Kemp v. Beirami

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BOBBY M. KEMP, Case No.: 23-cv-0832-GPC (AHG)

12 Plaintiff, ORDER: 13 vs. (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS 14 [ECF No. 2] AND AHMAD BEIRAMI, 15 (2) DISMISSING CIVIL ACTION Defendant. 16 17 18 Bobby M. Kemp (“Plaintiff”), a prisoner currently incarcerated at the Holmes 19 Correctional Institution in Bonifay, Florida, proceeding pro se, has filed a civil rights action 20 accompanied by a motion to proceed in forma pauperis (“IFP”). (ECF Nos. 1-2.) Plaintiff, 21 a Florida citizen, alleges that Defendant Ahmad Beirami, a California citizen, while 22 employed by Meta Platforms, Inc., a company incorporated in California, participated in 23 the design and development of an Artificial Intelligence Machine used by Meta to intercept 24 Plaintiff’s electronic communications and facial recognition profile in violation of federal 25 law. (ECF No. 1 at 2–4.)1 26 27 28 1 I. Motion to Proceed IFP 2 All parties instituting any civil action in a district court of the United States, except 3 a petition for writ of habeas corpus, must pay a civil filing fee of $402, and the action may 4 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 5 pursuant to 28 U.S.C. § 1915(a).2 See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 6 F.3d 1047, 1051 (9th Cir. 2007) (“28 U.S.C. § 1915(a) allows the district court to waive 7 the fee, for most individuals unable to afford it, by granting IFP status.”) 8 Plaintiffs who wish to proceed IFP must establish their inability to pay the civil filing 9 fee by filing an affidavit attesting to their income and assets, see Escobedo v. Applebees, 10 787 F.3d 1226, 1234 (9th Cir. 2015), which Plaintiff has provided. (See ECF No. 2 at 1- 11 5.) However, prisoners seeking leave to proceed IFP are also required to submit a “certified 12 copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month 13 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 14 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 15 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 16 in the account for the past six months, or (b) the average monthly balance in the account 17 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 18 U.S.C. § 1915(b)(1) & (4). The institution collects subsequent payments, assessed at 20% 19 of the preceding month’s income, in any month in which the account exceeds $10, and 20 forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 21 § 1915(b)(2). Once IFP is granted, Plaintiff remains obligated to pay the entire fee in 22 monthly installments regardless of whether the action is ultimately dismissed. Bruce v. 23 Samuels, 577 U.S. 82, 84 (2016). 24 25 26 2 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, 27 must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). 28 1 Plaintiff’s IFP application does not contain the required trust fund account statement. 2 (See ECF No. 2.) The Court cannot grant his IFP application without the trust fund account 3 statement for the 6-month period immediately preceding the filing of his Complaint. See 4 Andrews, 398 F.3d at 1119 (“[P]risoners must demonstrate that they are not able to pay the 5 filing fee with an affidavit and submission of their prison trust account records.”), citing 6 28 U.S.C. § 1915(a)(1)&(2). Accordingly, Plaintiff’s motion to proceed IFP is DENIED 7 and this action is DISMISSED without prejudice based on Plaintiff’s failure to pay the 8 civil filing and administrative fee or to submit a properly supported motion to proceed IFP 9 pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 10 II. Venue 11 In addition, the Court notes that the Southern District of California may not be the 12 proper venue for Plaintiff’s case. Venue may be raised by the Court sua sponte where the 13 defendant has not yet filed a responsive pleading and the time for doing so has not run. See 14 Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 15 “A civil action may be brought in (1) a judicial district in which any defendant 16 resides, if all defendants are residents of the State in which the district is located; [or] (2) a 17 judicial district in which a substantial part of the events or omissions giving rise to the 18 claim occurred, or a substantial part of property that is the subject of the action is 19 situated . . . .” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. 20 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a 21 district in which is filed a case laying venue in the wrong division or district shall dismiss, 22 or if it be in the interests of justice, transfer such case to any district or division in which it 23 could have been brought.” 28 U.S.C. § 1406(a). 24 Plaintiff names as the sole Defendant Ahmad Beirami, and indicates this Defendant 25 is a citizen of California and works for Meta Platforms, Inc., a company incorporated in 26 California. (ECF No. 1 at 1.) None of the events or omissions giving rise to Plaintiff’s 27 claims are alleged to have occurred in either San Diego or Imperial County, and no 28 Defendant is alleged to reside here. See 28 U.S.C. § 84(d) (“The Southern District of 1 California comprises the counties of Imperial and San Diego.”) Therefore, Plaintiff has 2 not adequately plead that venue is proper in the Southern District of California. See 28 3 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 4 III. Conclusion and Order 5 Accordingly, the Court: 6 (1) DENIES Plaintiff’s motion to proceed IFP without prejudice. 7 (2) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 8 pay the civil filing and administrative fee or to submit a properly supported motion to 9 proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 10 (3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 11 to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 12 file a properly supported motion to proceed IFP which includes a certified copy of his 13 prison trust account statement for the 6-month period preceding the filing of his Complaint. 14 See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). If Plaintiff fails to either pay the $402 15 civil filing fee or submit a properly supported motion to proceed IFP within 45 days, this 16 action will remain dismissed without prejudice based solely on his failure to satisfy 28 17 U.S.C. § 1914(a)’s fee requirement and without further Order of the Court. 18 The Court expresses no opinion at this time as to whether Plaintiff’s pleading should 19 survive the sua sponte screening required by 28 U.S.C. § 1915A. See Byrd v. Phoenix 20 Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018) (“For certain prisoner civil rights litigation, 21 28 U.S.C. § 1915A(a) requires pre-answer screening of the complaint so that ‘the targets 22 of frivolous or malicious suits need not bear the expense of responding.’” (quoting 23 Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014))). In any case, if Plaintiff wishes 24 to proceed with this action in this Court, he will be required to adequately plead that venue 25 lies in the Southern District of California. 26 \\\ 27 \\\ 28 \\\ 1 IT IS SO ORDERED 2 Dated: May 19, 2023 Carseto C4 3 Hon. Gonzalo P. Curiel 4 United States District Judge 5 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5