5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
ROBERT EMERT, Case No. 23-cv-01723-BAS-MSB 11
Plaintiff, ORDER: 12
(1) DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS (ECF No. 3); 14 SAN DIEGO SUPERIOR COURT, (2) TERMINATING AS MOOT 15 MOTION FOR TEMPORARY Defendant. RESTRAINING ORDER 16 (ECF No. 2); AND
17 (3) DISMISSING ACTION WITHOUT PREJUDICE 18
19 20 Plaintiff Robert Emert filed this action against the San Diego Superior Court 21 seeking to review and enjoin criminal and family court orders concerning Plaintiff’s 22 relationship with his minor children. (Compl., ECF No. 1.) Plaintiff also filed a 23 request to proceed in forma pauperis (“IFP”)—without paying the filing fee. (ECF 24 No. 3.) For the reasons explained below, Plaintiff’s IFP application is insufficient, 25 and regardless, the Court must dismiss the Complaint. 26 I. MOTION FOR LEAVE TO PROCEED IFP 27 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay 1 proceed without making such payment. The determination of indigency falls within 2 the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 3 Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 4 typically requires the reviewing court to exercise its sound discretion in determining 5 whether the affiant has satisfied the statute’s requirement of indigency”). It is well- 6 settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. 7 DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the requirements 8 of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one 9 cannot because of his poverty pay or give security for costs . . . and still be able to 10 provide himself and dependents with the necessities of life.” Id. at 339. At the same 11 time, however, “the same even-handed care must be employed to assure that federal 12 funds are not squandered to underwrite, at public expense . . . the remonstrances of a 13 suitor who is financially able, in whole or in material part, to pull his own oar.” 14 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 15 District courts, therefore, tend to reject IFP applications where the applicant 16 can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer 17 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other 18 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district 19 court did not abuse its discretion in requiring a partial fee payment from a prisoner 20 who had a $14.61 monthly salary and who received $110 per month from family). 21 Moreover, “in forma pauperis status may be acquired and lost during the course of 22 litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 23 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see 24 also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that 25 a plaintiff who was initially permitted to proceed in forma pauperis should be 26 required to pay his $120 filing fee out of a $900 settlement). Finally, the facts as to 27 the affiant’s poverty must be stated “with some particularity, definiteness, and 1 Having reviewed Plaintiff’s IFP application (ECF No. 3), the Court is 2 unpersuaded he qualifies for IFP status. Plaintiff completed the “Short Form” 3 application (AO 240), but the details provided do not add up. For example, Plaintiff 4 states he is not incarcerated, but lists “N/A” when asked to specify his “housing, 5 transportation, utilities, or loan payments, or other regular monthly expenses.” (Id. 6 2.) The Court does not have enough information to make an informed determination 7 on Plaintiff’s indigency. Hence, the Court denies the request to proceed IFP. If 8 Plaintiff desires to again seek IFP status, he is advised to use the Administrative 9 Office of the U.S. Courts (“AO”)’s Long Form for IFP Applications—AO Form 239, 10 which is five pages. Finally, Plaintiff is reminded that an IFP application is made 11 under penalty of perjury. 12 II. DISMISSAL 13 Although Plaintiff’s IFP application is inadequate, in the interest of efficiency, 14 the Court also addresses his Complaint. Plaintiff seeks, among other things, an 15 “immediate stay” of “criminal and family court proceedings pending review,” an 16 “immediate stay of [a] default judgment terminating parental rights in family court,” 17 and “appellate review of all unconstitutional rulings made thus far” by the state court. 18 (Compl. 9–10.) 19 There are two hurdles that Plaintiff cannot clear to proceed with this lawsuit. 