Smith-Lovejoy v. Sanders

Filing 12

ORDER DENYING without prejudice Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff has 30 days to submit the filing fee or renew his application to proceed in forma pauperis, correcting any deficiencies noted. (Signed by Magistrate Judge William G. Cobb on 08/05/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANDRE SMITH-LOVEJOY,

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Plaintiff,

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vs.
LEVY SANDERS,

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Defendant.

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3:13-cv-0265-RCJ-WGC
ORDER

Before the court is Plaintiff’s application to proceed in forma pauperis (Doc. # 1)1 and

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pro se complaint (Doc. # 10).2

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A person may be granted permission to proceed in forma pauperis if the person

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“submits an affidavit that includes a statement of all assets such [person] possesses [and] that

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the person is unable to pay such fees or give security therefor. Such affidavit shall state the

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nature of the action, defense or appeal and affiant’s belief that the person is entitled to

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redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)

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(stating that this provision applies to all actions filed in forma pauperis, not just prisoner

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actions); see also LSR 1-1 (“[a]ny person, who is unable to prepay the fees in a civil case, may

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apply to the Court for authority to proceed in forma pauperis. The application shall be made

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on the form provided by the Court and shall include a financial affidavit disclosing the

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applicant’s income, assets, expenses, and liabilities”). “‘[T]he supporting affidavits [must] state

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Refers to court’s docket number.

Plaintiff filed a complaint with his application for leave to proceed in forma pauperis (Doc. # 1-1) and
subsequently filed another complaint (Doc. # 10). The newly filed complaint names a different defendant and
contains substantially different allegations than the original complaint. The court will address the discrepancies
between the two documents once Plaintiff’s in forma pauperis application is either granted or he pays the full filing
fee.

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the facts as to affiant’s poverty with some particularity, definiteness and certainty.’” United

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

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United States, 277 F.2d 723, 725 (9th Cir. 1960)). The litigant need not “be absolutely

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destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont De Nemours & Co., 335

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U.S. 331, 339 (1948).

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Plaintiff’s application indicates that he receives $745 per month in social security

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benefits, and appears to receive other additional monthly income which he claims varies. (Doc.

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# 1 at 1.) When he is asked to list out his regular monthly expenses, he states: “pending

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$95,000.” (Id. at 2.) He lists two persons for whom he contributes money to support but does

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not identify any amount paid to these individuals. (Id.) He further states that he pays $1,200

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per year to Physicians Mutual Insurance Corporation, and that he has a “pending” water utility

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obligation to the State of California, but again he does not provide the amount. (Id.)

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Plaintiff does not sufficiently describe his monthly expenses so that the court can

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determine whether he should be granted in forma pauperis status. As a result, the application

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to proceed in forma pauperis is DENIED WITHOUT PREJUDICE. Plaintiff has THIRTY

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DAYS to submit the filing fee or renew his application to proceed in forma pauperis,

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correcting any deficiencies noted above. Plaintiff is advised that failure to comply with this

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order will result in a recommendation that the district judge dismiss the action.

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IT IS SO ORDERED.

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DATED: August 5, 2013.

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___________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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