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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 I: A MAN, 11 Plaintiff, 12 13 14 v. Case No. 18-cv-0144-BAS-BGS ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION BETTY T. YEE, 15 Defendant. 16 Presently before the Court is Plaintiff’s motion to proceed in forma pauperis. 17 (ECF No. 2.) For the reasons herein, the Court denies the motion and dismisses the 18 action. 19 Generally, under 28 U.S.C. § 1914(a), a filing fee is required to commence a 20 civil action in federal court. However, under 28 U.S.C. §1915, a litigant who 21 because of indigency is unable to pay the fee or give security needed to commence 22 a legal action may petition a court to proceed without making such payment. The 23 determination of indigency falls within the district court’s discretion. Cal. Men’s 24 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 26 to exercise its sound discretion in determining whether the affiant has satisfied the 27 statute’s requirement of indigency”). It is well-settled that a party need not be 28 completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 –1– 18cv144 1 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. §1915(a), “an 2 affidavit [of poverty] is sufficient which states that one cannot because of his poverty 3 pay or give security for costs . . . and still be able to provide himself and dependents 4 with the necessities of life.” Id. at 339. Here, Plaintiff has not provided any 5 information by which this Court assess whether he is entitled to proceed IFP in this 6 action. However, the Court observes that Plaintiff has twice paid the $400 filing fee 7 required to commence a civil action in federal court. See Ziegler v. Yee, No. 3:16- 8 cv-2664-WQH-WVG, ECF No. 1 (S.D. Cal. Oct. 27, 2016); Ziegler v. Yee, No. 3:17- 9 cv-2102-AJB-BLM, ECF No. 1 (S.D. Cal. Oct. 13, 2017). 10 Even if Plaintiff had properly requested IFP status, his Complaint would 11 nevertheless be subject to dismissal. 12 proceeding in forma pauperis are subject to dismissal as either frivolous or malicious 13 under 28 U.S.C. §1915(e). See, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2 14 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997); 15 Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846 16 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats 17 pending or previously litigated claims may be considered abusive and dismissed 18 under §1915. Cato, 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021. “Dismissal of 19 the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of 20 proceedings, promotes judicial economy and the comprehensive disposition of 21 litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688, 692-94 (9th 22 Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 23 (2008). A review of court records indicates that Plaintiff has filed the same claim 24 against the same Defendant on three prior occasions. See Ziegler v. Yee, No. 3:16- 25 cv-2664-WQH-WVG, ECF No. 1 (S.D. Cal. Oct. 27, 2016); Ziegler v. Yee, No. 3:17- 26 cv-2102-AJB-BLM, ECF No. 1 (S.D. Cal. Oct. 13, 2017); Ziegler v. Yee, No. 3:17- 27 cv-2483-LAB-BGS, ECF No. 1 (S.D. Cal. Dec. 11, 2017). The second action was 28 dismissed for failure to properly invoke diversity jurisdiction and the third action Duplicative lawsuits filed by a plaintiff –2– 18cv144 1 was dismissed for failure to pay the required filing fee or submit a proper motion to 2 proceed IFP. Most importantly, the first action was dismissed after Defendant Yee 3 moved to dismiss the Complaint for failure to comply with Federal Rule of Civil 4 Procedure 8(a) and failure to establish any basis for either federal or diversity 5 jurisdiction. See Ziegler v. Yee, No. 3:16-cv-2664-WQH-WVG, ECF No. 6 (S.D. 6 Cal. Jan. 18, 2016). That case was dismissed after Plaintiff failed to file an amended 7 complaint to correct his deficient pleadings, despite being granted leave to amend. 8 (Id. ECF Nos. 6, 7.) The instant lawsuit is duplicative of these prior claims and 9 would be subject to sua sponte dismissal as frivolous or malicious. 10 Accordingly, the Court DENIES Plaintiff’s motion to proceed IFP and 11 DISMISSES the Complaint for failure to pay the required filing fee. (ECF No. 1.) 12 13 IT IS SO ORDERED. 14 DATED: February 6, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –3– 18cv144

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