Jaime, Jr. v. Albertsons

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 1/12/2017 DENYING 4 Motion to Proceed IFP, without prejudice, to its renewal in proper form; DISMISSING the 1 Complaint with leave to amend; GRANTING the plaintiff 30 days to renew his IFP applic ation and to file an amended complaint; CAUTIONING the plaintiff that a failure to timely renew a proper IFP application, or to timely file an amended complaint, may result in a recommendation to dismiss this action for failure to prosecute and for failure to comply with a court order. (Attachments: # 1 Application to Proceed IFP) (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR BLANQUIZA JAIME JR.,

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No. 2:16-cv-2637 KJM AC (PS)

Plaintiff,
v.

ORDER

ALBERTSON,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff has filed a renewed motion to

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proceed in forma pauperis. ECF No. 4. The renewed request will be denied because

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(1) plaintiff’s IFP affidavit fails to establish that he cannot afford the filing fee, and (2) plaintiff

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failed to file an amended complaint.

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I. INSUFFICIENT INFORMATION IN THE IFP APPLICATION
According to plaintiff’s in forma pauperis application, plaintiff has received $1355.17

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from SSDI in the past twelve months and he has $30.00 in the bank. ECF No. 4 at 1-2 ¶¶ 3(f), 4.

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Plaintiff also states that he is employed part-time from January to March, but does not specify

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his income from this job. ECF No. 4 at 1 ¶ 2(a). Plaintiff indicated that he owns “real estate,

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stocks, bonds, securities, other financial instruments, automobiles or any other thing of value,”

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but when prompted to describe those holdings only stated “no.” ECF No. 4 at 2 ¶¶ 4, 5. Further,
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the application does not indicate what plaintiff’s monthly expenses are, or his debts or other

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financial obligations, leaving the court unable to determine whether his income and savings

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enable him to pay the fee and still meet his expenses. In fairness to plaintiff, the form plaintiff

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used does not prompt him for this information. Accordingly, the current AO 240 form is attached

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and is also available online at http://www.uscourts.gov/sites/default/files/ao240_0.pdf. Finally,

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the application lists two dependents, but plaintiff fails to “indicate how much you contribute to

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their support,” as required. Id. ¶ 6.

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To prevail on a motion to proceed IFP, plaintiff need not demonstrate that he is
completely destitute, but he must show that because of his poverty, he “cannot pay the court costs

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and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.

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2015) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948)). In

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addition, plaintiff “must allege poverty ‘with some particularity, definiteness and certainty.’” Id.

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(quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981)).

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Because of the above omissions, plaintiff’s application fails to establish that he is entitled

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to prosecute this case without paying the required fees. The application will therefore be denied

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without prejudice.

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II. SCREENING
The court has already reviewed plaintiff’s complaint, and invited him to file an amended

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complaint. ECF No. 3. Plaintiff was advised on the problems in his complaint and how to correct

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them. Id. Plaintiff has not filed an amended complaint. Therefore, the complaint will be

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dismissed with leave to amend. Plaintiff is referred to the court’s prior order (ECF No. 3), for

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instructions on how to amend the complaint.

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III. CONCLUSION

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For the reasons explained above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 4) is DENIED without

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prejudice to its renewal in proper form, as explained above.

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2. Plaintiff’s complaint is DISMISSED with leave to amend.

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3. Plaintiff is granted 30 days to renew his IFP application and to file an amended
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complaint. Failure to timely renew a proper IFP application, or to timely file an amended

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complaint, may result in a recommendation to dismiss this action for failure to prosecute and for

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failure to comply with a court order.

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DATED: January 12, 2017

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