Thomas v. FBI et al

Filing 19

ORDER Denying 13 Motion to Reopen Case and 14 Motion/Application for Leave to Proceed in forma pauperis. Signed by Chief Judge Robert C. Jones on 3/14/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CAROL THOMAS,
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Plaintiff,
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vs.
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FEDERAL BUREAU OF INVESTIGATION et
al.,
Defendants.

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2:11-cv-01732-RCJ-RJJ
ORDER

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The Court previously denied Plaintiff’s motion to proceed in forma pauperis, ruling that

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amendment of the affidavit was futile. The Court denied the motion to proceed in forma

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pauperis because the affidavit of poverty indicated that Plaintiff’s husband was employed, which

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is relevant to the determination of Plaintiff’s ability to pay fees and costs without foregoing the

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necessities of life. See Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 339 (1948);

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Monti v. McKeon, 600 F. Supp. 112, 114 (D. Conn. 1984). But Plaintiff did not specify her

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husband’s income. Plaintiff was attempting to sue three private entities and the Federal Bureau

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of Investigation (“FBI”) for unspecified harassment. Plaintiff identified no legal theories

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entitling her to relief, but only noted that she believed unidentified defendants, or others, had

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broken into her apartment and hacked into her computer. Plaintiff filed the proposed complaint

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on a civil rights form complaint, but none of the proposed defendants were state actors amenable

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to claims under 42 U.S.C. § 1983. Plaintiff also appeared to demand certain information from

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the FBI, but she did not allege having filed a Freedom of Information Act (“FOIA”) request with

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the FBI. See United States v. Steele, 799 F.2d 461, 465–66 (9th Cir. 1986) (citing 5 U.S.C.

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§ 552(a)(1)–(4)) (“The complainant must request specific information in accordance with

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published administrative procedures and have the request improperly refused before that party

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can bring a court action under the FOIA.” (citations omitted)). The Court therefore denied the

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motion for leave to proceed in forma pauperis and ordered the Clerk not to accept an amended

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affidavit of poverty if the same proposed complaint was attached thereto.

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Plaintiff has filed a Motion to Reopen Case (ECF No. 13), as well as a new Motion to

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Proceed in Forma Pauperis (ECF No. 14), with no further proposed complaint attached thereto.

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The motion to reopen case is handwritten, and it reads in its entirety: “Freedom of Information

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Act to get names and Addresses to file cease and Deassits order DT order [sic] The harassment

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has started again. - ASAP.” (Id.). Plaintiff’s motion appears to be a FOIA request. Even if the

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Court were to accept the new affidavit of poverty, Plaintiff must make her FOIA request directly

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to the FBI. Only if the FBI denies the request will this Court be able to review the denial. See

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Steele, 799 F.2d at 465–66.

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The affidavit of poverty is insufficient, in any case. Plaintiff indicates in her new

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affidavit of poverty that her husband earns approximately $30,000 per year and that recurring

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monthly expenses are $1269, possibly higher due to fluctuating gasoline and electricity costs.

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Plaintiff indicates her husband’s wage rate is $14.50 per hour, which comes to $30,160 per year

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assuming full-time employment with no overtime, or $2513.33 in an average month. After

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federal income taxes, this comes to approximately $26,061 per year, or $2171.75 in an average

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month, leaving a monthly surplus of $902.75 unaccounted for in the affidavit. The affidavit does

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not account for food and clothing, but even assuming $500 per month, this still leaves

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approximately $400 per month, which is sufficient to afford a one-time $350 filing fee.
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CONCLUSION
IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Forma Pauperis
(ECF No. 14) is DENIED.

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IT IS FURTHER ORDERED that the Motion to Reopen Case (ECF No. 13) is DENIED.

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IT IS SO ORDERED.

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Dated this 14th day of March, 2012.
Dated this 2nd day of March, 2012.
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ROBERT C. JONES
United States District Judge

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