20 First, the Rooker-Feldman doctrine provides that federal district courts may exercise 21 only original jurisdiction; they may not exercise appellate jurisdiction over state court 22 decisions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 23 482–86 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Rooker- 24 Feldman thus bars “cases brought by state-court losers complaining of injuries 25 caused by state-court judgments rendered before the district court proceedings 26 commenced and inviting district court review and rejection of those judgments.” 27 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The 1 involves federal constitutional issues. See Dubinka v. Judges of the Superior Court, 2 23 F.3d 218, 221 (9th Cir. 1994); Worldwide Church of God v. McNair, 805 F.2d 3 888, 891 (9th Cir. 1986). Further, “Rooker-Feldman bars any suit that seeks to 4 disrupt or ‘undo’ a prior state-court judgment, regardless of whether the state-court 5 proceeding afforded the federal-court plaintiff a full and fair opportunity to litigate 6 her claims.” See Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir. 2003) (internal 7 quotation marks omitted). Hence, under this doctrine, the Court cannot review a state 8 court judgment terminating parental rights or provide “appellate review of all 9 unconstitutional rulings.” (See Complaint 9.) Therefore, the Complaint is subject to 10 dismissal on this ground for lack of subject matter jurisdiction. See Cooper v. Ramos, 11 704 F.3d 772, 779 (9th Cir. 2012) (providing claims are “inextricably intertwined” 12 for purposes of the Rooker-Feldman doctrine where “the relief requested in the 13 federal action would effectively reverse the state court decision or void its ruling” 14 (citation and internal quotation marks omitted)). 15 Second, Plaintiff is attempting to sue the San Diego Superior Court under 42 16 U.S.C. § 1983.
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5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
ROBERT EMERT, Case No. 23-cv-01723-BAS-MSB 11
Plaintiff, ORDER: 12
(1) DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS (ECF No. 3); 14 SAN DIEGO SUPERIOR COURT, (2) TERMINATING AS MOOT 15 MOTION FOR TEMPORARY Defendant. RESTRAINING ORDER 16 (ECF No. 2); AND
17 (3) DISMISSING ACTION WITHOUT PREJUDICE 18
19 20 Plaintiff Robert Emert filed this action against the San Diego Superior Court 21 seeking to review and enjoin criminal and family court orders concerning Plaintiff’s 22 relationship with his minor children. (Compl., ECF No. 1.) Plaintiff also filed a 23 request to proceed in forma pauperis (“IFP”)—without paying the filing fee. (ECF 24 No. 3.) For the reasons explained below, Plaintiff’s IFP application is insufficient, 25 and regardless, the Court must dismiss the Complaint. 26 I. MOTION FOR LEAVE TO PROCEED IFP 27 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay 1 proceed without making such payment. The determination of indigency falls within 2 the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th 3 Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993) (holding that “Section 1915 4 typically requires the reviewing court to exercise its sound discretion in determining 5 whether the affiant has satisfied the statute’s requirement of indigency”). It is well- 6 settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. 7 DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the requirements 8 of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one 9 cannot because of his poverty pay or give security for costs . . . and still be able to 10 provide himself and dependents with the necessities of life.” Id. at 339. At the same 11 time, however, “the same even-handed care must be employed to assure that federal 12 funds are not squandered to underwrite, at public expense . . . the remonstrances of a 13 suitor who is financially able, in whole or in material part, to pull his own oar.” 14 Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 15 District courts, therefore, tend to reject IFP applications where the applicant 16 can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer 17 v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other 18 grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district 19 court did not abuse its discretion in requiring a partial fee payment from a prisoner 20 who had a $14.61 monthly salary and who received $110 per month from family). 