United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 1, 1-1, 4, 5
WILLIAM G. COBB, UNITED STATES 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.
has filed an application to proceed in forma pauperis (IFP)
(ECF No. 1) and pro se complaint (ECF No. 1-1). He has also
filed a motion for temporary restraining order and
preliminary injunction. (ECF Nos. 4, 5.)
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).
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) (quotation marks and citation omitted). 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).
inmate submitting an application to proceed IFP must also
“submit a certificate from the institution certifying
the amount of funds currently held in the applicant's
trust account at the institution and the net deposits in the
applicant's account for the six months prior to the date
of submission of the application.” LSR 1-2; see
also 28 U.S.C. § 1915(a)(2). If the inmate has been
at the institution for less than six months, “the
certificate must show the account's activity for this
shortened period.” LSR 1-2.
inmate brings a civil action IFP, the prisoner is still
required to pay the full amount of the filing fee. 28 U.S.C.
§ 1915(b)(1). The court will assess and collect (when
funds exist) an initial partial filing fee that is calculated
as 20 percent of the greater of the average monthly deposits
or the average monthly balance for the six-month period
immediately preceding the filing of the complaint. 28 U.S.C.
§ 1915(b)(1)(A)-(B). After the initial partial filing
fee is paid, the prisoner is required to make monthly
payments equal to 20 percent of the preceding month's
income credited to the prisoner's account. 28 U.S.C.
§ 1915(b)(2). The agency that has custody of the
prisoner will forward payments from the prisoner's
account to the court clerk each time the account exceeds $10
until the filing fees are paid. 28 U.S.C. § 1915(b)(2).
certified account statement indicates that his average
monthly balance for the last six months was $0 and his
average monthly deposits were $0.
application to proceed IFP should be granted. Plaintiff
should not be required to pay an initial partial filing fee;
however, whenever his account exceeds $10, he must make
monthly payments in the amount of 20 percent of the preceding
month's income credited to his account until the $350
filing fee is paid.
the statute governing IFP proceedings, “the court shall
dismiss the case at any time if the court determines that--
(A) the allegation of poverty is untrue; or (B) the action or
appeal--(i) is frivolous or malicious; (ii) fails to state a
claim upon which relief may be granted; or (iii) seeks
monetary relief against ...