1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 FREDDY ZAVALA ODANGA, Case No.: 23-CV-0723-RSH-DEB Patient #1769488, 13 ORDER (1) DENYING MOTION TO Plaintiff, 14 PROCEED IN FORMA PAUPERIS v. WITHOUT PREJUDICE; 15 (2) DISMISSING CIVIL ACTION SAN DIEGO POLICE OFFICERS 16 WITHOUT PREJUDICE; AND JODAR, CABRALES and JOHN DOE, (3) DIRECTING PLAINTIFF TO 17 Defendants. NOTIFY THE COURT OF 18 CURRENT ADDRESS 19 20 Plaintiff Freddy Zavala Odanga, currently committed to Patton State Hospital 21 (“PSH”) in Patton, California, proceeding pro se, has filed a civil rights complaint pursuant 22 to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1–2. 23 Plaintiff alleges that on May 6 and 7, 2022, he was tortured by three San Diego police 24 officers. ECF No. 1 at 3, 5. 25 I. Motion to Proceed IFP 26 All parties instituting any civil action in a district court of the United States, except 27 a petition for writ of habeas corpus, must pay a civil filing fee of $402, and the action may 28 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 1 pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 F.3d 2 1047, 1051 (9th Cir. 2007) (stating that “28 U.S.C. § 1915(a) allows the district court to 3 waive the fee, for most individuals unable to afford it, by granting IFP status”). 4 Plaintiffs who wish to proceed IFP must establish their inability to pay the civil filing 5 fee by filing an affidavit attesting to their income and assets. See Escobedo v. Applebees, 6 787 F.3d 1226, 1234 (9th Cir. 2015). Prisoners seeking leave to proceed IFP are also 7 required to submit a “certified copy of the trust fund account statement (or institutional 8 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 9 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the 10 certified trust account statement, the Court assesses an initial payment of 20 percent of (a) 11 the average monthly deposits in the account for the past six months, or (b) the average 12 monthly balance in the account for the past six months, whichever is greater, unless the 13 prisoner has no assets. See 28 U.S.C. § 1915(b)(1) & (4). The institution collects 14 subsequent payments, assessed at 20 percent of the preceding month’s income, in any 15 month in which the account exceeds $10, and forwards those payments to the Court until 16 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). A plaintiff remains obligated to 17 pay the entire fee in monthly installments regardless of whether the action is ultimately 18 dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016). 19 Here, Plaintiff states in his IFP motion: “I-have-no-money-they-will-not-give-me- 20 reciept-of-6-months-no-money.” ECF No. 2 at 1. If Plaintiff is a “prisoner” within the 21 meaning of 28 U.S.C. § 1915, the Court cannot grant his IFP application without the trust 22 fund account statement for the 6-month period immediately preceding the filing of his 23 Complaint as required by 28 U.S.C. § 1915(a). See King, 398 F.3d at 1119 (“[P]risoners 24 must demonstrate that they are not able to pay the filing fee with an affidavit and 25
26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 submission of their prison trust account records.”) (citing 28 U.S.C. § 1915(a)(1)–(2)). A 2 “prisoner means any person incarcerated or detained in any facility who is accused of, 3 convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 4 terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 5 U.S.C. § 1915(h). Although Plaintiff is currently committed to PSH, he has not shown that 6 he is not a “prisoner” as defined by 28 U.S.C. § 1915(h). Therefore, Plaintiff has not shown 7 that he is exempt from submitting a trust fund account statement for the 6-month period 8 immediately preceding the filing of his Complaint.2 9 This Court and others have found that the definition of “prisoner” under 28 U.S.C. 10 § 1915(h) does not apply to plaintiffs who have been committed to a state hospital after 11 being adjudicated not guilty by reason of insanity (“NGI”) pursuant to California Penal 12 Code § 1026. See e.g., Smith v. California, No. 13cv2809-WQH (JLB), 2014 WL 2180532, 13 at *1 (S.D. Cal. May 22, 2014) (finding civil detainee at PSH was not required to comply 14 with filing fee provisions under the Prison Litigation Reform Act); accord Miesegaes v. 15 Allenby, No. 15cv1574-CJC (JC), 2015 WL 13763858, at *1 n.2 (C.D. Cal. May 6, 2015); 16 Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008) (finding plaintiff 17 involuntarily committed to state hospital based on NGI adjudication need not comply with 18 the Prison Litigation Reform Act’s exhaustion requirement). However, persons charged 19 with a criminal offense but found to be incompetent “during the pendency of an action and 20 prior to judgment,” may have their criminal prosecution suspended until mental 21 competence has been restored. See Cal. Penal Code §§ 1368–69. If an individual is found 22 23 2 PSH is a forensic psychiatric hospital located in San Bernardino County, California. 