Cejas v. Paramo et al

Filing 115

REPORT AND RECOMMENDATION re 106 MOTION to Dismiss Notice of Motion and Motion to Dismiss Complaint for Plaintiff's Failure to Disclose Income and Assets in In Forma Pauperis Motion; Memorandum of Points and Authorities filed by S. Rutledge, Jaime, Strayhorn Objections to R&R due by 10/4/2019. No reply briefs in response to the Objections will be accepted. Signed by Magistrate Judge William V. Gallo on 09/19/2019.(All non-registered users served via U.S. Mail Service)(mme)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ANDREW A. CEJAS, Case No.: 14-CV-1923-WQH(WVG) Plaintiff, 11 12 v. 13 REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IFP STATUS AND DISMISS CASE DANIEL PARAMO et al., Defendants. 14 15 [Doc. No. 106.] 16 17 18 Defendants move for an Order revoking Plaintiff’s in forma pauperis status and 19 dismissing the case with prejudice. This Court recommends that Defendants’ motion be 20 DENIED. 21 I. BACKGROUND 22 On July 20, 2016, the Court granted Plaintiff leave to proceed in forma pauperis 23 after he filed a declaration on June 22, 2016, attesting that he had not received any form of 24 income in the previous twelve months. (Doc. Nos. 4, 7.) Plaintiff also submitted a “Prison 25 Certificate” executed by a Richard J. Donovan Correctional Facility Senior Accounting 26 Officer attesting that his account carried no average monthly balance and had no monthly 27 deposits over the preceding six-month period. (Doc. No. 4 at 7.) Plaintiff also submitted 28 a certified copy of his prisoner trust account showing he had a $0.70 balance as of June 10, 1 14-CV-1923-WQH(WVG) 1 2016, the date the statement was printed. (Id. at 6.) The Court found Plaintiff had no 2 means to pay the initial filing fee and directed the CDCR to collect the remaining $350 in 3 fees from Plaintiff on an installment basis. (Doc. No. 7 at 6.) 4 Defendants contend Plaintiff’s IFP declaration was false because he had in fact 5 received $3,000 from a settlement in a lawsuit during that time period. As the Court 6 ordered, Defendants filed copies of Plaintiff’s trust account statement from September 7 2016, when Plaintiff received the settlement funds. (Doc. No. 112.) The statement shows 8 that Plaintiff’s account was credited $2,850 and then immediately on the same day debited 9 the same amount, leaving a $0.00 balance. (Id. at 4.) Defendants explain that a “standard 10 $150 processing fee” was deducted from the $3,000 gross settlement funds before the 11 remaining $2,850 was taken from Plaintiff’s account and paid towards “Plaintiff’s criminal 12 restitution debt.” (Id.) Nonetheless, Defendants now ask the Court to revoke Plaintiff’s 13 IFP status and dismiss the case for an untrue allegation of poverty and resulting abuse of 14 the IFP process. 15 II. LEGAL STANDARD 16 All parties instituting any civil action, suit or proceeding in a district court of the 17 United States, except an application for writ of habeas corpus, must pay a filing fee. See 18 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the 19 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 20 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, a prisoner granted 21 leave to proceed IFP remains obligated to pay the entire fee in “increments” or 22 “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 23 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is 24 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 25 844, 847 (9th Cir. 2002). 26 27 If, at any time, the Court determines that a Plaintiff’s “allegation of poverty is untrue, the Court “shall dismiss the case.” 28 U.S.C. § 1915(e)(2)(A). 28 2 14-CV-1923-WQH(WVG) 1 III. DISCUSSION 2 Based on the documentary evidence, it certainly appears that Plaintiff’s 3 representation that he had not received any income was technically not correct. Plaintiff 4 had negotiated settlement of an unrelated civil matter on May 12, 2016 for $3,000, and the 5 settlement agreement was fully executed on June 7, 2016. And as Plaintiff’s trust account 6 shows, Plaintiff’s account was credited $2,850 on September 16, 2016. Between the 7 negotiation of the settlement and trust account credit, Plaintiff filed his IFP application on 8 June 22, 2016. The records certainly establish that Plaintiff had expected to receive $3,000 9 from a settlement at the time he filed his IFP application. However, the Court notes he had 10 not received the funds as of the date he filed the application—he only expected to receive 11 the funds on some unknown future date. The records also establish that on the same day 12 the remaining $2,850 was applied to Plaintiff’s account, the CDCR immediately withdrew 13 an identical amount and applied those funds to the restitution Plaintiff had been ordered to 14 pay in other cases. The net result of these transactions was to completely remove the 15 incoming funds from Plaintiff’s account, leaving him with a $0.00 balance. In reality, 16 Plaintiff never actually received—or had available at his disposal—a single penny of the 17 settlement funds. 18 Based on the foregoing, the omission of this income from Plaintiff’s IFP declaration 19 was of no moment because it would not have affected the Court’s ultimate decision had 20 the information been included. On the day Plaintiff filed his IFP application, he completely 21 lacked funds from the settlement to apply towards filing fees in this case. That remained 22 the case even when he was “paid” the funds. Thus, the Court’s finding in its IFP Order 23 that Plaintiff had no means to pay the filing fees would have remained the same since the 24 certified prisoner trust account statement Plaintiff submitted showed he lacked funds as of 25 the date of the IFP application. The same would have been true had Plaintiff updated his 26 prisoner trust account from September 2016, as Plaintiff had even less money available to 27 him then. Accordingly, Plaintiff’s “allegation of poverty” for all practical purposes was 28 3 14-CV-1923-WQH(WVG) 1 not untrue such that revocation of his IFP status and dismissal are warranted here. See 28 2 U.S.C. § 1915(e)(2)(A). 3 In sum, this Court does not recommend revocation of Plaintiff’s IFP status since 4 there is no evidence that he had or has the means to pay any fees. Dismissing this case on 5 such a petty technicality would fly in the face of the general policy in favor of resolution 6 of cases on their merits. 7 8 9 IV. CONCLUSION Based on the foregoing, this Court RECOMMENDS that Defendants’ motion be DENIED. 10 This Report and Recommendation is submitted to the United States District Judge 11 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule 12 of Civil Procedure 72(b). 13 Additionally, IT IS ORDERED: 14 1. That no later than October 4, 2019, any party to this action may file written 15 objection with the Court and serve a copy on all parties. Given the extensive extensions 16 the Court has granted Plaintiff and the delay that has caused, the parties should not expect 17 that any further extensions will be granted. 18 2. The objection shall be no more than 10 pages in length and shall be 19 captioned “Objections to Report and Recommendation.” The parties are advised that 20 failure to file objections within the specific time may waive to raise those objections on the 21 appeal. No reply briefs in response to the Objections will be accepted. 22 IT IS SO ORDERED. 23 DATED: September 19, 2019 24 25 26 27 28 4 14-CV-1923-WQH(WVG)

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