United States District Court, D. Hawaii
ORDER VACATING JUDGMENT AND GRANTING PLAINTIFF'S
APPLICATION TO PROCEED IN FORMA PAUPERIS
A. OTAKE, UNITED STATES DISTRICT JUDGE
April 1, 2019, the Court issued an Order Denying Without
Prejudice Application to Proceed In Forma Pauperis
(“Order”). ECF No. 14. The Court ordered pro se
Plaintiff Jack Stone (“Plaintiff) to file a new
Application to Proceed In Forma Pauperis (“IFP
Application”) by May 1, 2019, emphasizing that the
Application must be received by the deadline. The
Court cautioned Plaintiff that his failure to timely file an
IFP Application or pay the applicable filing fee would result
in the automatic dismissal of the action.
not received any filing from Plaintiff by May 7, 2019, the
Court dismissed the action without prejudice pursuant to
Federal Rule of Civil Procedure (“FRCP”) 41(b)
and judgment entered the same day. ECF Nos. 15, 16.
IFP Refiling and Response
15, 2019, Plaintiff filed a document titled “IFP
Refiling and Response to (DE 14), ” as well as an IFP
Application. ECF Nos. 17, 18. In the Response, Plaintiff
claims that he did not receive the Order until April 27,
2019. He asserts that his Response is timely if mailed on or
before May 1, 2019. The Court disagrees. The Court expressly
addressed this issue in its Order due to Plaintiffs prior
tardiness, and mandated that a new IFP Application be
received, not mailed, by May 1, 2019.
also complains that he has provided the Court with courtesy
email copies,  but it has rejected his email submissions
even though it would accept email courtesy copies from
attorneys. As explained in its March 4, 2019 Entering Order,
the Court's email inbox “shall not be used for
submitting correspondence to the court.” ECF No. 8
(citing Local Rule 100.8.3). Its use is limited to proposed
orders and stipulations, none of which Plaintiff has
submitted. This rule applies with equal force to attorneys.
No. attorneys are permitted to file documents through the
Court's email or to submit electronic courtesy copies via
email or otherwise. Local Rule 7.7 (requiring two hard
courtesy copies of certain filed documents; noting that
courtesy copies for documents filed in hard copy must be
received at the time the original document is filed; and
requiring courtesy copies of electronically filed documents
to be mailed from out-of-state “no later than the
business day after filing using ‘overnight' or
‘next day' priority”).
those attorneys who utilize CM/ECF (which is not email) are
authorized users of the system because they have undergone
necessary training and are properly registered, whereas
Plaintiff is not. Plaintiff is not excepted from rules and
obligations due to his pro se status. Local Rule 83.13. The
Court previously explained that service by electronic means
requires a formal request and approval by the Court. ECF No.
6 at 8 n.2. The same is true if Plaintiff wishes to utilize
CM/ECF for filing.
issues notwithstanding, the Court accepts Plaintiffs
representation in this limited instance that he did not
receive the Order until April 27, 2019 and was therefore
unable to timely respond. As a result, the Court HEREBY VACATES
the dismissal of this action and the entry of judgment.
Court declines to act on the emergency identified in the
Response, as it is not a properly presented motion. The Court
has previously explained that Plaintiff must file a separate
motion that complies with all applicable rules if he wishes
to seek injunctive relief. ECF No. 6 at 7.
has renewed his request to proceed in forma pauperis. A court
may authorize the commencement or prosecution of any suit
without prepayment of fees by a person who submits an
affidavit that the person is unable to pay such fees. 28
U.S.C. § 1915(a)(1). “An affidavit in support of
an IFP application is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the
necessities of life.” Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v.
E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 331,
339 (1948)). Absolute destitution is not required to obtain
benefits under the IFP statute, but “a plaintiff
seeking IFP status must allege poverty ‘with some
particularity, definiteness and certainty.'”
Id. (citation omitted).
IFP Application sufficiently demonstrates the requisite
poverty to obtain in forma pauperis status. Accordingly, the
Court GRANTS the IFP Application and authorizes Plaintiff to
proceed in forma pauperis.
accordance with the foregoing, Court (1) VACATES the judgment
and dismissal of this action and (2) ...