Young v. Rosenbloom

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

HUGUETTE NICOLE YOUNG, Case No. 6:20-cv-01278-AA

OPINION AND ORDER

Plaintiff,

vs.

ELLEN ROSENBLOOM, in her official

capacity as Attorney General of the State

of Oregon,1

Defendant.

AIKEN, District Judge:

Pro se plaintiff Huguette Nicole Young seeks reconsideration of the Court’s

August 4, 2020 Order (doc. 5) denying her Application for Leave to Proceed in forma

pauperis (doc. 1) (“IFP Application”). In her initial application and in subsequent

filings, plaintiff has refused to disclose financial information that would enable the

Court to meaningfully assess her IFP application. For the following reasons,

1 Ellen Rosenblum is the Attorney General of Oregon. The Court will use the correct spelling

of AG Rosenblum’s name for the remainder of this Opinion.

plaintiff’s Motion for Reconsideration (docs. 8) and Motion to Narrow IFP Issues

Ahead of a Potential Appeal (doc. 10) are DENIED.

BACKGROUND

On August 3, 2020, plaintiff filed a Verified Complaint asking the Court to

declare Oregon Governor Kate Brown’s “YouTube Directive” unconstitutional and to

enter a preliminary and permanent injunction barring defendant Ellen Rosenblum,

Oregon’s Attorney General, from enforcing the directive.2 Doc. 2. Plaintiff also filed

an IFP application, asking the Court to reduce the filing fee to $100 and to waive the

reduced fee. Doc. 1 at 1–2. She provided no financial information to support her

application, arguing that she should not be required to provide sensitive financial

information and that the Court should allow for methods other than financial

disclosure to approve an IFP application. Id. at 3. On August 4, 2020, the Court

denied plaintiff’s IFP application with leave to refile if she submitted financial

information as proof of hardship and directed her to file a completed application or

pay the full filing fee within 30 days. Doc. 5. The Court directed the Clerk of Court

to mail plaintiff a copy of the District of Oregon’s IFP petition form and warned

2 The “YouTube Directive” appears to refer to a July 1, 2020 press conference that was

streamed on YouTube during which Governor Brown discussed executive orders requiring Oregonians

to comply with Oregon Health Authority guidelines, which include requirements that retail businesses

require staff and patrons to use face coverings to limit the spread of COVID-19. Plaintiff has filed

similar cases challenging many other states’ mask requirements. See Young v. Healey, Civ. No. 20-

11832-RGS, 2020 WL 6384314, at *1 n. 2 (D. Mass. Oct. 30, 2020) (identifying nearly identical cases

and pleadings filed by plaintiff in ten other federal courts); Young v. James, No. Civ. 8252 (PAE), 2020

WL 6572798, at *1 & n.2 (S.D.N.Y Oct. 26, 2020) (collecting cases and noting that plaintiff “has filed

virtually identical complaints in at least 36 other federal courts”).

plaintiff that failure to pay the filing fee or submit a completed petition might result

in dismissal of the action. Id.

Plaintiff responded by filing a Motion for Reconsideration (docs. 8), an

Amended Complaint (doc. 9), a Motion to Narrow IFP Issues Ahead of a Potential

Appeal (doc. 10), and a Motion for a Speedy Hearing under Rule 57 of the Federal

Rules of Civil Procedure (doc. 11). In her Motion for Reconsideration and Motion to

Narrow IFP Issues, plaintiff seeks reconsideration of the Court’s denial of her IFP

Application.

DISCUSSION

“Although the Federal Rules of Civil Procedure do not expressly authorize a

motion for reconsideration, ‘[a] district court has the inherent power to reconsider

and modify its interlocutory orders prior to the entry of judgment.’” Am. Med.

Response Nw., Inc. v. ACE Am. Ins. Co., 31 F. Supp. 3d 1087, 1091 (D. Or. 2014)

(quoting Smith v. Massachusetts, 543 U.S. 462, 475 (2005)); see also Fed. R. Civ. P.

