Ndandu v. Soledad State Prison et al

Filing 4

ORDER Denying Application for Leave to Proceed In Forma Pauperis. Signed by Judge Cathy Ann Bencivengo on 8/30/2024. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TRESOR MALEKA NDANDU,

Case No.: 24-CV-1466-CAB-KSC
Plaintiff,

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v.

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SOLEDAD STATE PRISON, et al.,

ORDER DENYING APPLICATION
FOR LEAVE TO PROCEED IN
FORMA PAUPERIS

Defendants.

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On August 19, 2024, Plaintiff Tresor Maleka Ndandu filed a complaint against

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Defendants Soledad State Prison, Sergeant Hink, two Unidentified Officers (“Unidentified

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Officer 1” and “Unidentified Officer 2”), and “Captain.” Plaintiff did not prepay the civil

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filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, he filed a motion

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to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). [ECF No. 2]. For

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the reasons outlined below, the IFP motion is DENIED.

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I.

Motion to Proceed IFP

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Generally, all parties instituting a civil action in this court must pay a filing fee. See

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28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may

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authorize the commencement, prosecution, or defense of any suit without payment of fees

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if the plaintiff submits an affidavit, including a statement of all his or her assets, showing

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that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP
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24-CV-1466-CAB-KSC

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application is sufficient where it alleges that the affiant cannot pay the court costs and still

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afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).

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“[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness

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and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to

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proceed IFP in civil cases is within the sound discretion of the district court. Venerable v.

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Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted).

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In support of his application, Plaintiff avers that he has no income. Plaintiff lists

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only one asset: a 2013 [Volkswagen Jetta] he claims is worth $3,000. The combined funds

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in his checking accounts are recorded at $0. It is simply not credible to assume that Plaintiff

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has no income or expenses. Plaintiff left Question 11, which allows a movant to provide

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additional details about why they “cannot pay the costs” of the proceedings, blank. On

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another filed document, [ECF No. 3], Plaintiff lists his mailing address at what appears to

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be a residence in San Diego. The Court needs additional details about Plaintiff’s financial

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situation (for example, whether Plaintiff supplements his lack of income with any state-

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provided benefits). Based on the lack of “particularity, definiteness and certainty” in the

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information provided, the Court is not persuaded that Plaintiff lacks the funds to pay the

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filing fee and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234.

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Additionally, the facts alleged by Plaintiff appear to have occurred in Monterey

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County, California, which is in the Northern District of California (the location of Soledad

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State Prison). See Fed. R. Evid. 201. Venue (the judicial district where this lawsuit can be

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decided) is proper in:

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1) a judicial district where any defendant resides, if all defendants reside in
the same State, (2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3) a judicial district in which
any defendant may be found, if there is no district in which the action may
otherwise be brought.

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24-CV-1466-CAB-KSC

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28 U.S.C. § 1391(b). When a case is filed in the wrong venue, the district court “shall

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dismiss, or if it be in the interest of justice, transfer such case to any district or division in

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which it could have been brought.” 28 U.S.C. § 1406(a).

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Plaintiff has not identified where Sergeant Hink, Unidentified Officer 1,

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Unidentified Officer 2, or “Captain” reside. Should this case proceed, if Plaintiff cannot

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identify a single known defendant (such as Sergeant Hink) that resides in the Southern

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District of California (which is limited to San Diego and Imperial Counties), the Court may

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be forced to dismiss this case or transfer Plaintiff’s lawsuit to the Northern District of

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California.

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II.

Conclusion

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Plaintiff’s application to proceed IFP [ECF No. 2] is DENIED without prejudice.

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Plaintiff shall have until Sept. 20, 2024 to either pay the filing fee, or file a new motion to

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proceed IFP that is signed under penalty of perjury and provides with “particularity,

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definiteness, and certainty” the requested information (such as additional details in

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Question 11). If the filing fee is not paid or a renewed motion to proceed IFP is not filed

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by Sept. 20, 2024, the Clerk of the Court shall dismiss the case without prejudice and

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terminate the action. Plaintiff’s motion for appointment of civil counsel is denied as moot

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and without prejudice. [ECF No. 3.]

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Dated: August 30, 2024

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24-CV-1466-CAB-KSC