Ndandu v. Soledad State Prison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRESOR MALEKA NDANDU, Case No.: 24-CV-1466-CAB-KSC 12 Plaintiff, ORDER DENYING APPLICATION 13 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS 14 SOLEDAD STATE PRISON, et al., 15 Defendants. 16 17 On August 19, 2024, Plaintiff Tresor Maleka Ndandu filed a complaint against 18 Defendants Soledad State Prison, Sergeant Hink, two Unidentified Officers (“Unidentified 19 Officer 1” and “Unidentified Officer 2”), and “Captain.” Plaintiff did not prepay the civil 20 filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, he filed a motion 21 to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). [ECF No. 2]. For 22 the reasons outlined below, the IFP motion is DENIED. 23 I. Motion to Proceed IFP 24 Generally, all parties instituting a civil action in this court must pay a filing fee. See 25 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may 26 authorize the commencement, prosecution, or defense of any suit without payment of fees 27 if the plaintiff submits an affidavit, including a statement of all his or her assets, showing 28 that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP 1 application is sufficient where it alleges that the affiant cannot pay the court costs and still 2 afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 3 “[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness 4 and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to 5 proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. 6 Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 7 In support of his application, Plaintiff avers that he has no income. Plaintiff lists 8 only one asset: a 2013 [Volkswagen Jetta] he claims is worth $3,000. The combined funds 9 in his checking accounts are recorded at $0. It is simply not credible to assume that Plaintiff 10 has no income or expenses. Plaintiff left Question 11, which allows a movant to provide 11 additional details about why they “cannot pay the costs” of the proceedings, blank. On 12 another filed document, [ECF No. 3], Plaintiff lists his mailing address at what appears to 13 be a residence in San Diego. The Court needs additional details about Plaintiff’s financial 14 situation (for example, whether Plaintiff supplements his lack of income with any state- 15 provided benefits). Based on the lack of “particularity, definiteness and certainty” in the 16 information provided, the Court is not persuaded that Plaintiff lacks the funds to pay the 17 filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. 18 Additionally, the facts alleged by Plaintiff appear to have occurred in Monterey 19 County, California, which is in the Northern District of California (the location of Soledad 20 State Prison). See Fed. R. Evid. 201. Venue (the judicial district where this lawsuit can be 21 decided) is proper in: 22 1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events 23 or omissions giving rise to the claim occurred, or a substantial part of property 24 that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may 25 otherwise be brought. 26 27 28 1 U.S.C. § 1391(b). When a case is filed in the wrong venue, the district court “shall 2 || dismiss, or if it be in the interest of justice, transfer such case to any district or division in 3 || which it could have been brought.” 28 U.S.C. § 1406(a). 4 Plaintiff has not identified where Sergeant Hink, Unidentified Officer 1, 5 || Unidentified Officer 2, or “Captain” reside. Should this case proceed, if Plaintiff cannot 6 ||identify a single known defendant (such as Sergeant Hink) that resides in the Southern 7 || District of California (which is limited to San Diego and Imperial Counties), the Court may 8 ||be forced to dismiss this case or transfer Plaintiff's lawsuit to the Northern District of 9 || California. 10 II. Conclusion 11 Plaintiff's application to proceed IFP [ECF No. 2] is DENIED without prejudice. 12 || Plaintiff shall have until Sept. 20, 2024 to either pay the filing fee, or file a new motion to 13 proceed IFP that is signed under penalty of perjury and provides with “particularity, 14 definiteness, and certainty” the requested information (such as additional details in 15 || Question 11). Ifthe filing fee is not paid or a renewed motion to proceed IFP is not filed 16 Sept. 20, 2024, the Clerk of the Court shall dismiss the case without prejudice and 17 || terminate the action. Plaintiff's motion for appointment of civil counsel is denied as moot 18 |} and without prejudice. [ECF No. 3.] 19 20 || Dated: August 30, 2024 € ZL 21 Hon. Cathy Ann Bencivengo 22 United States District Judge 23 24 25 26 27 28