Sweet v. Hisgen

• Court: District Court, D. Nevada
• Decided: February 11, 2022
• Docket: 2:22-cv-00013
• Status: Unknown

Opinion

3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** CHRISTY KAY SWEET, 8 Case No. 2:22-cv-00013-APG-VCF Plaintiff, 9 vs. 10 ORDER CHRISTOPHER WILLIAM HISGEN, 11 Defendant. APPLICATION TO PROCEED IN FORMA 12 P

AUPERIS (EFC NO. 1)

13 Pro se plaintiff Christy Kay Sweet filed an application to proceed in forma pauperis (IFP). ECF 14 No. 1. I deny Sweet’s IFP application without prejudice. 15 DISCUSSION 16 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 17 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 18 pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set 19 forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” 20 Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to 21 22 qualify for a waiver of costs and fees but he must demonstrate that because of his poverty he cannot pay 23 those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & 24 Co., 335 U.S. 331, 339 (1948). 25 The applicant's affidavit must state the facts regarding the individual's poverty “with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 1 (citation omitted). “Such affidavit must include a complete statement of the plaintiff's personal assets.” 2 Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. LEXIS 192145, at 3 4 1 (S.D. Cal. June 9, 2016). 5 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 6 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 7 persons. The Long Form requires more detailed information than the Short Form. The court typically 8 does not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears 9 that the plaintiff is concealing information about his income for determining whether the applicant 10 qualifies for IFP status. When an applicant is specifically ordered to submit the Long Form, the correct 11 form must be submitted, and the applicant must provide all the information requested in the Long Form 12 so that the court is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v. 13 NYE Cty. Dist. Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981, at 3 (D. Nev. Nov. 14 9, 2016), report and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL, 15 2016 WL 7493963 (D. Nev. Dec. 30, 2016). 16 17 Plaintiff Sweet submitted the Short Form IFP application. ECF No. 1. She states that she has no 18 business, profession, or other self-employment income, but she also states that her income is sporadic 19 and that she frequently sells personal possessions for income. Id. She states that she has a Prada Bag and 20 an antique “Lady’s secretary” to sell, but that these items are unsellable in a Covid economy. Id. She 21 states that she has $1,200 in the bank and she does not pay any rent. Id. She states that she is living 22 abroad in Thailand right now and sometimes teaches English and tutors students, but that she is not 23 working right now because she has been busy with legal issues. Id. 24 I cannot determine whether the applicant qualifies for IFP status without more information. It 25 2 sounds like plaintiff has sporadic income and enough money in the bank to pay the filing fee now, but I 1 will give plaintiff an opportunity to provide more information about her income and explain why she 2 cannot pay. I order that the plaintiff must complete the Long Form application. Since she must complete 3 4 the Long Form, plaintiff is required to provide comprehensive information regarding her sources of 5 income, employment history, bank accounts, assets, monthly expenses, age, and her years of schooling, 6 among other things. 7 I deny plaintiff’s IFP application without prejudice. I give plaintiff 30 days to file an updated IFP 8 application. Plaintiff may alternatively pay the filing fee in full. Since I deny plaintiff’s IFP application, 9 I do not screen her complaint now. 10 ACCORDINGLY, 11 I ORDER that Sweet’s application to proceed in forma pauperis (ECF No. 1) is DENIED without 12 prejudice. 13 I FURTHER ORDER that Sweet has until Monday, March 14, 2022, to file an updated IFP 14 application using the Long Form or pay the filing fee as specified in this order. Failure to timely comply 15 with this Order may result in case closure or a recommendation for dismissal with prejudice. 16 17 NOTICE 18 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 19 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 20 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 21 may determine that an appeal has been waived due to the failure to file objections within the specified 22 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 23 This circuit has also held that (1) failure to file objections within the specified time and (2) 24 failure to properly address and brief the objectionable issues waives the right to appeal the District 25 3 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 2 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 3 4 change of address. The notification must include proof of service upon each opposing party’s attorney, 5 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 6 result in dismissal of the action. 7 IT IS SO ORDERED. 8 DATED this 11th day of February 2022. 9 _________________________ 10 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4