Castro v. Santwier

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JUAN MANUEL CASTRO, Case No. 21-CV-853 JLS (LL) CDCR #J-76819, [12] ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. AND DISMISSING CIVIL ACTION [14] RICKARD SANTWIER, 15 (ECF No. 3) Defendant. [17] 18 On April 26, 2020, Plaintiff Juan Manuel Castro, a state prisoner proceeding pro se, 19 filed this civil rights action pursuant to 42 U.S.C. § 1983 . See ECF No. 1 (“Compl.”). The 20 only named Defendant is an attorney, Rickard Santwier, who allegedly practices law in 21 Pasadena, California, and the only allegations in the Complaint consist of rambling, 22 incoherent details of Plaintiff’s life. See id. at 3–5, 8–17. 23 On June 2, 2021, the Court dismissed this action because Plaintiff had failed to: 24 (1) pay the filing fee or submit an application to proceed in forma pauperis (“IFP”); 25 (2) present sufficient facts in the Complaint to determine whether venue is proper in the 26 Southern District of California, as the only Defendant was alleged to reside in the Central 27 District of California; and (3) allege a violation of a right secured by the Constitution or 28 laws of the United States as required to state a claim under 42 U.S.C. § 1983 . See ECF 1 No. 2 (the “Dismissal Order”) at 2–5. The Court found that the interests of justice weighed 2 in favor of dismissal of this action rather than transfer to the Central District because the 3 Complaint was required to be dismissed for failure to satisfy the filing fee requirement and 4 because it was unclear if Plaintiff could ultimately show that venue lies in this District. Id. 5 at 4 (citing 28 U.S.C. § 1406 (a) (“The district court of a district in which is filed a case 6 laying venue in the wrong division or district shall dismiss, or if it be in the interests of 7 justice, transfer such case to any district or division in which it could have been brought.”)). 8 Plaintiff was granted forty-five days’ leave from the date of that order—that is, on 9 or before July 19, 2021—to either pay the civil filing fee or submit an application to 10 proceed in forma pauperis and file a First Amended Complaint curing the defects of 11 pleading identified in the Court’s Dismissal Order. Id. at 5 . The Clerk of the Court was 12 directed to provide Plaintiff with a blank copy of this Court’s in forma pauperis application 13 form for his use if he chose to proceed with this action in this District. Id. Plaintiff was 14 instructed that if he failed to either pay the civil filing fee or file an application to proceed 15 in forma pauperis and file a First Amended Complaint on or before July 19, 2021, it would 16 result in the dismissal of the entire action based on his failure to satisfy the filing fee 17 requirement and/or for improper venue. Id. at 5–6. 18 Plaintiff filed a motion to proceed in forma pauperis on June 17, 2021. See ECF No. 19 3 (“IFP Motion”). Although he has not file a First Amended Complaint as instructed, he 20 filed a letter with the Court on June 29, 2021. See ECF No. 5. 21 MOTION TO PROCEED IN FORMA PAUPERIS 22 Although Plaintiff used the in forma pauperis form provided to him by this Court to 23 file his IFP Motion, he has made no effort to properly fill it out as instructed on the form. 24 See generally IFP Motion. Rather, as with his Complaint, Plaintiff’s IFP Motion contains 25 a rambling, incoherent narrative regarding Plaintiff’s personal history, along with 26 irrelevant attachments, such as a crossword puzzle. See id. at 8 . In any case, the IFP 27 Motion does not include the required certified copy of Plaintiff’s prison inmate trust 28 account statement, which the very form Plaintiff used indicates is a requirement to support 1 a motion to proceed in forma pauperis. See id. at 1 ; see also Andrews v. King, 398 F.3d 2 1113, 1119 (9th Cir. 2005) (holding that, in order to qualify to proceed IFP, prisoners are 3 required to submit “their prison trust account records”) (citing 28 U.S.C. § 1915 (a)(2) (“A 4 prisoner seeking to [proceed in forma pauperis] . . . shall submit a certified copy of the 5 trust fund account statement (or institutional equivalent) for the prisoner for the 6-month 6 period immediately preceding the filing of the complaint.”)). Accordingly, the Court 7 DENIES Plaintiff’s IFP Motion because it does not include a certified copy of his trust 8 fund account statement or an “institutional equivalent” attesting as to his trust account 9 activity and balances for the 6-month period preceding the filing of this action. See 28 10 U.S.C. § 1915 (a)(2); S. D. Cal. CivLR 3.2.b. 11 FAILURE TO AMEND/COMPLY WITH COURT ORDER 12 Although Plaintiff did not file a First Amended Complaint as instructed, he filed a 13 letter with the Court on June 29, 2021. See ECF No. 5. It, too, is essentially incoherent 14 and involves what appears to be a discussion of his criminal conviction in the Central 15 District of California and the conditions of his confinement at Folsom State Prison in the 16 Eastern District of California prior to his recent transfer to his current location at Corcoran 17 State Prison in the Eastern District. Id. at 1–6. Neither of Plaintiff’s two submissions, his 18 letter or his IFP Motion, make any discernable attempt to address or cure the defects of 19 pleading identified in the Court’s June 2, 2021 Dismissal Order. The time set to cure those 20 defects of pleading has now expired, and Plaintiff has failed to file an amended complaint 21 or submit a proper in forma pauperis application in compliance with this Court’s June 2, 22 2021 Dismissal Order. 