21 Moreover, “in forma pauperis status may be acquired and lost during the course of 22 litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 23 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see 24 also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that 25 a plaintiff who was initially permitted to proceed in forma pauperis should be 26 required to pay his $120 filing fee out of a $900 settlement). Finally, the facts as to 27 the affiant’s poverty must be stated “with some particularity, definiteness, and 1 Having reviewed Plaintiff’s IFP application (ECF No. 3), the Court is 2 unpersuaded he qualifies for IFP status. Plaintiff completed the “Short Form” 3 application (AO 240), but the details provided do not add up. For example, Plaintiff 4 states he is not incarcerated, but lists “N/A” when asked to specify his “housing, 5 transportation, utilities, or loan payments, or other regular monthly expenses.” (Id. 6 2.) The Court does not have enough information to make an informed determination 7 on Plaintiff’s indigency. Hence, the Court denies the request to proceed IFP. If 8 Plaintiff desires to again seek IFP status, he is advised to use the Administrative 9 Office of the U.S. Courts (“AO”)’s Long Form for IFP Applications—AO Form 239, 10 which is five pages. Finally, Plaintiff is reminded that an IFP application is made 11 under penalty of perjury. 12 II. DISMISSAL 13 Although Plaintiff’s IFP application is inadequate, in the interest of efficiency, 14 the Court also addresses his Complaint. Plaintiff seeks, among other things, an 15 “immediate stay” of “criminal and family court proceedings pending review,” an 16 “immediate stay of [a] default judgment terminating parental rights in family court,” 17 and “appellate review of all unconstitutional rulings made thus far” by the state court. 18 (Compl. 9–10.) 19 There are two hurdles that Plaintiff cannot clear to proceed with this lawsuit. 20 First, the Rooker-Feldman doctrine provides that federal district courts may exercise 21 only original jurisdiction; they may not exercise appellate jurisdiction over state court 22 decisions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 23 482–86 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Rooker- 24 Feldman thus bars “cases brought by state-court losers complaining of injuries 25 caused by state-court judgments rendered before the district court proceedings 26 commenced and inviting district court review and rejection of those judgments.” 27 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The 1 involves federal constitutional issues. See Dubinka v. Judges of the Superior Court, 2 23 F.3d 218, 221 (9th Cir. 1994); Worldwide Church of God v. McNair, 805 F.2d 3 888, 891 (9th Cir. 1986). Further, “Rooker-Feldman bars any suit that seeks to 4 disrupt or ‘undo’ a prior state-court judgment, regardless of whether the state-court 5 proceeding afforded the federal-court plaintiff a full and fair opportunity to litigate 6 her claims.” See Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir. 2003) (internal 7 quotation marks omitted). Hence, under this doctrine, the Court cannot review a state 8 court judgment terminating parental rights or provide “appellate review of all 9 unconstitutional rulings.” (See Complaint 9.) Therefore, the Complaint is subject to 10 dismissal on this ground for lack of subject matter jurisdiction. See Cooper v. Ramos, 11 704 F.3d 772, 779 (9th Cir. 2012) (providing claims are “inextricably intertwined” 12 for purposes of the Rooker-Feldman doctrine where “the relief requested in the 13 federal action would effectively reverse the state court decision or void its ruling” 14 (citation and internal quotation marks omitted)). 15 Second, Plaintiff is attempting to sue the San Diego Superior Court under 42 16 U.S.C. § 1983. To plead a violation of Section 1983, a plaintiff must allege that (1) 17 a person acting under the color of state law (2) violated his constitutional rights or 18 rights secured by federal statute. West v. Atkins, 487 U.S. 42, 48 (1988); Anderson 19 v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). Plaintiff cannot sue the Superior 20 Court because the state court is not a “person” within the meaning of § 1983. Rather, 21 the court is an arm of the state and is immune from suit unless the state has expressly 22 waived immunity. See Simmons v. Sacramento Cnty. Superior Court, 318 F.3d 1156, 23 1161 (9th Cir. 2003) (“Plaintiff cannot state a claim against the Sacramento County 24 Superior Court (or its employees), because such suits are barred by the Eleventh 25 Amendment.”). There is no waiver here, Plaintiff’s suit cannot proceed on this basis, 26 and it is futile. 27 // 1 |. CONCLUSION 2 In light of the foregoing, the Court DENIES Plaintiff's Application to Proceed 3 ||IFP. (ECF No. 3.) The Court also DISMISSES WITHOUT PREJUDICE this 4 |laction. The Court further TERMINATES AS MOOT Plaintiff's request for a 5 || temporary restraining order. (ECF No. 2.) 6 IT IS SO ORDERED. (pil A (Haphoa. 6 DATED: October 4, 2023 United States District Judge
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