Johnson v. Vernon et al

Filing 6

ORDER denying without prejudice 2 Motion/Application for Leave to Proceed in forma pauperis. Payment of filing fees due 2/6/2025. Signed by Magistrate Judge Maximiliano D. Couvillier, III on 1/7/2025. (Copies have been distributed pursuant to the NEF - MAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Justin A. Johnson,

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2:24-cv-02421-RFB-MDC
Plaintiff,

vs.

ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS (EFC
NO. 2) WITHOUT PREJUDICE

Pastor R.A Vernon, et al.,
Defendant.

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Pro se plaintiff Justin A. Johnson filed an Application To Proceed In Forma Pauperis (“IFP”).
ECF No. 2. The Court DENIES Johnson’s IFP application without prejudice.

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DISCUSSION
Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or
security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to
pay such fees or give security therefor.” The Ninth Circuit has recognized that “there is no formula set
forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.”
Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to

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qualify for a waiver of costs and fees, but he must demonstrate that because of his poverty he cannot pay

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those costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours &

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Co., 335 U.S. 331, 339 (1948).

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The applicant's affidavit must state the facts regarding the individual's poverty “with some

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particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)

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(citation omitted). If an individual is unable or unwilling to verify his or her poverty, district courts have

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the discretion to make a factual inquiry into a plaintiff's financial status and to deny a request to proceed

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in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) (finding that the district
court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to

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verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's

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personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist.

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LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in

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themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443-

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44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma

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pauperis application).

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The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for
incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated
persons. The Long Form requires more detailed information than the Short Form. The court typically
does not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears
that the plaintiff is concealing information about his income for determining whether the applicant
qualifies for IFP status. When an applicant is specifically ordered to submit the Long Form, the correct

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form must be submitted, and the applicant must provide all the information requested in the Long Form

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so that the court is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v.

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NYE Cty. Dist. Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981, at 3 (D. Nev. Nov.

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9, 2016), report and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL,

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2016 WL 7493963 (D. Nev. Dec. 30, 2016).

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Johnson filed the short form IFP application. ECF No. 2. Plaintiff left the header of the
application blank, i.e. he did not name the plaintiff or the defendants in the top left-hand corner of the
application. ECF No. 2 at 2. Plaintiff in fact left the entire first page blank and did not respond to
questions one, two, and three. Id. In response to question four plaintiff states that he has zero dollars in
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the bank. Id. at 2-3. In response to questions five, six, and seven, he responds “N/A” apparently
indicating that questions about his assets, automobiles, housing, bills, expenses, and dependents do not

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apply to him. Id. at 3. In response to question eight, he lists various debts, including debt that he has on a

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car loan. Id. Plaintiff stated in response to question five (which asked if he owned an automobile) that

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the question did not apply to him, so the plaintiff does not clarify why he has a car loan or whether he

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owns a vehicle. Plaintiff also misdated his application 12-22-26.

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The Court finds that plaintiff’s IFP application is incomplete, so it cannot determine if plaintiff

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qualifies for IFP status. The Court will allow plaintiff another opportunity to show that he qualifies for

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IFP status. Plaintiff must resubmit the long form application. Plaintiff must answer all questions on the
long form with detailed explanations about his income and expenses. Plaintiff cannot leave any
questions blank or respond that a question is “N/A” without an explanation.
IT IS SO ORDERED THAT:
1. Plaintiff’s Application To Proceed In Forma Pauperis (ECF No. 2) is DENIED without
prejudice.

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2. By February 6, 2025, plaintiff shall either (1) file the long form application to proceed in forma

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pauperis as specified in the Court’s order or (2) plaintiff must pay the full fee for filing a civil

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action.

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3. Failure to timely comply with this Order may result in a recommendation that this case be
dismissed with prejudice.
NOTICE
Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and
recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk
of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal
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may determine that an appeal has been waived due to the failure to file objections within the specified
time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file

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objections within the specified time and (2) failure to properly address and brief the objectionable issues

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waives the right to appeal the District Court's order and/or appeal factual issues from the order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.

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Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written

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notification with the court of any change of address. The notification must include proof of service upon

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each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel.

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Failure to comply with this rule may result in dismissal of the action.
It is so ordered.
DATED January 7, 2025.
_________________________
Hon. Maximiliano D. Couvillier III
United States Magistrate Judge

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