Bernard-Ex v. Las Vegas Metropolitan Police Department

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA MR. CLAYTON-M. BERNARD-EX, Plaintiff, Case No.: 2:24-cv-02218-GMN-NJK vs. 6 ORDER ADOPTING R&R AND LAS VEGAS METROPOLITAN POLICE DENYING MOTION TO STAY CASE DEPARTMENT, Defendant.

9 Pending before the Court is the Report and Recommendation (“R&R”), (ECF No. 5), from United States Magistrate Judge Nancy J. Koppe, which recommends denying Plaintiff’s application to proceed in forma pauperis.

12 Also pending before the Court is Plaintiff’s Motion to Stay Case, (ECF No. 8), which seeks an order staying this case because Plaintiff filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. 15 For the reasons explained below, the Court ACCEPTS and ADOPTS the Report and Recommendation and DENIES Plaintiff’s Motion to Stay the Case.

17 A. Report and Recommendation 18 A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions to which objections are made if the Magistrate Judge’s findings and recommendations concern matters that may not be finally determined by a magistrate judge. D. Nev. L. R. IB 3-2(b). The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. L. R. IB 3-2(b).

1 Plaintiff filed a timely objection to the Magistrate Judge’s R&R. (Objection, ECF No. 6). The Court will therefore make a de novo determination as to whether Plaintiff’s in forma pauperis application should be granted. The Court may authorize the commencement of an action without prepayment of fees and costs, or security therefor, by a person who has shown an inability to pay such costs. 28 U.S.C. § 1915(a)(1). A determination of whether the plaintiff has shown an inability to pay is a matter left to the discretion of the Court. See, e.g., Flores v. Colvin, 2014 U.S. Dist. Lexis 93236, at *2 (D. Nev. May 22, 2014), adopted, 2014 U.S. Dist. Lexis 93234 (D. Nev. July 9, 2014). While an applicant need not be absolutely destitute to qualify for a waiver of costs and fees, the applicant must demonstrate an inability to pay those costs while still providing for the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).

12 Here, Plaintiff’s application identified an average monthly self-employment income $4,601.50 per month. (Application to proceed in forma pauperis (“IFP Application”) at 2, ECF No. 1). The Magistrate Judge correctly identified that such a monthly income is both above the federal poverty line for a family of five, and above the amount for which courts in this district have regularly denied in forma pauperis status. (R&R 1:23–2:5, ECF No. 5). Further, Plaintiff stated in his application that his home is valued at $388,300 with no mortgage payment. (IFP Application at 3). In his Objection, Plaintiff only makes general allegations that the property is “encumbered by liens and other financial obligations, making the equity unavailable to pay court fees.” (Objection to R&R at 3, ECF No. 5). But Plaintiff does not provide any specific information in his Objection to demonstrate an inability to pay the filing fee while still providing for the necessities of life. Adkins v. E.I DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Accordingly, he has failed to establish that he cannot afford to pay the $405 filing fee. The Court therefore accepts in full the recommendations made by the Magistrate Judge and adopts the Report and Recommendation.

1 B. Motion to Stay Case 2 Plaintiff filed a voluntary petition for relief under Chapter 7 of the United States || Bankruptcy Code. Under Section 362 of the Bankruptcy Code, the filing of a bankruptcy || petition automatically imposes a stay that prohibits all creditors and interested parties from initiating or continuing any judicial, administrative, or other proceedings against the debtor.

6 || This case is not an action against the debtor; thus, the pending bankruptcy case does not impose || an automatic stay on this case.

8 Accordingly, 9 IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 5), is || ACCEPTED and ADOPTED in full.

11 IT IS FURTHER ORDERED that the Motion to Stay Case, (ECF No. 8), is DENIED.

12 Dated this 8) day of January, 2025.

13 if, 14 LN Ly, A □□□ Glora M. Navarro, District Judge 15 U fea District Court Page 3 of 3