Gonsalves v. CA et al

Filing 4

ORDER Denying 2 Motion to Proceed in Forma Pauperis and Dismissing Civil Action Without Prejudice for Failing to Prepay Filing Fees Required by 28 U.S.C. § 1914(a) and for Improper Venue Pursuant to 28 U.S.C. § 1406(a). Signed by Judge Jinsook Ohta on 6/3/2024. (All non-registered users served via U.S. Mail Service)(rxc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY DAVID GONSALVES, JR.,
CDCR #BV-1374,

Case No.: 24cv0526-JO-SBC
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILING TO PREPAY FILING
FEES REQUIRED BY 28 U.S.C.
§ 1914(a) AND FOR IMPROPER
VENUE PURSUANT TO 28 U.S.C.
§ 1406(a)

Plaintiff,
vs.
STATE OF CALIFORNIA, et al.,
Defendants.

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Plaintiff Anthony David Gonsalves, Jr., a state prisoner incarcerated at the California

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State Prison Solano in Vacaville, California, is proceeding pro se in this 42 U.S.C. § 1983

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civil rights action. Dkt. 1, Compl. Plaintiff claims that various California state and county

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officials and entities violated his federal constitutional rights in connection with his arrest,

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trial, and incarceration. Id. at 1-12. Plaintiff did not pay the civil filing fee required by 28

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U.S.C. § 1914(a) and has instead filed a motion to proceed in forma pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a). Dkt. 2.
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24cv0526-JO-SBC

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I. MOTION TO PROCEED IFP

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A party may institute a civil action without prepaying the required filing fee if the

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Court grants leave to proceed IFP based on indigency. 28 U.S.C. § 1915(a); Andrews v.

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Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed IFP must

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establish their inability to pay by filing an affidavit regarding their income and assets. See

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Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to establish an

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inability to pay, the Prison Litigation Reform Act requires submission of “a certified copy

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of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . the 6-

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month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).

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Plaintiff has failed to submit a copy of his inmate trust account in support of his IFP

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Motion. See Dkt. 2. Because Plaintiff has failed to provide the Court with the required

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document, the Court denies his IFP motion and dismisses this action for failure to prepay

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the filing fee as required by 28 U.S.C. § 1914(a).

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II. DISCUSSION
The Court sua sponte examines whether venue for Plaintiff’s claims is proper in the
Southern District of California.1

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A civil action may be brought in “(1) a judicial district in which any defendant

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resides, if all defendants are residents of the State in which the district is located; [or] (2) a

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judicial district in which a substantial part of the events or omissions giving rise to the

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claim occurred, or a substantial part of property that is the subject of the action is

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situated . . . .” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v.

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Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). When a case is filed in an

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improper venue, the district court of the district where the case was filed may dismiss the

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Venue may be raised by a court sua sponte where the defendant has not yet filed a responsive
pleading and the time for doing so has not run. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir.
1986).
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24cv0526-JO-SBC

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case. See 28 U.S.C. § 1406(a).

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Upon reviewing Plaintiff’s complaint, it appears none of the alleged misconduct took

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place within this district and none of the individuals involved reside here. Plaintiff names

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four state prisons as Defendants in this case and all are located in the Eastern District of

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California: (1) California State Prison Solano located in Solano County; (2) Folsom State

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Prison located in Sacramento County; (3) Deuel Vocational Institute located in San Joaquin

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County; and (4) Pleasant Valley State Prison located in Fresno County. See generally

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Compl. Plaintiff also names as additional Defendants the Sheriff of Los Angeles County;

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the Riverside County Sheriff’s Department Swat Teams 1 & 2; the Sacramento County

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Sheriff’s Department; and the Sacramento Police Department—none of whom are alleged

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to reside in the Southern District of California. Plaintiff alleges no actions or violations of

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rights that took place within San Diego or Imperial County, the counties which comprise

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the Southern District of California. Id.; see 28 U.S.C. § 84(d) (“The Southern District of

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California comprises the counties of Imperial and San Diego.”). Because none of the

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events or omissions giving rise to Plaintiff’s claims are alleged to have occurred in either

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San Diego or Imperial County and because no Defendant resides here, the Court finds

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venue is not proper in the Southern District. See 28 U.S.C. § 1391(b); Costlow, 790 F.2d

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at 1488.

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Accordingly, this action is DISMISSED for failure to prepay the filing fee or qualify

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to proceed IFP as required by 28 U.S.C. § 1914(a) and for lack of proper venue pursuant

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to 28 U.S.C. § 1406(a). The dismissal is without prejudice, and Plaintiff may pursue his

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claims in a Court with proper venue. The Clerk of Court is DIRECTED to close this case.

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IT IS SO ORDERED.
Dated: June 3, 2024

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Hon. Jinsook Ohta
United States District Judge

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24cv0526-JO-SBC