54(b) (providing that any order or other decision that adjudicates fewer than all the

parties’ claims “may be revised at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and liability”). Reconsideration

is an “extraordinary remedy, to be used sparingly in the interests of finality and

conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

877, 890 (9th Cir. 2000). Indeed, “a motion for reconsideration should not be granted,

absent highly unusual circumstances, unless the district court is presented with

newly discovered evidence, committed clear error, or if there is an intervening change

in the controlling law.” Id.3

Plaintiff first argues that new circumstances warrant reconsideration of her

IFP Application. Doc. 8 at 3; Doc. 10 at 3, 10. Plaintiff asserts that her commercial

driver’s license was suspended in California and Oregon, “causing plaintiff to lose her

job as a truck driver and her ability to make a reasonable living indefinitely[,]” that

she “is on food stamps (SNAP),” and that she “has had no income since August 11,

2020. Doc. 8 at 3. These circumstances are relevant to the Court’s determination of

a person’s ability to pay the filing fee. Indeed, the Court’s IFP Application form

includes questions aimed at eliciting a person’s employment status, income, and

benefits received (including Social Security and SNAP). But the federal IFP statute,

28 U.S.C. § 1915, requires more than these generalized assertions of poverty. And,

as another Court recently observed when faced with nearly identical filings from

plaintiff, “Plaintiff appears more interested in challenging 28 U.S.C. § 1915 than in

complying with the statute.” Young v. Fox, No. CV-20-65-H-CCL, 2020 WL 6162201,

at *2 (D. Mont. Oct. 21, 2020).

Section 1915(a)(1) permits a district court to authorize the commencement of

civil suit without prepayment of fees or security therefor by “a person who submits

an affidavit that includes a statement of all assets” and that demonstrates an

3 Although Kona Enterprises concerned a Rule 59(e) motion for reconsideration of an order of

final judgment, the same standard governs reconsideration of interlocutory orders under Rule 54(b).

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571, F.3d 873, 880 (9th Cir. 2009); Am.

Rivers v. NOAA Fisheries, No. CV-04-00061-RE, 2006 WL 1983178, at *2 (D. Or. July 14, 2006) (stating

that courts generally apply the same standards to motions under Rule 54(b) as those used in motions

under Rule 59(e) and listing opinions).

inability to pay. 28 U.S.C. § 1915(a)(1). That affidavit “must allege poverty with

some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 F.3d

1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.2d 938, 940 (9th

Cir. 1981)); see also Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960), cert.

denied, 364 U.S. 896 (1960) (“[I]t is proper and indeed essential for the [affidavit

supporting an IFP application] to state the facts as to affiant's poverty with some

particularity, definiteness and certainty.”) (emphasis added). Although section

1915(a) does not require a litigant to demonstrate absolute destitution, Adkins v. E.I.

Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant must

nonetheless show that she is “unable to pay such fees or give security therefor,” 28

U.S.C. § 1915(a)(1).

In her application, plaintiff refused to provide the required statement of assets.

Now, plaintiff argues that the Court erred in denying her application but fails to show

that that Court’s ruling was clear error. First, she argues that the federal filing fee

statute, 28 U.S.C. § 1914, is unconstitutional without pointing to any legal authority

or precedent. Doc. 10 at 3–4. Second, she notes that the Supreme Court has held

that a plaintiff need not be “absolutely destitute” to qualify for IFP status, Doc. 8 at

5, Doc. 10 at 2; a point that is addressed above. Third, she argues that the Court

should grant IFP status based on less intrusive and more “objective” means of

assessing ability to pay than financial disclosure. Doc. 8 at 5–6, Doc. 10 at 4. But

“[i]t [i]s within the court's discretion to make a factual inquiry ... and to deny the

motion [to proceed IFP] when [applicants are] unable, or unwilling, to verify their

poverty.” McQuade, 647 F.2d at 940. And, if privacy is of genuine concern, plaintiff

may provide her financial disclosures and move, consistent with Local Rule 5.2, to

file the information under seal. Finally, she asserts that, in Floyd v. United States

Postal Serv., 105 F.3d 274, 275 (6th Cir. 1997), overruled on other grounds by Callihan

v. Schneider, 178 F.3d 800 (6th Cir. 1997), the Sixth Circuit erred in holding that

