2

3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA *** 6

7 THOMAS W. CURTIS, Case No. 2:20-cv-02134-KJD-VCF

8 Plaintiff, ORDER vs. 9 APPLICATION TO PROCEED IN FORMA 10 UNIVERSITY MEDICAL CENTER, PAUPERIS (EFC NO. 1); APPLICATION TO Defendant. PROCEED IN FORMA PAUPERIS (EFC NO. 11 3);

12 Before the Court is pro se plaintiff Thomas W. Curtis’s application to proceed in forma pauperis 13 (ECF Nos. 1 and 3). Curtis’s in forma pauperis application is denied. 14 DISCUSSION 15 Under

(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 16 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 17 pay such fees or give security therefor.” If the plaintiff is a "prisoner" as defined by

19 1915(h), as amended by the Prison Litigation Reform Act ("PLRA"), he remains obligated to pay the 20 entire fee in installments, regardless of whether his action is ultimately dismissed. See

1915(b)(1) & (2); Taylor v. Delatoore,

(9th Cir. 2002). 22 Under the PLRA, a prisoner seeking leave to proceed IFP must submit a "certified copy of the 23 trust fund account statement (or institutional equivalent) for the prisoner for the six-month period 24 immediately preceding the filing of the complaint."

(a)(2); Andrews v. King,

1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 1 average monthly balance in the account for the past six months, whichever is greater, unless the prisoner 2 has no assets. See

(b)(1);

(b)(4). The institution having custody of the 3 4 prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any 5 month in which the prisoner's account exceeds $10, and forward those payments to the Court until the 6 entire filing fee is paid. See

(b)(2). 7 The Ninth Circuit has recognized that “there is no formula set forth by statute, regulation, or case 8 law to determine when someone is poor enough to earn IFP status.” Escobedo v. Applebees,

(9th Cir. 2015). An applicant need not be destitute to qualify for a waiver of costs and fees 10 but he must demonstrate that because of his poverty he cannot pay those costs and still provide himself 11 with the necessities of life. Adkins v. E.I DuPont de Nemours & Co.,

(1948). The 12 applicant's affidavit must state the facts regarding the individual's poverty “with some particularity, 13 definiteness and certainty.” United States v. McQuade,

(9th Cir. 1981) (citation 14 omitted). If an individual is unable or unwilling to verify his or her poverty, district courts have the 15 discretion to make a factual inquiry into a plaintiff's financial status and to deny a request to proceed in 16 17 forma pauperis. See, e.g., Marin v. Hahn,

(9th Cir. 2008) (finding that the district 18 court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 19 verify his poverty adequately”). If the court determines that an individual's allegation of poverty is 20 untrue, “it shall dismiss the case.”

(e)(2). 21 The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for 22 incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated 23 persons. The financial information and affidavit required for prisoners differs from the Short and Long 24 Forms for non-incarcerated individuals. The Long Form requires more detailed information than the 25 2 Short Form. The court typically does not order an applicant to submit the Long Form unless the Short 1 Form is inadequate, or it appears that the plaintiff is concealing information about his income for 2 determining whether the applicant qualifies for IFP status. When an applicant is specifically ordered to 3 4 submit the Long Form, the correct form must be submitted, and the applicant must provide all the 5 information requested in the Long Form so that the court is able to make a fact finding regarding the 6 applicant's financial status. See e.g. Greco v. NYE Cty. Dist. Jude Robert Lane, No. 7 215CV01370MMDPAL,

, at 3 (D. Nev. Nov. 9, 2016), report and recommendation 8 adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL,

(D. Nev. Dec. 30, 9 2016). 10 Plaintiff Curtis simultaneously filed two cases in this Court and has requested the privilege to 11 proceed IFP in both cases. See 2:20-cv-02127-RFB-VCF, Curtis v. Hilton Hotel Inc., pending before the 12 Court. In plaintiff’s case against the Hilton Hotel, however, he lists a home address in Pahrump, and he 13 does not mention that he is incarcerated. In the instant case, Curtis did not initially file an IFP form, but 14 he filed an amended complaint and an amended IFP application that states that he is incarcerated. See 15 ECF Nos. 1 and 3 at 1. 16 17 While plaintiff did attach a copy of his trust fund account statement (or institutional equivalent) 18 from Lakes Crossing Center dating back a few months, the account statement he filed is not compliant 19 with the PLRA because it is not a certified copy. (ECF No. 3 at 2). Plaintiff must obtain an updated and 20 certified account statement. Plaintiffs’ application to proceed in forma pauperis is denied without 21 prejudice. The Court will give plaintiff 30 days to file an updated application with a certified copy of his 22 trust fund account statement. Since the Court denies plaintiff’s IFP application, it does not screen his 23 complaint now. 24 ACCORDINGLY, 25 3 IT IS ORDERED that Curtis’s applications to proceed in forma pauperis (ECF Nos. 1 and 3) are

5 DENIED.

3 IT IS FURTHER ORDERED that Curtis has until Thursday, February 4, 2021 to file an updated 4 || IFP application as specified in this order. Failure to timely comply with this Order may result in a 5 || recommendation for dismissal with prejudice. 6 NOTICE 7 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 8 || recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk ° of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn,

(1985). This circuit has also held that (1) failure to file objections within the specified time and (2)

4 failure to properly address and brief the objectionable issues waives the right to appeal the District

15 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. YIst, 951 F.2d

1g || 1153, 1157 Oth Cir. 1991); Britt v. Simi Valley United Sch. Dist.,

, 454 (9th Cir. 1983). 17 || Pursuant to LR JA 3-1, the plaintiff must immediately file written notification with the court of any 18 || change of address. The notification must include proof of service upon each opposing party’s attorney, 19 || or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 20 || result in dismissal of the action. IT IS SO ORDERED. 22 DATED this 5th day of January 2021.

24 35 UNITED STATES MAGISTRATE JUDGE