1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BOBBY M. KEMP, Case No.: 23cv1198-DMS-AHG
12 Plaintiff, ORDER DENYING MOTION TO 13 vs. PROCEED IN FORMA PAUPERIS AND DISMISSING CIVIL ACTION 14
HEINRICH KUTTLER, 15 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 Heinrich Kuttler, 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.) 26 I. Motion to Proceed IFP 27 All parties instituting any civil action in a district court of the United States, except 28 a petition for writ of habeas corpus, must pay a civil filing fee of $402, and the action may 1 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 2 pursuant to 28 U.S.C. § 1915(a).1 See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 3 F.3d 1047, 1051 (9th Cir. 2007) (“28 U.S.C. § 1915(a) allows the district court to waive 4 the fee, for most individuals unable to afford it, by granting IFP status.”) 5 Plaintiffs who wish to proceed IFP must establish their inability to pay the civil filing 6 fee by filing an affidavit attesting to their income and assets, see Escobedo v. Applebees, 7 787 F.3d 1226, 1234 (9th Cir. 2015), which Plaintiff has provided. (See ECF No. 2 at 1- 8 5.) However, prisoners seeking leave to proceed IFP are also required to submit a “certified 9 copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month 10 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 11 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 12 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 13 in the account for the past six months, or (b) the average monthly balance in the account 14 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 15 U.S.C. § 1915(b)(1) & (4). The institution collects subsequent payments, assessed at 20% 16 of the preceding month’s income, in any month in which the account exceeds $10, and 17 forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 18 § 1915(b)(2). Once IFP is granted, Plaintiff remains obligated to pay the entire fee in 19 monthly installments regardless of whether the action is ultimately dismissed. Bruce v. 20 Samuels, 577 U.S. 82, 84 (2016). 21 Plaintiff’s IFP application does not contain the required trust fund account statement. 22 (See ECF No. 2.) The Court cannot grant his IFP application without the trust fund account 23 statement for the 6-month period immediately preceding the filing of his Complaint. See 24 25 26 1 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 Andrews, 398 F.3d at 1119 (“prisoners must demonstrate that they are not able to pay the 2 filing fee with an affidavit and submission of their prison trust account records.”), citing 3 28 U.S.C. § 1915(a)(1)&(2). Accordingly, Plaintiff’s motion to proceed IFP is DENIED 4 and this action is DISMISSED without prejudice based on Plaintiff’s failure to pay the 5 civil filing and administrative fee or to submit a properly supported motion to proceed IFP 6 pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 7 II. Venue 8 In addition, the Court notes that the Southern District of California may not be the 9 proper venue for Plaintiff’s case. Venue may be raised by the Court sua sponte where the 10 defendant has not yet filed a responsive pleading and the time for doing so has not run. See 11 Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 12 “A civil action may be brought in – (1) a judicial district in which any defendant 13 resides, if all defendants are residents of the State in which the district is located; [or] (2) a 14 judicial district in which a substantial part of the events or omissions giving rise to the 15 claim occurred, or a substantial part of property that is the subject of the action is 16 situated . . . .” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. 17 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a 18 district in which is filed a case laying venue in the wrong division or district shall dismiss, 19 or if it be in the interests of justice, transfer such case to any district or division in which it 20 could have been brought.” 28 U.S.C. § 1406(a). 21 Plaintiff names as the sole Defendant Heinrich Kuttler, and indicates this Defendant 22 is a citizen of California and works for Meta Platforms, Inc., a company incorporated in 23 California. (ECF No. 1 at 1.) None of the events or omissions giving rise to Plaintiff’s 24 claims are alleged to have occurred in either San Diego or Imperial County, and no 25 Defendant is alleged to reside here. See 28 U.S.C. § 84(d) (“The Southern District of 26 California comprises the counties of Imperial and San Diego.”) Therefore, Plaintiff has 27 not adequately plead that venue is proper in the Southern District of California. See 28 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 1 Conclusion and Order 2 Accordingly, the Court: 3 (1) DENIES Plaintiffs motion to proceed IFP without prejudice. 4 (2) DISMISSES this civil action without prejudice based on Plaintiffs failure to 5 the civil filing and administrative fee or to submit a properly supported motion to 6 || proceed IFP pursuant to 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BOBBY M. KEMP, Case No.: 23cv1198-DMS-AHG
12 Plaintiff, ORDER DENYING MOTION TO 13 vs. PROCEED IN FORMA PAUPERIS AND DISMISSING CIVIL ACTION 14
