United States District Court, D. Nevada
REPORT AND RECOMMENDATION
FOLEY JR JUDGE
matter is before the Court on Plaintiff's Application to
Proceed in Forma Pauperis (ECF No. 1), filed on November 21,
alleges that his right against unreasonable search and
seizure was violated on November 15, 2016 when officers of
the Nevada Taxi Cab Authority cited Plaintiff for a violation
under Nevada Revised Statute 706 which prohibits intrastate
passenger transportation without obtaining a certificate of
public convenience and necessity. Plaintiff alleges that he
was wrongfully cited because he did not provide
transportation to a paying passenger. He further alleges that
the officers impounded his vehicle and performed a search of
his person and his vehicle without a warrant.
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; nonetheless, he must
demonstrate that because of his poverty he cannot pay those
costs and still provide himself with the necessities of life.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948). The applicant's 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)
(quoting Jefferson v. United States, 277 F.2d 723,
725 (9th Cir. 1960)). It is within the discretion of the
court to deny a request to proceed in forma pauperis
if an individual is unable or unwilling to verify his or her
poverty and the court determines that the individual's
allegation of poverty is untrue. 28 U.S.C. § 1915(e)(2);
see, e.g., Martin 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 request to proceed
in forma pauperis because he “failed to verify
his poverty adequately”).
filed this instant action and attached a financial affidavit
to his application and complaint as required by 28 U.S.C.
§ 1915(a) asserting that he is unable to prepay the fees
and costs associated with bringing this action. He represents
that he is unemployed, he has no business, profession or
other self-employment and that he has no money in a checking
or savings account. He states that he receives $1, 285.90 in
monthly income from the Nevada Division of Welfare and
Supportive Services and $16.00 is benefits from the
Supplementary Nutrition Assistance Program. He represents
that he has no debts or financial obligations. He has $1,
460.00 in regular monthly expenses for rent and utilities.
Therefore, Plaintiff's expenses regularly exceed his
attached documents to his complaint from the Internal Revenue
Service and the Nevada Secretary of State showing that he is
the principal officer and/or president of a non-profit
corporation, which has gross annual receipts of up to $50,
000. See Complaint (ECF No. 1-1) 14-19. He also
attached receipts showing that he paid $1, 000 in fines to
the Nevada Taxicab Authority, which belies his assertion that
he is unable to pay the $400 filing fee. In his complaint,
Plaintiff alleges that he is the owner of a 2010 Mercedes
GLK, but did not list the vehicle as an asset in his
application. Further, Plaintiff did not provide an
explanation as to how he is able to regularly spend more in
expenses than he receives in income each month.
has requested permission to proceed IFP in Salat v.
Lake, Case No. 2:15-cv-00974-JAD-CWH, and in Salat
v. Wilson, Case No. 2:16-cv-03018-APG-PAL. In
Lake, Plaintiff reported that he had a $1, 181.00
monthly income in disability benefits and no debts or
financial obligations other than $800 in living expenses.
Magistrate Judge Carl W. Hoffman found that Plaintiff did not
satisfy the indigency requirement of 28 U.S.C. § 1915
and recommended that Plaintiff should be required to pay the
filing fee. District Judge Jennifer A. Dorsey adopted the
report and recommendation in full and ordered Plaintiff to
pay the full $400 filing fee. Plaintiff failed to pay the
filing fee and his case was dismissed. In Wilson,
Plaintiff reported that his only source of income was $1, 290
per month in social security disability benefits and listed
rent and other financial obligations totaling $1, 560.00.
Salat v. Wilson, 2017 WL 4269958, at *2 (D. Nev.
Sept. 26, 2017), report and recommendation adopted, 2017 WL
5615572 (D. Nev. Nov. 21, 2017). Magistrate Judge Peggy A.
Leen found that Plaintiffs allegations of poverty were untrue
and recommended that his case be dismissed. Id.
District Judge Andrew P. Gordon accepted the report and
recommendation and dismissed Plaintiffs complaint without
prejudice to him pursuing his claims in state court.
Court finds that Plaintiff has provided inconsistent
statements about his income and that his allegations of
poverty are untrue. The Court, therefore, recommends that
this case be dismissed. See, e.g., Thomas v. LVMPD,
No. 2:16-cv-3019-JAD-NJK, 2017 U.S. Dist. LEXIS 33197 (D.
Nev. Feb. 13, 2017) (recommending denial of IFP application
based on plaintiffs inconsistent statements about his income
in multiple cases). Accordingly, IT IS HEREBY
RECOMMENDED that Plaintiffs Application to Proceed
in Forma Pauperis be denied and
that this action be dismissed.
Local Rule IB 3-2, any objection to this Finding and
Recommendation must be in writing and filed with the Clerk of
the Court within fourteen (14) days. Appeals may been waived
due to the failure to file objections within the specified
time. Thomas v. Arn,474 U.S. 140, 142 (1985).
Failure to file objections within the specified time or
failure to properly address and brief the objectionable
issues waives the right to appeal the District Court's
order and/or appeal factual issues from the order of the