United States District Court, D. Nevada
REV KASEY F. HOFFMANN, Plaintiff,
RAIL CITY, et. al., Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
the court are Plaintiff's renewed application to proceed
in forma pauperis (Electronic Case Filing (ECF) No. 9) and
pro se complaint (ECF No. 1-1).
APPLICATION TO PROCEED IN FORMA PAUPERIS
person may be granted permission to proceed in forma pauperis
if the person "submits an affidavit that includes a
statement of all assets such [person] possesses [and] that
the person is unable to pay such fees or give security
therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiant's belief that the
person is entitled to redress." 28 U.S.C. § 1915;
Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)
(en banc) (stating that this provision applies to all actions
filed in forma pauperis, not just prisoner actions).
addition, the Local Rules of Practice for the District of
Nevada provide: "Any person, who is unable to prepay the
fees in a civil case, may apply to the Court for authority to
proceed in forma pauperis. The application shall be
made on the form provided by the Court and shall include a
financial affidavit disclosing the applicant's income,
assets, expenses, and liabilities." LSR 1-1.
supporting affidavits [must] state the facts as to [the]
affiant's poverty with some particularity, definiteness
and certainty.'" U.S. v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (quoting Jefferson v. United
States, 277 F.2d 823, 725 (9th Cir. 1960)). A litigant
need not "be absolutely destitute to enjoy the benefits
of the statute." Adkins v. E.I. Du Pont De Nemours
& Co., 335 U.S. 331, 339 (1948).
prisoner seeks to proceed without prepaying the filing fee:
[I]n addition to filing the affidavit filed [as described
above], [the prisoner] shall submit a certified copy of the
trust fund account statement (or institutional equivalent)
for the prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal, obtained
from the appropriate official of each prison at which the
prisoner is or was confined.
28 U.S.C. § 1915(a)(2). Notwithstanding the foregoing:
[I]f a prisoner brings a civil action...in forma pauperis,
the prisoner shall be required to pay the full amount of a
filing fee. The court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by
law, an initial partial filing fee of 20 percent of the
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint of notice of appeal.
(2) After payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court ...