Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 FRANCISCO SOLORIO, Case No.: 3:26-cv-1242-CAB-VET Plaintiff, 10 ORDER DENYING MOTION TO v. 11 PROCEED IN FORMA PAUPERIS AND DISMISSING CIVIL ACTION 12 UNITED STATES DISTRICT COURT, WITHOUT PREJUDICE SOUTHERN DISTRICT OF 13 CALIFORNIA, 14 Defendant. [Doc. Nos. 1–2] 15 16 17 18 Plaintiff Francisco Solorio, proceeding pro se, is a state prisoner with a civil rights 19 Complaint filed pursuant to 42 U.S.C. § 1983, accompanied by a motion to proceed in 20 forma pauperis (“IFP”). [Doc. Nos. 1–2.] Plaintiff alleges that he entered a plea deal in 21 state court which permits his state sentence to run concurrently with a federal probation 22 violation sentence from this Court; he requests that this Court order the sentences to run 23 concurrently. [Doc. No. 1 at 3, 7.] For the reasons set forth below, the Court DENIES 24 both of Plaintiff’s motions. 25 I. ANALYSIS 26 A. Motion to Proceed IFP 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 4 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 5 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 6 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 7 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 8 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 9 for the past six months, or (b) the average monthly balance in the account for the past six 10 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 11 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 12 must pay any remaining balance in increments or installments, regardless of whether their 13 action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 14 Plaintiff’s IFP application does not include a trust fund account statement. [See Doc. 15 No. 2.] The Court cannot grant Plaintiff’s IFP application without a trust fund account 16 statement containing financial information for the 6-month period immediately preceding 17 the filing of his Complaint. See Andrews, 398 F.3d at 1119 (“prisoners must demonstrate 18 that they are not able to pay the filing fee with an affidavit and submission of their prison 19 trust account records.”), citing 28 U.S.C. § 1915(a)(1)&(2). 20 The motion to proceed IFP is DENIED based on Plaintiff’s failure to pay the filing 21 fee or to submit a properly supported motion to proceed IFP pursuant to 28 U.S.C. 22 §§ 1914(a) & 1915(a). 23 /// 24 /// 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons granted leave to 28 1 B. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 2 Even if Plaintiff completes an application for IFP, the Court notes that his complaint 3 would be dismissed. Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must screen any 4 IFP complaint and sua sponte dismiss it if the allegation of poverty is false or to the extent 5 that it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 6 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). “The 7 standard for determining whether a plaintiff has failed to state a claim upon which relief 8 can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 9 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 10 Cir. 2012). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, 11 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 12 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While detailed factual 13 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, 14 supported by mere conclusory statements, do not suffice” to state a claim. Id. The Court, 15 however, considers Plaintiff’s position as a pro se litigant at the pleading stage and 16 construes the pleading liberally. See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th 17 Cir. 2018). 18 The only Defendant named in this action is the United States District Court for the 19 Southern District of California. However, 42 U.S.C. § 1983 “creates a private right of 20 action against individuals who, acting under color of state law, violate federal 21 constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 22 2001) (emphasis added). “To establish § 1983 liability, a plaintiff must show both 23 (1) deprivation of a right secured by the Constitution and laws of the United States, and 24 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 25 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 26 Plaintiff does not allege a state actor has violated a federal right as necessary to 27 establish § 1983 liability. Rather, he seeks to have this Court direct that the probation 28 violation sentence imposed by this Court run concurrent with the state sentence he is 1 currently serving. [Doc. No. 1 at 3, 7.] Thus, the Complaint does not state a claim under 2 § 1983. In addition, claims related to the “circumstances” of a prisoner’s confinement are 3 properly brought in a civil rights action, while constitutional challenges to the validity or 4 duration of a prisoner’s confinement must be raised in federal court, if at all, in a federal 5 petition for a writ of habeas corpus. Muhammad v. Close, 540 U.S. 749, 750 (2004); see 6 also Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court has long 7 held that habeas is the exclusive vehicle for claims brought by state prisoners that fall 8 within the core of habeas, and such claims may not be brought in a [civil rights] action.”), 9 see also Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (“Suits challenging the 10 validity of the prisoner’s continued incarceration lie within ‘the heart of habeas corpus,’ 11 whereas ‘a § 1983 action is a proper remedy for a state prisoner who is making a 12 constitutional challenge to the conditions of his prison life, but not to the fact or length of 13 his custody.’”), quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (holding that a writ 14 of habeas corpus is “explicitly and historically designed” to provide a prisoner with the 15 exclusive means to attack the validity of his confinement in federal court). 16 Accordingly, because Plaintiff does not allege a state actor has violated a federal 17 right as necessary to bring a 42 U.S.C. § 1983 claim, and because he can only proceed with 18 his claim in federal court in a habeas action, the Complaint is DISMISSED for failure to 19 state a claim upon which relief may be granted. See Lopez, 203 F.3d at 1126–27. The 20 dismissal is without leave to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 21 2015) (a district court may dismiss a pro se complaint without leave to amend where “it is 22 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”), 23 quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); see also Schmier v. U.S. Ct. 24 of Appeals for Ninth Cir., 279 F.3d 817, 824 (9th Cir. 2002) (recognizing futility of 25 amendment as a proper basis for dismissal without leave to amend). 26 Plaintiff may consider bringing his claim in a separate habeas action. See Harrison 27 v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008) (noting that “motions to contest the legality 28 of a sentence” are filed under 28 U.S.C. § 2255 in the sentencing court, while petitions 1 ||}challenging “the manner, location, or conditions of a sentence’s execution” must be 2 || brought pursuant to 28 U.S.C. § 2241), quoting Hernandez v. Campbell, 204 F.3d 861, 864 3 Cir. 2000). 4 Il. CONCLUSION 5 Plaintiff's Motion to proceed IFP is DENIED and Plaintiff's Complaint is 6 || DISMISSED without leave to amend. The Clerk of Court SHALL send Plaintiff a blank 7 || Southern District of California 28 U.S.C. § 2241 habeas petition form and a blank Southern 8 || District of California IFP form along with a copy of this Order. Should Plaintiff file an 9 || application to proceed IFP with a habeas petition, he must include a copy of his prison 10 inmate trust account. 11 The Clerk of the Court shall close this case. 12 IT IS SO ORDERED. 13 ||Dated: April 3, 2026 G Z 14 15 Hon. Cathy Ann Bencivengo United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28