23 This Court has the discretion sua sponte to dismiss a case for lack of prosecution or 24 failure to comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 25 1986); see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to 26 prosecute or comply with the federal rules or court order). “The failure of the plaintiff 27 eventually to respond to the court’s ultimatum—either by amending the complaint or by 28 indicating to the court that [he] will not do so—is properly met with the sanction of a Rule 1 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058 , 1065 (9th Cir. 2004); see also 2 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 3 of the opportunity to fix his complaint, a district court may convert the dismissal of the 4 complaint into dismissal of the entire action.”). 5 “In determining whether to dismiss a claim for failure to prosecute or failure to 6 comply with a court order, the Court must weigh the following factors: (1) the public’s 7 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 8 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 9 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 11 F.2d 1258 , 1260–61 (9th Cir. 1992)). 12 Here, only factor three does not weigh in favor of dismissal, as the Court has 13 informed Plaintiff of his need to file an amended complaint stating a claim for which venue 14 lies in this Court and to either pay the filing fee or submit a properly supported IFP 15 application in order to proceed with this action and provided him with a blank form and 16 information on how to amend along with ample time in which to do so, yet Plaintiff has 17 failed to take the necessary action, and because the Court has determined that transfer to 18 the Central District is not in the interest of justice. See Yourish v. Cal. Amplifier, 191 F.3d 19 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation 20 always favors dismissal.”); Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best 21 position to determine whether the delay in a particular case interferes with the docket 22 management and the public interest.”); id. at 642 (noting that, where defendants have not 23 appeared, “[w]e have previously recognized that pendency of a lawsuit is not sufficiently 24 prejudicial in and of itself to warrant dismissal”); Nevijel v. North Coast Life Ins. Co., 651 25 F.2d 671, 674 (9th Cir. 1981) (noting that the court is not required to exhaust all alternatives 26 prior to dismissal); In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217 , 27 1227 (9th Cir. 2006) (finding the public policy favoring disposition on the merits does not 28 weigh against dismissal where plaintiff’s “conduct impedes progress in that direction”). l Weighing these factors, the Court finds dismissal appropriate. See Hernandez v. 2 || City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“[W]e may affirm a dismissal where 3 ||at least four factors support dismissal or where at least three factors ‘strongly’ support 4 dismissal.) (internal citation omitted) (quoting Ferdik, 963 F.2d at 1263); see also Rio 5 || Prop., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002) (“While the public 6 || policy favoring disposition of cases on their merits weighs against default judgment, that 7 single factor is not enough to preclude imposition of this sanction when the other four 8 || factors weigh in its favor.”). As noted in the prior Dismissal Order, the Complaint in this 9 ||action does not state a claim and is essentially incoherent. In addition, Plaintiff was 10 ||informed that, to the extent he may be able to state a claim against the only named 11 || Defendant, venue likely lies in the Central District of California, yet he has made no effort 12 indicate he intends to present a claim for which venue lies in this District. 13 CONCLUSION 14 In light of the foregoing, the Court DENIES Plaintiff's motion to proceed in forma 15 || pauperis (ECF No. 3). Further, the Court DISMISSES this civil action in its entirety based 16 |/on Plaintiff's failure to satisfy the filing fee requirement, failure to state a claim upon which 17 relief may be granted, failure to allege facts demonstrating that venue lies in this District, 18 failure to prosecute this action as required by the Court’s June 2, 2021 Order. 19 || Dismissal is WITHOUT PREJUDICE to Plaintiff pursuing his claims in a court with 20 || proper venue. 21 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 22 pursuant to 28 U.S.C. § 1915 (a)(3) and DIRECTS the Clerk of the Court to enter a final 23 ||judgment of dismissal and close the file. 24 IT IS SO ORDERED. 25 ||Dated: August 2, 2021 . tt f te 26 on. Janis L. Sammartino 17 United States District Judge