Love v. State of Nevada

Filing 5

ORDER denying 3 Motion; denying 1 Motion/Application for Leave to Proceed in forma pauperis. Payment of filing fees or renewed IFP due 30 days from date of this order. Signed by Magistrate Judge Carl W. Hoffman on 5/15/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILSON EARL LOVE

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Plaintiff,
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v.
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STATE OF NEVADA,
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Defendant.
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_______________________________________ )

Case No. 2:17-cv-01317-RFB-CWH

ORDER

Presently before the court is pro se Plaintiff Wilson Earl Love’s application to proceed in

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forma pauperis (ECF No. 1), filed on September 30, 2016. Also before the Court is Plaintiff’s

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motion for service of summons (ECF No. 3), also filed on September 30, 2016.

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Under 28 U.S.C. § 1914(a), a filing fee of $350.00 is required to commence a civil action in

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district court. Additionally, based on the Judicial Conference Schedule of Fees, District Court

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Miscellaneous Fee Schedule, effective June 1, 2016, a $50.00 administrative fee applies for filing a

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civil action in district court, making the total filing fee $400.00. Under 28 U.S.C. § 1915(a)(1), the

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court may authorize the commencement of a civil case “without prepayment of fees and costs or

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security therefor” if a person submits an affidavit including a statement of all assets that

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demonstrates the person is unable to pay the fees or give security for them.

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

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prepay fees and costs or give security for them. Specifically, Plaintiff indicates that his gross income

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from social security and retirement is approximately $790 per month, with monthly expenses of $91

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per month for storage, and debts of $60. Based on Plaintiff’s affidavit, it does not appear that he

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pays any regular monthly expenses for housing, transportation, utilities, loan payments, or other

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usual living expenses. Plaintiff’s affidavit also indicates that his debts or financial obligations are
minimal.

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Based on Plaintiff’s affidavit, his monthly income exceeds his monthly expenses by

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approximately $700. Plaintiff therefore has not demonstrated that he is unable to pay the costs of

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commencing this case under 28 U.S.C. § 1915(a)(1). See Ross v. San Diego County, 2008 WL

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440413 (S.D. Cal. Feb. 14, 2008) (finding plaintiff did not qualify to proceed in forma pauperis

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where she received $2,100 in disability payments, owned a car and house, and “carried significant

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debt”); see also Samuel v. Nat’l Health Svs., Inc., 2006 WL 2884795 at *1 (E.D. Cal. Oct. 10, 2006)

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(denying IFP application where plaintiff received $752.40 per month in Supplemental Security

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Income and had received a $10,000.00 judgment and owned a van valued at $500.00) (citing Green

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v. Cotton Concentration Co., 294 F.Supp. 34, 35 (D.C. Tex. 1968) (affidavit of indigency

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insufficient to establish indigency where both employed plaintiffs earned less than $350)); Matter of

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Anderson, 130 B.R. 497, 500 (W.D. Mich. 1991) (earnings of $950 per month insufficient to show

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indigency where poverty level in Michigan was $6,620 per year); In re Fontaine, 10 B.R. 175, 177

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(D. R.I. 1981) (no indigency where weekly net pay of $132, no dependents, and lived with mother to

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whom she paid $25 per week). The court therefore will deny Plaintiff’s application to proceed in

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forma pauperis without prejudice. Having concluded that Plaintiff may not proceed in forma

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pauperis, the court will not screen the complaint under 28 U.S.C. § 1915(e)(2)(B).

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IT IS THEREFORE ORDERED that Plaintiff Wilson Earl Love’s application to proceed in

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forma pauperis (ECF No. 1) is DENIED without prejudice. If Plaintiff so chooses, he may file a

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renewed application to proceed in forma pauperis addressing the deficiencies noted above.

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IT IS FURTHER ORDERED that Plaintiff must either file a renewed application to proceed

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in forma pauperis or pay the $350.00 filing fee, plus the $50.00 administrative fee, within 30 days

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from the date of this order.

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IT IS FURTHER ORDERED that in light of the Court’s decision to deny Plaintiff’s motion

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to proceed in forma pauperis, Plaintiff’s motion for service of summons (ECF No. 3) is DENIED as

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moot.

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IT IS FURTHER ORDERED that Plaintiff’s failure to timely comply with this order will
result in a recommendation that this case be dismissed.

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DATED: May 15, 2017

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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