Benavidez v. Federal Bureau of Prisons et al

Filing 52

ORDER. Plaintiff is directed to file a new, complete application for leave to proceed in forma pauperis no later than October 2, 2017. This application should contain complete answers to all of the questions in the form, including all sources of household income. Signed by Magistrate Judge Charles B Goodwin on 09/18/2017. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CARLOS BENAVIDEZ,
Plaintiff,
v.
U.S. FEDERAL BUREAU OF
PRISONS et al.,
Defendants.

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Case No. CIV-16-973-HE

ORDER
Plaintiff Carlos Benavidez initiated this civil action while incarcerated in the
custody of the Federal Bureau of Prisons, but he has since been released. In light of
multiple postrelease mailings being returned as undeliverable, Plaintiff was ordered on July
28, 2017, to file notice of his current address with the Clerk of Court. See Order (Doc. No.
42). Plaintiff has now done so (Doc. No. 46), and his address has been updated on the
docket.
Currently at issue is Plaintiff’s Second Application for Leave to Proceed In Forma
Pauperis (Doc. No. 45). Through submission of his Application, Plaintiff (who was
previously granted leave to proceed in forma pauperis pursuant to the Prison Litigation
Reform Act, see Doc. No. 6; 28 U.S.C. § 1915(b)) again seeks leave to proceed in forma
pauperis in this lawsuit.

As outlined herein, however, the Court lacks sufficient

information to determine whether Plaintiff is entitled to now proceed in forma pauperis—
i.e., without prepayment of the entire remaining $329.08 balance on his civil filing fee.

In Plaintiff’s Second Application, he states under penalty of perjury that he is
“unemployed” but also states that he has received an unspecified amount of income from
his “[b]usiness, profession, or other self-employment” of odd jobs. Pl.’s Second Appl. at
5-6. He avers that he has no money in any account, and no “automobile” or any other
“thing of value” held in his or someone else’s name, but he also claims that he “ha[s] a
truck” of unidentified value for which he pays $260.00 monthly. Id. at 6.1 In Plaintiff’s
First Application (Doc. No. 2), Plaintiff had stated that his wife sent him monthly payments
at his facility; in his Second Application, there is no mention of any household income
from a spouse or any “other sources.” See Pl.’s Second Appl. at 1-6; Martin v. A-1 Elec.
Heat & Air, No. CIV-16-1348-R, 2016 WL 7744448, at *1 n.2 (W.D. Okla. Dec. 20, 2016)
(R. & R.) (“Spousal income is an appropriate consideration when making a determination
as to whether an applicant qualifies to proceed in forma pauperis.” (citing cases)), adopted,
2017 WL 150041 (W.D. Okla. Jan. 13, 2017).
As a result of these omissions and discrepancies, the Court is unable to determine
whether Plaintiff is entitled to proceed in forma pauperis at this juncture. See 28 U.S.C. §
1915(a)(1); Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996) (“[W]hen a litigant’s
financial condition improves during the course of the litigation, the district court may
require him or her to pay fees and costs.”). Accordingly, Plaintiff is directed to file a new,

Defendants have filed an objection to Plaintiff’s Second Application and submitted
social-media screenshots from August 2017 showing an individual named “Carlos
Benavidez” in Edinburg, Texas, working on projects in connection with a remodeling
company. See Doc. Nos. 50, 50-1, -2, -3, 4, -5. Plaintiff did not reply to Defendants’
objection.
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complete application for leave to proceed in forma pauperis no later than October 2, 2017.
This application should contain complete answers to all of the questions in the form,
including all sources of household income.
The Clerk of Court is directed to send Plaintiff the Court’s approved nonprisoner in
forma pauperis application form along with this Order.
IT IS SO ORDERED this 18th day of September, 2017.

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