Yenovkian v. Capital One Financial Corporation

UNITED STATES DISTRICT COURT [2] DISTRICT OF NEVADA [3] *** [4] Vem Yenovkian, 5 Case No. 2:24-cv-00027-JAD-MDC Plaintiff, 6 vs. ORDER 7 Capital One Financial Corporation., APPLICATION TO PROCEED IN FORMA PAUPERIS 8 Defendants. (EFC NO. 1) [10] 11 Pro se plaintiff Vem Yenovkian filed an application to proceed in forma pauperis (IFP). ECF Nos. 12 1 and 1-1. Plaintiff’s IFP application is DENIED WITHOUT PREJUDICE. Plaintiff must file the long13 form IFP or pay the full filing fee. [14] DISCUSSION [15] Under 28 U.S.C. § 1915 (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.” The Ninth Circuit has recognized that “there is no formula set [18] forth by statute, regulation, or case law to determine when someone is poor enough to earn IFP status.” [19] Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015). An applicant need not be destitute to qualify [20] for a waiver of costs and fees, but he must demonstrate that because of his poverty he cannot pay those [21] 22 costs and still provide himself with the necessities of life. Adkins v. E.I DuPont de Nemours & Co., 335 23 U.S. 331, 339 (1948). 24 The applicant's affidavit must state the facts regarding the individual's poverty “with some 25 particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or her poverty, district courts have [1] the discretion to make a factual inquiry into a plaintiff's financial status and to deny a request to proceed [2] in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) (finding that the district [3] 4 court did not abuse its discretion by denying the plaintiff's request to proceed IFP because he “failed to 5 verify his poverty adequately”). “Such affidavit must include a complete statement of the plaintiff's 6 personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 AJB (BLM), 2016 U.S. Dist. 7 LEXIS 192145 , at 1 (S.D. Cal. June 9, 2016). Misrepresentation of assets is sufficient grounds in 8 themselves for denying an in forma pauperis application. Cf. Kennedy v. Huibregtse, 831 F.3d 441 , 4439 44 (7th Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets on in forma [10] pauperis application). [11] The District of Nevada has adopted three types of IFP applications: a “Prisoner Form” for [12] incarcerated persons and a “Short Form” (AO 240) and “Long Form” (AO 239) for non-incarcerated [13] persons. The Long Form requires more detailed information than the Short Form. The court typically does [14] not order an applicant to submit the Long Form unless the Short Form is inadequate, or it appears that the [15] plaintiff is concealing information about his income for determining whether the applicant qualifies for [16] 17 IFP status. When an applicant is specifically ordered to submit the Long Form, the correct form must be 18 submitted, and the applicant must provide all the information requested in the Long Form so that the court 19 is able to make a fact finding regarding the applicant's financial status. See e.g. Greco v. NYE Cty. Dist. 20 Jude Robert Lane, No. 215CV01370MMDPAL, 2016 WL 7493981 , at 3 (D. Nev. Nov. 9, 2016), report [21] and recommendation adopted sub nom. Greco v. Lake, No. 215CV001370MMDPAL, 2016 WL 7493963 [22] (D. Nev. Dec. 30, 2016). Federal Rules of Civil Procedure Rule 10(a) commands that the title of every [23] complaint must name all the parties. [24] Plaintiff filled out both the short form and long form IFP application. ECF Nos. 1 and 1-1. [2] Although plaintiff indicated that he is currently unemployed and only has $200 in his savings account at [1] Chase Banke, he has also indicated that his current monthly expenses are $1900. ECF No. 1 at 4-5. Plaintiff [2] has not shown how he is able to make his monthly payments when he has no monthly income and only [3] 4 has $200 in his savings account. Plaintiff has also indicated that his mother, Sonia Bacabanian, currently 5 relies on him for support, but has not shown how he is able to support her with no monthly income and 6 only $200 in savings. ECF No. 1. 7 Because plaintiff has inconsistencies in his IFP and has not adequately demonstrated his inability 8 to pay, the Court cannot determine his IFP status at this time. The Court will allow plaintiff another [9] opportunity to show that he qualifies for IFP status. Plaintiff must fill out the long form application. [10] Plaintiff must answer all questions on the long form with detailed explanations about monthly income and [11] expenses. Plaintiff cannot leave any questions blank. [13] ACCORDINGLY, [14] IT IS ORDERED that Yenovkian’s application to proceed in forma pauperis (ECF No. 1) is [15] DENIED WITHOUT PREJUDICE. [16] 17 IT IS FURTHER ORDERED that by Wednesday March 6, 2024 Plaintiff must either file (1) file 18 the long form application to proceed in forma pauperis as specified in the Court’s order or (2) pay the full 19 fee for filing a civil action. 20 NOTICE [21] Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and [22] recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk [23] of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal [24] may determine that an appeal has been waived due to the failure to file objections within the specified [3] time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 5 This circuit has also held that (1) failure to file objections within the specified time and (2) failure 3 || to properly address and brief the objectionable issues waives the right to appeal the District Court's order 4 || and/or appeal factual issues from the order of the District Court. Martinez v. Yist, 951 F.2d 1153 , 1157 5 || (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452 , 454 (9th Cir. 1983). Pursuant to LR 6 3-1, the plaintiff must immediately file written notification with the court of any change of address. 7 || The notification must include proof of service upon each opposing party’s attorney, or upon the opposing 8 party if the party is unrepresented by counsel. Failure to comply with this rule may result in dismissal of ° the action. [10] IT IS SO ORDERED. DATED this 6" day of February 2024. 8 feo fi 14 MixnianeB. Dowier TT Maximiliano PD. Gouvillier III 15 United States Magistrate Judge