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.)

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Case 2:22-cv-00022-MKD ECF No. 9 filed 05/09/22 PageID.26 Page 1 of 3 1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 May 09, 2022 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 VALENTIN BOVDYR, Plaintiff, 8 9 10 v. MATTHEW COZZA, ORDER DIRECTING PLAINTIFF TO COMPLY WITH COURT’S FEBRUARY 18, 2022 ORDER AND DECLINING TO ADOPT REPORT AND RECOMMENDATION Defendant. 11 12 No. 2:22-cv-00022-MKD Before the Court is Magistrate Judge Goeke’s March 25, 2022 Report and 13 Recommendation, ECF No. 7, recommending that, due to Plaintiff’s failure to pay 14 the filing fee or submit a properly completed Application to Proceed In Forma 15 Pauperis (IFP application), this Court 1) dismiss Plaintiff’s Complaint without 16 prejudice; and 2) Plaintiff be required to provide notice of the dismissal to all 17 18 Defendant(s) he served. Plaintiff filed an objection to Report and Recommendation, stating he believed he did not need to include his spouse’s 19 income in the IFP application. ECF No. 8. 20 ORDER - 1 Case 2:22-cv-00022-MKD ECF No. 9 filed 05/09/22 PageID.27 Page 2 of 3 1 After reviewing the Report and Recommendation, Plaintiff’s objection, and 2 relevant authorities, the Court directs that Plaintiff supplement his IFP application 3 consistent with the Court’s February 18, 2022 Order within 14 days. There are 4 multiple deficiencies in Plaintiff’s IFP application. An affidavit in support of 5 an IFP application is sufficient when it alleges that the affiant cannot pay the court 6 costs and still afford the necessities of life. Adkins v. E.I. DuPont de Nemours & 7 Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43 (1948). When analyzing an IFP 8 application, a Court may consider a plaintiff’s spouse’s income when the spouse’s 9 funds are available to the plaintiff. See Escobedo v. Applebees, 787 F.3d 1226, 10 1236 (9th Cir. 2015) (quoting Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th 11 Cir. 2000)). Plaintiff indicated that his spouse’s income is available to him to pay 12 household expenses, but has not provided his spouse’s income, nor has he provided 13 any specific information about the costs of his necessities of life. See ECF Nos. 2, 14 4. Plaintiff also did not indicate whether he is or has been a party to a lawsuit, not 15 including this lawsuit, in the last 10 years. See ECF Nos. 2, 4. If he has, Plaintiff 16 is required to provide, but has not yet provided, the required case number, court, 17 type of case, names of parties, and information regarding whether the case is still 18 pending or how it concluded. See ECF Nos. 2, 4. 19 20 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 PageID.28 Page 3 of 3 1 understand that he was required to provide information on other members of his 2 household, ECF No. 8. Courts are to make reasonable allowances 3 for pro se litigants and are to construe pro se papers and pleadings 4 liberally. McCabe v. Arave, 827 F.2d 634, 640 n.6 (9th Cir. 1987). Given 5 Plaintiff’s reported misunderstanding and his timely objection to the Report and 6 Recommendation, the Court will allow Plaintiff another opportunity to file a 7 complete IFP application. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. The Court declines to adopt the Report and Recommendation. 10 2. Within fourteen (14) days of this Order, Plaintiff shall submit a new and 11 properly completed application to proceed in forma pauperis or pay the 12 full filing fee. 13 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order 14 and provide copies to counsel and pro se Plaintiff. The Clerk’s Office is directed 15 to include a copy of the Court’s February 18, 2022, ECF No. 4, with the copies 16 provided to the pro se Plaintiff. 17 DATED May 9, 2022. s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 18 19 20 ORDER - 3

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