Phillip Charles Aught, Jr. v. M. Roe, et al.

• Court: District Court, D. Nevada
• Decided: November 6, 2025
• Docket: 2:25-cv-00854
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 Phillip Charles Aught, Jr., 2:25-cv-00854-RFB-MDC 5 Plaintiff, ORDER DENYING MOTION TO 6 vs. EXPEDITE (ECF NO. 8) AND DENYING APPLICATION TO PROCEED IN FORMA 7 PAUPERIS (EFC NO. 10) M. Roe, et al., 8 Defendant. 9

10 Pro se plaintiff Phillip Charles Aught, Jr. filed a Motion to Expedite (“Motion”) and a renewed 11 Application to Proceed in Forma Pauperis (“IFP”). ECF Nos. 8 and 10. The Court DENIES plaintiff’s 12 IFP application because plaintiff did not comply with the Court’s previous Order but the Court gives 13 plaintiff one more chance to comply. See ECF No. 9. The Court also denies the Motion. 14 I. 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 20 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to 21 qualify for a waiver of costs and fees, but he must demonstrate that because of his poverty he cannot pay 22 those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & 23 Co., 335 U.S. 331, 339 (1948). 24 The applicant's affidavit must state the facts regarding the individual's poverty “with some 25 particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or his 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 4 court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 5 verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's 6 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. 7 LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in 8 themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443- 9 44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma 10 pauperis application). 11 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 12 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 13 persons. The Long Form requires more detailed information than the Short Form. The court typically 14 does not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears 15 that the plaintiff is concealing information about his income for determining whether the applicant 16 17 qualifies for IFP status. When an applicant is specifically ordered to submit the Long Form, the correct 18 form must be submitted, and the applicant must provide all the information requested in the Long Form 19 so that the court is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v. 20 NYE Cty. Dist. Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981, at 3 (D. Nev. Nov. 21 9, 2016), report and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL, 22 2016 WL 7493963 (D. Nev. Dec. 30, 2016). 23 II. PLAINTIFF'S IFP APPLICATION 24 Plaintiff filed the long form. ECF No. 10. Plaintiff crosses out much of the short form and says 25 2 that the questions do not apply to him, despite the Court’s previous Order stating not to do so.1 1 Plaintiff’s new form is also inconsistent with his previous form (which stated that he pays $2,000 a 2 month in alimony), but his new form states that his only bill is that he spends $700 on food. ECF Nos. 2 3 4 and 10. Plaintiff also does not list his children as dependents on his new form. 5 Plaintiff still does not provide an explanation regarding how he lives without any income or bills. 6 The Court finds that his IFP application is incomplete. The Court cannot determine if plaintiff qualifies 7 for IFP status. The Court will allow plaintiff one more opportunity to show that he qualifies for IFP 8 status. Plaintiff must resubmit the long form application. Plaintiff must answer all questions on the long 9 form with detailed explanations about his income and expenses. Plaintiff cannot leave any questions 10 blank, cross questions out, or respond that a question is “N/A” without an explanation. In response to 11 question eleven on the long form, plaintiff must explain in detail why he cannot afford the filing fee, 12 how he lives without income or bills, and why there are inconsistencies on both forms. The Court also 13 cautions plaintiff that his answers must be truthful, under penalty of perjury. If plaintiff fails to comply 14 with this Order, his application will be denied with prejudice. 15 III. MOTION TO EXPEDITE 16 17 This Court does not have an expedited calendar. Plaintiff cites no authority — and the Court is 18 aware of none — to show that this case merits expedited or favored treatment to the detriment of other 19 cases pending on the Court's docket. Plaintiff's Motion is DENIED. 20 // 21 // 22 23

24 1 “Plaintiff must answer all questions on the long form with detailed explanations about his income and expenses. Plaintiff cannot leave any questions blank or respond that a question is “N/A” without an 25 explanation.” ECF No. 9 at 3. 3 IT IS SO ORDERED THAT:

5 1. Plaintiff's Application To Proceed In Forma Pauperis (ECF No. 10) is DENIED without

3 prejudice. 4 1. Plaintiff's Motion to Expedite (ECF No. 8) is DENIED without prejudice. 5 2. By November 17, 2025, plaintiff shall either (1) file the long form application to proceed in 6 forma pauperis as specified in the Court’s order or (2) plaintiff must pay the full fee for filing a 7 civil action. 8 3. Failure to timely comply with this Order may result in a recommendation that this case be dismissed with prejudice. “4 □ 10 Af It is so ordered. ff ten~f, a 11 fe a / DATED November 6, 2025. I, fo i 12 □ ff \ 13 Hon. Maxim no D. Cbuviétlier II 4 United StatesyMagistraje Judge

15 NOTICE 16 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 17 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 18 9 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

59 |} May determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 92 || objections within the specified time and (2) failure to properly address and brief the objectionable issues 23 || waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 24 || District Court. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 25

Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written 1 notification with the court of any change of address. The notification must include proof of service upon 2 each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 3 4 Failure to comply with this rule may result in dismissal of the action. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5