Acosta v. Advanced Management Group et al

Filing 3

ORDER. IT IS HEREBY ORDERED that 1 Plaintiff's Application to Proceed In Forma Pauperis is denied, without prejudice. IT IS FURTHER ORDERED that the Clerk of the Court shall retain the Complaint 1 -1. IT IS FURTHER ORDERED that the Clerk of the Court shall mail Plaintiff a copy of the long form application to proceed in forma pauperis (AO 239). Plaintiff will have until 3/19/17 to file the long form application to proceed in forma pauperis. Alternatively, Plaintiff shall pay the four hundred dollar ($400) filing fee accompanied by a copy of this Order, on or before3/19/17. Signed by Magistrate Judge George Foley, Jr on 2/17/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JUAN ACOSTA,

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Plaintiff,
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vs.
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ADVANCED MANAGEMENT GROUP, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-01168-APG-GWF
ORDER
Application to Proceed in Forma
Pauperis (ECF No. 1)

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This matter comes before the Court on Plaintiff’s Application to Proceed in Forma

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Pauperis (ECF No. 1), filed on May 24, 2016.

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BACKGROUND

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Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants

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violated his civil rights because they removed Plaintiff’s daughter, Carmen Acosta, from his home

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and subsequently denied Plaintiff visitation with her. Plaintiff asserts that the Defendants who are

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Carmen’s current guardians are not fit to care for her and pose an imminent risk of harm to her

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safety. Plaintiff claims that Defendants’ actions have caused him severe emotional distress.

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DISCUSSION
I.

Application to Proceed In Forma Pauperis
The Ninth Circuit has recognized that “there is no formula set forth by statute, regulation,

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or case law to determine when someone is poor enough to earn IFP status.” Escobedo v.

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Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be absolutely destitute to

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qualify for a waiver of costs and fees; nonetheless, he must demonstrate that because of his poverty

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he cannot pay those costs and still provide himself with the necessities of life. Adkins v. E.I.

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DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). The applicant’s affidavit must state the

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facts regarding the individual’s poverty “with some particularity, definiteness and certainty.”

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

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277 F.2d 723, 725 (9th Cir. 1960)). It is within the discretion of the court to deny a request to

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proceed in forma pauperis if an individual is unable or unwilling to verify his or her poverty and

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the court determines that the individual’s allegation of poverty is untrue. 28 U.S.C. § 1915(e)(2);

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see, e.g., Martin v. Hahn, 271 F. App’x 578 (9th Cir. 2008) (finding that the district court did not

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abuse its discretion by denying the plaintiff’s request to proceed in forma pauperis because he

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“failed to verify his poverty adequately”).

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Here, Plaintiff has requested to proceed in this case in forma pauperis and has submitted an

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affidavit as required by 28 U.S.C. § 1915(a) asserting that he is unable to prepay the fees and costs

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associated with bringing this action or give security for them. He represents that he: (1) is not

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incarcerated; (2) has no take-home pay or wages and no sources of income for the past 12 months;

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(3) has no money in cash or bank accounts; and responds “N/A” or not applicable to the remaining

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questions inquiring into whether he owns anything of value (such as a car or real estate), whether

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he has any monthly expenses (such as housing or transportation), whether he has dependents, or

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whether he has any debt or other financial obligations. See IFP Application (ECF No. 1). These

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cursory statements do not allow the Court to verify Plaintiff’s poverty allegation and determine

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whether Plaintiff is eligible to proceed in forma pauperis. Therefore, the Court will deny Plaintiff’s

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application without prejudice and instruct the Clerk of the Court to mail Plaintiff a copy of the long

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form application (AO 239). Accordingly,

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IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis is
denied, without prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court shall retain the Complaint (ECF
No. 1-1).

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IT IS FURTHER ORDERED that the Clerk of the Court shall mail Plaintiff a copy of the

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long form application to proceed in forma pauperis (AO 239). Plaintiff will have until March 19,

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2017 to file the long form application to proceed in forma pauperis. Alternatively, Plaintiff shall
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pay the four hundred dollar ($400) filing fee accompanied by a copy of this Order, on or before

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March 19, 2017. Failure to comply with the terms of this Order will result in a recommendation to

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the District Judge that this case be dismissed.

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DATED this 17th day of February, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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