Toliver v. Las Vegas Metropolitan Police Department et al

Filing 3

ORDER that 1 Application for Leave to Proceed in forma pauperis is DENIED without prejudice. Plaintiff shall have until thirty (30) days from the date this order is entered to either file a completed application to proceed in forma pauperis attach ing thereto a copy of his complaint, or pay the filing fee of $400.00. Plaintiff is advised that failing to do so will result in the dismissal of his case. Signed by Magistrate Judge George Foley, Jr on 6/17/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GEORGE A. TOLIVER

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Plaintiff,

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vs.

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LVMPD, et al.,

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Defendant,

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Case No. 2:14-cv-00906-MMD-GWF
ORDER
Application to Proceed in Forma Pauperis
(#1) and Complaint (#1-1)

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This matter comes before the Court on Plaintiff’s Application to Proceed in Forma
Pauperis (#1) and Complaint (#1-1), filed on June 11, 2014.
BACKGROUND
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging claims for

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false imprisonment, battery, and intentional infliction of emotional distress. See Dkt. #1-1. As the

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Court understands Plaintiff’s allegations, on August 5, 2013, Plaintiff voluntarily entered the Clark

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County Detention Center to sign up for house arrest. Id. at pg. 3. Having no other form of

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identification, Plaintiff presented his jail identification card to which the front desk attendant

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explained his jail identification card was insufficient and he was not permitted to enter. Plaintiff

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alleges he explained to the attendant that he had to sign up for house arrest, so the attendant called

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for an officer’s assistance. Id. Plaintiff alleges that Defendant Officer Cole arrived and told

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Plaintiff to get on the wall as he inquired about weapons. Id. Officer Cole then allegedly placed

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Plaintiff under arrest because he contended that the Plaintiff rolled his eyes at him. Id. Plaintiff

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indicates that Officer Cole proceeded to tell him that he would be going to prison because the

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House Arrest Program did not want him. Id. He was then searched, handcuffed, and taken to the

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jail from approximately 6:45 A.M. until 8:20 A.M. Id. After which, Plaintiff alleges he was

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released and told to never come back. Id.

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DISCUSSION
I.

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Application to Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1914(a), a filing fee of $350.00 is required to commence a civil

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action in federal district court. The court may authorize the commencement of an action without

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prepayment of fees and costs or security therefor, by a person who submits an affidavit that

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includes a statement showing the person is unable to pay such costs. 28 U.S.C. § 1915(a)(1). The

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standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is “unable to pay such fees or

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give security therefor.” Determination of what constitutes “unable to pay” or unable to “give

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security therefor” and, therefore whether to allow a plaintiff to proceed in forma pauperis, is left to

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the discretion of the presiding judge, based on the information submitted by the plaintiff or

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plaintiffs. See, e.g., Fridman v. City of New York, 195 F.Supp.2d 534, 536 (S.D.N.Y.), aff'd, 52

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Fed.Appx. 157 (2nd Cir. 2002).

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Plaintiff submitted the affidavit required by § 1915(a) to show that he is unable to prepay

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fees and costs or give security therefor. Therein, Plaintiff indicated he receives no monthly income,

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has approximately $94.00 in a banking account, owns nothing of value, and has no monthly

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expenses. Exhibits attached to Plaintiff’s Application, however, indicate that Plaintiff receives

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Social Security income. See Dkt. #1 at pg. 4. Question three of the Application to Proceed in

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Forma Pauperis specifically requests the source and amount of all income received. Plaintiff failed

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to identify the amount of Social Security income he receives. The Court, therefore, is unable to

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determine whether he is able to pay the court costs as required by 28 U.S.C. § 1914(a). Finding

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Plaintiff’s Application incomplete, the Court cannot grant his request to proceed in forma pauperis

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at this time. Accordingly,

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...

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IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in Forma Pauperis

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(#1) is denied without prejudice. Plaintiff shall have until thirty (30) days from the date this order

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is entered to either file a completed application to proceed in forma pauperis attaching thereto a

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copy of his complaint, or pay the filing fee of $400.00. Plaintiff is advised that failing to do so will

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result in the dismissal of his case.

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DATED this 17th day of June, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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