1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 8 SCOTT ALLEN SEARS, Case No. 21-cv-00106-BAS-JLB 9 Plaintiff, ORDER: 10 v. (1) GRANTING PLAINTIFF’S 11 WARDEN LINDA SAUNDERS, MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 3); 12 Defendant. AND 13 (2) REQUIRING PLAINTIFF TO 14 SHOW CAUSE RE: VENUE 15 16 Plaintiff, a resident of Ohio, filed this action on January 20, 2021 against Linda 17 Saunders, the Warden of Federal Correctional Institution, Lompoc (“FCI Lompoc”). 18 (Compl., ECF No. 1.) Plaintiff also concurrently filed a Motion for Leave to Proceed In 19 Forma Pauperis (“IFP Motion”). (ECF No. 3.) 20 I. IFP MOTION 21 Under 28 U.S.C. § 1915, a litigant who is unable to pay the filing fee to commence 22 a legal action because of indigency may petition the court to proceed without making such 23 payment. The determination of indigency falls within the district court’s discretion. Cal. 24 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 25 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing court to 26 exercise its sound discretion in determining whether the affiant has satisfied the statute’s 27 requirement of indigency”). It is well-settled that a party need not be completely destitute 28 to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 1 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 2 which states that one cannot because of his poverty pay or give security for costs . . . and 3 still be able to provide himself and dependents with the necessities of life.” Id. at 339. At 4 the same time, however, “the same even-handed care must be employed to assure that 5 federal funds are not squandered to underwrite, at public expense . . . the remonstrances of 6 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 7 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 8 District courts, therefore, tend to reject IFP applications where the applicant can pay 9 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 10 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds by Olivares v. 11 Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that the district court did not abuse its 12 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 13 salary and who received $110 per month from family). Moreover, “in forma pauperis status 14 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 15 Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 16 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. 17 June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 18 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 19 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 20 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 21 In Plaintiff’s IFP Motion, he lists no accounts or assets and no sources of income, 22 including any form of public assistance. (IFP Mot. ¶¶ 1, 4, 5.) Plaintiff also indicates that 23 he is unemployed and has been for the past two years. (Id. ¶ 2.) However, Plaintiff states 24 that he has no dependents and no expenses, including rent or mortgage payments, food, 25 clothing, or credit card installment payments. (Id. ¶ 8.) He anticipates expenses for surgery 26 for an unspecified injury and for this lawsuit, stating that he “goes half with lawyer on case” 27 (suggesting a contingency fee arrangement), but does not specify an amount. (Id. ¶¶ 9–10.) 28 1 The only additional information Plaintiff provides to clarify his financial need is that he is 2 “still injured.” (Id. ¶ 11.) 3 It is difficult for the Court to discern Plaintiff’s financial condition from these facts. 4 It is not apparent how Plaintiff is obtaining the necessities of life, and in turn whether this 5 source of funds can cover the required filing fee in this action. However, despite the 6 questionable nature of Plaintiff’s financial circumstances, the Court notes that Plaintiff has 7 signed the IFP Motion affirming the truth of these allegations and GRANTS Plaintiff’s IFP 8 Motion. However, if it appears at any time in the future that Plaintiff’s financial picture 9 has improved for any reason, the Court will direct Plaintiff to pay the filing fee to the Clerk 10 of the Court. This includes any recovery Plaintiff may realize from this suit or others, and 11 any assistance Plaintiff may receive from family or the government. 