Bovdyr v. Cozza

Filing 9

ORDER DIRECTING PLAINTIFF TO COMPLY WITH COURT'S ORDER AND DECLINING 7 TO ADOPT REPORT AND RECOMMENDATION. Signed by Judge Mary K. Dimke. (Attachments: # 1 Copy of Order Denying Application to Proceed In forma Pauperis with Leave to Renew) (AY, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)

Case 2:22-cv-00022-MKD

ECF No. 9

filed 05/09/22

PageID.26 Page 1 of 3

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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May 09, 2022
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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VALENTIN BOVDYR,
Plaintiff,

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v.
MATTHEW COZZA,

ORDER DIRECTING PLAINTIFF
TO COMPLY WITH COURT’S
FEBRUARY 18, 2022 ORDER AND
DECLINING TO ADOPT REPORT
AND RECOMMENDATION

Defendant.

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No. 2:22-cv-00022-MKD

Before the Court is Magistrate Judge Goeke’s March 25, 2022 Report and

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Recommendation, ECF No. 7, recommending that, due to Plaintiff’s failure to pay
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the filing fee or submit a properly completed Application to Proceed In Forma
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Pauperis (IFP application), this Court 1) dismiss Plaintiff’s Complaint without

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prejudice; and 2) Plaintiff be required to provide notice of the dismissal to all
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Defendant(s) he served. Plaintiff filed an objection to Report and
Recommendation, stating he believed he did not need to include his spouse’s

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income in the IFP application. ECF No. 8.
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ORDER - 1

Case 2:22-cv-00022-MKD

ECF No. 9

filed 05/09/22

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After reviewing the Report and Recommendation, Plaintiff’s objection, and

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relevant authorities, the Court directs that Plaintiff supplement his IFP application

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consistent with the Court’s February 18, 2022 Order within 14 days. There are

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multiple deficiencies in Plaintiff’s IFP application. An affidavit in support of

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an IFP application is sufficient when it alleges that the affiant cannot pay the court

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costs and still afford the necessities of life. Adkins v. E.I. DuPont de Nemours &

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Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43 (1948). When analyzing an IFP

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application, a Court may consider a plaintiff’s spouse’s income when the spouse’s

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funds are available to the plaintiff. See Escobedo v. Applebees, 787 F.3d 1226,

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1236 (9th Cir. 2015) (quoting Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th

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Cir. 2000)). Plaintiff indicated that his spouse’s income is available to him to pay

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household expenses, but has not provided his spouse’s income, nor has he provided

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any specific information about the costs of his necessities of life. See ECF Nos. 2,

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4. Plaintiff also did not indicate whether he is or has been a party to a lawsuit, not

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including this lawsuit, in the last 10 years. See ECF Nos. 2, 4. If he has, Plaintiff

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is required to provide, but has not yet provided, the required case number, court,

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type of case, names of parties, and information regarding whether the case is still

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pending or how it concluded. See ECF Nos. 2, 4.

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While Plaintiff has already been given the opportunity to submit a new and
properly completed IFP application, ECF No. 4, Plaintiff argues he did not

ORDER - 2

Case 2:22-cv-00022-MKD

ECF No. 9

filed 05/09/22

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understand that he was required to provide information on other members of his

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household, ECF No. 8. Courts are to make reasonable allowances

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for pro se litigants and are to construe pro se papers and pleadings

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liberally. McCabe v. Arave, 827 F.2d 634, 640 n.6 (9th Cir. 1987). Given

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Plaintiff’s reported misunderstanding and his timely objection to the Report and

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Recommendation, the Court will allow Plaintiff another opportunity to file a

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complete IFP application.

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Accordingly, IT IS HEREBY ORDERED:

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1. The Court declines to adopt the Report and Recommendation.

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2. Within fourteen (14) days of this Order, Plaintiff shall submit a new and

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properly completed application to proceed in forma pauperis or pay the

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full filing fee.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order

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and provide copies to counsel and pro se Plaintiff. The Clerk’s Office is directed

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to include a copy of the Court’s February 18, 2022, ECF No. 4, with the copies

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provided to the pro se Plaintiff.

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DATED May 9, 2022.
s/Mary K. Dimke
MARY K. DIMKE
UNITED STATES DISTRICT JUDGE

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ORDER - 3