United States District Court, D. Nevada
STANLEY RIMER, BRIAN O'KEEFE, JOHN ROSKY, RICHARD LANCASTER, Plaintiffs,
LUCINDA COUMOU, et al., Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLITAM G. COBB, MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
the court are Plaintiffs' Applications to Proceed in
Forma Pauperis (IFP) and pro se First Amended Complaint.
submitted their pro se complaint on May 2, 2017.
(ECF Nos. 1-1 to 1-4.) A notice was entered that no IFP
application or filing fee was received. (ECF No. 1.) On May
4, 2017, Plaintiffs filed a “Resubmission of IFP with
Orders to Proceed [IFP], as Previously Submitted, With
Request for Extension of Time to Submit New Financials if
Necessary.” (ECF No. 3.) This filing contained
applications to proceed IFP on behalf of each of the four
plaintiffs, but omitted the required completed financial
certificate indicating their prison account balance, average
monthly balance and average monthly deposits. (ECF No. 3 at
3-6 (Rimer), 8-11 (O'Keefe), 13-15 (Rosky), 17-19
(Lancaster).) Plaintiffs attached orders granting them IFP
status in state court. (ECF No. 3 at 7 (Rimer), 12
(O'Keefe), 16 (Rosky), 20 (Lancaster).) The court issued
an order advising Plaintiffs that an order granting IFP
status in state court did not mean IFP status would be
granted in federal court, citing the requirements of 28
U.S.C. § 1915(a). The court gave Plaintiffs until June
14, 2017 to submit their respective financial certificates or
pay the filing fee, advising them that a failure to do so
would result in a recommendation for dismissal. (ECF No. 13.)
That same date, an amended IFP application was filed by
Lancaster. (ECF No. 10.) It did not contain the required
certificates were filed by Rosky (ECF No. 11), O'Keefe
(ECF No. 12), Rimer (ECF No. 15). Lancaster requested an
extension of time to file his financial information (ECF No.
16), and he was given until July 4, 2017 (ECF No. 17). On
June 20, 2017, he filed his “updated financial.”
(ECF No. 18.)
filed a First Amended Complaint on May 25, 2017. (ECF No.
14-1 to 14-4.)
person may be granted permission to proceed IFP 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(a)(1); Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915 applies to all actions
filed IFP, 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 [IFP]. The application must be made on the form
provided by the court and must 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 723, 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:
(1) … [I]f a prisoner brings a civil
action…[IFP], 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 greater of --
(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