12 II. ORDER TO SHOW CAUSE RE: VENUE 13 Under the Federal Rules of Civil Procedure, a civil case may be brought in 14 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; 15 16 (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the 17 subject of the action is situated; or 18 (3) if there is no district in which an action may otherwise be brought as 19 provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 20 21 28 U.S.C. § 1391(b). If venue is improper, a district court must dismiss “shall dismiss, or 22 if it be in the interest of justice, transfer such case to any district or division in which it 23 could have been brought.” 28 U.S.C. § 1406(a). Even where venue is proper, a district 24 court still has discretion to transfer the action “[f]or the convenience of the parties and 25 witnesses . . . to any other district or division where it might have been brought . . . .” 28 26 U.S.C. § 1404(a). 27 “The Court may sua sponte raise improper venue so long as the defendant has not 28 filed a responsive pleading and the parties are provided with an opportunity to respond to 1 issue.” Eliason v. United States Dep’t of Justice, No. CV 20-00257 JAO-WRP, 2020 2 || WL 3258407, at *1 (D. Haw. June 16, 2020) (citing Costlow v. Weeks, 790 F.2d 1486, 3 || 1488 (9th Cir. 1986) (citations omitted)); Zhu v. Whinery, 109 F. App’x 137, 138 (9th Cir. 4 ||2004) (affirming dismissal of case based on improper venue following an order to show 5 ||cause). Plaintiffs bear the burden of demonstrating that venue is proper. See Piedmont 6 || Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). 7 Based on the Court’s review of the Complaint, it appears venue is improper.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 8 SCOTT ALLEN SEARS, Case No. 21-cv-00106-BAS-JLB 9 Plaintiff, ORDER: 10 v. (1) GRANTING PLAINTIFF’S 11 WARDEN LINDA SAUNDERS, MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 3); 12 Defendant. AND 13 (2) REQUIRING PLAINTIFF TO 14 SHOW CAUSE RE: VENUE 15 16 Plaintiff, a resident of Ohio, filed this action on January 20, 2021 against Linda 17 Saunders, the Warden of Federal Correctional Institution, Lompoc (“FCI Lompoc”). 18 (Compl., ECF No. 1.) Plaintiff also concurrently filed a Motion for Leave to Proceed In 19 Forma Pauperis (“IFP Motion”). (ECF No. 3.) 20 I. IFP MOTION 21 Under 28 U.S.C. § 1915, a litigant who is unable to pay the filing fee to commence 22 a legal action because of indigency may petition the court to proceed without making such 23 payment. The determination of indigency falls within the district court’s discretion. Cal. 24 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 25 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing court to 26 exercise its sound discretion in determining whether the affiant has satisfied the statute’s 27 requirement of indigency”). It is well-settled that a party need not be completely destitute 28 to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). 1 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 2 which states that one cannot because of his poverty pay or give security for costs . . . and 3 still be able to provide himself and dependents with the necessities of life.” Id. at 339. At 4 the same time, however, “the same even-handed care must be employed to assure that 5 federal funds are not squandered to underwrite, at public expense . . . the remonstrances of 6 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 7 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 8 District courts, therefore, tend to reject IFP applications where the applicant can pay 9 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. Hennessey, 10 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other grounds by Olivares v. 11 Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that the district court did not abuse its 12 discretion in requiring a partial fee payment from a prisoner who had a $14.61 monthly 13 salary and who received $110 per month from family). Moreover, “in forma pauperis status 14 may be acquired and lost during the course of litigation.” Wilson v. Dir. of Div. of Adult 15 Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing 16 Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. 17 June 29, 1995) (holding that a plaintiff who was initially permitted to proceed in forma 18 pauperis should be required to pay his $120 filing fee out of a $900 settlement). Finally, 19 the facts as to the affiant’s poverty must be stated “with some particularity, definiteness, 20 and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 21 In Plaintiff’s IFP Motion, he lists no accounts or assets and no sources of income, 22 including any form of public assistance. (IFP Mot. ¶¶ 1, 4, 5.) Plaintiff also indicates that 23 he is unemployed and has been for the past two years. (Id. ¶ 2.) However, Plaintiff states 24 that he has no dependents and no expenses, including rent or mortgage payments, food, 25 clothing, or credit card installment payments. (Id. ¶ 8.) He anticipates expenses for surgery 26 for an unspecified injury and for this lawsuit, stating that he “goes half with lawyer on case” 27 (suggesting a contingency fee arrangement), but does not specify an amount. (Id. ¶¶ 9–10.) 