United States District Court, D. Nevada
ORDER (IFP APPLICATION - ECF NO. 1)
A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff Delores Dupree's
Application to Proceed In Forma Pauperis (ECF No.
1). This Application is referred to the undersigned pursuant
to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local
Rules of Practice.
Dupree is proceeding in this action pro se, which
means that she is not represented by an attorney.
See LSR 2-1. She has requested authority to proceed
in forma pauperis (“IFP”), meaning
without prepaying the filing fees, and submitted a complaint.
Pursuant to 28 U.S.C. § 1914(a) and the Judicial
Conference Schedule of Fees, a filing fee and administrative
fee totaling $400 is required to commence a civil action in a
federal district court. The court may authorize a person to
commence an action without the prepayment of fees and costs
if the person files an IFP application including an affidavit
stating that he or she is unable to pay the initial fees.
See 28 U.S.C. § 1915(a)(1); LSR 1-1. The
standard for IFP eligibility requires that an applicant be
“unable to pay such fees or give security
therefor.” Determination of what constitutes
“unable to pay” or unable to “give security
therefor” is left to the court's discretion, based
upon the information a plaintiff submits. See, e.g.,
Fridman v. City of New York, 195 F.Supp.2d 534, 536
(S.D.N.Y.), aff'd, 52 Fed.Appx. 157 (2nd Cir.
Ninth Circuit has recognized that “there is no formula
set forth by statute, regulation, or case law to determine
when someone is poor enough to earn IFP status.”
Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir.
2015). An applicant need not be absolutely destitute to
qualify for a waiver of costs and fees, but he must
demonstrate that because of his poverty he cannot pay those
costs and still provide himself “with the necessities
of life.” Rowland v. Cal. Men's Colony,
506 U.S. 194, 203 (1993). The court must apply
“even-handed care” to ensure that “federal
funds are not squandered to underwrite, at public expense,
either frivolous claims” or the colorable claims of a
plaintiff “who is financially able, in whole or in
material part, to pull his own oar.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984)
(collecting cases). Thus, the affidavit must state the facts
regarding the individual's poverty “with some
particularity, definiteness and certainty.” United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). If
the court determines that an individual's allegation of
poverty is untrue, “it shall dismiss the case.”
28 U.S.C. § 1915(e)(2).
individual is unable or unwilling to verify his or her
poverty, the court has the discretion to make a factual
inquiry into a plaintiff's financial status and to deny
their IFP application. See Marin v. Hahn, 271 F.
App'x 578 (9th Cir. 2008) (finding that the district
court did not abuse its discretion by denying the
plaintiff's IFP request because he “failed to
verify his poverty adequately”); Broemer v.
C.I.A., 33 F. App'x 341, 341-42 (9th Cir. 2002)
(affirming the district court's denial of IFP application
where applicant failed to answer all of the questions in his
“Declaration in Support of Request to Proceed In Forma
Ms. Dupree has requested authority to proceed IFP and
submitted the affidavit required by § 1915(a). However,
her IFP Application is incomplete. The affidavit states that
her take-home pay is $23, 000 per year (approximately $1, 916
per month), but she did not describe and provide any specific
information regarding her monthly expenses. As a result, the
court cannot determine whether she is eligible to proceed
IFP. The court will therefore deny the IFP Application (ECF
No. 1) without prejudice and instruct the Clerk of the Court
to mail Ms. Dupree a blank IFP application. She will have
until July 21, 2017, to submit the completed
application or pay the full $400 filing fee.
the court notes that the Complaint (ECF No. 1-1) consists of
only a few conclusory sentences of factual allegations and it
makes no request for relief. The allegations are not
sufficient to allow a lawsuit to proceed. The Complaint also
fails to comply with LR IA 10-2, which provides the required
format for court filings. The court appreciates that it is
difficult for pro se parties to litigate their
claims; thus, Ms. Dupree is advised to familiarize herself
with the Federal Rules of Civil Procedure and the Local Rules
of Practice. She may also be able to participate in the
Federal Court Ask-A-Lawyer program coordinated by the Legal
Aid Center of Southern Nevada.
Dupree chooses to file an amended complaint, she must do so
by July 21, 2017. The Clerk of the Court will be instructed
to mail her a blank form complaint for employment
discrimination claims. Although a form complaint cannot cover
every type of employment discrimination case, it does
highlight certain types of information that is useful to the
court for screening purposes and may aid plaintiffs in
stating a colorable claim.
amended complaint must contain a short and plain statement
of: (1) the grounds for the court's jurisdiction; (2) any
claim she has showing she is entitled to relief; and (3) a
demand for the relief she seeks. See Fed. R. Civ. P.
8(a). An amended complaint should set forth the claims in
short and plain terms, simply, concisely, and directly.
See Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 514
(2002). This means a plaintiff should summarize the
information she believes to be relevant in her own words for
each claim asserted in the amended complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (Rule 8 demands
“more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action”). Plaintiffs are advised to support each of his
claims with factual allegations because all complaints
“must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.” Starr, 652 F.3d at
1216. If multiple claims are alleged, the complaint should
identify which factual allegations give rise to each
particular claim. McHenry v. Renne, 84 F.3d 1172,
1178 (9th Cir. 1995). Plaintiffs must state “enough
facts to raise a reasonable expectation that discovery will
reveal evidence” of the allegations charged.
Cafasso, United States ex rel. v. General Dynamics C4
Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007)).
Dupree is also informed that the court cannot refer to a
prior pleading (i.e., the original complaint) in
order to make an amended complaint complete. Local Rule 15-1
requires that an amended complaint be complete in itself
without reference to any prior pleading. See LR
15-1(a). This is because, as a general rule, an amended
complaint supersedes the original complaint. Ramirez v.
Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir.
2015). Once a plaintiff files an amended complaint, the
original pleading no longer serves any function in the case.
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992). Therefore, in an amended complaint, as in an original
complaint, each claim must be sufficiently alleged.
IT IS ORDERED:
Plaintiff Delores Dupree's Application to Proceed In
Forma Pauperis (ECF No. 1) is DENIED WITHOUT PREJUDICE.
Dupree shall have until July 21, 2017, to file a completed
IFP Application or pay the $400 filing fee.
Dupree's failure to comply with this Order by: (a)
submitting a completed IFP Application, or (b) paying the
$400 filing fee on or before the July 21, 2017 deadline will
result in a ...