Cruz v. Cruz

Opinion

7 THE DISTRICT COURT OF GUAM 8

9 FRED J. CRUZ, CIVIL CASE NO. 24-00022

10 Plaintiff, ORDER DENYING APPLICATION 11 vs. TO WAIVE FEES WITHOUT PREJUDICE (ECF NO. 2) AND 12 FRANKIE J. CRUZ, ROLAND CRUZ, PAUL GRANTING IN PART AND DENYING A. CRUZ, AGNES C. RAGLAND, DANNY IN PART MOTION TO DIRECT 13 J. CRUZ, EDWARD A. CRUZ, WAYNE W. SERVICE (ECF NO. 4) CRUZ, and ARLENE M. CRUZ, 14 Defendants. 15

16 Before the court are the following motions: Plaintiff Fred J. Cruz’s Application to 17 Proceed in District Court Without Prepaying Fees or Costs (“Application to Waive Fees”), ECF 18 No. 2, and Plaintiff’s Motion to Direct Service Within a Specified Time (“Motion to Direct 19 Service”), ECF No. 4. For the reasons explained below, the Application to Waive Fees is 20 DENIED without prejudice, and the Motion to Direct Service is GRANTED in part and 21 DENIED in part. Plaintiff is ORDERED to either pay the filing fee in full or file an amended 22 application to waive the filing fee no later than June 6, 2025. 23 Under 28 U.S.C. § 1915(a)(1), the court “may authorize the commencement . . . of any 24 suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who 1 submits an affidavit that includes a statement of all assets such prisoner possesses that the 2 person is unable to pay such fees or give security therefor.” In reviewing an application to 3 proceed in forma pauperis, district courts have broad discretion in determining whether the filing 4 fee is “fair and appropriate in a particular case.” See Hymas v. U.S. Dep’t of the Interior, 73 F.4th 5 763, 767-68 (9th Cir. 2023). If granted, the court must then review the complaint to determine 6 whether the action is “frivolous or malicious,” “fails to state a claim on which relief may be 7 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” See 28 8 U.S.C. § 1915(e)(2). The case is not otherwise authorized to proceed until the application is

9 granted and the complaint is screened. See id. § 1915(a)(1). This procedure tolls the relevant time 10 frame for service as directed by Federal Rule of Civil Procedure 4(m). See id. § 1915(d) 11 (providing that the officers of the court shall issue and serve all process in cases proceeding in 12 forma pauperis); FED. R. CIV. P. 4(c)(3) (requiring the court to order service “if the plaintiff is 13 authorized to proceed in forma pauperis”); see also, e.g., Nogales v. Burke, No. 22-cv-702-MMA 14 (DEB), 2022 WL 10146087, at *2 (S.D. Cal. Oct. 17, 2022) (tolling Rule 4(m)’s time limit in the 15 context of screening a complaint). 16 Plaintiff filed the Complaint and Application to Waive Fees on October 3, 2024. Appl. 17 ECF No. 2. Since then, the court is aware that Plaintiff’s financial circumstances have changed 18 due to the resolution of another case in this court. See Cruz v. Cruz, Civil Case No. 22-00002 (D.

19 Guam Feb. 4, 2025). Therein, the parties filed a joint stipulation on February 4, 2025, in which 20 the defendant in that action agreed to pay Plaintiff $900.00 per month until the amount of 21 $6,911.70 is paid. Id. Despite this, Plaintiff has neither filed an amended application nor paid the 22 filing fee. Accordingly, Plaintiff’s Application to Waive Fees is DENIED without prejudice, 23 24 1 Despite the language of 28 U.S.C. § 1915(a)(1), this section applies to both prisoners and non-prisoners who move to proceed in forma pauperis. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 762, 766 n.3 (2023). 1 || and Plaintiff is ORDERED to either pay the filing fee in full or file an amended application to 2 || waive fees that provides an updated statement of his financial status no later than June 6, 2025. 3 || Failure to do so may result in the automatic dismissal of the case without further notice. 4 Additionally, Plaintiff filed the Motion to Direct Service on April 24, 2025. See Mot., 5 || ECF No. 4. Therein, he requests that “the court direct that service be effected within a specified 6 || time, and to extend time for service for an appropriate time” after the court’s review is 7 || complete.’ /d. at 2. As explained above, Plaintiff has requested to proceed in forma pauperis, 8 || which requires the court to screen the Complaint and, if applicable, authorize the case to proceed 9 || and order that service be completed. See 28 U.S.C. § 1915(e)(2); FED. R. Civ. P. 4(c)(3). 10 || Therefore, service under Rule 4(c)(3) is not appropriate at this time and the ninety-day period for 11 service provided by Rule 4(m) 1s tolled until otherwise ordered. Accordingly, Plaintiff's Motion 12 || to Direct Service is GRANTED to the extent that it seeks to toll the time period for service but 13 || DENIED insofar as it seeks to expedite service in any way. 14 SO ORDERED.

16 ea /s/ Frances M. Tydingco-Gatewood □□ J, Chief Judge 7 i Uy Dated: May 23, 2025

aE

19 20 21 22 23 24 2 Plaintiff also states that his failure to serve the defendants within 180 days “[p]Jer Guam rules of civil procedure Rule 4” is due to the court’s review. Mot. at 1-2, ECF No. 4. Though similar, the Guam Rules of Civil Procedure do not apply in this court. In the future, the court directs Plaintiff to the Federal Rules of Civil Procedure.