28 1 The only additional information Plaintiff provides to clarify his financial need is that he is 2 “still injured.” (Id. ¶ 11.) 3 It is difficult for the Court to discern Plaintiff’s financial condition from these facts. 4 It is not apparent how Plaintiff is obtaining the necessities of life, and in turn whether this 5 source of funds can cover the required filing fee in this action. However, despite the 6 questionable nature of Plaintiff’s financial circumstances, the Court notes that Plaintiff has 7 signed the IFP Motion affirming the truth of these allegations and GRANTS Plaintiff’s IFP 8 Motion. However, if it appears at any time in the future that Plaintiff’s financial picture 9 has improved for any reason, the Court will direct Plaintiff to pay the filing fee to the Clerk 10 of the Court. This includes any recovery Plaintiff may realize from this suit or others, and 11 any assistance Plaintiff may receive from family or the government. 12 II. ORDER TO SHOW CAUSE RE: VENUE 13 Under the Federal Rules of Civil Procedure, a civil case may be brought in 14 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; 15 16 (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the 17 subject of the action is situated; or 18 (3) if there is no district in which an action may otherwise be brought as 19 provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 20 21 28 U.S.C. § 1391(b). If venue is improper, a district court must dismiss “shall dismiss, or 22 if it be in the interest of justice, transfer such case to any district or division in which it 23 could have been brought.” 28 U.S.C. § 1406(a). Even where venue is proper, a district 24 court still has discretion to transfer the action “[f]or the convenience of the parties and 25 witnesses . . . to any other district or division where it might have been brought . . . .” 28 26 U.S.C. § 1404(a). 27 “The Court may sua sponte raise improper venue so long as the defendant has not 28 filed a responsive pleading and the parties are provided with an opportunity to respond to 1 issue.” Eliason v. United States Dep’t of Justice, No. CV 20-00257 JAO-WRP, 2020 2 || WL 3258407, at *1 (D. Haw. June 16, 2020) (citing Costlow v. Weeks, 790 F.2d 1486, 3 || 1488 (9th Cir. 1986) (citations omitted)); Zhu v. Whinery, 109 F. App’x 137, 138 (9th Cir. 4 ||2004) (affirming dismissal of case based on improper venue following an order to show 5 ||cause). Plaintiffs bear the burden of demonstrating that venue is proper. See Piedmont 6 || Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). 7 Based on the Court’s review of the Complaint, it appears venue is improper. The 8 || Complaint does not allege any basis for venue in the Southern District of California. None 9 || of the parties appear to reside in this district. As stated above, Plaintiff provides an Ohio 10 address and no address for Defendant. Further, the underlying claims appear to arise from 11 |/activity that took place at FCI Lompoc, which is located in the Central District of 12 California. See FCI Lompoc, Bureau of Prisons, https:/(www.bop.gov/locations/institu 13 ||tions/lof/ (last accessed on Feb. 9, 2021) (listing county as Santa Barbara and judicial 14 |/district as “Central California”); Jurisdiction Map for the Central Dist. of Calif., 15 || https://www.cacd.uscourts.gov/jurisdiction (last accessed Feb. 9, 2021) (identifying Santa 16 || Barbara County as part of the Western Division of the Central District). 17 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, by March 10, 2021, 18 || why this action should not be dismissed or transferred for improper venue. Plaintiff must 19 || file a response to this Order explaining why venue in the Southern District of California is 20 ||proper. Alternatively, Plaintiff may consent to transfer the case to an appropriate venue. 21 || Plaintiff is cautioned that if he does not file any response to this Order by the deadline, this 22 || case will be dismissed without prejudice. 23 IT IS SO ORDERED. 24 /) 25 || DATED: February 10, 2021 Cypilig _| Hohe sk 26 United States Daarict Jalge 27 28