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)

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)