Smith v. Davis

• Court: District Court, E.D. California
• Decided: April 29, 2024
• Docket: 1:24-cv-00476
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 CANDACE SMITH, Case No. 1:24-cv-00476-JLT-EPG 10 Plaintiff, 11 ORDER DENYING IN FORMA PAUPERIS v. APPLICATION WITHOUT PREJUDICE AND 12 DIRECTING PLAINTIFF TO SUBMIT LONG KATHY DAVIS, FORM APPLICATION TO PROCEED IN 13 FORMA PAUPERIS OR PAY FILING FEE Defendant. WITHIN FORTY-FIVE DAYS 14 (ECF No. 2). 15 16 Plaintiff Candace Smith filed this civil action on April 22, 2024. (See ECF No. 1). With 17 the filing of his complaint, Plaintiff submitted an application to proceed in forma pauperis (IFP) 18 (ECF No. 2). 19 Under 28 U.S.C. § 1915(a)(1), a pro se plaintiff may proceed without prepayment of fees 20 by submitting “an affidavit that includes a statement of all assets such [person] possesses that the 21 person is unable to pay such fees or give security therefor.” See Flores v. California Corr. 22 Women’s Facility, No. 1:19-cv-1509-NONE-JLT, 2020 WL 8821643, at *1 (E.D. Cal. June 24, 23 2020) (noting that § 1915(a)(1) applies to non-prisoner plaintiffs). “[T]here is no formula set forth 24 by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 25 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). Rather, “[a]n affidavit in support of 26 an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still 27 afford the necessities of life.” Id. at 1234. However, “it is proper and indeed essential for the 28 1 supporting affidavits to state the facts as to affiant’s poverty with some particularity, definiteness 2 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. 3 United States, 277 F.2d 723, 725 (9th Cir. 1960)). 4 Under § 1915(e)(2)(A), a “court shall dismiss” a case if it determines that “the allegation of poverty is untrue.” But “[t]o dismiss [a] complaint pursuant to § 1915(e)(2), a showing of bad 5 faith is required, not merely inaccuracy.” Escobedo v. Applebees, 787 F.3d 1226, 1235 n. 8 (9th 6 Cir. 2015). “[C]ourts routinely dismiss with prejudice cases upon finding that the plaintiff has 7 intentionally withheld information that may have disqualified plaintiff from obtaining IFP status 8 or has otherwise manipulated his finances to make it appear that a plaintiff is poorer than he 9 actually is; i.e., where the facts show that the inaccuracy on the IFP application resulted from the 10 plaintiff's bad faith.” Witkin v. Lee, No. 2:17-CV-0232-JAM-EFB P, 2020 WL 2512383, at *3 11 (E.D. Cal. May 15, 2020), report and recommendation adopted, No. 2020 WL 4350094 (E.D. 12 Cal. July 29, 2020). 13 With these standards in mind, the Court notes that Plaintiff’s IFP application checks “No” 14 on the standard from question that asks if Plaintiff is currently employed. (ECF No. 2, p. 1). 15 However, Plaintiff does not fill out the portion of the form asking the date of Plaintiff’s last 16 employment and Plaintiff’s employer and pay information. Lastly, Plaintiff indicates that Plaintiff 17 has not received any money from employment over the last twelve months. 18 Adding further uncertainty to Plaintiff’s financial circumstances are Plaintiff’s IFP 19 applications filed in other recent cases, including before this Court. Plaintiff filed six cases in 20 February 2024.1 In three of those cases, including in a different case before this Court, Plaintiff 21 was required to file long-form applications based on confusion as to Plaintiff’s employment 22 status. See 1:24-cv-00251-EPG, ECF No. 3 at 2-3 (E.D. Cal., Mar. 4, 2024). As the Court noted 23 in that case, “Plaintiff’s employment status and potential earnings over the last twelve months need to be accurately reported before this Court can determine whether Plaintiff is eligible to 24 proceed IFP in this action.” (Id. at 3). 25 \\\ 26 27 1 See 1:24-cv-00199-JLT-SKO; 1:24-cv-00200-NODJ-BAM; 1:24-cv-00203-JLT-HBK; 1:24-cv-00204-NODJ-SAB; 28 1:24-cv-00221-NODJ-HBK; and 1:24-cv-00251-EPG. 1 Accordingly, IT IS ORDERED that: 2 1. Plaintiff's IFP application (ECF No. 2) is denied without prejudice. 3 2. The Clerk of the Court shall send Plaintiff a long form IFP application (AO 239). 4 3. Within forty-five (45) days of the date of service of this order, Plaintiff shall submit 5 the attached IFP application, completed and signed under penalty of perjury, or in the 6 alternative, pay the $405.00 filing fee for this action. 7 4. No requests for extension will be granted without a showing of good cause. Failure to comply with this order may result in dismissal of this action. ? | IT IS SO ORDERED. 10 1, | Dated: _April 29, 2024 Fey — UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28