Bernard-Ex v. Carter

• Court: District Court, D. Nevada
• Decided: January 10, 2023
• Docket: 2:22-cv-02094
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Clayton-M. Bernard-Ex, 5 Case No. 2:22-cv-02094-RFB-VCF Plaintiff, 6 vs. ORDER

7 Jerome Carter APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1) 8 Defendants. 9

10 Pro se plaintiff Clayton-M. Bernard-Ex filed an application to proceed in forma pauperis (IFP) 11 and complaint. ECF Nos. 1. I deny Bernard-Ex’s IFP application. 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 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 16 forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 17 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to 18 qualify for a waiver of costs and fees but he must demonstrate that because of his poverty he cannot pay 19 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). Federal Rules of Civil Procedure Rule 10(a) commands that 21 the title of every complaint must name all the parties. “The normal presumption in litigation is that 22 parties must use their real names.” Doe v. Kamehameha Sch./Bernice Pauahi Bishop Est., 596 F.3d 23 1036, 1042 (9th Cir. 2010). 24 Bernard-Ex indicates on his IFP application that he earns about $1,350 per month and that he has 25 2 nearly $4,000 in monthly bills. ECF No. 1. In response to all other questions on the application plaintiff 1 stated “N/A” meaning those questions were not applicable to him. Plaintiff did not provide any 2 explanation regarding how he lives given that he has almost $4,000 in bills per month. I find that 3 4 plaintiff’s IFP application is incomplete, so I cannot determine if plaintiff qualifies for IFP status. 5 I will allow plaintiff another opportunity to show that he qualifies for IFP status. Plaintiff must 6 fill out the long form application. In response to question 11, which asks why he cannot afford to pay the 7 filing fee, plaintiff must explain in detail how he pays his bills. I also note that plaintiff is a frequent 8 litigator in this Court, and most of his cases have been dismissed. I caution plaintiff that frequent 9 litigation in this Court that ends in dismissal boarders on vexatious. 10 ACCORDINGLY, 11 I ORDER that plaintiff Bernard-Ex’s application to proceed in forma pauperis (ECF No. 1) is 12 DENIED WITHOUT PREJUDICE. 13 I FURTHER ORDER that by Wednesday, February 8, 2023, plaintiff Bernard-Ex must either (1) 14 file the long form application to proceed in forma pauperis as specified in my order or (2) plaintiff must 15 pay the full fee for filing a civil action. 16 17 I FURTHER ORDER that failure to timely comply with this Order may result in a 18 recommendation that this case be dismissed with prejudice. 19 I CAUTION plaintiff Clayton-M. Bernard-Ex that continuing to file duplicative and/or frivolous 20 lawsuits may result in adverse consequences, including possible sanctions or a finding that he is a 21 vexatious litigant. 22 NOTICE 23 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 24 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 25 3 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

> {| may determine that an appeal has been waived due to the failure to file objections within the specified 3 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 4 || objections within the specified time and (2) failure to properly address and brief the objectionable issues 5 || waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 6 || District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 7 || Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 8 || notification with the court of any change of address. The notification must include proof of service upon ° each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may result in dismissal of the action. IT IS SO ORDERED. DATED this 10" day of January 2023.

i CAM FERENBACH 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25