Duell v. Genser

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 TODD ALAN DUELL, Case No.: 3:20-cv-01145-JAH-AGS Booking #19727431, 10 ORDER: Plaintiff, 11 vs. 1) DENYING MOTION TO 12 PROCEED IN FORMA PAUPERIS ABRAM GENSER; 13 PURSUANT TO 28 U.S.C. § 1915(a)(2) WILLIAM GORE, [ECF Nos. 2] 14 Defendants. 15 2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 16 FAILURE TO PAY FILING FEES 17 REQUIRED BY 28 U.S.C. § 1914(a)

18 AND 19 3) DENYING MOTIONS TO 20 APPOINT COUNSEL, FOR 21 DISCOVERY AND FOR PRELIMINARY INJUNCTION 22 WITHOUT PREJUDICE 23 AS PREMATURE [ECF Nos. 3, 8, 10] 24 25 26 Plaintiff Todd Alan Duell, while detained at the San Diego County Sheriff’s 27 Department George Bailey Detention Facility (“GBDF”), awaiting trial in San Diego 28 Superior Court Case No. CD279745 in San Diego, California, and proceeding pro se, has 1 filed this civil action pursuant to the Civil Rights Act, 42 U.S.C. § 1983, naming the San 2 Diego County Sheriff, and Abram Genser, his public defender, as Defendants. See 3 Compl., ECF No. 1 at 1‒2.1 Plaintiff has not paid the civil filing fee required by 28 4 U.S.C. § 1914(a), but instead has filed Motion to Proceed In Forma Pauperis (“IFP”) 5 pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. He has also filed a Motion to Appoint 6 Counsel, a Motion for Discovery, and a Motion for Preliminary Injunction. See ECF Nos. 7 3, 8, 10. 8 I. Motion to Proceed IFP 9 All parties instituting any civil action, suit or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee of 11 $400. See 28 U.S.C. § 1914(a).2 An action may proceed despite a plaintiff’s failure to 12 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 13 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the 14 plaintiff is a prisoner at the time of filing, he may be granted leave to proceed IFP, but he 15 nevertheless remains obligated to pay the entire fee in “increments,” see Williams v. 16 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 17 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 18 Cir. 2002). A “prisoner” is “any person” who at the time of filing is “incarcerated or 19 detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 20 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 21 pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847. 22 23 24 1 After filing, Plaintiff filed a Notice of Change of Address indicating his transfer from 25 GBDF to the San Diego Central Jail (“SDCJ”). See ECF No. 11.

26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The additional $50 administrative fee does 28 1 Prisoners seeking leave to proceed IFP must also submit a “certified copy of the[ir] 2 trust fund account statement (or institutional equivalent) . . . for the 6-month period 3 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the 4 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 5 average monthly deposits in the account for the past six months, or (b) the average 6 monthly balance in the account for the past six months, whichever is greater, unless the 7 prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); Taylor, 281 F.3d at 850. After, 8 the institution having custody of the prisoner collects subsequent payments, assessed at 9 20% of the preceding month’s income, in any month in which his account exceeds $10, 10 and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. 11 § 1915(b)(2). 12 While Plaintiff has filed both a Motion to Proceed IFP pursuant to 28 U.S.C. 13 § 1915(a) (ECF No. 2), as well as a supplemental affidavit in support, he has failed to 14 attach a certified copy of his San Diego County Sheriff’s Department Inmate Trust 15 Account Statement Report, or a certified institutional equivalent attesting as to his 16 account activity and balances for the 6-month period immediately preceding the filing of 17 his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2. Section 1915(a)(2) 18 clearly requires that prisoners “seeking to bring a civil action . . . without prepayment of 19 fees . . . shall submit a certified copy of the trust fund account statement (or institutional 20 equivalent) . . . for the 6-month period immediately preceding the filing of the 21 complaint.” 28 U.S.C. § 1915(a)(2) (emphasis added). 22 Without this documentation, the Court is unable to assess the appropriate amount 23 of the initial filing fee which may be statutorily required to initiate the prosecution of this 24 action. See 28 U.S.C. § 1915(b)(1). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. Conclusion and Order 2 Accordingly, the Court: 3 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) and DISMISSES 4 this civil action without prejudice based on Plaintiff’s failure to prepay the $400 filing fee 5 required by 28 U.S.C. § 1914(a). Because resolution of Plaintiff’s pending Motion to 6 Appoint Counsel, Motion for Discovery, and Motion for Preliminary Injunctive Relief 7 will necessarily depend on his ability to proceed IFP and will require consideration of the 8 allegations raised in his Complaint, which will also be subject to an initial mandatory 9 screening pursuant to 28 U.S.C. § 1915(e)(2) should he successfully renew his request to 10 proceed IFP, the Court also DENIES those Motions (ECF Nos. 3, 8, 10) without 11 prejudice as premature. 12 (2) GRANTS Plaintiff forty-five (45) days from the date of this Order in which 13 to re-open his case by either: (1) paying the entire $400 statutory and administrative filing 14 fee in one lump-sum, or (2) filing a renewed Motion to Proceed IFP, which includes a 15 prison certificate and/or a certified copy of his San Diego County Sheriff’s Department 16 Inmate Trust Account Statement Report for the 6-month period preceding the filing of his 17 Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). 18 (3) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved 19 form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and 20 convenience. But if Plaintiff neither pays the $400 filing fee in full, nor sufficiently 21 completes and files his renewed Motion to Proceed IFP, together with a certified copy of 22 his 6-month trust account statements within 45 days, this case will remain dismissed 23 without prejudice pursuant to 28 U.S.C. § 1914(a), without obligation to pay the filing fee 24 required by 28 U.S.C. § 1915(b)(1), and without any further Order of the Court.3 25 26 27 3 Plaintiff is cautioned that if he elects to re-open this case by submitting a properly supported renewed Motion to Proceed IFP, he will be required to pay the full filing fee in 28 1 IT IS SO ORDERED. 2 3 || Dated: September 11, 2020 VU 4 H¢n. John A. Houston 5 Ynited States District Judge 6 7 8 9 10 1] 12 13 14 15 | 16 by the Court before service and may be dismissed sua sponte pursuant to 28 U.S.C. 17 1915(e)(2)(B) regardless of his continued fee payment obligations. See Lopez v. Smith, 18 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint 19 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune). As currently pleaded, it appears Plaintiff's Complaint may be subject to such a dismissal. This is because “a public defender does not act under color of state law [under 21 1983] when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981). And Sheriff Gore may not be held vicariously liable for the actions of his deputies. See Ashcroft v. Iqbal, 556 23 || U.S. 662, 676 (2009) (“Because vicarious lability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”). Moreover, to the extent Plaintiff seeks 25 ||injunctive relief “against the Superior Court of California” related to ongoing criminal proceedings in CD279745, see, e.g., Compl., ECF No. | at 33-34, Younger v. Harris, 401 © 37 (1971) requires the federal court to abstain where the party can adequately litigate 27 ||his constitutional claims in the state criminal proceedings, and where the § 1983 suit 2g “would have a substantially disruptive effect upon [those] proceeding[s].” Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986).