“[T]he provisions of 4 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”
How later courts described this case
- “[T]he provisions of 4 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”
- establishing that a pro se 8 litigant need only satisfy a “low threshold” to “proceed past the screening stage”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ROBERT EMERT, Case No.: 24-cv-00671
12 Plaintiff,
ORDER GRANTING IFP,
13 v. SCREENING COMPLAINT,
DENYING MOTION FOR
14 SAN DIEGO BOARD OF
MISCELLANEOUS RELIEF, &
SUPERVISORS, COUNTY OF SAN
15 ORDERING MARSHAL SERVICE
DIEGO, DAWN BALERIO DDA
16 ACTING IN HIS OFFICIAL
CAPACITY, AND DAI LUIS PENA
17
ACTING IN HER OFFICIAL
18 CAPACITY,
19 Defendants.
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22 On April 12, 2024, pro se Plaintiff Robert Emert filed a complaint alleging that
23 Defendants violated his constitutional rights and state law in conducting his arrest and
24 denying him bail. Along with his complaint, Plaintiff filed a motion for leave to proceed
25 in forma pauperis (“IFP”). Dkt. 2. On August 5, 2024, Plaintiff filed an amended motion
26 for IFP, Dkt. 3, and a motion for miscellaneous relief including consolidated expedited
27 review by a single three-judge panel, pre-discovery, an evidentiary hearing, and an early
28 case management conference, Dkt. 4. For the reasons set forth below, the Court grants
1 Plaintiff’s motion for IFP, permits his complaint to proceed, and denies his motions for
2 miscellaneous relief.
3 I. DISCUSSION
4 A. Motion to Proceed IFP
5 Plaintiff has not prepaid the civil filing fee and instead has requested to proceed IFP.
6 Dkts. 2, 3. A claimant instituting a case in a federal district court must pay a filing fee of
7 $405. 28 U.S.C. § 1914(a); Local Civ. R. 4.5. However, a district court may waive the
8 filing fee by granting the claimant leave to proceed IFP. 28 U.S.C. § 1915(a)(1). To
9 proceed IFP, a claimant must submit an affidavit that includes a statement of all assets and
10 demonstrates an inability to pay the filing fee. 28 U.S.C. § 1915(a); see also Local Civ. R.
11 3.2. An affidavit is “sufficient where it alleges that the plaintiff cannot pay the court costs
12 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
13 Cir. 2015) (citation omitted). “The granting or refusing of permission to proceed [IFP] is
14 a matter committed to the sound discretion of the district court.” Skelly v. U.S. Dep’t of
15 Educ., No. 19-1812, 2019 WL 6840398, at *2 (S.D. Cal. Dec. 16, 2019) (quoting Smart v.
16 Heinze, 347 F.2d 114, 116 (9th Cir. 1965)).
17 In support of his IFP motion, Plaintiff has filed an affidavit explaining his financial
18 circumstances and inability to pay. Dkts. 2, 3. He indicates that he has no source of income
19 nor any assets and that he relies on his family to provide his housing and basic living
20 expenses. Id. Lastly, Plaintiff attests that he receives public benefits, including MediCal
21 and SNAP. Id. Accordingly, the Court finds that the affidavit has “sufficiently show[n]
22 that he lacks the financial resources to pay filing fees.” Dillard v. So, No. 12-2958, 2013
23 WL 4857692, at *1 (S.D. Cal. Sept. 11, 2013). Accordingly, the Court GRANTS
24 Plaintiff’s motion to proceed IFP pursuant to 28 U.S.C. § 1915(a).
25 B. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)
26 Because Plaintiff is granted leave to proceed IFP, his complaint must undergo a sua
27 sponte screening for dismissal. A complaint filed by any person proceeding IFP pursuant
28 to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by
1 the court to the extent it is frivolous, malicious, fails to state a claim upon which relief may
2 be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C.
3 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of
4 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). After screening his complaint,
5 the Court finds that Plaintiff has met the low threshold requirement for pleading various
6 constitutional violations and related state law claims and thus, may proceed in this matter.
7 See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (establishing that a pro se
8 litigant need only satisfy a “low threshold” to “proceed past the screening stage”) (internal
9 citation and quotation marks omitted).
10 C. Other Motions
11 Plaintiff has also filed a motion for “consolidated expedited review by a single three-
12 judge panel, pre-discovery, evidentiary hearing, and early case management.” Dkt. 4.
13 However, these are all separate requests that the Court will address in turn.
14 1. Plaintiff wishes to consolidate this case with his other case, Emert v. Schuck et al.,
15 24-cv-00002-AGS-AHG. However, this request is DENIED as moot given that this
16 other case has already been closed.
17 2. Plaintiff’s other requests are denied for lack of good cause.
18 II. CONCLUSION
19 For the reasons explained above, the Court GRANTS Plaintiff’s IFP motion [Dkts.
20 2, 3], PERMITS Plaintiff’s complaint to proceed, and DENIES Plaintiff’s motion for
21 miscellaneous relief [Dkt. 4].
22 In addition, the Court:
23 1. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff's Complaint
24 (ECF No. 1) upon Defendants and to forward it to Plaintiff along with a blank U.S.
25 Marshal Form 285 for the named Defendants. In addition, the Clerk will provide
26 Plaintiff with certified copies of this Order, his Complaint, and the summons
27 (together, the “IFP Package”) so that he may serve Defendants. Upon receipt of this
28 “IFP Package,” Plaintiff must complete the USM Form 285 as completely and
l accurately as possible, include addresses where Defendants may be found and/or
2 subject to service pursuant to S.D. Cal. CivLR 4.1c., and return it to the United States
3 Marshal according to the instructions the Clerk provides.
4 2. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons upon
5 Defendants San Diego Board of Supervisors, County of San Diego, Dawn Balerio,
6 and Dai Luis as directed by Plaintiff on the USM Form 285s provided, and to file
7 executed waivers of personal service upon Defendants with the Clerk of Court as
8 soon as possible after its return. Should Defendants fail to return the U.S. Marshal’s
9 request for waiver of personal service within 90 days, the U.S. Marshal shall instead
10 file the completed Form USM 285 Process Receipt and Return with the Clerk of
11 Court, include the date the summons, Complaint and request for waiver was mailed
12 to Defendants, and indicate why service upon the party remains unexecuted. All
13 costs of that service will be advanced by the United States; however, if Defendants
14 are located within the United States and fails, without good cause, to sign and return
15 the waiver requested by the Marshal on Plaintiff's behalf, the Court will impose
16 upon Defendants any expenses later incurred in making personal service. See 28
17 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
18 3. ORDERS Defendants, once served, to reply to Plaintiff's Complaint, and any
19 subsequent pleading he may file in this matter in which they are named as parties,
20 within the time provided by the applicable provisions of Federal Rule of Civil
21 Procedure 12(a).
22 ISSO ORDERED.
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24 || Dated: October 21, 2024
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27 “Tinsook Ohta
28 United States District Judge