I: A Man v. Yee et al

Filing 5

ORDER denying Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses the Complaint for failure to pay the required filing fee. Signed by Judge Cynthia Bashant on 2/6/2018. (All non-registered users served via U.S. Mail Service) (jah) (sjt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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I: A MAN,

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Plaintiff,

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v.

Case No. 18-cv-0144-BAS-BGS
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING ACTION

BETTY T. YEE,

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Defendant.

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Presently before the Court is Plaintiff’s motion to proceed in forma pauperis.

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(ECF No. 2.) For the reasons herein, the Court denies the motion and dismisses the

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action.

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Generally, under 28 U.S.C. § 1914(a), a filing fee is required to commence a

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civil action in federal court. However, under 28 U.S.C. §1915, a litigant who

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because of indigency is unable to pay the fee or give security needed to commence

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a legal action may petition a court to proceed without making such payment. The

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determination of indigency falls within the district court’s discretion. Cal. Men’s

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Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506

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U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing court

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to exercise its sound discretion in determining whether the affiant has satisfied the

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statute’s requirement of indigency”). It is well-settled that a party need not be

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completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335
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U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. §1915(a), “an

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affidavit [of poverty] is sufficient which states that one cannot because of his poverty

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pay or give security for costs . . . and still be able to provide himself and dependents

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with the necessities of life.” Id. at 339. Here, Plaintiff has not provided any

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information by which this Court assess whether he is entitled to proceed IFP in this

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action. However, the Court observes that Plaintiff has twice paid the $400 filing fee

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required to commence a civil action in federal court. See Ziegler v. Yee, No. 3:16-

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cv-2664-WQH-WVG, ECF No. 1 (S.D. Cal. Oct. 27, 2016); Ziegler v. Yee, No. 3:17-

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cv-2102-AJB-BLM, ECF No. 1 (S.D. Cal. Oct. 13, 2017).

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Even if Plaintiff had properly requested IFP status, his Complaint would

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nevertheless be subject to dismissal.

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proceeding in forma pauperis are subject to dismissal as either frivolous or malicious

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under 28 U.S.C. §1915(e). See, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2

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(9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997);

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Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846

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F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats

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pending or previously litigated claims may be considered abusive and dismissed

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under §1915. Cato, 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021. “Dismissal of

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the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of

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proceedings, promotes judicial economy and the comprehensive disposition of

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litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688, 692-94 (9th

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Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904

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(2008). A review of court records indicates that Plaintiff has filed the same claim

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against the same Defendant on three prior occasions. See Ziegler v. Yee, No. 3:16-

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cv-2664-WQH-WVG, ECF No. 1 (S.D. Cal. Oct. 27, 2016); Ziegler v. Yee, No. 3:17-

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cv-2102-AJB-BLM, ECF No. 1 (S.D. Cal. Oct. 13, 2017); Ziegler v. Yee, No. 3:17-

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cv-2483-LAB-BGS, ECF No. 1 (S.D. Cal. Dec. 11, 2017). The second action was

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dismissed for failure to properly invoke diversity jurisdiction and the third action

Duplicative lawsuits filed by a plaintiff

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was dismissed for failure to pay the required filing fee or submit a proper motion to

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proceed IFP. Most importantly, the first action was dismissed after Defendant Yee

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moved to dismiss the Complaint for failure to comply with Federal Rule of Civil

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Procedure 8(a) and failure to establish any basis for either federal or diversity

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jurisdiction. See Ziegler v. Yee, No. 3:16-cv-2664-WQH-WVG, ECF No. 6 (S.D.

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Cal. Jan. 18, 2016). That case was dismissed after Plaintiff failed to file an amended

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complaint to correct his deficient pleadings, despite being granted leave to amend.

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(Id. ECF Nos. 6, 7.) The instant lawsuit is duplicative of these prior claims and

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would be subject to sua sponte dismissal as frivolous or malicious.

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Accordingly, the Court DENIES Plaintiff’s motion to proceed IFP and

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DISMISSES the Complaint for failure to pay the required filing fee. (ECF No. 1.)

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IT IS SO ORDERED.

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DATED: February 6, 2018

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