United States District Court, D. Nevada
SAMUEL K. ROBINSON, Plaintiff,
CREDIT ONE BANK, Defendant.
REPORT AND RECOMMENDATION
WEKSLER UNITED STATES MAGISTRATE JUDGE
before the court is pro se plaintiff Samuel K. Robinson's
application to proceed in forma pauperis (ECF No.
4), filed on December 7, 2018. Also before the court is
Robinson's motion for leave to file amended complaint
(ECF No. 5), filed on the same date. 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. 6).)
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. 3).) Specifically, Robinson
represented that he earns $2, 200 per month in take-home pay,
has $205.19 in cash or a bank account, and spends
approximately $1, 900 per month on vehicle expenses. (See
Id. at 2.) But Robinson did not answer questions five,
seven, or eight, and only gave a partial answer to question
six, which asks for information about regular monthly
expenses, including housing and utilities. (See id.)
Given the unanswered questions and Robinson's cursory
statements regarding his expenses, the court was unable to
verify whether Robinson is eligible to proceed IFP and
therefore denied his application without prejudice.
(Id.) The court instructed Robinson to file the long
form application (AO 239) and provided him with a courtesy
copy of that form. (Id. at 3.) Robinson's
deadline for filing form AO 239 or paying the $400 filing fee
was December 13, 2018. (Id.) The court expressly
warned Robinson that failure to submit “a completed
long form IFP application (AO 239)” or to pay
“the $400 filing fee before the December 13, 2018
deadline will result in a recommendation to the district
judge that this case be dismissed.” (Id.)
now renews his request to proceed IFP. (IFP Appl. (ECF No.
4).) He timely filed the application and used the long form
application (AO 239) that the court provided to him.
(Id.) Robinson states that his spouse's average
monthly income over the past 12 months was $3,
and that he expects to earn $2, 500 next month. (Id.
at 1.) But he does not provide a response to subparts of
question one that request information about income from real
property, interest and dividends, gifts, alimony, child
support, retirement, disability, unemployment, public
assistance, and other forms of income. (Id. at 1-2.)
Robinson further states that he has $41.12 in his checking
account. (Id. at 2.) While he states that he has
monthly expenses of $330.27 for utilities, $120 for food,
$160 for car insurance, $36 for credit card payments, and
$585 for car payments, he does not answer the other subparts
of question eight, which request information about expenses
for housing, clothing, laundry, medical expenses,
transportation, and various other items. (Id.)
Robinson's failure to complete the form in its entirety,
the court does not have sufficient information to evaluate
his financial status and therefore will deny Robinson's
IFP application. The court expressly warned Robinson that if
he failed to file a completed long form application per the
court's instructions, the court would recommend dismissal
of his case. Accordingly, the court will recommend that
Robinson's case be dismissed without prejudice under
Local Rule IA 11-8 as a sanction for his failure to comply
with the court's order. The court further will recommend
denial of Robinson's pending motion for leave to amend
complaint (ECF No. 5) as moot.
Conclusion and recommendation
THEREFORE ORDERED that Robinson's application to proceed
in forma pauperis (ECF No. 4) is DENIED.
RECOMMENDED that Robinson's case be dismissed without
FURTHER RECOMMENDED that Robinson's motion for leave to
file amended complaint (ECF No. 5) 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 ...