United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation is made to the Honorable Robert C.
Jones, Senior 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 is Plaintiff's Application to Proceed in Forma
Pauperis (IFP) (ECF No. 1) and pro se Complaint (ECF No.
reasons set forth below, the court recommends that
Plaintiff's IFP application be denied and that this
action be dismissed with prejudice.
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