24 See Department of State Hospitals – Patton, California Department of State Hospitals, 25 https://www.dsh.ca.gov/Patton/index.html (last visited May 2, 2023). PSH houses, among others, persons who are found incompetent to stand trial under California Penal Code 26 § 1370; “[p]arolees who committed one of a specified list of crimes and who were treated 27 for a severe mental disorder connected to their original crime” under California Penal Code §§ 2962 and 2972; and “[p]ersons judged by the court to be guilty of a crime, but not guilty 28 1 competent at the trial regarding mental competence under California Penal Code § 1369, 2 the criminal process resumes, i.e., the individual can be tried and judgment pronounced. 3 See Cal. Penal Code § 1370(a)(1)(A). If found incompetent, the criminal trial proceeding 4 or judgment remains suspended until competency is restored.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 FREDDY ZAVALA ODANGA, Case No.: 23-CV-0723-RSH-DEB Patient #1769488, 13 ORDER (1) DENYING MOTION TO Plaintiff, 14 PROCEED IN FORMA PAUPERIS v. WITHOUT PREJUDICE; 15 (2) DISMISSING CIVIL ACTION SAN DIEGO POLICE OFFICERS 16 WITHOUT PREJUDICE; AND JODAR, CABRALES and JOHN DOE, (3) DIRECTING PLAINTIFF TO 17 Defendants. NOTIFY THE COURT OF 18 CURRENT ADDRESS 19 20 Plaintiff Freddy Zavala Odanga, currently committed to Patton State Hospital 21 (“PSH”) in Patton, California, proceeding pro se, has filed a civil rights complaint pursuant 22 to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1–2. 23 Plaintiff alleges that on May 6 and 7, 2022, he was tortured by three San Diego police 24 officers. ECF No. 1 at 3, 5. 25 I. Motion to Proceed IFP 26 All parties instituting any civil action in a district court of the United States, except 27 a petition for writ of habeas corpus, must pay a civil filing fee of $402, and the action may 28 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 1 pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 F.3d 2 1047, 1051 (9th Cir. 2007) (stating that “28 U.S.C. § 1915(a) allows the district court to 3 waive the fee, for most individuals unable to afford it, by granting IFP status”). 4 Plaintiffs who wish to proceed IFP must establish their inability to pay the civil filing 5 fee by filing an affidavit attesting to their income and assets. See Escobedo v. Applebees, 6 787 F.3d 1226, 1234 (9th Cir. 2015). Prisoners seeking leave to proceed IFP are also 7 required to submit a “certified copy of the trust fund account statement (or institutional 8 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 9 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the 10 certified trust account statement, the Court assesses an initial payment of 20 percent of (a) 11 the average monthly deposits in the account for the past six months, or (b) the average 12 monthly balance in the account for the past six months, whichever is greater, unless the 13 prisoner has no assets. See 28 U.S.C. § 1915(b)(1) & (4). The institution collects 14 subsequent payments, assessed at 20 percent of the preceding month’s income, in any 15 month in which the account exceeds $10, and forwards those payments to the Court until 16 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). A plaintiff remains obligated to 17 pay the entire fee in monthly installments regardless of whether the action is ultimately 18 dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016). 19 Here, Plaintiff states in his IFP motion: “I-have-no-money-they-will-not-give-me- 20 reciept-of-6-months-no-money.” ECF No. 2 at 1. If Plaintiff is a “prisoner” within the 21 meaning of 28 U.S.C. § 1915, the Court cannot grant his IFP application without the trust 22 fund account statement for the 6-month period immediately preceding the filing of his 23 Complaint as required by 28 U.S.C. § 1915(a). See King, 398 F.3d at 1119 (“[P]risoners 24 must demonstrate that they are not able to pay the filing fee with an affidavit and 25