HEINRICH KUTTLER, 15 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 Heinrich Kuttler, 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.) 26 I. Motion to Proceed IFP 27 All parties instituting any civil action in a district court of the United States, except 28 a petition for writ of habeas corpus, must pay a civil filing fee of $402, and the action may 1 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 2 pursuant to 28 U.S.C. § 1915(a).1 See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 3 F.3d 1047, 1051 (9th Cir. 2007) (“28 U.S.C. § 1915(a) allows the district court to waive 4 the fee, for most individuals unable to afford it, by granting IFP status.”) 5 Plaintiffs who wish to proceed IFP must establish their inability to pay the civil filing 6 fee by filing an affidavit attesting to their income and assets, see Escobedo v. Applebees, 7 787 F.3d 1226, 1234 (9th Cir. 2015), which Plaintiff has provided. (See ECF No. 2 at 1- 8 5.) However, prisoners seeking leave to proceed IFP are also required to submit a “certified 9 copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month 10 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 11 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 12 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 13 in the account for the past six months, or (b) the average monthly balance in the account 14 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 15 U.S.C. § 1915(b)(1) & (4). The institution collects subsequent payments, assessed at 20% 16 of the preceding month’s income, in any month in which the account exceeds $10, and 17 forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 18 § 1915(b)(2). Once IFP is granted, Plaintiff remains obligated to pay the entire fee in 19 monthly installments regardless of whether the action is ultimately dismissed. Bruce v. 20 Samuels, 577 U.S. 82, 84 (2016). 21 Plaintiff’s IFP application does not contain the required trust fund account statement. 22 (See ECF No. 2.) The Court cannot grant his IFP application without the trust fund account 23 statement for the 6-month period immediately preceding the filing of his Complaint. See 24 25 26 1 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 Andrews, 398 F.3d at 1119 (“prisoners must demonstrate that they are not able to pay the 2 filing fee with an affidavit and submission of their prison trust account records.”), citing 3 28 U.S.C. § 1915(a)(1)&(2). Accordingly, Plaintiff’s motion to proceed IFP is DENIED 4 and this action is DISMISSED without prejudice based on Plaintiff’s failure to pay the 5 civil filing and administrative fee or to submit a properly supported motion to proceed IFP 6 pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 7 II. Venue 8 In addition, the Court notes that the Southern District of California may not be the 9 proper venue for Plaintiff’s case. Venue may be raised by the Court sua sponte where the 10 defendant has not yet filed a responsive pleading and the time for doing so has not run. See 11 Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 12 “A civil action may be brought in – (1) a judicial district in which any defendant 13 resides, if all defendants are residents of the State in which the district is located; [or] (2) a 14 judicial district in which a substantial part of the events or omissions giving rise to the 15 claim occurred, or a substantial part of property that is the subject of the action is 16 situated . . . .” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. 17 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a 18 district in which is filed a case laying venue in the wrong division or district shall dismiss, 19 or if it be in the interests of justice, transfer such case to any district or division in which it 20 could have been brought.” 28 U.S.C. § 1406(a). 21 Plaintiff names as the sole Defendant Heinrich Kuttler, and indicates this Defendant 22 is a citizen of California and works for Meta Platforms, Inc., a company incorporated in 23 California. (ECF No. 1 at 1.) None of the events or omissions giving rise to Plaintiff’s 24 claims are alleged to have occurred in either San Diego or Imperial County, and no 25 Defendant is alleged to reside here. See 28 U.S.C. § 84(d) (“The Southern District of 26 California comprises the counties of Imperial and San Diego.”) Therefore, Plaintiff has 27 not adequately plead that venue is proper in the Southern District of California. See 28 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 1 Conclusion and Order 2 Accordingly, the Court: 3 (1) DENIES Plaintiffs motion to proceed IFP without prejudice. 4 (2) DISMISSES this civil action without prejudice based on Plaintiffs failure to 5 the civil filing and administrative fee or to submit a properly supported motion to 6 || proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a). 7 (3) GRANTS Plaintiff forty-five (45) days leave from the date this Order is filed 8 || to: (a) prepay the entire $402 civil filing and administrative fee in full; or (b) complete and 9 a properly supported motion to proceed IFP which includes a certified copy of his 10 || prison trust account statement for the 6-month period preceding the filing of his Complaint. 11 || See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2(b). If Plaintiff fails to either pay the $405 12 || civil filing fee or submit a properly supported motion to proceed IFP within 45 days, this 13 action will remain dismissed without prejudice based solely on his failure to satisfy 28 14 U.S.C. § 1914(a)’s fee requirement and without further Order of the Court. 15 The Court expresses no opinion at this time as to whether Plaintiff's pleading should 16 ||survive the sua sponte screening required by 28 U.S.C. § 1915A. See Byrd vy. Phoenix 17 || Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018) (“For certain prisoner civil rights litigation, 18 U.S.C. § 1915A(a) requires pre-answer screening of the complaint so that ‘the targets 19 frivolous or malicious suits need not bear the expense of responding.’”), quoting 20 || Nordstrom y. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014). In any case, if Plaintiff wishes 21 proceed with this action in this Court, he will be required to adequately plead that venue 22 in the Southern District of California. 23 IT IS SO ORDERED. 24 Dated: July 17, 2023 > 25 a Yn: 56 Hon. Dana M. Sabraw, Chief Judge United States District Court 27 28 4