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Rimer v. Coumou

United States District Court, D. Nevada

July 11, 2017

STANLEY RIMER, BRIAN O'KEEFE, JOHN ROSKY, RICHARD LANCASTER, Plaintiffs,
v.
LUCINDA COUMOU, et al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLITAM G. COBB, MAGISTRATE JUDGE

         This 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.

         Before the court are Plaintiffs' Applications to Proceed in Forma Pauperis (IFP) and pro se First Amended Complaint.

         Plaintiffs 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 financial certificate.

         Financial 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.)

         Plaintiffs filed a First Amended Complaint on May 25, 2017. (ECF No. 14-1 to 14-4.)

         I. IFP APPLICATIONS

         A 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).

         In 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.

         “‘[T]he 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).

         When a 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 account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of ...

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