26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 submission of their prison trust account records.”) (citing 28 U.S.C. § 1915(a)(1)–(2)). A 2 “prisoner means any person incarcerated or detained in any facility who is accused of, 3 convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 4 terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 5 U.S.C. § 1915(h). Although Plaintiff is currently committed to PSH, he has not shown that 6 he is not a “prisoner” as defined by 28 U.S.C. § 1915(h). Therefore, Plaintiff has not shown 7 that he is exempt from submitting a trust fund account statement for the 6-month period 8 immediately preceding the filing of his Complaint.2 9 This Court and others have found that the definition of “prisoner” under 28 U.S.C. 10 § 1915(h) does not apply to plaintiffs who have been committed to a state hospital after 11 being adjudicated not guilty by reason of insanity (“NGI”) pursuant to California Penal 12 Code § 1026. See e.g., Smith v. California, No. 13cv2809-WQH (JLB), 2014 WL 2180532, 13 at *1 (S.D. Cal. May 22, 2014) (finding civil detainee at PSH was not required to comply 14 with filing fee provisions under the Prison Litigation Reform Act); accord Miesegaes v. 15 Allenby, No. 15cv1574-CJC (JC), 2015 WL 13763858, at *1 n.2 (C.D. Cal. May 6, 2015); 16 Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008) (finding plaintiff 17 involuntarily committed to state hospital based on NGI adjudication need not comply with 18 the Prison Litigation Reform Act’s exhaustion requirement). However, persons charged 19 with a criminal offense but found to be incompetent “during the pendency of an action and 20 prior to judgment,” may have their criminal prosecution suspended until mental 21 competence has been restored. See Cal. Penal Code §§ 1368–69. If an individual is found 22 23 2 PSH is a forensic psychiatric hospital located in San Bernardino County, California. 24 See Department of State Hospitals – Patton, California Department of State Hospitals, 25 https://www.dsh.ca.gov/Patton/index.html (last visited May 2, 2023). PSH houses, among others, persons who are found incompetent to stand trial under California Penal Code 26 § 1370; “[p]arolees who committed one of a specified list of crimes and who were treated 27 for a severe mental disorder connected to their original crime” under California Penal Code §§ 2962 and 2972; and “[p]ersons judged by the court to be guilty of a crime, but not guilty 28 1 competent at the trial regarding mental competence under California Penal Code § 1369, 2 the criminal process resumes, i.e., the individual can be tried and judgment pronounced. 3 See Cal. Penal Code § 1370(a)(1)(A). If found incompetent, the criminal trial proceeding 4 or judgment remains suspended until competency is restored. See id. § 1370(a)(1)(B). The 5 individual determined to be incompetent is then transferred to a state hospital. See id. 6 § 1370(a)(1)(B)(i). But “[h]ospitalization under § 1370 is part of the criminal proceedings 7 against the defendant rather than a civil matter.” In re Rosenbalm, No. 06cv7801-SI (PR), 8 2007 WL 1593207, at *2 (N.D. Cal. June 1, 2007). And “[t]hough . . . at a state hospital 9 rather than in a county jail,” a person found incompetent pursuant to Penal Code § 1370 10 nevertheless “is being detained in a facility and accused of a violation of the criminal law 11 and therefore is a prisoner for purposes of [28 U.S.C.] § 1915.” Id. Thus, unlike a civil 12 detainee or immigration detainee who has no criminal charges pending against him, a 13 person detained at a California State Hospital pending a competency determination stands 14 “accused of . . . violations of criminal law.” See id. at *2 (quoting 28 U.S.C. § 1915(h)). 15 Cf. Page v. Torrey, 201 F.3d 1136, 1139–40 (9th Cir. 2000) (finding that a person civilly 16 committed pursuant to California’s Sexually Violent Predators Act is not a “prisoner” 17 within meaning of 28 U.S.C. § 1915); Agyeman v. INS, 296 F.3d 871, 885–86 (9th Cir. 18 2002) (finding that an alien detained pending civil deportation proceedings is not a prisoner 19 under the Prison Litigation Reform Act). 20 Further, Plaintiff states in his Complaint that he has filed three “other lawsuits in a 21 federal court while a prisoner” in which he raised the “same issues” as the current 22 Complaint. ECF No. 1 at 1. The Court takes judicial notice of its own docket. See Bias v. 23 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (holding that a court may take notice of 24 proceedings within the federal judicial system which have a direct relation to matters at 25 issue). A review of that docket indicates that: (1) on April 20, 2018, Plaintiff, while 26 incarcerated at the San Diego Central Jail, filed Odanga v. Emmens, S.D. Cal. Civil Case 27 No. 18-cv-0778-JLS (BGS) (civil rights complaint