United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS [ECF
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
this Court is pro se Plaintiff Antonio Busby's
application to proceed in forma pauperis (ECF No.
1). The Court denies Busby's application without
prejudice for the following reasons.
28 U.S.C. § 1914(a), a filing fee is required to
commence a civil action in federal court. The Court may
authorize the commencement of an action without prepayment of
fees and costs by a person who submits an affidavit showing
the person is “unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). It is
“essential for the supporting affidavits to state the
facts as to affiant's poverty with some particularity,
definiteness and certainty. Jefferson v. United
States, 277 F.2d 723, 725 (9th Cir. 1960).
“Determination of what constitutes ‘unable to
pay' or unable to ‘give security therefor' and,
therefore whether to allow a plaintiff to proceed in
forma pauperis, is left to the discretion of the
presiding judge, based on the information submitted by the
plaintiff or plaintiffs.” Lasko v. Hampton &
Hampton Collections, LLC, No. 2:15-CV-01110-APG, 2015 WL
5009787, at *1 (D. Nev. Aug. 21, 2015).
Busby's application is incomplete. Busby does not state
whether he owns any valuable property, nor does he state
whether he owes any debts or other financial obligations.
(ECF No. 1 at 2). In addition, while Busby recorded his
biweekly income, it is unclear if this income is
current. (Id.). Without this information,
the Court is unable to determine Busby's financial
situation, and thus cannot grant Busby's application.
However, the Court will consider Busby's application if
he amends and refiles it by February 26, 2018.
the Court denies Busby's application without prejudice
because of an incomplete financial affidavit, it does not
need to address the adequacy of the Complaint. However, if
Busby files an amended affidavit and the Court grants his
application, the Court will screen his complaint. It is
recommended that Busby take the following issues into
consideration, and file an amended Complaint along with his
amended financial affidavit.
courts have the authority to dismiss a case if the action is
legally frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2). Federal Rule of Civil Procedure 8(a) provides
that a complaint “that states a claim for relief”
must contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.” In
addition, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citation
Busby's complaint lacks sufficient facts. First,
Busby's complaint must clarify the charge under Title VII
that he asserts against Prime Healthcare. A Plaintiff may
pursue various charges under Title VII. For example, a
Plaintiff may charge an employer with disparate impact,
discrimination, or hostile work environment. However, since
charges under Title VII may contain different elements, Busby
must specifically select the charge that fits his case. 42
U.S.C § 2000e-2; Ricci v. DeStefano, 557 U.S.
557, 129 S.Ct. 2658, 2661, 174 L.Ed.2d 490 (2009). In
addition, Busby does not allege any facts that would give
rise to a claim under the Genetic Information
Nondiscrimination Act. (ECF No. 1-1 at 1). The Genetic
Information Nondiscrimination Act only allows a cause of
action for employees whose employers discriminate against
them based on genetic information (such as being prone to
cancer). 42 U.S.C.A § 2000ff-1(a). Busby also does not
allege any facts that would give rise to a claim under The
Whistleblower Protection Act of 1989, as this law only
protects employees of the federal government. Whistleblower
Protection Act of 1989, PL 101-12, April 10, 1989 103 Stat
Complaint only vaguely refers to his termination, EEOC
complaint, and the conversations with supervisors that form
the basis of his claims. (ECF No. 1-1 at 1). Busby must add
facts specifying the alleged defamatory remarks, the details
surrounding his termination such as the date and the parties
involved, and details pertaining to the status and time of
filing of his EEOC complaint. Without the inclusion of the
facts mentioned above, the Complaint does not state a claim
upon which relief can be granted.
reasons stated above, the Court denies Busby's
application to proceed in forma pauperis without
prejudice. The Court will consider Busby's application if
Busby completes the application in its entirety.
IT IS ORDERED that Plaintiff Antonio Busby's application
to proceed in forma pauperis (ECF No. 1) is DENIED
FURTHER ORDERED that by February 26, 2018, Busby must either
(1) file a complete application to proceed in forma
pauperis, or (2) pay the full fee for filing a civil
FURTHER ORDERED that failure to timely comply with this Order
may result in a recommendation that this case be dismissed
FURTHER ORDERED that if an amended complaint is later filed,
the Clerk of the Court is directed NOT to
issue summons on the amended complaint. The Court will issue
a screening order on the currently filed complaint or the
amended complaint and address the issuance ...