Esteghalian v. Department of the Navy

• Court: District Court, S.D. California
• Decided: February 24, 2022
• Docket: 3:19-cv-01808
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANIJEH ESTEGHLALIAN, et al., Case No.: 19cv1808-LL-MSB

12 Plaintiffs, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFFS’ MOTION TO PROCEED IN FORMA 14 DEPARTMENT OF THE NAVY; EDCO PAUPERIS WASTE AND RECYCLING SERVICES, 15 Defendants. [ECF No. 10] 16

17 18 This matter is before the Court on “Plaintiffs’ Motion to Reconsider Proceed In Forma 19 Pauperis for Both Defendants Because They Lost Their Saving and Asset Due to This 20 Claim and Illness” which the Court construes as Plaintiffs’ Motion to Proceed In Forma 21 Pauperis (“IFP”). EFC No. 10. For the reasons set forth below, Plaintiffs’ Motion to 22 Proceed IFP is DENIED without prejudice. 23 I. Procedural History 24 Plaintiff Esteghlalian filed a complaint on September 19, 2019 [ECF No. 1] and a 25 motion to proceed IFP on November 12, 2019 [ECF No. 2]. On June 16, 2020, the Court 26 dismissed with leave to amend Plaintiff’s complaint. ECF No. 5. The Court also denied as 27 moot Plaintiff’s IFP motion because it dismissed Plaintiff’s complaint. Id. at 7. On July 21, 28 2020, Plaintiff filed an amended complaint (“First Amended Complaint” or “FAC”) which 1 sought to add a new Plaintiff, Al Giovanni. ECF No. 7. On August 26, 2021, the Court 2 dismissed Plaintiff’s FAC with leave to amend. ECF No. 8. The Court’s order dismissing 3 the FAC directed Plaintiff that the Second Amended Complaint (“SAC”) “should include 4 the factual allegations pertaining to the new plaintiff, Giovanni.” 5 ECF No. 8 at 4-5. The Court further directed that “Plaintiff Giovanni should also either pay 6 the filing fee or file an application for IFP status” and that “Plaintiff Esteghlalian may also 7 file a renewed IFP motion with the Second Amended Complaint.” Id. The Court 8 specifically noted that “this new plaintiff must either pay the $402.00 filing fee or file his 9 own application to proceed IFP.” Id. at 2 (citing Anderson v. California, No. 10cv2216 10 MMA AJB, 2010 WL 4316996 at *1 (S.D. Cal. Oct. 27, 2010) (“Although one filing fee 11 needs to be paid per case, if multiple plaintiffs seek to proceed in forma pauperis, each 12 plaintiff must qualify for IFP status.”). The Court stated that it “will also need to screen the 13 new plaintiff’s claims under 28 U.S.C. § 1915A if he files for IFP status.” ECF No. 8 at 2. 14 The Court set a deadline of September 30, 2021 for Plaintiffs to file the SAC and motion 15 to proceed IFP. Id. at 5. Finally, the Court warned that “[f]ailure to do so will result in a 16 dismissal of Plaintiffs’ action.” Id. 17 After the expiration of the Court-ordered deadline to file the SAC and motion to 18 proceed IFP, Plaintiffs Esteghlalian and Giovanni filed one document on October 15, 2021, 19 nunc pro tunc, entitled: “Plaintiffs’ Complaint With Leave to Amend Original Petition and 20 Incorporate Original Petition for Both Plaintiffs[;] Plaintiffs’ Motion to Reconsider 21 Proceed In Forma Pauperis For Both Defendants Because They Lost Their Saving and 22 Asset Due to This Claim and Illness.” ECF No. 10. 23 II. Discussion 24 The Court will first consider Plaintiffs’ Motion to Proceed IFP. As an initial matter, 25 Plaintiffs’ October 15, 2021 filing was both untimely and also lacks sufficient evidence of 26 Plaintiffs’ alleged inability to pay the filing fee. ECF No. 10. Although Plaintiffs 27 Esteghlalian and Giovanni submitted separate applications seeking leave to proceed IFP, 28 they submitted the short form application (AO 240) to request leave to proceed IFP. In this 1 district, pro se litigants seeking IFP status are required to use the long form application 2 (AO 239). Thus, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ applications to 3 proceed IFP. ECF No. 10. Attached hereto is a copy of Form AO 239 (“Application to 4 Proceed in District Court Without Prepaying Fees or Costs (Long Form)”). Plaintiffs shall 5 have until March 22, 2022 to pay the filing fee or file a renewed application to proceed 6 IFP using the long form attached hereto. Plaintiffs are reminded that they must either pay 7 the $402.00 filing fee or each file their own long form application to proceed IFP. 8 Anderson, 2010 WL 4316996 at *1 (“Although one filing fee needs to be paid per case, if 9 multiple plaintiffs seek to proceed in forma pauperis, each plaintiff must qualify for IFP 10 status.”). 