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Paulo Mailo Jr v. Adam Crail; et al

December 13, 2011

PAULO MAILO JR., PLAINTIFF,
v.
ADAM CRAIL; ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) DENYING PLAINTIFF'S SECOND MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

On September 19, 2011, Plaintiff Paulo Mailo Jr. ("Plaintiff"), proceeding pro se, filed a: (1) Complaint against Defendants "Adam Crail, Shirley Pico, MPO Clark V. Kekauoha, Officer Joseph H. Lefcourt, Officer Dbega, Officer Nmurakami, and the Office of the Public Defender" (collectively, "Defendants") for wrongfully charging him with assault in the third degree and causing him to lose his job; and (2) Motion to Proceed In Forma Pauperis ("Motion for IFP"). On September 23, 2011, the court denied Plaintiff's Motion for IFP and dismissed the Complaint with leave to amend. See Doc. No. 4.

On November 28, 2011, Plaintiff filed a Second Motion for IFP and an Amended Complaint. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing, and based on the following, the court DENIES Plaintiff's Second Motion for IFP and DISMISSES the Amended Complaint with leave to amend.

II. ANALYSIS

A. Motion for IFP

As the court has already explained once to Plaintiff in its September 23, 2011 Order, federal courts can authorize the commencement of any suit without prepayment of fees or security, by a person who submits an affidavit that includes a statement of all assets the person possesses, demonstrating he is unable to pay such costs or give such security. See 28 U.S.C. § 1915(a)(1). "[A]n affidavit is sufficient which states that one cannot because of [ ] poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339 (1948) (internal quotations omitted); see also United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (stating that the affidavit must "state the facts as to affiant's poverty with some particularity, definiteness and certainty" (internal quotation omitted)).

When reviewing a motion filed pursuant to § 1915(a), "[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty." Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). While § 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must nonetheless show that she is "unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a).

The September 23, 2011 Order denied Plaintiff's Motion for IFP because Plaintiff failed to include an affidavit stating all assets he possesses as required by 28 U.S.C. § 1915(a). The September 23, 2011 Order explained that without such affidavit and explanation of his assets, the court cannot determine whether Plaintiff is unable to pay the costs of his suit. The September 23, 2011 Order further directed the Clerk's Office to provide Plaintiff form AO 240, the Application to Proceed Without Prepayment of Fees & Affidavit (Rev. 06/09), and instructed Plaintiff that he should use this form in seeking in forma pauperis status.

In bringing his Second Motion for IFP, Plaintiff did not use the form provided by the Clerk's Office and he has still failed to correct the deficiencies in his first Motion for IFP. Although Plaintiff now submits an affidavit asserting that he "cannot afford the costs of this proceeding because I am poor and I do not have a job, and I do not own stocks and bonds," see Doc. No. 7 at p. 23 of 32, such generalized assertion fails to "state the facts as to affiant's poverty with some particularity, definiteness and certainty." See McQuade, 647 F.2d at 940. Specifically, this affidavit fails to include a statement of all assets that Plaintiff possesses as required by 28 U.S.C. § 1915(a)(1), and fails to indicate whether Plaintiff is receiving monies from any sources other than through income. The court therefore DENIES Plaintiff's Second Motion for IFP.

The court will instruct the Clerk's Office to provide Plaintiff the relevant form one more time. Given that Plaintiff has been unable on his own to provide all the necessary information, the court further ORDERS that should Plaintiff seek to proceed IFP, he must use the form provided by the Clerk's Office. Failure to fill out the form in seeking IFP status will be grounds for the court to deny a subsequent Motion for IFP with prejudice.

B. The Amended Complaint Is Dismissed with Leave to Amend

The court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners").

The court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if it fails to "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S.at 555). Rather, "[a] claim has facial plausibility when the plaintiff pleads ...


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