Alvarez v. Harder Mechanical Contractors

Opinion

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7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 1:23-cv-01162-BAM SERGIO ALVAREZ, 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE 13 COMPLETED APPLICATION TO v. PROCEED IN FORMA PAUPERIS OR 14 PAY FILING FEE WITHIN THIRTY DAYS 15 HARDER MECHANICAL CONTRACTORS, RESPONSE DUE: September 14, 2023 16 Defendant. 17 Plaintiff Sergio Alvarez, proceeding pro se, filed this civil action on August 4, 2023, 18 along with an application to proceed in forma pauperis (“IFP”). (Docs. 1, 2.) On August 8, 19 2023, the Court issued an Order requiring Plaintiff to file a completed IFP application or pay a 20 filing fee, and highlighted deficiencies with Plaintiff’s initial IFP application. (Doc. 3.) In its 21 Order, the Court noted that Plaintiff had not stated the pay period for his salary in response to 22 Item 2a, nor the amount Plaintiff contributes to his children’s support in Item 6. (Id. at 1.) 23 Plaintiff filed a new IFP application on August 11, 2023. (Doc. 4.) However, as there are still 24 deficiencies with the re-filed IFP application, the Court will direct Plaintiff to file a new 25 application. 26 First, Plaintiff lists “like $2300.00” in response to item 2a requiring he “state the amount 27 of your take-home salary or wages and pay period and give the name and address of your 28 1 employer.” (Doc. 4 at 1.) This response of “like $2300.00” does not make clear whether 2 Plaintiff is paid approximately $2,300.00 weekly, every other week, monthly, yearly, or on some 3 other pay period. The form requires applicants “state the amount of your take-home salary or 4 wages and pay period…” (Id.) Accordingly, in any refiled IFP application, Plaintiff should 5 clarify the frequency he receives the approximately $2300.00 salary (e.g., weekly, biweekly, 6 monthly, yearly) for the Court to properly assess his financial circumstances. Second, in 7 response to item 6 stating “List the persons who are dependent on you for support, state your 8 relationship to each person and indicate how much you contribute to their support,” Plaintiff 9 wrote “3 kids everything they need for school or personal use.” (Id. at 2.) This response does 10 not include an approximate amount that Plaintiff contributes to his children’s support. In any 11 refiled IFP application, Plaintiff should similarly clarify the approximate dollar amount he 12 contributes to his three children’s support so the Court may assess his financial 13 circumstances. 14 Under 28 U.S.C. § 1915(a)(1), a pro se plaintiff may proceed without prepayment of fees 15 by submitting “an affidavit that includes a statement of all assets such [person] possesses that the 16 person is unable to pay such fees or give security therefor.” See Flores v. California Corr. 17 Women’s Facility, No. 1:19-cv-1509-NONE-JLT, 2020 WL 8821643, at *1 (E.D. Cal. June 24, 18 2020) (noting that § 1915(a)(1) applies to non-prisoner plaintiffs). Without knowing Plaintiff’s 19 financial circumstances, the Court cannot conclude that Plaintiff is unable to pay the $402.00 20 filing fee for this case. Accordingly, the Court will require Plaintiff to file a revised application 21 containing the completed financial information. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of Court is directed to mail Plaintiff a form IFP application. (Form 3 AO 240); 4 2. Plaintiff shall complete the form IFP application, accurately, truthfully, and 5 completely answering all questions and shall file the form by no later than September 14, 6 2023. Alternatively, Plaintiff may pay the $402.00 filing fee to proceed with this case; 7 3. No extension of time will be granted without a showing of good cause; and 8 4. The failure to comply with this order will result in dismissal of this action for 9 failure to comply with a Court order, without prejudice. 10 11 IT IS SO ORDERED.

12 Dated: August 15, 2023 /s/ Barbara A. McAuliffe _ 13 UNITED STATES MAGISTRATE JUDGE

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