Latham v. Pollard

• Court: District Court, S.D. California
• Decided: May 11, 2021
• Docket: 3:20-cv-02177
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA LAWRENCE LATHAM, Case No.: 3:20-cv-02177-LAB-BGS CDCR #G-48528, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 RENEWED MOTION TO PROCEED vs. IN FORMA PAUPERIS AND 14 MOTION FOR TEMPORARY MARCUS POLLAN, et al., 15 RESTRAINING ORDER AND Defendants. DISMISSING CIVIL ACTION 16 WITHOUT PREJUDICE FOR 17 FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 18

19 [ECF Nos. 15, 17] 20 21 Plaintiff Joshua Lawrence Latham, currently incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this case 23 pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff claims more than two dozen 24 RJD correctional, mental health, and inmate appeals officials violated his First, Eighth, 25 and Fourteenth Amendment rights in conjunction with his “involuntary psychiatric 26 transfer” to a California Department of State Hospital in Atascadero (“DSH-Atascadero”) 27 from February 27, 2020 to March 6, 2020, and several subsequent efforts to involuntarily 28 medicate him and/or transfer him back to DSH-Atascadero once he returned to RJD. Id. 1 at 1‒12. Plaintiff’s Complaint seeks declaratory and injunctive relief as well as 2 unspecified amounts of compensatory and punitive damages. Id. at 14-17. 3 I. Procedural Background 4 On January 8, 2021, the Court denied Plaintiff’s initial Motion to Proceed In 5 Forma Pauperis (“IFP”) because he failed to submit a certified copy of the prison trust 6 account statements for the 6-month period preceding the filing of his Complaint as 7 required by 28 U.S.C. § 1915(a)(2). See ECF No. 12 at 2‒5. Plaintiff was granted 45 days 8 leave in which to either prepay the full $400 civil filing fee required by 28 U.S.C. 9 § 1914(a), or file a renewed Motion to Proceed IFP that included the trust account 10 documentation previously lacking. Id. at 5‒6. The Court directed the Clerk of the Court 11 to provide Plaintiff with the Court’s form IFP Motion for his use and convenience. Id. 12 On February 19, 2021, Plaintiff filed a Declaration requesting a 30-day extension 13 of time. See ECF No. 13 at 2. Plaintiff claimed RJD officials were “purposely 14 withholding and denying [him] a certified copy of his trust account statement for the past 15 6-months,” id. at 1‒2, and therefore, he was unable to file his renewed Motion to Proceed 16 IFP within the Court’s deadline. See id. Assuming Plaintiff’s claims true, the Court 17 granted his request for more time, and directed him to either pay the civil filing fee in 18 full, or file his renewed Motion to Proceed IFP, together with the trust accounting 19 required by 28 U.S.C. § 1915(a)(2), within 30 days. See ECF No. 14. 20 On February 29, 2021, Plaintiff filed his renewed Motion to Proceed IFP, which 21 now includes both a CDCR Inmate Statement Report dated August 2020 through 22 February 2021, and a prison trust account certificate calculating his 6-month average 23 monthly account balance and deposit, as well as his available account balance as of 24 February 17, 2021. See ECF No. 15 at 4‒7. 25 On March 12, 2021, Plaintiff also submitted a document entitled “Order to Show 26 Cause and Temporary Restraining Order (“TRO”),” which the Court construes as a 27 Motion seeking a TRO pursuant to Fed. R. Civ. P. 65. See ECF No. 17. 28 / / / 1 II. Renewed Motion to Proceed IFP 2 As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in 3 a district court of the United States, except an application for writ of habeas corpus, must 4 pay a filing fee of $400.1 See 28 U.S.C. § 1914(a). Under 28 U.S.C. § 1915(a), the Court 5 may authorize a plaintiff to pursue a case without payment of the filing fee. Whether an 6 affiant has satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” 7 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other 8 grounds, 506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed IFP. 9 Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a 10 plaintiff seeking IFP status must allege poverty ‘with some particularity, definiteness, and 11 certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United 12 States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). 13 “An affidavit in support of an IFP application is sufficient where it alleges that the 14 affiant cannot pay the court costs and still afford the necessities of life.” Id. And while “a 15 prisoner’s financial needs are not the same as those of a non-prisoner,” and one “without 16 funds [may] not be denied access to a federal court based on his poverty,” Taylor v. 17 Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)), “even- 18 handed care must be employed to assure that federal funds are not squandered to 19 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor 20 who is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 21 586 F. Supp. 848, 850 (D. R.I. 1984); see also Frost v. Child and Family Services of San 22 Bernardino Cnty & San Bernardino Juvenile Court, No. 3:20-CV-2402-JLS-BLM, 2021 23

