiff 8 a copy of this order and of the Short Form application to proceed in forma pauperis and its 9 instructions.1 10 11 DATED: September 20, 2024 12 DANIEL J. ALBREGTS 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 This form and its instructions can also be found at https://www.nvd.uscourts.gov/court-