§ 1915(a)(1)’s financial disclosure requirement applies to non-prisoners. Doc. 8 at 3–

5; Doc. 10 at 4. At least three other circuit courts have adopted the Sixth Circuit’s

interpretation of § 1915(a)(1). See Lister v. Dept. of Treasury, 408 F.3d 1309, 1312

(10th Cir. 2005) (stating “[s]ection 1915(a) applies to all persons applying for IFP

status, and not just to prisoners” and citing Floyd); Martinez v. Kristi Kleaners, Inc.,

364 F.3d 1305, 1306 n. 1 (11th Cir. 2004) (noting that, “[d]espite the statute’s use of

the phrase ‘prisoner possesses,’ the affidavit requirement applies to all persons

requesting leave to proceed IFP” and citing Floyd); Haynes v. Scott, 116 F.3d 137,140

(5th Cir. 1997) (“We agree with the analysis of the Sixth Circuit and hold that the

affidavit requirement of section 1915(a)(1) applies to all persons applying to proceed

i.f.p.”). Having reviewed the decision in Floyd, I also agree with the Sixth Circuit’s

interpretation of 28 U.S.C. § 1915(a)(1).

Plaintiff’s Motion to Narrow IFP Issues (Doc. 10) also contains a series of

attacks on other, mostly unrelated federal statutes.4 Doc. 10 at 5–9. She asks the

Court to certify these constitutional challenges to the United States Attorney General

4 For example, plaintiff attacks the constitutionality and effectiveness of the Federal

Magistrates Act. Doc. 10 at 5–8. These portions of her motion appear to be a boilerplate argument

that she has filed in numerous other courts and is unrelated to the facts of this case, in which no

Magistrate Judge has been involved.

pursuant to Federal Rule of Civil Procedure 5.1(b). Id. at 9–10 (asking the court to

certify constitutional challenges to 28 U.S.C. §§ 1914 and 1915(a)(1), Rule 24 of the

Federal Rules of Appellate Procedure, the Federal Magistrates Act, and the 13th

through 27th Amendment to the United States Constitution). As courts have

explained in other cases filed by plaintiff, “Rule 5.1 does not require certification

where a motion to proceed in forma pauperis is denied or where a suit is dismissed

for failure to comply with a court order.” Young v. Frey, No. 1:20-cv-00367-NT, 2020

WL 6826418, at *2 (D. Maine Nov. 20, 2020) (citing Fed. R. Civ. P. 5.1(c), Fed. R. Civ.

P. 5.1 advisory committee’s note (2006), and Young v. Ferguson, No. 2:20-CV-277-

RMP, 2020 WL 6060875, at *2 (E.D. Wash. Oct. 14, 2020)); see also Young v. Ferguson,

2020 WL 6060875 at *2 (explaining that Rule 5.1 “does not control . . . where dismissal

without prejudice is appropriate without proceeding further with the case because

Plaintiff has failed to pay the civil filing fee or secure a waiver of the fee

requirement”); Young v. Fox, 2020 WL 6162201 at *3 (explaining that “[c]ertification

is only required under Rule 5.1(b) in this case if the Court determines that it should

consider Plaintiff’s constitutional challenge to the in forma pauperis statute. That

issue is not properly before the Court at this stage in the proceeding”).

CONCLUSION

Because plaintiff has refused to provide any financial information to verify her

inability to pay costs and fees and failed to raise grounds warranting the

extraordinary remedy of reconsideration, her Motion for Reconsideration (docs. 8) and

Motion to Narrow IFP Issues Ahead of Potential Appeal (doc. 10) are DENIED and

plaintiff is ORDERED to pay the full civil filing fee within 30 days. If plaintiff fails

to do so within the time allotted, the Court will, without further notice, dismiss the

Amended Complaint consistent with applicable law, including Federal Rule of Civil

Procedure 41(b).

IT IS SO ORDERED.

Dated this _4_th_ day of December 2020.

________/_s_/A__n_n_ _A__ik_e_n_______

Ann Aiken

United States District Judge