pursuant to 42 U.S.C. § 1983), which 28 was dismissed as frivolous on May 18, 2018; (2) on July 11, 2019, Plaintiff, while 1 incarcerated at the West Valley Detention Center in Rancho Cucamonga, California, filed 2 Odanga v. Sheriffs of San Diego, S.D. Cal. Civil Case No. 19-cv-01292-JLS (RBM) (civil 3 rights complaint pursuant to 42 U.S.C. § 1983), which was dismissed as frivolous on 4 October 7, 2019; and (3) on December 21, 2022, Plaintiff, while incarcerated at the George 5 Bailey Detention Facility in Santee, California, filed Odanga v. California Attorney 6 General, S.D. Cal. Civil Case No. 22-cv-02032-WQH (JLB) (petition for writ of habeas 7 corpus pursuant to 28 U.S.C. § 2254), which was dismissed as frivolous on January 10, 8 2023. 9 Because Plaintiff indicates he is raising the same issues in this action as in those 10 prior actions where he satisfied the definition of “prisoner” within the meaning of 28 U.S.C. 11 § 1915, and because he apparently acknowledges a need to submit a 6-month trust account 12 statement, the Court cannot grant his IFP application without the trust fund account 13 statement for the 6-month period immediately preceding the filing of his Complaint absent 14 a showing he is not a “prisoner.” See King, 398 F.3d at 1119 (citing 28 U.S.C. 15 § 1915(a)(1) (2)). The Court is mindful of Plaintiff’s statement that “they” will not give – 16 him a copy of his trust fund account statement for the 6-month period immediately 17 preceding the filing of his Complaint. See ECF No. 2 at 1. However, without more details 18 as to why Plaintiff is unable to provide the statement and what efforts he has made to obtain 19 one, the Court will not accept Plaintiff’s conclusory statement as proof that he cannot 20 provide the required statement. 21 For the reasons above, Plaintiff’s motion to proceed IFP is DENIED without 22 prejudice. If Plaintiff wishes to proceed IFP, he may refile an application, which must 23 include (a) a copy of his trust fund account statement for the 6-month period immediately 24 preceding the filing of his Complaint, OR (b) a detailed statement about what steps he has 25 taken to obtain and provide such a statement, OR (c) demonstrate he is not a “prisoner” 26 within the meaning of 28 U.S.C. § 1915. 27 / / / 28 / / / 1 II. Duty to Keep the Court Advised as to Plaintiff’s Current Address 2 On May 1, 2023, the Court received notice that mail sent to Plaintiff was returned as 3 undeliverable. ECF No. 3. Under the Local Rules of this District, Plaintiff, as a pro se 4 litigant, has a duty to keep the Court advised as to his current address. See Civ. L.R. 83.11. 5 The Local Rules further state: 6 If mail directed to a pro se plaintiff by the Clerk at the plaintiff’s last designated address is returned by the Post Office, and if such plaintiff fails to 7 notify the Court and opposing parties within 60 days thereafter of the 8 plaintiff’s current address, the Court may dismiss the action without prejudice for failure to prosecute. 9
10 Id. 11 The Court therefore directs Plaintiff to notify the Court of his current address by no 12 later than June 30, 2023. 13 III. Conclusion and Order 14 Accordingly, the Court: 15 (1) DENIES Plaintiff’s motion to proceed IFP (ECF No. 2) without prejudice; 16 (2) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 17 pay the civil filing and administrative fee or to submit a properly supported Motion to 18 Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) & 1915(a); 19 (3) DIRECTS Plaintiff to notify the Court of his current address by no later than 20 June 30, 2023; and 21 (4) GRANTS Plaintiff leave to (a) prepay the entire $402 civil filing and 22 administrative fee in full; OR (b) complete and file a properly supported motion to proceed 23 IFP which includes a certified copy of his PSH trust account statement for the 6-month 24 period preceding the filing of his Complaint, if he is a prisoner as defined by 28 U.S.C. 25 § 1915(h); OR (c) show he is not a “prisoner” within the meaning of 28 U.S.C. § 1915. See 26 28 U.S.C. § 1915(a)(2); Civ. L.R. 3.2(b). 27 If Plaintiff fails to either pay the $405 civil filing fee or submit a properly supported 28 motion to proceed IFP or demonstrate he is not a “prisoner” within the meaning of 28 1 ||U.S.C. § 1915 by June 30, 2023, this action will remain dismissed without prejudice based 2 ||solely on his failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement and without further 3 || Order of the Court. 4 IT IS SO ORDERED. 5 || Dated: May 8, 2023 / } zr C Lae 6 on. Robert S. Huie 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7