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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 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. 17 18 19 20 21 22 Plaintiff Anthony David Gonsalves, Jr., a state prisoner incarcerated at the California 23 State Prison Solano in Vacaville, California, is proceeding pro se in this 42 U.S.C. § 1983 24 civil rights action. Dkt. 1, Compl. Plaintiff claims that various California state and county 25 officials and entities violated his federal constitutional rights in connection with his arrest, 26 trial, and incarceration. Id. at 1-12. Plaintiff did not pay the civil filing fee required by 28 27 U.S.C. § 1914(a) and has instead filed a motion to proceed in forma pauperis (“IFP”) 28 pursuant to 28 U.S.C. § 1915(a). Dkt. 2. 1 24cv0526-JO-SBC 1 I. MOTION TO PROCEED IFP 2 A party may institute a civil action without prepaying the required filing fee if the 3 Court grants leave to proceed IFP based on indigency. 28 U.S.C. § 1915(a); Andrews v. 4 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed IFP must 5 establish their inability to pay by filing an affidavit regarding their income and assets. See 6 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to establish an 7 inability to pay, the Prison Litigation Reform Act requires submission of “a certified copy 8 of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . the 6- 9 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 10 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 11 Plaintiff has failed to submit a copy of his inmate trust account in support of his IFP 12 Motion. See Dkt. 2. Because Plaintiff has failed to provide the Court with the required 13 document, the Court denies his IFP motion and dismisses this action for failure to prepay 14 the filing fee as required by 28 U.S.C. § 1914(a). 15 16 17 II. DISCUSSION The Court sua sponte examines whether venue for Plaintiff’s claims is proper in the Southern District of California.1 18 A civil action may be brought in “(1) a judicial district in which any defendant 19 resides, if all defendants are residents of the State in which the district is located; [or] (2) a 20 judicial district in which a substantial part of the events or omissions giving rise to the 21 claim occurred, or a substantial part of property that is the subject of the action is 22 situated . . . .” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. 23 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). When a case is filed in an 24 improper venue, the district court of the district where the case was filed may dismiss the 25 26 27 28 1 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). 2 24cv0526-JO-SBC 1 case. See 28 U.S.C. § 1406(a). 2 Upon reviewing Plaintiff’s complaint, it appears none of the alleged misconduct took 3 place within this district and none of the individuals involved reside here. Plaintiff names 4 four state prisons as Defendants in this case and all are located in the Eastern District of 5 California: (1) California State Prison Solano located in Solano County; (2) Folsom State 6 Prison located in Sacramento County; (3) Deuel Vocational Institute located in San Joaquin 7 County; and (4) Pleasant Valley State Prison located in Fresno County. See generally 8 Compl. Plaintiff also names as additional Defendants the Sheriff of Los Angeles County; 9 the Riverside County Sheriff’s Department Swat Teams 1 & 2; the Sacramento County 10 Sheriff’s Department; and the Sacramento Police Department—none of whom are alleged 11 to reside in the Southern District of California. Plaintiff alleges no actions or violations of 12 rights that took place within San Diego or Imperial County, the counties which comprise 13 the Southern District of California. Id.; see 28 U.S.C. § 84(d) (“The Southern District of 14 California comprises the counties of Imperial and San Diego.”). Because none of the 15 events or omissions giving rise to Plaintiff’s claims are alleged to have occurred in either 16 San Diego or Imperial County and because no Defendant resides here, the Court finds 17 venue is not proper in the Southern District. See 28 U.S.C. § 1391(b); Costlow, 790 F.2d 18 at 1488. 19 Accordingly, this action is DISMISSED for failure to prepay the filing fee or qualify 20 to proceed IFP as required by 28 U.S.C. § 1914(a) and for lack of proper venue pursuant 21 to 28 U.S.C. § 1406(a). The dismissal is without prejudice, and Plaintiff may pursue his 22 claims in a Court with proper venue. The Clerk of Court is DIRECTED to close this case. 23 24 IT IS SO ORDERED. Dated: June 3, 2024 25 26 27 Hon. Jinsook Ohta United States District Judge 28 3 24cv0526-JO-SBC

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