24 25 1 For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference 26 Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee increased to 27 $52 for civil cases filed on or after December 1, 2020, but that portion still does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 28 1 WL 1195834, at *1 (S.D. Cal. Mar. 30, 2021). 2 Before the enactment of the Prison Litigation Reform Act (“PLRA”) in 1996, 3 “indigent prisoners, like other indigent persons, could file a civil action without paying 4 any filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C. 5 § 1915(a)(1)). The PLRA however, “placed several limitations on prisoner litigation in 6 federal courts.” Id. at 84. While his civil action or appeal may proceed upon submission 7 of an affidavit that demonstrates an “unab[ility] to pay such fees or give security 8 therefor,” 28 U.S.C. § 1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th 9 Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999), a prisoner granted 10 leave to proceed IFP remains obligated to pay the entire fee in “increments” or 11 “installments,” Bruce 577 U.S. at 84, 85; Williams v. Paramo, 775 F.3d 1182, 1185 (9th 12 Cir. 2015), and regardless of whether his case is ultimately dismissed. See 28 U.S.C. 13 § 1915(b)(1) & (2); Taylor, 281 F.3d at 847. 14 Thus, section 1915(a)(2) requires prisoners to submit a “certified copy of the[ir] 15 trust fund account statement (or institutional equivalent) for . . . the 6-month period 16 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 17 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 18 “the district court must make a series of factual findings regarding the prisoner’s assets.” 19 Taylor, 281 F.3d at 847 n.2. It must assess an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner 22 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 23 custody of the prisoner then collects subsequent payments, assessed at 20% of the 24 preceding month’s income, in any month in which his account exceeds $10, and forwards 25 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 26 Bruce, 577 U.S. at 85‒86. 27 As noted above, in support of his renewed Motion, Plaintiff has submitted a sworn 28 declaration of assets which includes the required prison certificate authorized by a RJD 1 accounting official, as well as a copy of his CDCR Inmate Statement Report for the 2 months of August 2020 through February 2021. See ECF No. 15 at 4‒7; 28 U.S.C. 3 § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. But these documents do 4 not demonstrate he is “unable to pay” the $400 civil filing fee. See 28 U.S.C. § 1915(a). 5 Instead, Plaintiff’s submissions show he has carried an average monthly balance of 6 $1,814.72 in his trust account over the last six months, and that he had an available 7 balance of $1,641.62 to his credit at the time of filing. See ECF No. 15 at 4, 6. Indeed, 8 unlike most inmates who claim no or very minimal monthly income attributable to in- 9 prison employment, Plaintiff attests he is entitled to monthly profit sharing income from 10 the Hoopa Valley Tribal Council. See ECF No. 15 at 2‒3, 6; cf. Roberts v. Hensley, No. 11 3:15-CV-1871-LAB (BLM), 2019 WL 2618124, at *2 (S.D. Cal. June 25, 2019) (finding 12 prisoner was “clearly indigent” where “[h]e ha[d] no funds in any of his accounts and 13 thus would be unable to pay any costs assessed to him.”). Plaintiff’s trust account 14 statements confirm a total of $1,682.79 in “tribal profit sharing” deposits to his account 15 between August and December 2020, and an additional $2,477.38 in “Misc. Income 16 (Exempt)” deposits during the months of November and December 2020. Id. at 6. 17 Thus, because the Court finds Plaintiff is able pay the full $400 civil filing fee 18 required to commence a civil action, his renewed Motion to Proceed IFP must be 19 DENIED. 