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Brooks v. United States Department of Justice

United States District Court, D. Nevada

December 12, 2019

ANTHONY J. BROOKS, Plaintiff
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant

          ORDER

          William G. Cobb United States Magistrate Judge

         I. BACKGROUND

         Plaintiff is an inmate in custody of the Nevada Department of Corrections (NDOC). He filed a civil rights complaint against Donald J. Trump alleging a violation of the Freedom of Information Act (FOIA). (ECF No. 1-1.) He did not pay the filing fee or submit a completed application to proceed in forma pauperis (IFP) for a prisoner and required financial certificate. Therefore, the court issued an order directing the Clerk to send him the instructions and application to proceed IFP for an inmate and gave him 30 days to file a completed application or pay the filing fee. The court also noted that once the filing fee was paid or the IFP application granted, the court would screen the complaint under 28 U.S.C. §§ 1915(e)(2)(B), 1915A. The court undertook a preliminary review of the complaint and found Plaintiff stated a plausible FOIA claim, but named the wrong defendant. Therefore, Plaintiff was also given 30 days to file an amended complaint naming the correct defendant. (ECF No. 4.)

         Plaintiff filed his amended complaint against the Department of Justice (DOJ) on August 5, 2019 (ECF No. 6); but, he did not file the completed IFP application and financial certificate, or pay the filing fee. On August 6, 2019, the court gave Plaintiff 21 days to file the completed IFP application or pay the filing fee. (ECF No. 7.) On August 7, 2019, Plaintiff filed a motion requesting an extension of time to file the IFP application. (ECF No. 8.) The court gave Plaintiff until September 17, 2019, to file the IFP application or pay the filing fee. (ECF No. 9.) On September 11, 2019, Plaintiff filed a notice of compliance that he filed his financial certificate, but did not file the actual IFP application that should have accompanied the financial certificate. (ECF No. 10.) He was given one final change to file the IFP application. (ECF No. 12.)

         On October 4, 2019, he filed his application for leave to proceed IFP. (ECF No. 14.) The same day, he filed a notice stating that he sent the financial certificate, but states that it was brought to his attention that the statement contained false information because it stated that in March of 2019 he had $8, 641.34 as a balance, and in April of 2019 he had $9, 783.67, and a May balance of $1, 981.63. He claims he never had more than $470.63 in his account, and that was on March 12, 2019. (ECF No. 15.) On November 21, 2019, he appears to have another amended complaint which he titles the "formal complaint." (ECF No. 17.)

         I. IFP APPLICATION

         A 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).

         The 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.

         “[T]he 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).

         An 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.

         If a prisoner 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).

         It is not clear what Plaintiff's filing at ECF No. 15 is referring to because the financial certificate filed by Plaintiff does not contain the figures that Plaintiff references. Instead, Plaintiff's certified account statement indicates that his average monthly balance for the last six months was $126.23, and his average monthly deposits were $112.33. (See ECF No. 10.)

         Plaintiff's application to proceed IFP is granted. Plaintiff is required to pay an initial partial filing fee in the amount of $25.25 (20 percent of $126.23). Thereafter, whenever his prison 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.

         II. ...


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