United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION
WEKSLER, UNITED STATES MAGISTRATE JUDGE
before the court is pro se plaintiff Leo Cono's
application to proceed in forma pauperis (ECF No.
22), filed on October 25, 2018. This matter was reassigned to
the undersigned magistrate judge on May 2, 2019, for a report
of findings and recommendations under 28 U.S.C. §
636(b)(1)(A) and Local Rule IB 1-3. (Notice (ECF No. 33).)
28 U.S.C. § 1914(a) and the Judicial Conference Schedule
of Fees, a $400 filing fee is required to commence a civil
action in federal court. A person who is unable to pay the
filing fee may request the court's permission to proceed
in forma pauperis (“IFP”), meaning
without paying the $400 filing fee. See 28 U.S.C.
§ 1915(a)(1); LSR 1-1. It is within the court's
discretion to make a factual inquiry into a plaintiff's
financial status and to deny an IFP application if an
individual is unable or unwilling to verify his poverty.
United States v. McQuade, 647 F.2d 938, 940 (9th
Cir. 1981). If the court determines that an individual's
allegation of poverty is untrue, “it shall dismiss the
case.” 28 U.S.C. § 1915(e)(2)(A).
previously moved to proceed without paying the filing fee,
and the court denied the application on the grounds that it
was incomplete. (Order (ECF No. 20).) Specifically, Cono did
not respond to question three, which required him to provide
information about income from (a) business, profession, or
other self-employment; (b) rent payments, interest, or
dividends; (c) pension, annuity, or life insurance payments;
(d) disability, or worker's compensation payments; (e)
gifts, or inheritances; or (f) any other sources.
(Id. at 2.) Cono also responded “N/A” to
various questions, and the court instructed Cono that
“not applicable” is not responsive to the
questions. (Id.) The only substantive information
regarding his financial situation concerned his regular
monthly expenses for a telephone ($100), P.O. Box ($75 for
three months), and a public storage locker ($55). (See
that the information Cono provided was insufficient for the
court to determine whether Cono is eligible to proceed IFP,
the court denied his request without prejudice for Cono to
provide a complete IFP application. (Id.) The court
specifically instructed Cono to file the long form
application (AO 239) and provided him with a courtesy copy of
that form. (Id.) The court instructed Cono to file
form AO 239 or to pay the $400 filing fee by November 16,
2018. (Id. at 4.) The court expressly warned Cono
that failure to submit “a completed long form IFP
application (AO 239)” or to pay “the $400 filing
fee before the November 16, 2018 deadline will result in a
recommendation to the district judge that this case be
now renews his request to proceed IFP. (IFP Appl. (ECF No.
22).) He timely filed the application, but he filed the short
form application (AO 240) rather than the long form
application (AO 239) that the court provided to him.
(Id.) Once again, the only substantive information
provided concerns his regular monthly expenses for a
telephone ($100), P.O. Box ($75 for three months), and a
public storage locker ($55). (Id. at 2.) He also
provided a “not applicable” response to questions
five, seven, and eight, which concern assets he may possess,
the names of his dependents, and his debts or financial
Cono's failure to follow the court's previous
instructions, the court does not have sufficient information
to evaluate Cono's financial status and therefore will
deny Cono's IFP application. The court expressly warned
Cono that if he failed to follow the court's
instructions, the court would recommend dismissal of his
case. Accordingly, the court will recommend that Cono's
case be dismissed without prejudice under Local Rule IA 11-8
as a sanction for his failure to comply with the court's
orders. The court further will recommend denial of Cono's
other pending motions as moot.
Conclusion and recommendation
THEREFORE ORDERED that Cono's application to proceed
in forma pauperis (ECF No. 22) is DENIED.
RECOMMENDED that Cono's case be dismissed without
FURTHER RECOMMENDED that all pending motions (ECF Nos. 19,
22) in this case be denied as moot.
report and recommendation is submitted to the United States
district judge assigned to this case under 28 U.S.C. §
636(b)(1). A party who objects to this report and
recommendation may file a written objection supported by
points and authorities within fourteen days of being served
with this report and recommendation. Local Rule IB 3-2(a).
Failure to file a timely objection may ...