Nicolari v. Douglas County, NV

Filing 4

ORDER - Plaintiff's IFP application ECF No. #2 is DENIED WITHOUT PREJUDICE. The Clerk shall SEND Plaintiff the long form IFP application and instructions for the same. (Mailed on 5/9/2024). Plaintiff has 30 days (due by 6/7/2024) from the date of this Order to either file the long form IFP application or pay the $405 filing fee. If Plaintiff fails to timely comply with this Order, Plaintiff's action may be dismissed without prejudice. Signed by Magistrate Judge Craig S. Denney on 5/8/2024. (Attachments: #1 IFP form with Instructions)(Copies have been distributed pursuant to the NEF - GA)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 PAUL D. NICOLARI,
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Case No.: 3:24-cv-00169-ART-CSD
Order

Plaintiff

5 v.

Re: ECF Nos. 2, 2-1

6 DOUGLAS COUNTY, NEVADA,
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Defendant

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Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 2) and pro

10 se complaint (ECF No. 2-1).
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I. IFP APPLICATION
A person may be granted permission to proceed IFP if the person “submits an affidavit

13 that includes a statement of all assets such [person] possesses [and] that the person is unable to
14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense
15 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez
16 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to
17 all actions filed IFP, not just prisoner actions).
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The Local Rules of Practice for the District of Nevada provide: “Any person who is

19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP].
20 The application must be made on the form provided by the court and must include a financial
21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1.
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“[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some

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

1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the
2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).
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Plaintiff submitted the court’s short form IFP application. The form indicates that

4 Plaintiff’s take-home wages are $853.11 bi-weekly. The expenses listed include rent, an auto
5 loan, a motorcycle loan, a line of credit and credit cards, and amount to $3,684. Plaintiff does
6 state, however, that he has $14,000 in cash or in a checking or savings account. In light of this
7 last fact, it seems Plaintiff could pay the filing fee. The court will deny Plaintiff’s IFP application
8 without prejudice, and allow Plaintiff to either submit a new IFP application on the court’s long
9 form or pay the $405 filing fee.
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II. CONCLUSION
Plaintiff’s IFP application (ECF No. 2) is DENIED WITHOUT PREJUDICE. The

12 Clerk shall SEND Plaintiff the long form IFP application and instructions for the same. Plaintiff
13 has 30 days from the date of this Order to either file the long form IFP application or pay the
14 $405 filing fee. If Plaintiff fails to timely comply with this Order, Plaintiff’s action may be
15 dismissed without prejudice.
16 IT IS SO ORDERED.
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18 Dated: May 8, 2024
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_________________________________
Craig S. Denney
United States Magistrate Judge

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