11 Plaintiffs should note that the IFP application specifically instructs applicants not to 12 leave any blanks, and to instead respond “0,” “none,” or “not applicable (N/A)” as 13 necessary. Failure to provide a complete IFP application for each Plaintiff may result in 14 the Court’s denial of the application. 15 Assuming Plaintiffs Esteghlalian and Giovanni are given permission to proceed IFP, 16 the Court will then screen the Second Amended Complaint at that time. 28 U.S.C. 17 §§ 1915(e)(2), 1915A; Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (holding that 18 district courts must screen all IFP plaintiffs’ complaints, not just prisoners’). The Court is 19 also authorized to deny IFP if the complaint would be subject to dismissal after screening. 20 See Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998). This Court has already 21 provided Plaintiffs leave to amend the complaint in the August 26, 2021 Order. 22 ECF No. 8 at 4. In relevant part, the Court’s Order stated: 23 As such, the Court provides Plaintiff LEAVE TO AMEND to address the deficiencies stated herein. In particular, the Second Amended Complaint 24 should include the factual allegations pertaining to the new plaintiff, 25 Giovanni. Plaintiff Giovanni should also either pay the filing fee or file an application for IFP status. Plaintiff Esteghlalian may also file a renewed 26 IFP motion with the Second Amended Complaint. Lastly, Plaintiffs need 27 to plead facts, and not merely legal conclusions, relating to Defendant EDCO to show how this Defendant would be liable to Plaintiffs. Should 28 1 Plaintiffs wish, they may file a Second Amended Complaint and IFP motions by September 30, 2021. Failure to do so will result in a dismissal of Plaintiffs’ action. 3 4 at 4-5. Notwithstanding the Court’s Order allowing leave to amend, it appears that 5 || Plaintiffs are still requesting leave to amend in their latest filing. ECF No. 10. For example, 6 first line of the filing states, “Plaintiffs request to amend Al Giovanni as additional 7 || Plaintiff to the Original Petition With Leave of Court.” /d. at 1. Accordingly, the Court 8 ||reminds Plaintiffs that they have already been granted leave to file a Second Amended 9 ||Complaint. See ECF No. 8. To the extent that the instant Complaint is not Plaintiffs’ 10 intended Second Amended Complaint, Plaintiffs are ORDERED to file any such amended 11 || pleading on or before March 22, 2022. 12 Conclusion 13 For the reasons stated herein, Plaintiffs’ Motion to Proceed IFP is DENIED 14 || WITHOUT PREJUDICE. On or before March 22, 2022, Plaintiffs are ORDERED to 15 || pay the filing fee or each file a renewed application to proceed IFP using the long form 16 |/attached hereto. Also, to the extent that the instant Complaint at ECF No. 10 is not 17 || Plaintiffs’ intended Second Amended Complaint, Plaintiffs are ORDERED to file any 18 ||Second Amended Complaint on or before March 22, 2022. Otherwise, the Court will 19 construe the instant filing “Plaintiffs’ Complaint With Leave to Amend Original Petition 20 Incorporate Original Petition for Both Plaintiffs” as Plaintiffs’ Second Amended 21 ||Complaint. Failure to pay the filing fee or file renewed applications to proceed IFP by 22 || March 22, 2022 will result in this case being closed without further order from the Court. 23 IT IS SO ORDERED. Dated: February 24, 2022 □□ he 26 Honorable Linda Lopez 07 United States District Judge 28