20 III. Motion for TRO 21 Plaintiff has also filed a Motion seeking a TRO “requiring the Defendants to 22 remove [him] from unwanted retaliatory mental health treatment and retaliatory 23 medication,” and the “expunge[ment] [of] falsified mental health records from his C- 24 File.” See ECF No. 17 at 6. 25 However, to the extent Plaintiff seeks a TRO without notice upon an adverse party, 26 he cannot prevail because his submission fails to set out “specific facts in an affidavit or a 27 verified complaint . . . [which] clearly show that immediate and irreparable injury, loss, 28 or damage will result . . . before the adverse party can be heard in opposition.” Fed. R. 1 Civ. P. 65(b)(1)(A); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (“[I]njunctive 2 relief is ‘to be used sparingly, and only in a clear and plain case,’” especially when the 3 court is asked to enjoin the conduct of a state agency) (quoting Rizzo v. Goode, 423 U.S. 4 362, 378 (1976)). 5 Moreover, a federal district court may issue emergency injunctive relief only if it 6 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. 7 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting 8 that one “becomes a party officially, and is required to take action in that capacity, only 9 upon service of summons or other authority-asserting measure stating the time within 10 which the party served must appear to defend.”). The court may not attempt to determine 11 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 12 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). Pursuant 13 to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the 14 action,” their “officers, agents, servants, employees, and attorneys,” and “other persons 15 who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). 16 Because Plaintiff is not entitled to proceed IFP, he is not entitled to U.S. Marshal 17 service pursuant to 28 U.S.C. § 1915(d), and he has not filed proof of service upon any 18 Defendant on his own. See Fed. R. Civ. P. 5(d)(1)(B)(i); S.D. Cal. CivLR 5.2. No RJD 19 official named in his Complaint has been provided actual notice of either the Complaint 20 or his Motion for TRO. Thus, regardless of any conceivable merit, the Court DENIES his 21 Motion because it cannot grant Plaintiff injunctive relief when it has no personal 22 jurisdiction over any of the persons he seeks to enjoin. See Fed. R. Civ. P. 65(a)(1), 23 (d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-28. A district court 24 has no authority to grant relief in the form of a temporary restraining order or permanent 25 injunction where it has no jurisdiction over the parties. Ruhrgas AG v. Marathon Oil Co., 26 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential element of the 27 jurisdiction of a district ... court, without which the court is powerless to proceed to an 28 adjudication.”) (citation and internal quotation omitted). 1 Conclusion and Orders 2 For the reasons discussed, the Court DENIES Plaintiff’'s renewed Motion to 3 || Proceed IFP (ECF No. 15) because it demonstrates he is able to pay the $400 filing fee in 4 || full, DENIES his Motion for TRO (ECF No. 17), and DISMISSES this civil action 5 || without prejudice based on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirements. 6 Plaintiff may re-open this case by submitting the full $400 filing fee due by June 7 || 28, 2021.7 If he chooses this course, Plaintiff must ensure his check is submitted and 8 made payable to the Clerk of the Court, U.S. District Court, Southern District of 9 || California, and include reference to Civil Case No. 3:20-cv-02177-LAB-BGS. 10 If Plaintiff does not submit the full $400 filing fee in one lump sum on or before 11 || June 28, 2021, the case will remain dismissed without prejudice based on his failure to 12 || pay the required filing fee and without any further Order of the Court. 13 IT ISSO ORDERED. 14 || Dated: May 11, 2021 / wi 4. ‘Sy, W/V 15 Hon. Lafry A. Burns 16 United States District Judge 17 18 19 20 21 22 23 ||? Plaintiff is cautioned that should he elect to re-open this case by paying the full $400 civil filing fee, his 24 Complaint will still be subject to the mandatory initial screening required by 28 U.S.C. § 1915A. Also enacted as part of the PLRA, § 1915A requires the Court to “review, ... as soon as practicable after 25 || docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). “The court shall identify cognizable claims 26 || or dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who 27 immune from such relief.” Id., subd. (b)(1), (2). “The purpose of § 1915A is ‘to ensure that the targets 28 of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).